Exhibit 4.2


 


 


DATALINK
CORPORATION


 


TO


 


[                                      ],
TRUSTEE


 


 


SUBORDINATED
DEBT SECURITIES


 


INDENTURE


 


 


 


DATED AS
OF                    


 

















 


TABLE
OF CONTENTS


 


	
  ARTICLE ONE

  
	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  
	
   

  	
   

  	
   

  
	
  SECTION 101.

  	
  Definitions

  	
  1

  
	
  SECTION 102.

  	
  Compliance Certificates
  and Opinions

  	
  6

  
	
  SECTION 103.

  	
  Form of Documents
  Delivered to Trustee

  	
  6

  
	
  SECTION 104.

  	
  Acts of Holders

  	
  7

  
	
  SECTION 105.

  	
  Notices, Etc. to
  Trustee and Company

  	
  8

  
	
  SECTION 106.

  	
  Notice to Holders of
  Securities; Waiver

  	
  8

  
	
  SECTION 107.

  	
  Conflict with Trust
  Indenture Act

  	
  9

  
	
  SECTION 108.

  	
  Effect of Headings and
  Table of Contents

  	
  9

  
	
  SECTION 109.

  	
  Successors and Assigns

  	
  9

  
	
  SECTION 110.

  	
  Separability Clause

  	
  9

  
	
  SECTION 111.

  	
  Benefits of Indenture

  	
  9

  
	
  SECTION 112.

  	
  Governing Law

  	
  9

  
	
  SECTION 113.

  	
  Legal Holidays

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  
	
  SECURITY FORMS

  
	
   

  	
   

  	
   

  
	
  SECTION 201.

  	
  Forms Generally

  	
  9

  
	
  SECTION 202.

  	
  Form of Trustee’s
  Certificate of Authentication

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  
	
  THE SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 301.

  	
  Amount Unlimited;
  Issuable in Series

  	
  10

  
	
  SECTION 302.

  	
  Denominations

  	
  12

  
	
  SECTION 303.

  	
  Execution,
  Authentication, Delivery and Dating

  	
  12

  
	
  SECTION 304.

  	
  Temporary Securities

  	
  14

  
	
  SECTION 305.

  	
  Registration,
  Registration of Transfer and Exchange

  	
  14

  
	
  SECTION 306.

  	
  Mutilated, Destroyed,
  Lost and Stolen Securities

  	
  15

  
	
  SECTION 307.

  	
  Payment of Interest;
  Interest Rights Preserved

  	
  15

  
	
  SECTION 308.

  	
  Persons Deemed Owners

  	
  16

  
	
  SECTION 309.

  	
  Cancellation by
  Security Registrar

  	
  16

  
	
  SECTION 310.

  	
  Computation of Interest

  	
  17

  
	
  SECTION 311.

  	
  Payment to Be in Proper
  Currency

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  
	
  REDEMPTION OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 401.

  	
  Applicability of
  Article

  	
  17

  
	
  SECTION 402.

  	
  Election to Redeem;
  Notice to Trustee

  	
  17

  
	
  SECTION 403.

  	
  Selection of Securities
  to Be Redeemed

  	
  17

  
	
  SECTION 404.

  	
  Notice of Redemption

  	
  18

  
	
  SECTION 405.

  	
  Securities Payable on
  Redemption Date

  	
  18

  
	
  SECTION 406.

  	
  Securities Redeemed in
  Part

  	
  19

  



 


i

















 


	
  ARTICLE FIVE

  
	
  SINKING FUNDS

  
	
   

  	
   

  	
   

  
	
  SECTION 501.

  	
  Applicability of
  Article

  	
  19

  
	
  SECTION 502.

  	
  Satisfaction of Sinking
  Fund Payments with Securities

  	
  19

  
	
  SECTION 503.

  	
  Redemption of
  Securities for Sinking Fund

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  SECTION 601.

  	
  Payment of Principal,
  Premium and Interest

  	
  20

  
	
  SECTION 602.

  	
  Maintenance of Office
  or Agency

  	
  20

  
	
  SECTION 603.

  	
  Money for Securities
  Payments to Be Held in Trust

  	
  20

  
	
  SECTION 604.

  	
  Corporate Existence

  	
  21

  
	
  SECTION 605.

  	
  Maintenance of
  Properties

  	
  21

  
	
  SECTION 606.

  	
  Annual Officer’s
  Certificate as to Compliance

  	
  22

  
	
  SECTION 607.

  	
  Waiver of Certain
  Covenants

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  SECTION 701.

  	
  Satisfaction and
  Discharge of Securities

  	
  22

  
	
  SECTION 702.

  	
  Satisfaction and
  Discharge of Indenture

  	
  24

  
	
  SECTION 703.

  	
  Application of Trust
  Money

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  
	
  EVENTS OF DEFAULT; REMEDIES

  
	
   

  	
   

  	
   

  
	
  SECTION 801.

  	
  Events of Default

  	
  24

  
	
  SECTION 802.

  	
  Acceleration of
  Maturity; Rescission and Annulment

  	
  25

  
	
  SECTION 803.

  	
  Collection of
  Indebtedness and Suits for Enforcement by Trustee

  	
  26

  
	
  SECTION 804.

  	
  Trustee May File
  Proofs of Claim

  	
  26

  
	
  SECTION 805.

  	
  Trustee
  May Enforce Claims Without Possession of Securities

  	
  27

  
	
  SECTION 806.

  	
  Application of Money
  Collected

  	
  27

  
	
  SECTION 807.

  	
  Limitation on Suits

  	
  27

  
	
  SECTION 808.

  	
  Unconditional Right of
  Holders to Receive Principal, Premium and Interest

  	
  28

  
	
  SECTION 809.

  	
  Restoration of Rights
  and Remedies

  	
  28

  
	
  SECTION 810.

  	
  Rights and Remedies
  Cumulative

  	
  28

  
	
  SECTION 811.

  	
  Delay or Omission Not
  Waiver

  	
  28

  
	
  SECTION 812.

  	
  Control by Holders of
  Securities

  	
  28

  
	
  SECTION 813.

  	
  Waiver of Past Defaults

  	
  29

  
	
  SECTION 814.

  	
  Undertaking for Costs

  	
  29

  
	
  SECTION 815.

  	
  Waiver of Stay or
  Extension Laws

  	
  29

  



 


ii

















 


	
  ARTICLE NINE

  
	
  THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 901.

  	
  Certain Duties and
  Responsibilities

  	
  29

  
	
  SECTION 902.

  	
  Notice of Defaults

  	
  30

  
	
  SECTION 903.

  	
  Certain Rights of
  Trustee

  	
  30

  
	
  SECTION 904.

  	
  Not Responsible for
  Recitals or Issuance of Securities

  	
  31

  
	
  SECTION 905.

  	
  May Hold
  Securities

  	
  31

  
	
  SECTION 906.

  	
  Money Held in Trust

  	
  31

  
	
  SECTION 907.

  	
  Compensation and
  Reimbursement

  	
  31

  
	
  SECTION 908.

  	
  Disqualification;
  Conflicting Interests

  	
  32

  
	
  SECTION 909.

  	
  Corporate Trustee
  Required; Eligibility

  	
  32

  
	
  SECTION 910.

  	
  Resignation and
  Removal; Appointment of Successor

  	
  32

  
	
  SECTION 911.

  	
  Acceptance of
  Appointment by Successor

  	
  33

  
	
  SECTION 912.

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
  34

  
	
  SECTION 913.

  	
  Preferential Collection
  of Claims Against Company

  	
  34

  
	
  SECTION 914.

  	
  Co-trustees and
  Separate Trustees

  	
  35

  
	
  SECTION 915.

  	
  Appointment of
  Authenticating Agent

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  
	
  HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

  
	
   

  	
   

  	
   

  
	
  SECTION 1001.

  	
  Lists of Holders

  	
  37

  
	
  SECTION 1002.

  	
  Reports by Trustee and
  Company

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  
	
  CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER

  
	
   

  	
   

  	
   

  
	
  SECTION 1101.

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
  37

  
	
  SECTION 1102.

  	
  Successor Corporation Substituted

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE

  
	
  SUPPLEMENTAL INDENTURES

  
	
   

  	
   

  	
   

  
	
  SECTION 1201.

  	
  Supplemental Indentures
  Without Consent of Holders

  	
  38

  
	
  SECTION 1202.

  	
  Supplemental Indentures
  With Consent of Holders

  	
  39

  
	
  SECTION 1203.

  	
  Execution of
  Supplemental Indentures

  	
  40

  
	
  SECTION 1204.

  	
  Effect of Supplemental
  Indentures

  	
  40

  
	
  SECTION 1205.

  	
  Conformity With Trust
  Indenture Act

  	
  40

  
	
  SECTION 1206.

  	
  Reference in Securities
  to Supplemental Indentures

  	
  40

  
	
  SECTION 1207.

  	
  Modification Without
  Supplemental Indenture

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN

  
	
  MEETINGS OF HOLDERS; ACTION WITHOUT MEETING

  
	
   

  	
   

  	
   

  
	
  SECTION 1301.

  	
  Purposes for Which
  Meetings May Be Called

  	
  40

  
	
  SECTION 1302.

  	
  Call, Notice and Place
  of Meetings

  	
  41

  
	
  SECTION 1303.

  	
  Persons Entitled to
  Vote at Meetings

  	
  41

  
	
  SECTION 1304.

