Exhibit 4.6


 


FORM OF SUBORDINATED INDENTURE


 


ENERNOC, INC.,


 


ISSUER


 


and


 


[                                       
],


 


TRUSTEE


 


 


INDENTURE


 


Dated as of [                   
], 200[   ]


 


 


Subordinated Debt Securities


 

















 


CROSS-REFERENCE TABLE(1)


 


	
  Section of

  	
   

  	
   

  
	
  Trust
  Indenture Act

  	
   

  	
  Section of

  
	
  of
  1939, as amended

  	
   

  	
  Indenture

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08,
  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13

  
	
  311(b)

  	
   

  	
  7.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.01,
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(c)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a),
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(b),
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03,
  13.05(c)

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.05

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.05

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(b),
  7.02

  
	
  315(b)

  	
   

  	
  5.04(d)

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01,
  7.02

  
	
  315(e)

  	
   

  	
  6.07

  
	
  316(a)

  	
   

  	
  6.06,
  8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  3.06

  



 






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


 

















 


TABLE OF CONTENTS(2)


 






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


 

















 


INDENTURE,
dated as of [     ], 200[  ], between EnerNOC, Inc.,
a Delaware corporation (the “Company”), and [     ],
as trustee (the “Trustee”):


 


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


 


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


 


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


 


NOW,
THEREFORE, in consideration of the premises and the purchase of the


 


Securities
by the holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the holders of Securities:


 


ARTICLE I


 


DEFINITIONS


 


SECTION 1.01       Definitions
of Terms.


 


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


 


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


 


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


 


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


 

















 


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


 


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


 


“Certificate”
means a certificate signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company. The
Certificate need not comply with the provisions of Section 13.05.


 


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


 


“Corporate
Trust Office” means the office of the Trustee at which, at any particular time,
its corporate trust business shall be principally administered, which office at
the date hereof is located at [     ], except that
whenever a provision herein refers to an office or agency of the Trustee in the
Borough of Manhattan, The City of New York, such office is located, at the date
hereof, at [     ].


 


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


 


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


 


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


 


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


 


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


 


“Governmental
Obligations” means securities that are (i) direct obligations of the
United States of America for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and
acting as an agency or 


 


2

















 


instrumentality
of the United States of America, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America that, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such Governmental Obligation or a
specific payment of principal of or interest on any such Governmental
Obligation held by such custodian for the account of the holder of such
depositary receipt; provided, however, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the custodian
in respect of the Governmental Obligation or the specific payment of principal
of or interest on the Governmental Obligation evidenced by such depositary
receipt.


 


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


 


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof.


 


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


 


“Officers’
Certificate” means a certificate signed by the Chief Executive Officer or the
President or a Senior Vice President and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary of the Company that is delivered to
the Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 13.05, if and to the extent
required by the provisions thereof.


 


“Opinion
of Counsel” means an opinion in writing of legal counsel, who may be an
employee of or counsel for the Company, that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 13.05, if and to the extent required by
the provisions thereof.


 


“Outstanding,”
when used with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all Securities of
that series theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Securities theretofore canceled by the Trustee or
any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or
portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Securities or portions
of such Securities 


 


3

















 


are
to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as in Article Three provided, or provision satisfactory to
the Trustee shall have been made for giving such notice; and (c) Securities
in lieu of or in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.07.


 


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


 


“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 2.07 in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the lost, destroyed or
stolen Security.


 


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


 


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


 


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


 


“Senior
Indebtedness” means indebtedness issued pursuant to a senior indenture, as
supplemented or amended by one or more indentures supplemental thereto, payment
of which shall be senior to the payment of the Securities issued hereunder,
pursuant to Section 14 hereof.


 


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


 


“Trustee”
means [     ], and, subject to the provisions of Article Seven,
shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder, “Trustee” shall mean
each such Person. The term “Trustee” 


 


4

















 


as
used with respect to a particular series of the Securities shall mean the
trustee with respect to that series.


 


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


 


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


 


5

















 


ARTICLE II


 


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


 


SECTION 2.01                                            Designation and
Terms of Securities.