  	
  Quorum; Action

  	
  41

  
	
  SECTION 1305.

  	
  Attendance
  at Meetings; Determination of Voting Rights; Conduct and Adjournment of
  Meetings

  	
  42

  
	
  SECTION 1306.

  	
  Counting Votes and
  Recording Action of Meetings

  	
  42

  
	
  SECTION 1307.

  	
  Action Without Meeting

  	
  43

  



 


iii

















 


	
  ARTICLE FOURTEEN

  
	
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
  AND DIRECTORS

  
	
   

  	
   

  	
   

  
	
  SECTION 1401.

  	
  Liability Solely
  Corporate

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIFTEEN

  
	
  SUBORDINATION

  
	
   

  	
   

  	
   

  
	
  SECTION 1501.

  	
  Agreement to
  Subordinate

  	
  43

  
	
  SECTION 1502.

  	
  Distribution on Dissolution,
  Liquidation and Reorganization

  	
  43

  
	
  SECTION 1503.

  	
  No Payment When Senior
  Debt In Default

  	
  44

  
	
  SECTION 1504.

  	
  Payment to Holders of
  Senior Debt

  	
  44

  
	
  SECTION 1505.

  	
  Subrogation

  	
  45

  
	
  SECTION 1506.

  	
  Payment on Securities
  Permitted

  	
  45

  
	
  SECTION 1507.

  	
  Authorization of
  Holders to Trustee to Effect Subordination

  	
  45

  
	
  SECTION 1508.

  	
  No Waiver of
  Subordination Provisions

  	
  45

  
	
  SECTION 1509.

  	
  Trustee as Holder of
  Senior Debt

  	
  46

  
	
  SECTION 1510.

  	
  Notices to Trustee

  	
  46

  
	
  SECTION 1511.

  	
  No Fiduciary Duty by
  Trustee to Holders of Senior Debt

  	
  46

  
	
  SECTION 1512.

  	
  Paying Agent Treated as
  Trustee

  	
  46

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
  47

  



 


iv

















 


DATALINK
CORPORATION


 


RECONCILIATION
AND TIE BETWEEN TRUST INDENTURE ACT OF 1939


 


AND
INDENTURE, DATED AS OF             


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  	
   

  
	
  §310

  	
  (a)(1)

  	
   

  	
  909

  
	
   

  	
  (a)(2)

  	
   

  	
  909

  
	
   

  	
  (a)(3)

  	
   

  	
  914(b)

  
	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
  908

  
	
   

  	
   

  	
   

  	
  910

  
	
  §311

  	
  (a)

  	
   

  	
  913

  
	
   

  	
  (b)

  	
   

  	
  913

  
	
   

  	
  (c)

  	
   

  	
  913

  
	
  §312

  	
  (a)

  	
   

  	
  1001

  
	
   

  	
  (b)

  	
   

  	
  1001

  
	
   

  	
  (c)

  	
   

  	
  1001

  
	
  §313

  	
  (a)

  	
   

  	
  1002

  
	
   

  	
  (b)

  	
   

  	
  1002

  
	
   

  	
  (c)

  	
   

  	
  1002

  
	
   

  	
  (d)

  	
   

  	
  1002

  
	
  §314

  	
  (a)

  	
   

  	
  1002

  
	
   

  	
  (a)(4)

  	
   

  	
  606

  
	
   

  	
  (b)

  	
   

  	
  Not Applicable

  
	
   

  	
  (c)(1)

  	
   

  	
  102

  
	
   

  	
  (c)(2)

  	
   

  	
  102

  
	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (d)

  	
   

  	
  Not Applicable

  
	
   

  	
  (e)

  	
   

  	
  102

  
	
  §315

  	
  (a)

  	
   

  	
  901

  
	
   

  	
   

  	
   

  	
  903

  
	
   

  	
  (b)

  	
   

  	
  902

  
	
   

  	
  (c)

  	
   

  	
  901

  
	
   

  	
  (d)

  	
   

  	
  901

  
	
   

  	
  (e)

  	
   

  	
  814

  
	
  §316

  	
  (a)

  	
   

  	
  812

  
	
   

  	
   

  	
   

  	
  813

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  812

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  813

  
	
   

  	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
  808

  
	
  §317

  	
  (a)(1)

  	
   

  	
  803

  
	
   

  	
  (a)(2)

  	
   

  	
  804

  
	
   

  	
  (b)

  	
   

  	
  603

  
	
  §318

  	
  (a)

  	
   

  	
  107

  



 


v

















 


INDENTURE, dated as of                     
between DATALINK CORPORATION., a corporation duly organized and existing under
the laws of the State of Minnesota (herein called the “Company”), having its
principal office at 8170 Upland Circle, Chanhassen, Minnesota 55317 and [                    ],
a national banking association organized and existing under the laws of the
United States of America, having its principal corporate trust office at [                    ],
as Trustee (herein called the “Trustee”).


 


RECITAL
OF THE COMPANY


 


The Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured debentures, notes or other
evidences of indebtedness (herein called the “Securities”), to be issued in one
or more series as contemplated herein, and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.


 


For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires, capitalized terms used herein shall have the meanings
assigned to them in Article One of this Indenture.


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


ARTICLE
ONE


 


DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION


 


SECTION 101.
Definitions


 


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


 


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


 


(b) all
terms used herein without definition which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;


 


(c) all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided, the term “generally
accepted accounting principles” with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation or, at the
election of the Company from time to time, at the date of the execution and
delivery of this Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company, the Company shall, to
the extent required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other governmental body having
jurisdiction over the Company; and


 


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


 


Certain terms, used
principally in Article Nine, are defined in that Article.


 


“Act”, when used with
respect to any Holder of a Security, has the meaning specified in Section 104.


 


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


 


1

















 


“Authenticating Agent”
means any Person (other than the Company or an Affiliate of the Company)
authorized by the Trustee to act on behalf of the Trustee to authenticate one
or more series of Securities.


 


“Authorized Officer”
means the Chairman of the Board, the President, the Chief Executive Officer,
the Chief Financial Officer, any Vice President, the Treasurer, any Assistant
Treasurer or any other duly authorized officer of the Company.


 


“Board of Directors”
means either the board of directors of the Company or any committee thereof
duly authorized to act in respect of matters relating to this Indenture.


 


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


 


“Business Day”, when used
with respect to a Place of Payment or any other particular location specified
in the Securities or this Indenture, means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
such Place of Payment or other location are generally authorized or required by
law, regulation or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.


 


“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time after the date
of execution and delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body, if any, performing such duties at such time.


 


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


 


“Company Request” or “Company
Order” means a written request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.


 


“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 of
execution and delivery of this Indenture is located at                                 .


 


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


 


“Defaulted Interest” has
the meaning specified in Section 307.


 


“Discount Security” means
any Security which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, and “interest” with respect to a
Discount Security means interest, if any, borne by such Security at a Stated
Interest Rate.


 


“Dollar” or “$” means a
dollar or other equivalent unit in such coin or currency of the United States
as at the time shall be legal tender for the payment of public and private
debts.


 


“Eligible Obligations”
means:


 


(a) with
respect to Securities denominated in Dollars, Government Obligations; or


 


(b) with
respect to Securities denominated in a currency other than Dollars or in a
composite currency, such other obligations or instruments as shall be specified
with respect to such Securities, as contemplated by Section 301.


 


“Event of Default” has
the meaning specified in Section 801.


 


“Governmental Authority”
means the government of the United States or of any State or Territory thereof
or of the District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department, agency, authority or
other instrumentality of any of the foregoing.


 


2

















 


“Government Obligations”
means:


 


(a) direct
obligations of, or obligations the timely payment of principal of and interest
on which are unconditionally guaranteed by, the United States entitled to the
benefit of the full faith and credit thereof; and


 


(b) certificates,
depositary receipts or other instruments which evidence a direct ownership
interest in obligations described in clause (a) above or in any specific
interest or principal payments due in respect thereof; provided, however, that
the custodian of such obligations or specific interest or principal payments
shall be a bank or trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or examination with a combined
capital and surplus of at least $50,000,000; and provided, further, that except
as may be otherwise required by law, such custodian shall be obligated to pay
to the holders of such certificates, depositary receipts or other instruments
the full amount received by such custodian in respect of such obligations or
specific payments and shall not be permitted to make any deduction therefrom.


 


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


 


“Indebtedness” means any
indebtedness for money borrowed.


 


“Indenture” means this
instrument as originally executed and delivered and as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as contemplated by Section 301.


 


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


 


“Junior Subordinated Debt”
means any Indebtedness of the Company created or evidenced by an instrument
which expressly provides that such Indebtedness is subordinated in right of
payment to the Securities.


 


“Maturity”, when used
with respect to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated Maturity, by
declaration of acceleration, upon call for redemption or otherwise.


 


“Obligations” has the
meaning specified in Section 1502.


 


“Officer’s Certificate”
means a certificate signed by an Authorized Officer and delivered to the
Trustee.


 


“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the Company, or
other counsel acceptable to the Trustee.


 


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


 


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


 


(b) Securities
deemed to have been paid in accordance with Section 701; and


 


(c) Securities
which have been paid pursuant to Section 306 or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it and the Company
that such Securities are held by a bona fide purchaser or purchasers in whose
hands such Securities are valid obligations of the Company;


 


provided, however, that
in determining whether or not the Holders of the requisite principal amount of
the Securities Outstanding under this Indenture, or the Outstanding Securities
of any series or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities,


 


(x) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor (unless the Company, such Affiliate or
such obligor owns all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series and each such Tranche, as 


 


3

















 


the case may be,
determined without regard to this clause (x)) shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to the presence of
a quorum, only Securities which the Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor;


 


(y) the
principal amount of a Discount Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof that would be
due and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 802; and


 


(z) the
principal amount of any Security which is denominated in a currency other than
Dollars or in a composite currency that shall be deemed to be Outstanding for
such purposes shall be the amount of Dollars which could have been purchased by
the principal amount (or, in the case of a Discount Security, the Dollar
equivalent on the date determined as set forth below of the amount determined
as provided in (y) above) of such currency or composite currency evidenced
by such Security in each such case certified to the Trustee in an Officer’s
Certificate, based (1) on the average of the mean of the buying and
selling spot rates quoted by three banks which are members of the New York Clearing
House Association selected by the Company in effect at 11:00 A.M. (New
York time) in The City of New York on the fifth Business Day preceding any such
determination or (2) if on such fifth Business Day it shall not be
possible or practicable to obtain such quotations from such three banks, on
such other quotations or alternative methods of determination which shall be as
consistent as practicable with the method set forth in (1) above;
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal
amount of such Security that shall be deemed to be Outstanding at any time for
all purposes of this Indenture shall be the original principal amount thereof
less the aggregate amount of principal thereof theretofore paid.


 


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


 


“Periodic Offering” means
an offering of Securities of a series from time to time any or all of the
specific terms of which Securities, including without limitation the rate or
rates of interest, if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.


 


“Person” means any
individual, corporation, partnership, joint venture, trust or unincorporated
organization or any Governmental Authority thereof.


 


“Place of Payment”, when
used with respect to the Securities of any series, or Tranche thereof, means
the place or places, specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any, and interest, if
any, on the Securities of such series or Tranche are payable.


 


“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 306 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed (to the extent lawful) to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.


 


“Proceeding” has the
meaning specified in Section 1502.


 


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


 


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


 


4
















 


“Regular Record Date” for
the interest payable on any Interest Payment Date on the Securities of any
series means the date specified for that purpose as contemplated by Section 301.


 


“Required Currency” has
the meaning specified in Section 311.


 


“Responsible Officer”,
when used with respect to the Trustee, means any officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.


 


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


 


“Securities Payment” has
the meaning specified in Section 1502.


 


“Security Register” and “Security
Registrar” have the respective meanings specified in Section 305.


 


“Senior Debt” means all
Indebtedness of the Company, except (i) Indebtedness under the Securities,
and (ii) Indebtedness (including, without limitation, any Junior
Subordinated Debt) created or evidenced by an instrument which expressly
provides that such Indebtedness is subordinated in right of payment to any
other Indebtedness of the Company. Notwithstanding anything to the contrary in
the foregoing, Senior Debt shall not include (x) any Indebtedness of the
Company to any of its Subsidiaries or other Affiliates and (y) any Indebtedness
incurred for the purchase of goods or materials or for services obtained in the
ordinary course of business (other than with the proceeds of revolving credit
borrowings permitted hereby).


 


“Senior Payment Default”
means any default in the payment of any Obligation on any Senior Debt when due,
whether at the stated maturity of any such payment or by declaration of
acceleration, call for redemption, mandatory repurchase, payment or prepayment
or otherwise.


 


“Special Record Date” for
the payment of any Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.


 


“Stated Interest Rate”
means a rate (whether fixed or variable) at which an obligation by its terms is
stated to bear simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest Rate on a
Security shall be made without regard to the effective interest cost to the
Company of such Security and without regard to the Stated Interest Rate on, or
the effective cost to the Company of, any other indebtedness the Company’s
obligations in respect of which are evidenced or secured in whole or in part by
such Security.


 


“Stated Maturity”, when
used with respect to any obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of such obligation or
such installment of principal or interest is stated to be due and payable
(without regard to any provisions for redemption, prepayment, acceleration, purchase
or extension).


 


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


 


“Trust Indenture Act”
means, as of any time, the Trust Indenture Act of 1939, as amended, or any
successor statute, as in effect at such time.


 


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


 


“United States” means the
United States of America, its Territories, its possessions and other areas
subject to its political jurisdiction.


 


5

















 


SECTION 102.
Compliance Certificates and Opinions


 


Except as otherwise
expressly provided in this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this
Indenture, the Company shall, if requested by the Trustee, furnish to the
Trustee an Officer’s Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.


 


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


 


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


 


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


 


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


 


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


 


SECTION 103.
Form of Documents Delivered to Trustee


 


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


 


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


 


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


 


Whenever, subsequent to
the receipt by the Trustee of any Board Resolution, Officer’s Certificate,
Opinion of Counsel or other document or instrument, a clerical, typographical
or other inadvertent or unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted therefore in corrected
form with the same force and effect as if originally filed in the corrected
form and, irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be deemed to
have been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted. Anything in
this Indenture to the contrary notwithstanding, if any such corrective document
or instrument indicates that action has been taken by or at the request of the
Company which could not have been taken had the original document or instrument
not contained such error or omission, the action so taken shall not be
invalidated or otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a result of willful
misconduct or bad faith. Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective document or instrument
shall nevertheless be the valid 


 


6

















 


obligations of the
Company entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.


 


SECTION 104.
Acts of Holders


 


(a) Any
request, demand, authorization, direction, notice, consent, election, waiver or
other action provided by this Indenture to be made, given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing or, alternatively, may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly appointed
in writing, at any meeting of Holders duly called and held in accordance with
the provisions of Article Thirteen, or a combination of such instruments
and any such record. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders signing such instrument or instruments and so voting at
any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 901)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1306.


 


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


 


(c) The
principal amount (except as otherwise contemplated in clause (y) of the
proviso to the definition of Outstanding) and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved by the
Security Register.


 


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


 


(e) Until
such time as written instruments shall have been delivered to the Trustee with
respect to the requisite percentage of principal amount of Securities for the
action contemplated by such instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked with respect to any or all
of such Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.


 


(f) Securities
of any series, or any Tranche thereof, authenticated and delivered after any
Act of Holders may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any action taken by such Act of Holders. If
the Company shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and the
Company, to such action may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.


 


(g) If
the Company shall solicit from Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its
option, by Company Order, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, 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 Act may be given before or after
such record date, but only the Holders of record at the close of business on
the record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of the Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization, 


 


7

















 


direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of the record date.


 


SECTION 105.
Notices, Etc. to Trustee and Company


 


Any request, demand,
authorization, direction, notice, consent, election, waiver or Act of Holders
or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and delivered personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission, telex or other direct
written electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to time designate,
or transmitted by registered mail, charges prepaid, to the applicable address
set opposite such party’s name below or to such other address as either party
hereto may from time to time designate:


 


If to the Trustee, to:


 


[Name of Trustee]


[Address]


 


Attention: [Officer]


 


Telephone: [                    ]


Facsimile: [                    ]


 


If to the Company, to:


 


Datalink Corporation


8170 Upland Circle


Chanhassen, Minnesota
55317-8589


 


Attention: Chief
Financial Officer


 


Telephone: (952) 944-3462


Facsimile:


 


Any communication
contemplated herein shall be deemed to have been made, given, furnished and
filed if personally delivered, on the date of delivery, if transmitted by
facsimile transmission, telex or other direct written electronic means, on the
date of transmission, and if transmitted by registered mail, on the date of
receipt.


 


SECTION 106.
Notice to Holders of Securities; Waiver


 


Except as otherwise
expressly provided herein, where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given, and shall be deemed
given, to Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice.


 


In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.


 


Any notice required by
this Indenture may be waived in writing by the Person entitled to receive such
notice, either before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.


 


8

















 


SECTION 107.
Conflict with Trust Indenture Act


 


If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required or deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof otherwise conflicts with
the Trust Indenture Act, the Trust Indenture Act shall control.


 


SECTION 108.
Effect of Headings and Table of Contents


 


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


 


SECTION 109.
Successors and Assigns


 


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


 


SECTION 110.
Separability Clause


 


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


 


SECTION 111.
Benefits of Indenture


 


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


 


SECTION 112.
Governing Law


 


This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York.


 


SECTION 113.
Legal Holidays


 


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


 


ARTICLE
TWO


 


SECURITY
FORMS


 


SECTION 201.
Forms Generally


 


The definitive Securities
of each series shall be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such series or in a Board
Resolution establishing such series, or in an Officer’s Certificate pursuant to
such supplemental indenture or Board Resolution, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or
as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form or 


 


9

















 


forms of Securities of
any series are established in a Board Resolution or in an Officer’s Certificate
pursuant to a Board Resolution, such Board Resolution and Officer’s
Certificate, if any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.


 


Unless otherwise
specified as contemplated by Section 301, the Securities of each series
shall be issuable in registered form without coupons. The definitive Securities
shall be produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution thereof.


 


SECTION 202.
Form of Trustee’s Certificate of Authentication


 


The Trustee’s certificate
of authentication shall be in substantially the form set forth below:


 


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


 


	
   

  	
  [Name of Trustee],
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized Officer

  



 


ARTICLE
THREE


 


THE
SECURITIES


 


SECTION 301.
Amount Unlimited; Issuable in Series


 


The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.