 


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


 


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


 


(2)           any
limit upon the aggregate principal amount of the Securities of that series that
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of that series);


 


(3)           the
date or dates on which the principal of the Securities of the series is payable
and the place(s) of payment;


 


(4)           the
rate or rates at which the Securities of the series shall bear interest or the
manner of calculation of such rate or rates, if any;


 


(5)           the
date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest will be payable or the manner of determination of such
Interest Payment Dates, the place(s) of payment, and the record date for
the determination of holders to whom interest is payable on any such Interest
Payment Dates;


 


(6)           the
right, if any, to extend the interest payment periods and the duration of such
extension;


 


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


 


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


 


6

















 


(9)           the
form of the Securities of the series including the form of the certificate of
authentication for such series;


 


(10)         if
other than denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, the denominations in which the Securities of the series shall
be issuable;


 


(11)         any
and all other terms with respect to such series (which terms shall not be
inconsistent with the terms of this Indenture, as amended by any supplemental
indenture) including any terms which may be required by or advisable under
United States laws or regulations or advisable in connection with the marketing
of Securities of that series;


 


(12)         whether
the Securities are issuable as a Global Security and, in such case, the
identity of the Depositary for such series;


 


(13)         whether
the Securities will be convertible into shares of common stock or other
securities of the Company and, if so, the terms and conditions upon which such
Securities will be so convertible, including the conversion price and the
conversion period;


 


(14)         if
other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01;


 


(15)         the
subordination terms of the Securities of the series; and


 


(16)         any
additional or different Events of Default or restrictive covenants provided for
with respect to the Securities of the series.


 


All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to any such
Board Resolution or in any indentures supplemental hereto.


 


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


 


Securities
of any particular series may be issued at various times, with different dates
on which the principal or any installment of principal is payable, with
different rates of interest, if any, or different methods by which rates of
interest may be determined, with different dates on which such interest may be
payable and with different redemption dates.


 


7














 


SECTION 2.02               Form of Securities and
Trustee’s Certificate.


 


The
Securities of any series and the Trustee’s certificate of authentication to be
borne by such Securities shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as provided in a Board
Resolution and as set forth in an Officers’ Certificate and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which Securities of that series may be listed, or to conform
to usage.


 


SECTION 2.03               Denominations; Provisions for
Payment.


 


The
Securities shall be issuable as registered Securities and in the denominations
of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject
to Section 2.01(10). The Securities of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Securities of any series, as
well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America that
at the time is legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
the City and State of New York. Each Security shall be dated the date of its
authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.


 


The
interest installment on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and the
redemption date is subsequent to a regular record date with respect to any
Interest Payment Date and prior to such Interest Payment Date, interest on such
Security will be paid upon presentation and surrender of such Security as
provided in Section 3.03.


 


Any
interest on any Security that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date for Securities of the same series
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of having been
such holder; and such Defaulted Interest shall be paid by the Company, at its
election, as provided in clause (1) or clause (2) below:


 


(1)           The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company 


 


8

















 


shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered on such
special record date.


 


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


 


Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.01 hereof, the term “regular record date” as used in this Section with
respect to a series of Securities with respect to any Interest Payment Date for
such series shall mean either the fifteenth day of the month immediately
preceding the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the fifteenth day of a month, whether or not such date
is a Business Day.


 


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


 


SECTION 2.04               Execution and Authentications.


 


The
Securities shall be signed on behalf of the Company by its Chief Executive
Officer or its President, or one of its Senior Vice Presidents, or its
Treasurer, or one of its 


 


9

















 


Assistant
Treasurers, or its Secretary, or one of its Assistant Secretaries, under its
corporate seal attested by its Secretary or one of its Assistant Secretaries.
Signatures may be in the form of a manual or facsimile signature. The Company
may use the facsimile signature of any Person who shall have been a Chief
Executive Officer or a President or Senior Vice President thereof, or of any
Person who shall have been a Secretary or Assistant Secretary thereof,
notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to be the Chief
Executive Officer or the President or a Senior Vice President, or the Secretary
or an Assistant Secretary, of the Company. The seal of the Company may be in
the form of a facsimile of such seal and may be impressed, affixed, imprinted
or otherwise reproduced on the Securities. The Securities may contain such
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication by the
Trustee.


 


A
Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall
be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of such
Securities, signed by its Chief Executive Officer or its President or any
Senior Vice President and its Secretary or any Assistant Secretary, and the
Trustee in accordance with such written order shall authenticate and deliver
such Securities.


 


In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture.


 


The
Trustee shall not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.


 


SECTION 2.05               Registration of Transfer and
Exchange.


 


(a)           Securities of any series may be exchanged upon
presentation thereof at the office or agency of the Company designated for such
purpose in the Borough of Manhattan, the City and State of New York, for other
Securities of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In
respect of any Securities so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall deliver
in exchange therefor the Security or Securities of the same series that the 


 


10

















 


Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.