 


The Securities may be
issued in one or more series. Prior to the authentication and delivery of
Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an Officer’s Certificate
pursuant to a supplemental indenture or a Board Resolution:


 


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


 


(b) any
limit upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant to Section 304,
305, 306, 406 or 1206 and, except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);


 


(c) the
Person or Persons (without specific identification) to whom interest on
Securities of such series, or any Tranche thereof, shall be payable on any
Interest Payment Date, if other than the Persons in whose names such Securities
(or one or more Predecessor Securities) are registered at the close of business
on the Regular Record Date for such interest;


 


(d) the
date or dates on which the principal of the Securities of such series, or any
Tranche thereof, is payable or any formula or other method or other means by
which such date or dates shall be determined, by reference to an index or other
fact or event ascertainable outside of this Indenture or otherwise (without
regard to any provisions for redemption, prepayment, acceleration, purchase or
extension);


 


(e) the
rate or rates at which the Securities of such series, or any Tranche thereof,
shall bear interest, if any (including the rate or rates at which overdue
principal shall bear interest, if different from the rate or rates at which
such Securities shall bear interest prior to Maturity, and, if applicable, the
rate or rates at which overdue premium or interest shall bear interest, if
any), or any formula or other method or other means by which such rate or rates
shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date or dates from
which such interest shall accrue; the Interest 


 


10

















 


Payment Dates on which
such interest shall be payable and the Regular Record Date, if any, for the
interest payable on such Securities on any Interest Payment Date;


 


(f) the
place or places at which or methods by which (1) the principal of and premium,
if any, and interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, (2) registration of transfer of Securities of
such series, or any Tranche thereof, may be effected, (3) exchanges of
Securities of such series, or any Tranche thereof, may be effected and (4) notices
and demands to or upon the Company in respect of the Securities of such series,
or any Tranche thereof, and this Indenture may be served; the Security
Registrar and any Paying Agent or Agents for such series or Tranche; and if
such is the case, that the principal of such Securities shall be payable
without presentment or surrender thereof;


 


(g) the
period or periods within which, or the date or dates on which, the price or
prices at which and the terms and conditions upon which the Securities of such
series, or any Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company and any restrictions on such redemptions, including but
not limited to a restriction on a partial redemption by the Company of the
Securities of any series, or any Tranche thereof, resulting in delisting of
such Securities from any national exchange;


 


(h) the
obligation or obligations, if any, of the Company to redeem or purchase the
Securities of such series, or any Tranche thereof, pursuant to any sinking fund
or other mandatory redemption provisions or at the option of a Holder thereof
and the period or periods within which or the date or dates on which, the price
or prices at which and the terms and conditions upon which such Securities
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation, and applicable exceptions to the requirements of Section 404
in the case of mandatory redemption or redemption at the option of the Holder;


 


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


 


(j) the
currency or currencies, including composite currencies, in which payment of the
principal of and premium, if any, and interest, if any, on the Securities of
such series, or any Tranche thereof, shall be payable (if other than in
Dollars);


 


(k) if
the principal of or premium, if any, or interest, if any, on the Securities of
such series, or any Tranche thereof, are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made;


 


(l) if
the principal of or premium, if any, or interest, if any, on the Securities of
such series, or any Tranche thereof, are to be payable, or are to be payable at
the election of the Company or a Holder thereof, in securities or other
property, the type and amount of such securities or other property, or the
formula or other method or other means by which such amount shall be
determined, and the period or periods within which, and the terms and
conditions upon which, any such election may be made;


 


(m) if
the amount payable in respect of principal of or premium, if any, or interest,
if any, on the Securities of such series, or any Tranche thereof, may be
determined with reference to an index or other fact or event ascertainable
outside of this Indenture, the manner in which such amounts shall be determined
to the extent not established pursuant to clause (e) of this paragraph;


 


(n) if
other than the principal amount thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 802;


 


(o) any
Events of Default, in addition to those specified in Section 801, with
respect to the Securities of such series, and any covenants of the Company for
the benefit of the Holders of the Securities of such series, or any Tranche
thereof, in addition to those set forth in Article Six;


 


(p) the
terms, if any, pursuant to which the Securities of such series, or any Tranche
thereof, may be converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;


 


(q) the
obligations or instruments, if any, which shall be considered to be Eligible
Obligations in respect of the Securities of such series, or any Tranche
thereof, denominated in a currency other than Dollars or in a composite
currency, and any additional or alternative provisions for the reinstatement of
the Company’s indebtedness in respect of such Securities after the satisfaction
and discharge thereof as provided in Section 701;


 


11

















 


(r) if
the Securities of such series, or any Tranche thereof, are to be issued in
global form, (1) any limitations on the rights of the Holder or Holders of
such Securities to transfer or exchange the same or to obtain the registration
of transfer thereof, (2) any limitations on the rights of the Holder or
Holders thereof to obtain certificates therefor in definitive form in lieu of temporary
form and (3) any and all other matters incidental to such Securities;


 


(s) if
the Securities of such series, or any Tranche thereof, are to be issuable as
bearer securities, any and all matters incidental thereto which are not
specifically addressed in a supplemental indenture as contemplated by clause (g) of
Section 1201;


 


(t) to
the extent not established pursuant to clause (r) of this paragraph, any
limitations on the rights of the Holders of the Securities of such series, or
any Tranche thereof, to transfer or exchange such Securities or to obtain the
registration of transfer thereof; and if a service charge will be made for the
registration of transfer or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;


 


(u) any
exceptions to Section 113, or variation in the definition of Business Day,
with respect to the Securities of such series, or any Tranche thereof; and


 


(v) any
other terms of the Securities of such series, or any Tranche thereof, not
inconsistent with the provisions of this Indenture.


 


With respect to
Securities of a series subject to a Periodic Offering, the indenture
supplemental hereto or the Board Resolution which establishes such series, or
the Officer’s Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or parameters for
Securities of such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company Order as
contemplated by clause (b) of Section 303.


 


SECTION 302.
Denominations


 


Unless otherwise provided
as contemplated by Section 301 with respect to any series of Securities,
or any Tranche thereof, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.


 


SECTION 303.
Execution, Authentication, Delivery and Dating


 


Unless otherwise provided
as contemplated by Section 301 with respect to any series of Securities,
or any Tranche thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer and may have the corporate seal of the Company
affixed thereto or reproduced thereon and attested by any other Authorized
Officer. The signature of any or all of these officers on the Securities may be
manual or facsimile.


 


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


 


The Trustee shall
authenticate and deliver Securities of a series, for original issue, at one
time or from time to time in accordance with the Company Order referred to
below, upon receipt by the Trustee of:


 


(a) the
instrument or instruments establishing the form or forms and terms of such
series, as provided in Sections 201 and 301;


 


(b) a
Company Order requesting the authentication and delivery of such Securities
and, to the extent that the terms of such Securities shall not have been
established in an indenture supplemental hereto or in a Board Resolution, or in
an Officer’s Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301, either (1) establishing
such terms or (2) in the case of Securities of a series subject to a
Periodic Offering, specifying procedures, acceptable to the Trustee, by which
such terms are to be established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery pursuant to oral or
electronic instructions from the Company or any agent or agents thereof, which
oral instructions are to be promptly confirmed electronically or in writing),
in either case in accordance with the instrument or instruments delivered
pursuant to clause (a) above;


 


12

















 


(c) the
Securities of such series, executed on behalf of the Company by an Authorized
Officer;


 


(d) an
Opinion of Counsel to the effect that:


 


(1) the
form or forms of such Securities have been duly authorized by the Company and
have been established in conformity with the provisions of this Indenture;


 


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


 


(3) such
Securities, when authenticated and delivered by the Trustee and issued and
delivered by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly issued under this Indenture and
will constitute valid and legally binding obligations of the Company, entitled
to the benefits provided by this Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to laws relating to or affecting generally
the enforcement of creditors’ rights, including, without limitation, bankruptcy
and insolvency laws and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);


 


provided, however, that,
with respect to Securities of a series subject to a Periodic Offering, the
Trustee shall be entitled to receive such Opinion of Counsel only once at or
prior to the time of the first authentication of such Securities (provided that
such Opinion of Counsel addresses the authentication and delivery of all
Securities of such series) and that in lieu of the opinions described in
clauses (2) and (3) above Counsel may opine that:


 


(x) when
the terms of such Securities shall have been established pursuant to a Company
Order or Orders or pursuant to such procedures (acceptable to the Trustee) as
may be specified from time to time by a Company Order or Orders, all as
contemplated by and in accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been duly authorized by
the Company and will have been established in conformity with the provisions of
this Indenture; and


 


(y) such
Securities, when authenticated and delivered by the Trustee in accordance with
this Indenture and the Company Order or Orders or specified procedures referred
to in paragraph (x) above and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will constitute valid and
legally binding obligations of the Company, entitled to the benefits provided
by the Indenture, and enforceable in accordance with their terms, subject, as
to enforcement, to laws relating to or affecting generally the enforcement of
creditors’ rights, including, without limitation, bankruptcy and insolvency
laws and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).


 


With respect to Securities
of a series subject to a Periodic Offering, the Trustee may conclusively rely,
as to the authorization by the Company of any of such Securities, the form and
terms thereof and the legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and other documents delivered pursuant to
Sections 201 and 301 and this Section, as applicable, at or prior to the time
of the first authentication of Securities of such series unless and until such
opinion or other documents have been superseded or revoked or expire by their
terms. In connection with the authentication and delivery of Securities of a
series subject to a Periodic Offering, the Trustee shall be entitled to assume
that the Company’s instructions to authenticate and deliver such Securities do
not violate any rules, regulations or orders of any Governmental Authority
having jurisdiction over the Company.


 


If the form or terms of
the Securities of any series have been established by or pursuant to a Board
Resolution or an Officer’s Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if the issuance
of such Securities pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.


 


Unless otherwise
specified as contemplated by Section 301 with respect to any series of
Securities, or any Tranche thereof, each Security shall be dated the date of
its authentication.


 


Unless otherwise
specified as contemplated by Section 301 with respect to any series of
Securities, or any Tranche thereof, no Security shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee or its agent by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder 


 


13

















 


and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder to the Company, or any
Person acting on its behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to the Security Registrar
for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Officer’s Certificate and an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits hereof.


 


SECTION 304.
Temporary Securities


 


Pending the preparation
of definitive Securities of any series, or any Tranche thereof, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution
of such Securities; provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or exchange provisions.


 


Unless otherwise
specified as contemplated by Section 301 with respect to the Securities of
any series, or any Tranche thereof, after the preparation of definitive
Securities of such series or Tranche, the temporary Securities of such series
or Tranche shall be exchangeable, without charge to the Holder thereof, for
definitive Securities of such series or Tranche upon surrender of such
temporary Securities at the office or agency of the Company maintained pursuant
to Section 602 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company shall, except as aforesaid, execute
and the Trustee shall authenticate and deliver in exchange therefor definitive
Securities of the same series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount.


 


Until exchanged in full
as hereinabove provided, temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities of the same
series and Tranche and of like tenor authenticated and delivered hereunder.


 


SECTION 305.
Registration, Registration of Transfer and Exchange


 


The Company shall cause
to be kept in each office designated pursuant to Section 602, with respect
to the Securities of each series or any Tranche thereof, a register (all
registers kept in accordance with this Section being collectively referred
to as the “Security Register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities of such series or Tranche and the registration of transfer thereof.
The Company shall designate one Person to maintain the Security Register for
the Securities of each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the “Security Registrar.”
Anything herein to the contrary notwithstanding, the Company may designate one
or more of its offices as an office in which a register with respect to the
Securities of one or more series, or any Tranche or Tranches thereof, shall be
maintained, and the Company may designate itself the Security Registrar with
respect to one or more of such series. The Security Register shall be open for
inspection by the Trustee and the Company at all reasonable times.


 


Except as otherwise
specified as contemplated by Section 301 with respect to the Securities of
any series, or any Tranche thereof, upon surrender for registration of transfer
of any Security of such series or Tranche at the office or agency of the
Company maintained pursuant to Section 602 in a Place of Payment for such
series or Tranche, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.


 


Except as otherwise
specified as contemplated by Section 301 with respect to the Securities of
any series, or any Tranche thereof, any Security of such series or Tranche may
be exchanged at the option of the Holder, for one or more new Securities of the
same series and Tranche, of authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.


 


14
















 


All
Securities delivered upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.


 


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


 


Unless
otherwise specified as contemplated by Section 301 with respect to
Securities of any series, or any Tranche thereof, no service charge shall be
made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 304,
406 or 1206 not involving any transfer.


 


The
Company shall not be required to execute or to provide for the registration of
transfer of or the exchange of (a) Securities of any series, or any
Tranche thereof, during a period of 15 days immediately preceding the date
notice is to be given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so selected
for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.


 


SECTION 306.
Mutilated, Destroyed, Lost and Stolen Securities


 


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


 


If
there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the ownership of and the destruction, loss or theft of
any Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such Security, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


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


 


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


 


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


 


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


 


SECTION 307.
Payment of Interest; Interest Rights Preserved


 


Unless
otherwise specified as contemplated by Section 301 with respect to the
Securities of any series, or any Tranche thereof, interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.


 


15

















 


Any
interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the related
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:


 


(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a date (herein called a “Special Record Date”) for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall promptly cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at the
address of such Holder as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date.


 


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


 


Subject
to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


SECTION 308.
Persons Deemed Owners


 


The
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and (subject to Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.


 


SECTION 309.
Cancellation by Security Registrar


 


All
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to any Person other than the Security Registrar,
be delivered to the Security Registrar and, if not theretofore canceled, shall
be promptly canceled by the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever or which the Company shall not have issued and sold, and
all Securities so delivered shall be promptly canceled by the Security
Registrar. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Security
Registrar shall be disposed of in accordance with a Company Order delivered to
the Security Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the Company shall direct that
canceled Securities be returned to it. The Security Registrar shall promptly
deliver evidence of any cancellation of a Security in accordance with this Section 309
to the Trustee and the Company.


 


16

















 


SECTION 310.
Computation of Interest


 


Except
as otherwise specified as contemplated by Section 301 for Securities of
any series, or any Tranche thereof, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months and on the basis of the actual number of days elapsed within any month
in relation to the deemed 30 days of such month.


 


SECTION 311.
Payment to Be in Proper Currency


 


In the
case of the Securities of any series, or any Tranche thereof, denominated in
any currency other than Dollars or in a composite currency (the “Required
Currency”), except as otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to make any
payment of the principal thereof, or the premium, if any, or interest, if any,
thereon, shall not be discharged or satisfied by any tender by the Company, or
recovery by the Trustee, in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency then due and payable.
If any such tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange
rate fluctuation, shall be borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful misconduct.


 


ARTICLE FOUR


 


REDEMPTION OF SECURITIES


 


SECTION 401.
Applicability of Article


 


Securities
of any series, or any Tranche thereof, which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of such
series or Tranche) in accordance with this Article.


 


SECTION 402.
Election to Redeem; Notice to Trustee


 


The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution or an Officer’s Certificate. The Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of such Securities to be redeemed.
In the case of any redemption of Securities (a) prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer’s Certificate evidencing
compliance with such restriction or condition.


 


SECTION 403.
Selection of Securities to Be Redeemed


 


If
less than all the Securities of any series, or any Tranche thereof, are to be
redeemed, the particular Securities to be redeemed shall be selected by the
Security Registrar from the Outstanding Securities of such series or Tranche
not previously called for redemption, by such method as shall be provided for
any particular series or Tranche, or, in the absence of any such provision, by
such method of random selection as the Security Registrar shall deem fair and
appropriate and which may, in any case, provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of such series or Tranche or any integral multiple thereof) of the principal
amount of Securities of such series or Tranche of a denomination larger than
the minimum authorized denomination for Securities of such series or Tranche;
provided, however, that if, as indicated in an Officer’s Certificate, the
Company shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Security Registrar, if so
directed by Company Order, shall select for redemption all or any principal
amount of such Securities which have not been so tendered.


 


17

















 


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


 


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


 


SECTION 404.
Notice of Redemption


 


Notice
of redemption shall be given in the manner provided in Section 106 to the
Holders of the Securities to be redeemed not less than 30 nor more than 60 days
prior to the Redemption Date.


 


All
notices of redemption shall state:


 


(a) the Redemption Date,


 


(b) the Redemption Price,


 


(c) if less than all the Securities of any series
or Tranche are to be redeemed, the identification of the particular Securities
to be redeemed and the portion of the principal amount of any Security to be
redeemed in part,


 


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


 


(e) the place or places where such Securities are
to be surrendered for payment of the Redemption Price and accrued interest, if
any, unless it shall have been specified as contemplated by Section 301
with respect to such Securities that such surrender shall not be required,


 


(f) that the redemption is for a sinking or other
fund, if such is the case, and


 


(g) such other matters as the Company shall deem
desirable or appropriate.


 


Unless
otherwise specified with respect to any Securities in accordance with Section 301,
with respect to any notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such Securities shall be
deemed to have been paid in accordance with Section 701, such notice may
state that such redemption shall be conditional upon the receipt by the Paying
Agent or Agents for such Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such money shall not have
been so received such notice shall be of no force or effect and the Company
shall not be required to redeem such Securities. In the event that such notice
of redemption contains such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to be made,
and the Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such Securities
which had been surrendered for payment upon such redemption.


 


Notice
of redemption of Securities to be redeemed at the election of the Company, and
any notice of non-satisfaction of a condition for redemption as aforesaid,
shall be given by the Company or, at the Company’s request, by the Security
Registrar in the name and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security Registrar in the name
and at the expense of the Company.


 


SECTION 405.
Securities Payable on Redemption Date


 


Notice
of redemption having been given as aforesaid, and the conditions, if any, set
forth in such notice having been satisfied, the Securities or portions thereof
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless, in
the case of an unconditional notice of redemption, the Company shall default in
the payment of the Redemption Price and accrued interest, if any) such
Securities or portions thereof, if interest-bearing, shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with such
notice, such Security or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, 


 


18

















 


however, that no such
surrender shall be a condition to such payment if so specified as contemplated
by Section 301 with respect to such Security; and provided, further, that
except as otherwise specified as contemplated by Section 301 with respect
to such Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption Date shall be
payable to the Holder of such Security, or one or more Predecessor Securities,
registered as such at the close of business on the related Regular Record Date
according to the terms of such Security and subject to the provisions of Section 307.