 


(b)           The Company shall keep, or cause to be kept, at its office
or agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a register
or registers (herein referred to as the “Security Register”) in which, subject
to such reasonable regulations as it may prescribe, the Company shall register the
Securities and the transfers of Securities as in this Article provided and
which at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Securities and transfer of Securities
as herein provided shall be appointed as authorized by a Board Resolution (the “Security
Registrar”).


 


Upon
surrender for transfer of any Security at the office or agency of the Company
designated for such purpose, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as
the Security presented for a like aggregate principal amount.


 


All
Securities presented or surrendered for exchange or registration of transfer,
as provided in this Section, shall be accompanied (if so required by the
Company or the Security Registrar) by a written instrument or instruments of
transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder’s duly authorized attorney
in writing.


 


(c)           No service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities in case of
partial redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, Section 3.03(b) and
Section 9.04 not involving any transfer.


 


(d)           The Company shall not be required (1) to issue,
exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series and
ending at the close of business on the day of such mailing, nor (2) to
register the transfer of or exchange any Securities of any series or portions
thereof called for redemption. The provisions of this Section 2.05 are,
with respect to any Global Security, subject to Section 2.11 hereof.


 


SECTION 2.06               Temporary Securities.


 


Pending
the preparation of definitive Securities of any series, the Company may
execute, and the Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized denomination. Such
temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every temporary 


 


11

















 


Security
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such
series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose in the Borough of
Manhattan, the City and State of New York, and the Trustee shall authenticate
and such office or agency shall deliver in exchange for such temporary
Securities an equal aggregate principal amount of definitive Securities of such
series, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the
Company. Until so exchanged, the temporary Securities of such series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.


 


SECTION 2.07               Mutilated, Destroyed, Lost or
Stolen Securities.


 


In
case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request, the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same
upon the written request or authorization of any officer of the Company. Upon
the issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. In case any Security that has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a
mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save
each of them harmless, and, in case of destruction, loss or theft, evidence to
the satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Security and of the ownership thereof.


 


Every
replacement Security issued pursuant to the provisions of this Section shall
constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time,
or be enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder. All Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, 


 


12

















 


destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) any and
all other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.


 


SECTION 2.08               Cancellation.


 


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


 


SECTION 2.09               Benefits of Indenture.


 


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


 


SECTION 2.10               Authenticating Agent.


 


So
long as any of the Securities of any series remain Outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee
shall have the right to appoint. Said Authenticating Agent shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series
issued upon exchange, transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to the
Company and shall be a corporation that has a combined capital and surplus, as
most recently reported or determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or 


 


13

















 


examination
by Federal or State authorities. If at any time any Authenticating Agent shall
cease to be eligible in accordance with these provisions, it shall resign
immediately.


 


Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
to the Company. Upon resignation, termination or cessation of eligibility of
any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder as if originally named
as an Authenticating Agent pursuant hereto.


 


SECTION 2.11               Global Securities.


 


(a)           If the Company shall establish pursuant to Section 2.01
that the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 2.04, authenticate and deliver, a Global Security that (1) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series, (2) shall
be registered in the name of the Depositary or its nominee, (3) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction and (4) shall bear a legend substantially to the following
effect: “Except as otherwise provided in Section 2.11 of the Indenture,
this Security may be transferred, in whole but not in part, only to another
nominee of the Depositary or to a successor Depositary or to a nominee of such
successor Depositary.”


 


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


 


(c)           If at any time the Depositary for a series of the
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act, or
other applicable statute or regulation, and a successor Depositary for such
series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
this Section 2.11 shall no longer be applicable to the Securities of such
series and the Company will execute and, subject to Section 2.05, the
Trustee will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the provisions of this Section 2.11
shall no longer apply to the Securities of such series. In such event the
Company will 


 


14

















 


execute and, subject to Section 2.05, the
Trustee, upon receipt of an Officers’ Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form
without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee. Such Securities in definitive registered form issued
in exchange for the Global Security pursuant to this Section 2.11(c) shall
be registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.


 


ARTICLE III


 


REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS


 


SECTION 3.01               Redemption.


 


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


 


SECTION 3.02               Notice of Redemption.


 


(a)           In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Securities of any series in
accordance with the right reserved so to do, the Company shall, or shall cause
the Trustee to, give notice of such redemption to holders of the Securities of
such series to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 90 days before the date
fixed for redemption of that series to such holders at their last addresses as
they shall appear upon the Security Register unless a shorter period is
specified in the Securities to be redeemed. Any notice that is mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any case, failure
duly to give such notice to the holder of any Security of any series designated
for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers’ Certificate evidencing
compliance with any such restriction.


 


Each
such notice of redemption shall specify the date fixed for redemption and the
redemption price at which Securities of that series are to be redeemed, and
shall state that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company in the Borough of Manhattan,
the City and State of 


 


15

















 


New
York, upon presentation and surrender of such Securities, that interest accrued
to the date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the redemption
is for a sinking fund, if such is the case. If less than all the Securities of
a series are to be redeemed, the notice to the holders of Securities of that
series to be redeemed in whole or in part shall specify the particular
Securities to be so redeemed. In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the portion of the
principal amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will
be issued.


 


(b)           If less than all the Securities of a series are to be redeemed,
the Company shall give the Trustee at least 45 days’ notice in advance of the
date fixed for redemption as to the aggregate principal amount of Securities of
the series to be redeemed, and thereupon the Trustee shall select, by lot or in
such other manner as it shall deem appropriate and fair in its discretion and
that may provide for the selection of a portion or portions (equal to one
thousand U.S. dollars ($1,000) or any integral multiple thereof) of the
principal amount of such Securities of a denomination larger than $1,000, the
Securities to be redeemed and shall thereafter promptly notify the Company in
writing of the numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by its Chief Executive Officer or its President or any
Senior Vice President, instruct the Trustee or any paying agent to call all or
any part of the Securities of a particular series for redemption and to give
notice of redemption in the manner set forth in this Section, such notice to be
in the name of the Company or its own name as the Trustee or such paying agent
may deem advisable. In any case in which notice of redemption is to be given by
the Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as
the case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.


 


SECTION 3.03               Payment Upon Redemption.


 


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


 


16

















 


be payable to the registered holder at the
close of business on the applicable record date pursuant to Section 2.03).


 


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


 


SECTION 3.04               Sinking Fund.


 


The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such series.


 


The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “mandatory sinking fund
payment,” and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an “optional sinking
fund payment”. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.


 


SECTION 3.05               Satisfaction of Sinking Fund
Payments with Securities.


 


The
Company (a) may deliver Outstanding Securities of a series (other than any
Securities previously called for redemption) and (b) may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities, provided that such Securities have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the redemption price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.


 


SECTION 3.06               Redemption of Securities for
Sinking Fund.


 


Not
less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities of that series pursuant to Section 3.05
and the basis for such credit and will, together with such Officers’
Certificate, deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the



 


17

















 


manner
specified in Section 3.02 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 3.02. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in Section 3.03.


 


ARTICLE IV


 


COVENANTS


 


SECTION 4.01               Payment of Principal, Premium and
Interest.


 


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


 


SECTION 4.02               Maintenance of Office or Agency.


 


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


 


SECTION 4.03               Paying Agents.


 


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


 


(1)           that it will hold all sums held by it as such agent for
the payment of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it by the
Company or by any other obligor of such Securities) in trust for the benefit of
the Persons entitled thereto;


 


(2)           that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Securities) to make any payment of the
principal of (and 


 


18

















 


premium, if any) or interest on the
Securities of that series when the same shall be due and payable;


 


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


 


(4)           that it will perform all other duties of paying agent as
set forth in this Indenture.


 


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


 


(c)           Notwithstanding anything in this Section to the
contrary, (1) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (2) the Company may
at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or direct any paying agent to
pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and, upon
such payment by any paying agent to the Trustee, such paying agent shall be
released from all further liability with respect to such money.


 


SECTION 4.04               Appointment to Fill Vacancy in
Office of Trustee.


 


The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee,
so that there shall at all times be a Trustee hereunder.


 


19














 


ARTICLE V


 


SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE


 


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


 


The Company will furnish
or cause to be furnished to the Trustee (a) on each regular record date
(as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series of
Securities as of such regular record date, provided that the Company shall not
be obligated to furnish or cause to be furnished such list at any time that the
list shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished; provided, however, that, in either
case, no such list need be furnished for any series for which the Trustee shall
be the Security Registrar.


 


SECTION 5.02               Preservation Of Information;
Communications With Securityholders.


 


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


 


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


 


(c)           Securityholders may communicate as
provided in Section 312(b) of the Trust Indenture Act with other
Securityholders with respect to their rights under this Indenture or under the
Securities. The Company, the Trustee, the Security Registrar and any other
Person shall have the protection of the Trust Indenture Act
Section 312(c).


 


SECTION 5.03               Reports by the Company.


 


(a)           The Company covenants and agrees 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) that the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic 


 


20

















 


information, documents and reports that may be required pursuant to
Section 13 of the Exchange Act, in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations.


 


(b)           The Company covenants and agrees to file
with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.