 


SECTION 406.
Securities Redeemed in Part


 


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


 


ARTICLE FIVE


 


SINKING FUNDS


 


SECTION 501.
Applicability of Article


 


The
provisions of this Article shall be applicable to any sinking fund for the
retirement of the Securities of any series, or any Tranche thereof, except as
otherwise specified as contemplated by Section 301 for Securities of such
series or Tranche.


 


The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series, or any Tranche thereof, 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, or any Tranche thereof, is herein
referred to as an “optional sinking fund payment”. If provided for by the terms
of Securities of any series, or any Tranche thereof, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 502.
Each sinking fund payment shall be applied to the redemption of Securities of
the series or Tranche in respect of which it was made as provided for by the
terms of such Securities.


 


SECTION 502.
Satisfaction of Sinking Fund Payments with Securities


 


The
Company (a) may deliver to the Trustee Outstanding Securities (other than
any previously called for redemption) of a series or Tranche in respect of
which a mandatory sinking fund payment is to be made and (b) may apply as
a credit Securities of such series or Tranche which have been (1) 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 or (2) repurchased by the Company in the
open market, by tender offer or otherwise, in each case in satisfaction of all
or any part of such mandatory sinking fund payment; provided, however, that no
Securities shall be applied in satisfaction of a mandatory sinking fund payment
if such Securities shall have been previously so applied. Securities so applied
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 mandatory sinking fund payment shall
be reduced accordingly.


 


SECTION 503.
Redemption of Securities for Sinking Fund


 


Not
less than 45 days prior to each sinking fund payment date for the Securities of
any series, or any Tranche thereof, the Company shall deliver to the Trustee an
Officer’s Certificate specifying:


 


(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;


 


(b) the amount, if any, of the optional sinking
fund payment to be made together with such mandatory sinking fund payment;


 


(c) the aggregate sinking fund payment;


 


19

















 


(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the payment of cash;


 


(e) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by delivering and crediting
Securities of such series or Tranche pursuant to Section 502 and stating
the basis for such credit and that such Securities have not previously been so
credited, and the Company shall also deliver to the Trustee any Securities to
be so delivered.


 


If the
Company shall not deliver such Officer’s Certificate, the next succeeding
sinking fund payment for such series or Tranche shall be made entirely in cash
in the amount of the mandatory sinking fund payment. Not less than 40 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 403 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 404. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
405 and 406.


 


ARTICLE SIX


 


COVENANTS


 


SECTION 601.
Payment of Principal, Premium and Interest


 


The
Company shall pay the principal of and premium, if any, and interest, if any,
on the Securities of each series in accordance with the terms of such
Securities and this Indenture.


 


SECTION 602.
Maintenance of Office or Agency


 


The
Company shall maintain in each Place of Payment for the Securities of each
series, or any Tranche thereof, an office or agency where payment of such
Securities shall be made, where the registration of transfer or exchange of
such Securities may be effected and where notices and demands to or upon the
Company in respect of such Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency and prompt notice to
the Holders of any such change in the manner specified in Section 106. If
at any time the Company shall fail to maintain any such required office or
agency in respect of Securities of any series, or any Tranche thereof, or shall
fail to furnish the Trustee with the address thereof, payment of such
Securities shall be made, registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may be served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.


 


The
Company may also from time to time designate one or more other offices or
agencies with respect to the Securities of one or more series, or any Tranche
thereof, for any or all of the foregoing purposes and may from time to time
rescind such designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of such
series or Tranche, no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in accordance with the
requirements set forth above. The Company shall give prompt written notice to
the Trustee, and prompt notice to the Holders in the manner specified in Section 106,
of any such designation or rescission and of any change in the location of any
such other office or agency.


 


Anything
herein to the contrary notwithstanding, any office or agency required by this Section may
be maintained at an office of the Company, in which event the Company shall
perform all functions to be performed at such office or agency.


 


SECTION 603.
Money for Securities Payments to Be Held in Trust


 


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


 


20

















 


Company (or any other
obligor on such Securities) to make any payment of principal of or premium, if
any, or interest, if any, on such Securities.


 


Whenever
the Company shall have one or more Paying Agents for the Securities of any
series, or any Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without duplication) to pay
the principal and premium or interest so becoming due, such sums 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 shall
promptly notify the Trustee of any failure by it so to act.


 


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


 


(a) hold all sums held by it for the payment of
the principal of and premium, if any, or interest, if any, on such Securities
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;


 


(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such Securities; and


 


(c) at any time during the continuance of any
such failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent and furnish to the
Trustee such information as it possesses regarding the names and addresses of
the Persons entitled to such sums.


 


The
Company may at any time pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent and, if so stated in a
Company Order delivered to the Trustee, in accordance with the provisions of Article Seven;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest, if any, has become due and
payable shall be paid to the Company on Company Request, or, if then held by
the Company, shall be discharged from such trust; and, upon such payment or
discharge, the Holder of such Security shall, as an unsecured general creditor
and not as a Holder of an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining unpaid, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such Holder that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.


 


SECTION 604.
Corporate Existence


 


Subject
to the rights of the Company under Article Eleven, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.


 


SECTION 605.
Maintenance of Properties


 


The
Company shall cause (or, with respect to property owned in common with others,
make reasonable effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and shall cause (or, with respect to property owned in common
with others, make reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the business carried on in
connection therewith may be properly conducted; provided, however, that nothing
in this Section shall prevent the Company 


 


21

















 


from discontinuing, or
causing the discontinuance of, the operation and maintenance of any of its
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business.


 


SECTION 606.
Annual Officer’s Certificate as to Compliance


 


Not
later than October 1 in each year, commencing October 1,         ,
the Company shall deliver to the Trustee an Officer’s Certificate which need
not comply with Section 102, executed by the principal executive officer,
the principal financial officer or the principal accounting officer of the
Company, as to such officer’s knowledge of the Company’s compliance with all
conditions and covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice under this
Indenture.


 


SECTION 607.
Waiver of Certain Covenants


 


The
Company may omit in any particular instance to comply with any term, provision
or condition set forth in (a) Section 602 or any additional covenant
or restriction specified with respect to the Securities of any series, or any
Tranche thereof, as contemplated by Section 301 if before the time for
such compliance the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches with respect to
which compliance with Section 602 or such additional covenant or
restriction is to be omitted, considered as one class, shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section 604,
605 or Article Eleven if before the time for such compliance the Holders
of at least a majority in principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition;
but, in the case of (a) or (b), no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.


 


ARTICLE SEVEN


 


SATISFACTION AND DISCHARGE


 


SECTION 701.
Satisfaction and Discharge of Securities


 


Any
Security or Securities, or any portion of the principal amount thereof, shall
be deemed to have been paid for all purposes of this Indenture, and the entire
indebtedness of the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably deposited with
the Trustee or any Paying Agent (other than the Company), in trust:


 


(a) money in an amount which shall be sufficient,
or


 


(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible Obligations, which
shall not contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, the principal of and the interest
on which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient, or


 


(c) a combination of (a) or (b) which
shall be sufficient,


 


to pay when due the
principal of and premium, if any, and interest, if any, due and to become due
on such Securities or portions thereof on or prior to Maturity; provided,
however, that in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities or portions
thereof shall have been selected by the Security Registrar as provided herein
and, in the case of a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the Company shall have
delivered to the Trustee and such Paying Agent:


 


(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order stating that the money and
Eligible Obligations deposited in accordance with this Section shall be
held in trust, as provided in Section 703;


 


22

















 


(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations so deposited constitute
Eligible Obligations and do not contain provisions permitting the redemption or
other prepayment at the option of the issuer thereof, and an opinion of an
independent public accountant of nationally recognized standing, selected by
the Company, to the effect that the requirements set forth in clause (b) above
have been satisfied; and


 


(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Officer’s Certificate stating the Company’s
intention that, upon delivery of such Officer’s Certificate, its indebtedness
in respect of such Securities or portions thereof will have been satisfied and
discharged as contemplated in this Section.


 


Upon
the deposit of money or Eligible Obligations, or both, in accordance with this
Section, together with the documents required by clauses (x), (y) and (z) above,
the Trustee shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect to which such
deposit was made are deemed to have been paid for all purposes of this
Indenture and that the entire indebtedness of the Company in respect thereof
has been satisfied and discharged as contemplated in this Section. In the event
that all of the conditions set forth in the preceding paragraph shall have been
satisfied in respect of any Securities or portions thereof except that, for any
reason, the Officer’s Certificate specified in clause (z) shall not have
been delivered, such Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this Indenture, and the Holders of
such Securities of portions thereof shall nevertheless be no longer entitled to
the benefits of this Indenture or of any of the covenants of the Company under Article Six
(except the covenants contained in Sections 602, 603 and 604) or any other
covenants made in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the Company in
respect of such Securities or portions thereof shall not be deemed to have been
satisfied and discharged prior to Maturity for any other purpose, and the
Holders of such Securities or portions thereof shall continue to be entitled to
look to the Company for payment of the indebtedness represented thereby; and,
upon Company Request, the Trustee shall acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for all purposes of
this Indenture.


 


If
payment at Stated Maturity of less than all of the Securities of any series, or
any Tranche thereof, is to be provided for in the manner and with the effect
provided in this Section, the Security Registrar shall select such Securities,
or portions of principal amount thereof, in the manner specified by Section 403
for selection for redemption of less than all the Securities of a series or
Tranche.