 


(c)           The Company covenants and agrees to
transmit by mail, first class postage prepaid, or reputable overnight delivery
service that provides for evidence of receipt, to the Securityholders, as their
names and addresses appear upon the Security Register, 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 by rules and
regulations prescribed from time to time by the Commission.


 


SECTION 5.04               Reports by the Trustee.


 


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


 


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


 


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


 


(d)           If an Event of Default occurs and is
continuing and the Trustee receives actual notice of such Event of Default, the
Trustee shall mail to each Securityholder notice of the uncured Event of
Default within 90 days after the occurrence thereof. Except in the case of an
Event of Default in payment of principal of, or interest on, any Securities, or
in the payment of any sinking or purchase fund installment, the Trustee may
withhold the notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Securityholders.


 


21

















 


ARTICLE VI


 


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT


 


SECTION 6.01               Events of Default.


 


(a)           Whenever used herein with respect to
Securities of a particular series, “Event of Default” means any one or more of
the following events that has occurred and is continuing:


 


(1)           the Company defaults in the payment of
any installment of interest upon any of the Securities of that series, as and
when the same shall become due and payable, and such default continues for a
period of 90 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any indenture
supplemental hereto, shall not constitute a default in the payment of interest
for this purpose;


 


(2)           the Company defaults in the payment of
the principal of (or premium, if any, on) any of the Securities of that series
as and when the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by any sinking
or analogous fund established with respect to that series; provided, however,
that a valid extension of the maturity of such Securities in accordance with
the terms of any indenture supplemental hereto shall not constitute a default
in the payment of principal or premium, if any;


 


(3)           the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained
in this Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series) for a
period of 90 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is a “Notice of
Default” hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the holders
of at least 25% in principal amount of the Securities of that series at the
time Outstanding;


 


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


 


(5)           a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the
Company in an involuntary case, (ii) appoints a Custodian of the Company
for all or substantially all of its property or (iii) orders the
liquidation of the Company, and the order or decree remains unstayed and in
effect for 90 days.


 


(b)           In each and every such case, unless the
principal of all the Securities of that series shall have already become due
and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then 


 


22

















 


Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders), may declare the principal of all the
Securities of that series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable.


 


(c)           At any time after the principal of the
Securities of that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the holders of a majority in
aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if: (1) the Company has paid
or deposited with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of that series and the principal of (and
premium, if any, on) all Securities of that series that shall have become due
otherwise than by acceleration (with interest upon such principal and premium,
if any, and, to the extent that such payment is enforceable under applicable law,
upon overdue installments of interest, at the rate per annum expressed in the
Securities of that series to the date of such payment or deposit) and any
amount payable to the Trustee under Section 7.06, and (2) any and all
other Events of Default under the Indenture with respect to such series, other
than the nonpayment of principal on Securities of that series that shall not
have become due by their terms, shall have been remedied or waived as provided
in Section 6.06.


 


No such rescission and
annulment shall extend to or shall affect any subsequent default or impair any
right consequent thereon.


 


23

















 


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


 


SECTION 6.02               Suits for Enforcement by Trustee.


 


(a)           If an Event of Default specified in
Section 6.01(a)(1) or (2) hereof occurs and is continuing, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or other obligor upon the Securities of that
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or other obligor upon the
Securities of that series, wherever situated.


 


(b)           In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may be
otherwise provided by law) be entitled to file such proofs of claim and other
papers and documents as may be necessary or advisable in order to have the
claims of the Trustee and of the holders of Securities of a series allowed for
the entire amount due and payable by the Company under this Indenture at the
date of institution of such proceedings and for any additional amount that may
become due and payable by the Company after such date, and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to distribute the same after the deduction of the amount payable to the
Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Securityholders, to pay to the Trustee any amount due it under
Section 7.06.


 


(c)           All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect
to Securities of a series, may be enforced by the Trustee without the possession
of any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for payment to the Trustee of
any amounts due under Section 7.06, be for the ratable benefit of the
holders of the Securities of such series.


 


24

















 


In case of an Event of
Default hereunder, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in
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.


 


Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series
or the rights of any holder thereof or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.


 


SECTION 6.03               Application of Moneys Collected.


 


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


 


FIRST: To the payment of
costs and expenses of collection and of all amounts payable to the Trustee
under Section 7.06;


 


SECOND: To the payment of
all Senior Indebtedness of the Company if and to the extent required by
Article Fourteen; and


 


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


 


SECTION 6.04               Limitation on Suits.


 


No holder of any Security
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless (a) such
holder previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default, as hereinbefore provided; (b) the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as trustee
hereunder; (c) such holder or holders shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to 


 


25

















 


be incurred therein or
thereby; (d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any such action,
suit or proceeding; and (e) during such 60-day period, the holders of a
majority in principal amount of the Securities of that series shall not have
given the Trustee a direction inconsistent with the request.


 


Notwithstanding anything
contained herein to the contrary, the right of any holder of any Security to
receive payment of the principal of (and premium, if any) and interest on such
Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without
the consent of such holder. By accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such
series with every other such taker and holder and the Trustee, that no one or
more holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.


 


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


 


(a)           All powers and remedies given by this
Article to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and remedies available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.


 


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


 


SECTION 6.06               Control by Securityholders.


 


The holders of a majority
in aggregate principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.01, shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to such series; provided, however, that such direction
shall not be in conflict with 


 


26

















 


any rule of law or
with this Indenture or be unduly prejudicial to the rights of holders of
Securities of any other series at the time Outstanding determined in accordance
with Section 8.01. Subject to the provisions of Section 7.01, the
Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.01, may on behalf of the holders
of all of the Securities of such series waive any past default in the
performance of any of the covenants contained herein or established pursuant to
Section 2.01 with respect to such series and its consequences, except an
uncured default in the payment of the principal of (or premium, if any) or
interest on, any of the Securities of that series as and when the same shall
become due by the terms of such Securities otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 6.01(c)). Upon any such waiver,
the default covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the Securities
of such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.


 


SECTION 6.07               Undertaking to Pay Costs.


 


All parties to this
Indenture agree, and each holder of any Securities by such holder’s acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.


 


ARTICLE VII


 


CONCERNING THE TRUSTEE


 


SECTION 7.01               Certain Duties and Responsibilities of
Trustee.


 


(a)           The Trustee, prior to the occurrence of an
Event of Default with respect to the Securities of a series and after the
curing of all Events of Default with respect to the Securities of that series
that may have occurred, shall undertake to perform with respect 


 


27

















 


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


 


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


 


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


 


(i)            the duties and obligations of the Trustee shall with
respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect
to the Securities of such series except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and


 


(ii)           in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Securities of such series
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;


 


(2)           the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;


 


(3)           the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a majority in
principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture with respect to the Securities of that
series; and


 


(4)           none of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or liability
is 


 


28

















 


not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it.


 


SECTION 7.02               Certain Rights of Trustee.


 


Except as otherwise
provided in Section 7.01:


 


(a)           The Trustee may rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;


 


(b)           Any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company, by the Chief
Executive Officer or the President or any Senior Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof
(unless other evidence in respect thereof is specifically prescribed herein);


 


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


 


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


 


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


 


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


 


29

















 


the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and


 


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


 


SECTION 7.03               Trustee Not Responsible for Recitals or
Issuance or Securities.


 


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


 


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


 


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


 


SECTION 7.04               May Hold Securities.


 


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


 


SECTION 7.05               Moneys Held in Trust.


 


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


 


SECTION 7.06               Compensation and Reimbursement.


 


(a)           The Company covenants and agrees to pay
to the Trustee, and the Trustee shall be entitled to, such reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), as the Company and the
Trustee may from time to time agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and,
except as otherwise expressly provided herein, the Company will pay or
reimburse the Trustee


 


30














 


upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim of liability in the premises.


 


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


 


SECTION 7.07               Reliance on Officers’ Certificate.


 


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


 


SECTION 7.08               Disqualification; Conflicting Interests.


 


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


 


SECTION 7.09               Corporate Trustee Required; Eligibility.


 


There
shall at all times be a Trustee with respect to the Securities issued hereunder
which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining 


 


31

















 


authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by or under
common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.


 


SECTION 7.10               Resignation and Removal; Appointment of Successor.


 


(a)           The
Trustee or any successor hereafter appointed, may at any time resign with
respect to the Securities of one or more series by giving written notice
thereof to the Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Securityholders of such series, as their names
and addresses appear upon the Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee with
respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.


 


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


 


(1)           the
Trustee shall fail to comply with the provisions of Section 7.08 after
written request therefor by the Company or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months; or


 


(2)           the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09
and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or


 


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


 


then,
in any such case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, unless the Trustee’s duty to 


 


32

















 


resign
is stayed as provided herein, any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months may, on behalf of
that holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.


 


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


 


(d)           Any
resignation or removal of the Trustee and appointment of a successor trustee
with respect to the Securities of a series pursuant to any of the provisions of
this Section shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.


 


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


 


SECTION 7.11               Acceptance of Appointment By Successor.