 


In the
event that Securities which shall be deemed to have been paid for purposes of
this Indenture, and, if such is the case, in respect of which the Company’s
indebtedness shall have been satisfied and discharged, all as provided in this Section do
not mature and are not to be redeemed within the sixty (60) day period
commencing with the date of the deposit of moneys or Eligible Obligations, as
aforesaid, the Company shall, as promptly as practicable, give a notice, in the
same manner as a notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has been made and
the effect thereof.


 


Notwithstanding
that any Securities shall be deemed to have been paid for purposes of this
Indenture, as aforesaid, the obligations of the Company and the Trustee in
respect of such Securities under Sections 304, 305, 306, 403, 404, 406, 503 (as
to notice of redemption), 602, 603, 907, 909, 910 and 915 and this Article Seven
shall survive.


 


The
Company shall pay, and shall indemnify the Trustee or any Paying Agent with
which Eligible Obligations shall have been deposited as provided in this Section against,
any tax, fee or other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of such Eligible
Obligations, including, but not limited to, any such tax payable by any entity
deemed, for tax purposes, to have been created as a result of such deposit.


 


Anything
herein to the contrary notwithstanding, (a) if, at any time after a
Security would be deemed to have been paid for purposes of this Indenture, and,
if such is the case, the Company’s indebtedness in respect thereof would be
deemed to have been satisfied or discharged, pursuant to this Section (without
regard to the provisions of this paragraph), the Trustee or any Paying Agent,
as the case may be, shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it as aforesaid to the
Company or its representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction and discharge of the
Company’s indebtedness in 


 


23

















 


respect thereof shall
retroactively be deemed not to have been effected, and such Security shall be
deemed to remain Outstanding and (b) any satisfaction and discharge of the
Company’s indebtedness in respect of any Security shall be subject to the
provisions of the last paragraph of Section 603.


 


SECTION 702.
Satisfaction and Discharge of Indenture


 


This
Indenture shall upon Company Request cease to be of further effect (except as
hereinafter expressly provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when


 


(a) no Securities remain Outstanding hereunder;
and


 


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


 


provided, however, that
it, in accordance with the last paragraph of Section 701, any Security,
previously deemed to have been paid for purposes of this Indenture, shall be
deemed retroactively not to have been so paid, this Indenture shall thereupon
be deemed retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall reasonably request to
evidence and acknowledge the same.


 


Notwithstanding
the satisfaction and discharge of this Indenture as aforesaid, the obligations
of the Company and the Trustee under Sections 304, 305, 306, 403, 404, 406, 503
(as to notice of redemption), 602, 603, 907, 909, 910 and 915 and this Article Seven
shall survive.


 


Upon
satisfaction and discharge of this Indenture as provided in this Section, the
Trustee shall assign, transfer and turn over to the Company, subject to the
lien provided by Section 907, any and all money, securities and other
property then held by the Trustee for the benefit of the Holders of the
Securities other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.


 


SECTION 703.
Application of Trust Money


 


Neither
the Eligible Obligations nor the money deposited pursuant to Section 701,
nor the principal or interest payments on any such Eligible Obligations, shall
be withdrawn or used for any purpose other than, and such Eligible Obligations
and money deposited and the principal and interest payments on any such
Eligible Obligations shall be held in trust for, the payment of the principal
of and premium, if any, and interest, if any, on the Securities or portions of
principal amount thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603; provided, however,
that, so long as there shall not have occurred and be continuing an Event of
Default, any cash received from such principal or interest payments on such
Eligible Obligations, if not then needed for such purpose, shall, to the extent
practicable, be invested in Eligible Obligations of the type described in
clause (b) in the first paragraph of Section 701 maturing at such times
and in such amounts as shall be sufficient to pay when due the principal of and
premium, if any, and interest, if any, due and to become due on such Securities
or portions thereof on and prior to the Maturity thereof, and interest earned
from such reinvestment shall be paid over to the Company as received, free and
clear of any trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that, so long as there
shall not have occurred and be continuing an Event of Default, any moneys held
in accordance with this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over to the Company
free and clear of any trust, lien or pledge under this Indenture except the
lien provided by Section 907, and provided, further, that if an Event of
Default shall have occurred and be continuing, moneys to be paid over to the
Company pursuant to this Section shall be held until such Event of Default
shall have been waived or cured.


 


ARTICLE EIGHT


 


EVENTS OF DEFAULT; REMEDIES


 


SECTION 801.
Events of Default


 


“Event
of Default”, wherever used herein with respect to Securities of any series,
means any one of the following events:


 


24
















 


(a) failure to pay interest, if any, on any
Security of such series within 60 days after the same becomes due and payable;
or


 


(b) failure to pay the principal of or premium,
if any, on any Security of such series within three Business Days after its
Maturity; or


 


(c) failure to perform, or breach of, any
covenant or warranty of the Company in this Indenture (other than a covenant or
warranty a default in the performance of which or breach of which is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 33% in principal amount of
the Outstanding Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder, unless the Trustee, or the Trustee and the
Holders of a principal amount of Securities of such series not less than the
principal amount of Securities the Holders of which gave such notice, as the
case may be, shall agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the Trustee and the Holders
of such principal amount of Securities of such series, as the case may be,
shall be deemed to have agreed to an extension of such period if corrective
action is initiated by the Company within such period and is being diligently
pursued; or


 


(d) the entry by a court having jurisdiction in
the premises of (1) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (2) a
decree or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons other than the Company seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
for the Company or for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such decree or order for
relief or any such other decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or


 


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


 


(f) any other Event of Default specified with
respect to Securities of such series.


 


SECTION 802.
Acceleration of Maturity; Rescission and Annulment


 


If an
Event of Default shall have occurred and be continuing with respect to
Securities of any series at the time Outstanding, then in every such case the
Trustee or the Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the terms
thereof as contemplated by Section 301) of all of the Securities of such
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon receipt by the Company of
notice of such declaration such principal amount (or specified amount) shall
become immediately due and payable; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more than one
series of Securities, the Trustee or the Holders of not less than 33% in
aggregate principal amount of the Outstanding Securities of all such series,
considered as one class (and not the Holders of the Securities of any one of
such series), may make such declaration of acceleration.


 


25

















 


At any
time after such a declaration of acceleration with respect to Securities of any
series shall have been made and before a judgment or decree for payment of the
money due shall have been obtained by the Trustee as hereinafter in this Article provided,
the Event or Events of Default giving rise to such declaration of acceleration
shall, without further act, be deemed to have been waived, and such declaration
and its consequences shall, without further act, be deemed to have been rescinded
and annulled, if


 


(a) the Company shall have paid or deposited with
the Trustee a sum sufficient to pay


 


(1) all overdue interest on all Securities of
such series;


 


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


 


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


 


(4) all amounts due to the Trustee under Section 907;
and


 


(b) any other Event or Events of Default with
respect to Securities of such series, other than the non-payment of the
principal of Securities of such series which shall have become due solely by
such declaration of acceleration, shall have been cured or waived as provided
in Section 813.


 


No such rescission shall
affect any subsequent Event of Default or impair any right consequent thereon.


 


SECTION 803.
Collection of Indebtedness and Suits for Enforcement by Trustee


 


If an
Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Securities of the
series with respect to which such Event of Default shall have occurred, the
whole amount then due and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent permitted by law, interest on
premium, if any, and on any overdue principal and interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover any amounts due to the Trustee
under Section 907.


 


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


 


If an
Event of Default with respect to Securities of any series shall have occurred
and be continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.


 


SECTION 804.
Trustee May File Proofs of Claim


 


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,


 


(a) to file and prove a claim for the whole
amount of principal, premium, if any, and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and


 


26

















 


(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;


 


and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amounts due it under Section 907.


 


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


 


SECTION 805.
Trustee May Enforce Claims Without Possession of Securities


 


All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.


 


SECTION 806.
Application of Money Collected


 


Any
money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities in respect of which or
for the benefit of which such money shall have been collected and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:


 


First: To the payment of all amounts due the Trustee
under Section 907;


 


Second: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium, if any, and interest,
if any, 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, premium, if any,
and interest, if any, respectively; and


 


Third: To the Company.


 


SECTION 807.
Limitation on Suits


 


No
Holder shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:


 


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


 


(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be continuing,
considered as one class, shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;


 


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


 


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


 


(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series in respect of which an Event of Default shall have
occurred and be continuing, considered as one class;


 


27

















 


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


 


SECTION 808.
Unconditional Right of Holders to Receive Principal, Premium and Interest


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the
principal of and premium, if any, and (subject to Section 307) interest,
if any, on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.


 


SECTION 809.
Restoration of Rights and Remedies


 


If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and Trustee and such Holder
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.


 


SECTION 810.
Rights and Remedies Cumulative


 


Except
as otherwise provided in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.


 


SECTION 811.
Delay or Omission Not Waiver


 


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


 


SECTION 812.
Control by Holders of Securities


 


If an
Event of Default shall have occurred and be continuing in respect of a series
of Securities, the Holders of a majority in principal amount of the Outstanding
Securities of such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series; provided, however, that if an Event of Default shall
have occurred and be continuing with respect to more than one series of
Securities, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of the Securities of any
one of such series; and provided, further, that


 


(a) such direction shall not be in conflict with
any rule of law or with this Indenture, and could not involve the Trustee
in personal liability in circumstances where indemnity would not, in the
Trustee’s sole discretion, be adequate, and


 


(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.