 


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


 


(b)           In
case of the appointment hereunder of a successor trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee
relates, (2) shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture 


 


33

















 


as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and
upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent
provided therein, such retiring Trustee shall with respect to the Securities of
that or those series to which the appointment of such successor trustee relates
have no further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor trustee relates.


 


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


 


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


 


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


 


SECTION 7.12               Merger, Conversion, Consolidation or Succession to
Business.


 


Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to 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 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, 


 


34

















 


conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.


 


SECTION 7.13               Preferential Collection of Claims Against the Company.


 


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


 


ARTICLE VIII


 


CONCERNING THE SECURITYHOLDERS


 


SECTION 8.01               Evidence of Action by Securityholders.


 


Whenever
in this Indenture it is provided that the holders of a majority or specified
percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other action), the
fact that at the time of taking any such action the holders of such majority or
specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in Person or by agent or proxy appointed
in writing.


 


If
the Company shall solicit from the Securityholders of any series any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers’ Certificate, fix in
advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after
the record date, but only the Securityholders of record at the close of business
on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the Outstanding Securities of that series shall be
computed as of the record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.


 


SECTION 8.02               Proof of Execution by Securityholders.


 


Subject
to the provisions of Section 7.01, proof of the execution of any
instrument by a Securityholder (such proof will not require notarization) or
his agent or proxy and 


 


35

















 


proof
of the holding by any Person of any of the Securities shall be sufficient if
made in the following manner:


 


(a)           The
fact and date of the execution by any such Person of any instrument may be
proved in any reasonable manner acceptable to the Trustee.


 


(b)           The
ownership of Securities shall be proved by the Security Register of such
Securities or by a certificate of the Security Registrar thereof.


 


(c)           The
Trustee may require such additional proof of any matter referred to in this Section as
it shall deem necessary.


 


SECTION 8.03               Who May be Deemed Owners.


 


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


 


SECTION 8.04               Certain Securities Owned by Company Disregarded.


 


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


 


SECTION 8.05               Actions Binding on Future Securityholders.


 


At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Securities of a particular
series specified in this 


 


36

















 


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


 


ARTICLE IX


 


SUPPLEMENTAL INDENTURES


 


SECTION 9.01               Supplemental Indentures Without the Consent of
Securityholders.


 


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


 


(a)           to
cure any ambiguity, defect or inconsistency herein or in the Securities of any
series;


 


(b)           to
comply with Article Ten;


 


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


 


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


 


(e)           to
add to, delete from or revise the conditions, limitations and restrictions on
the authorized amount, terms, purposes of issue, authentication and delivery of
Securities, as herein set forth;


 


(f)            to
make any change that does not adversely affect the rights of any Securityholder
in any material respect; or


 


(g)           to
provide for the issuance of and establish the form and terms and conditions of
the Securities of any series as provided in Section 2.01, to establish the



 


37

















 


form of any certifications required to be furnished pursuant to the
terms of this Indenture or any series of Securities, or to add to the rights of
the holders of any series of Securities.


 


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


 


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


 


SECTION 9.02               Supplemental Indentures With Consent of
Securityholders.


 


With
the consent (evidenced as provided in Section 8.01) of the holders of not
less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by Board Resolutions, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section 9.01
the rights of the holders of the Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the holders of each Security then Outstanding and affected thereby, (i) extend
the fixed maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate of interest thereon, or reduce any premium
payable upon the redemption thereof or (ii) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to any
such supplemental indenture.


 


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


 


SECTION 9.03               Effect of Supplemental Indentures.


 


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


 


38

















 


SECTION 9.04               Securities Affected by Supplemental Indentures.


 


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


 


SECTION 9.05               Execution of Supplemental Indentures.


 


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


 


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


 


ARTICLE X


 


SUCCESSOR ENTITY


 


SECTION 10.01             Company May Consolidate, Etc.


 


Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company with or into any other Person (whether
or not affiliated with the Company) or successive consolidations or mergers in
which the Company or its successor or successors shall be a party or parties, or
shall prevent any 


 


39

















 


sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however,
the Company hereby covenants and agrees that, upon any such consolidation or
merger (in each case, if the Company is not the survivor of such transaction),
sale, conveyance, transfer or other disposition, the due and punctual payment
of the principal of (premium, if any) and interest on all of the Securities of
all series in accordance with the terms of each series, according to their
tenor, and the due and punctual performance and observance of all the covenants
and conditions of this Indenture with respect to each series or established
with respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act as then in
effect) satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such
property.


 


SECTION 10.02             Successor Entity Substituted.


 


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


 


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


 


(c)           Nothing
contained in this Article shall apply to limit or impose any requirements
upon the consolidation or merger of any Person into the Company where the
Company is the survivor of such transaction, or the acquisition by the Company,
by purchase or otherwise, of all or any part of the property of any other
Person (whether or not affiliated with the Company).


 


SECTION 10.03             Evidence of Consolidation, Etc. to Trustee.


 


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


 


40














 


ARTICLE XI


 


SATISFACTION AND DISCHARGE


 


SECTION 11.01             Satisfaction and Discharge of
Indenture.


 


If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series
theretofore authenticated (other than any Securities that have been destroyed,
lost or stolen and that have been replaced or paid as provided in Section 2.07)
and Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by the
Company (and thereupon repaid to the Company or discharged from such trust, as
provided in Section 11.05); or (b) all such Securities of a
particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount in moneys or Governmental Obligations
or a combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all
Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder with respect to such series by the Company then this
Indenture shall thereupon cease to be of further effect with respect to such
series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03
and 7.10, that shall survive until the date of maturity or redemption date, as
the case may be, and Sections 7.06 and 11.05, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.


 


SECTION 11.02             Discharge of Obligations.


 


If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have
not become due and payable as described in Section 11.01 shall have been
paid by the Company by depositing irrevocably with the Trustee as trust funds
moneys or an amount of Governmental Obligations sufficient to pay at maturity
or upon redemption all such Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest
due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to such series, then
after the date such moneys or Governmental Obligations, as the case may be, are
deposited with the Trustee, the obligations of the Company under this Indenture
with respect to such series shall cease to be of further effect except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 


 


41

















 


7.06,
7.10 and 11.05 hereof that shall survive until such Securities shall mature and
be paid. Thereafter, Sections 7.06 and 11.05 shall survive.


 


SECTION 11.03             Deposited Moneys to be Held in
Trust.


 


All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and
shall be available for payment as due, either directly or through any paying
agent (including the Company acting as its own paying agent), to the holders of
the particular series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.


 


SECTION 11.04             Payment of Moneys Held by Paying
Agents.


 


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


 


SECTION 11.05             Repayment to Company.


 


Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company, in trust for
payment of principal of (and premium, if any) or interest on the Securities of
a particular series that are not applied but remain unclaimed by the holders of
such Securities for at least two years after the date upon which the principal
of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, shall be repaid to the Company or (if then held by the
Company) shall be discharged from such trust; and thereupon the paying agent and
the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.


 


ARTICLE XII


 


IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS


 


SECTION 12.01             No Recourse.


 


No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based
thereon or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and 


 


42

















 


the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or
of any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Securities.


 


ARTICLE XIII


 


MISCELLANEOUS PROVISIONS


 


SECTION 13.01             Effect on Successors and Assigns.


 


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


 


SECTION 13.02             SECTION 13.02 Actions by
Successor.


 


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


 


SECTION 13.03             Notices.


 


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


 


SECTION 13.04             Governing Law.


 


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


 


43

















 


SECTION 13.05             Compliance Certificates and
Opinions.


 


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


 


(b)           Each certificate or opinion provided
for in this Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture shall include (1) a
statement that the Person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that,
in the opinion of such Person, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as
to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.


 


(c)           The Company shall furnish to the
Trustee, on [                                        ] of
each year, a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of
such obligor’s compliance with all conditions and covenants under this
Indenture. For purposes of this subsection, such compliance shall be determined
without regard to any period of grace or requirement of notice provided
hereunder.


 


SECTION 13.06             Payments on Business Days.


 


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


 


SECTION 13.07             Conflict with Trust Indenture Act.


 


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


 


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SECTION 13.08             Counterparts.


 


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


 


SECTION 13.09             Separability.


 


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


 


SECTION 13.10             Assignment.


 


The Company will have the right at all times to
assign any of its rights or obligations under this Indenture to a direct or
indirect wholly owned Subsidiary of the Company, provided that, in the event of
any such assignment, the Company will remain liable for all such obligations. Subject
to the foregoing, the Indenture is binding upon and inures to the benefit of
the parties thereto and their respective successors and assigns. This Indenture
may not otherwise be assigned by the parties thereto.


 


ARTICLE XIV


 


SUBORDINATION OF SECURITIES


 


SECTION 14.01             Subordination Terms.


 


The payment by the Company of the principal of (and
premium, if any) and interest on any series of Securities issued hereunder
shall be subordinated to the extent set forth in an indenture supplemental
hereto relating to such Securities.


 


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


 


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  ENERNOC, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [                      ],

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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