 


28

















 


SECTION 813.
Waiver of Past Defaults


 


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


 


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


 


(b) in respect of a covenant or provision hereof
which under Section 1202 cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.


 


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


 


SECTION 814.
Undertaking for Costs


 


The
Company and the Trustee agree, and each Holder by such Holder’s acceptance of a
Security shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
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
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities of all series in
respect of which such suit may be brought, considered as one class, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of or premium, if any, or interest, if any, on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).


 


SECTION 815.
Waiver of Stay or Extension Laws


 


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


 


ARTICLE NINE


 


THE TRUSTEE


 


SECTION 901.
Certain Duties and Responsibilities


 


(a) Except during the continuance of an Event of
Default with respect to Securities of any series,


 


(1) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


 


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


 


(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be continuing, the Trustee
shall exercise, with respect to Securities of such series, such of the rights
and powers 


 


29

















 


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 such person’s own affairs.


 


(c) 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) this clause (c) shall not be construed
to limit the effect of clause (a) of this Section;


 


(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, 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 a majority in principal amount of the
Outstanding Securities of any one or more series, as provided herein, 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 such series; and


 


(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.


 


(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.


 


SECTION 902.
Notice of Defaults


 


The
Trustee shall give notice of any default hereunder with respect to the
Securities of any series to the Holders of Securities of such series in the
manner and to the extent required to do so by the Trust Indenture Act, unless
such default shall have been cured or waived; provided, however, that in the
case of any default of the character specified in clause (c) of Section 801,
no such notice to Holders shall be given until at least 75 days after the occurrence
thereof. For the purpose of this Section, the term “default” means any event
which is, or after notice or lapse of time, or both, would become, an Event of
Default.


 


SECTION 903.
Certain Rights of Trustee


 


Subject
to the provisions of Section 901 and to the applicable provisions of the
Trust Indenture Act:


 


(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, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;


 


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


 


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


 


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


 


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


 


(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, 


 


30

















 


debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal business hours, the
books, records and premises of the Company, personally or by agent or attorney;


 


(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; and


 


(h) except as otherwise provided in Section 801(a) or
(b), the Trustee shall not be charged with knowledge of any Event of Default
with respect to the Securities of any series for which it is acting as Trustee
unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge of the Event of Default or (2) written notice of such Event of
Default shall have been given to the Trustee by the Company, any other obligor
on such Securities or by any Holder of such Securities.


 


SECTION 904.
Not Responsible for Recitals or Issuance of Securities


 


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


 


SECTION 905. May Hold
Securities


 


Each
of the Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 908 and 913, may otherwise deal with the Company with the
same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.


 


SECTION 906.
Money Held in Trust


 


Money
held by the Trustee in trust hereunder need not be segregated from other funds,
except to the extent required by law. The Trustee shall be under no liability
for interest on or investment of any money received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the sole benefit
of, the Company.


 


SECTION 907.
Compensation and Reimbursement


 


The
Company shall


 


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


 


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


 


(c) indemnify the Trustee and hold it harmless
from and against, any loss, liability or expense reasonably incurred by it
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder or the performance of its duties hereunder, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence, willful misconduct or bad faith.


 


As
security for the performance of the obligations of the Company under this Section,
the Trustee shall have a lien prior to the Securities upon all property and
funds held or collected by the Trustee as such other than property 


 


31

















 


and funds held in trust
under Section 703 (except as otherwise provided in Section 703). “Trustee”
for purposes of this Section shall include any predecessor Trustee;
provided, however, that the negligence, willful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any other Trustee hereunder.


 


SECTION 908.
Disqualification; Conflicting Interests


 


If the
Trustee shall have or acquire any conflicting interest within the meaning of
the Trust Indenture Act, it shall either eliminate such conflicting interest or
resign to the extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this Indenture. For
purposes of Section 310(b)(1) of the Trust Indenture Act and to the
extent permitted thereby, the Trustee, in its capacity as trustee in respect of
the Securities of any series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of the Securities of
any other series.


 


SECTION 909.
Corporate Trustee Required; Eligibility


 


There
shall at all times be a Trustee hereunder which shall be


 


(a) a corporation organized and doing business
under the laws of the United States, any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State authority, or


 


(b) if and to the extent permitted by the
Commission by rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a foreign
government, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to supervision or
examination by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination applicable to
United States institutional trustees, and, in either case, qualified and
eligible under this Article and the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.


 


SECTION 910.
Resignation and Removal; Appointment of Successor


 


(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 911.


 


(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.


 


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


 


(d) If at any time:


 


(1) the Trustee shall fail to comply with Section 908
after written request therefor by the Company or by any Holder who has been a
bona fide Holder for at least six months, or


 


(2) the Trustee shall cease to be eligible under Section 909
and shall fail to resign after written request therefor by the Company or by
any such Holder, or


 


(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or 


 


32

















 


control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,


 


then,
in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities or (B) subject to Section 814,
any Holder who has been a bona fide Holder for at least six months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.


 


(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated in clause (B) in clause (d) of
this Section), with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 911.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 911, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner required by Section 911,
any Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.


 


(f) So long as no event which is, or after notice
or lapse of time, or both, would become, an Event of Default shall have
occurred and be continuing, and except with respect to a Trustee appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (1) a Board Resolution appointing a
successor Trustee, effective as of a date specified therein, and (2) an
instrument of acceptance of such appointment, effective as of such date, by
such successor Trustee in accordance with Section 911, the Trustee shall
be deemed to have resigned as contemplated in subsection (b) of this
Section, the successor Trustee shall be deemed to have been appointed by the
Company pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment and acceptance except to
the extent inconsistent with this clause (f).


 


(g) The Company shall give notice of each
resignation and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice shall include
the name of the successor Trustee with respect to the Securities of such series
and the address of its corporate trust office.


 


SECTION 911.
Acceptance of Appointment by Successor


 


(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all series, 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, 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 all sums owed to it, 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.


 


33

















 


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


 


(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully vest in and confirm to
such successor Trustee all such rights, powers and trusts referred to in clause
(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.


 


SECTION 912.
Merger, Conversion, Consolidation or Succession to Business


 


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


 


SECTION 913.
Preferential Collection of Claims Against Company


 


If the
Trustee shall be or become a creditor of the Company or any other obligor upon
the Securities (other than by reason of a relationship described in Section 311(b) of
the Trust Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For purposes of Section 311(b) of
the Trust Indenture Act:


 


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


 


(b) the term “self-liquidating paper” means any
draft, bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company or such obligor for the purpose of
financing the purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor


 


34
















 


relationship with the
Company or such obligor arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.


 


SECTION 914.
Co-trustees and Separate Trustees


 


At any time or times, for
the purpose of meeting the legal requirements of any applicable jurisdiction,
the Company and the Trustee shall have power to appoint, and, upon the written
request of the Trustee or of the Holders of at least 33% in principal amount of
the Securities then Outstanding, the Company shall for such purpose join with
the Trustee in the execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Trustee
either to act as co-trustee, jointly with the Trustee, or to act as separate
trustee, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons, in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or if an Event of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.


 


Should any written
instrument or instruments from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to such co-trustee or
separate trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and delivered by the
Company.


 


Every co-trustee or
separate trustee shall, to the extent permitted by law, but to such extent
only, be appointed subject to the following conditions:


 


(a) the
Securities shall be authenticated and delivered, and all rights, powers, duties
and obligations hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited or pledged with,
the Trustee hereunder, shall be exercised solely, by the Trustee;


 


(b) the
rights, powers, duties and obligations hereby conferred or imposed upon the
Trustee in respect of any property covered by such appointment shall be
conferred or imposed upon and exercised or performed either by the Trustee or
by the Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee;


 


(c) the
Trustee at any time, by an instrument in writing executed by it, with the
concurrence of the Company, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section, and, if an Event
of Default shall have occurred and be continuing, the Trustee shall have power
to accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the execution and delivery
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section;


 


(d) no
co-trustee or separate trustee hereunder shall be personally liable by reason
of any act or omission of the Trustee, or any other such trustee hereunder; and


 


(e) any
Act of Holders delivered to the Trustee shall be deemed to have been delivered
to each such co-trustee and separate trustee.


 


SECTION 915.
Appointment of Authenticating Agent


 


The Trustee may appoint
an Authenticating Agent or Agents with respect to the Securities of one or more
series, or any Tranche thereof, which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series or Tranche issued upon
original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee’s certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating 


 


35

















 


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


 


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


 


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


 


The Trustee agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be entitled to be reimbursed
for such payments, in accordance with, and subject to the provisions of Section 907.


 


The provisions of
Sections 308, 904 and 905 shall be applicable to each Authenticating Agent.


 


If an appointment with
respect to the Securities of one or more series, or any Tranche thereof, shall
be made pursuant to this Section, the Securities of such series or Tranche may
have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternate certificate of authentication substantially in the
following form:


 


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


 


	
   

  	
   

  	
  ,

  
	
   

  	
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  As Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized Signatory

  
				



 


If all of the Securities
of a series may not be originally issued at one time, and if the Trustee does
not have an office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the Trustee, if so requested
by the Company in writing (which writing need not comply with Section 102
and need not be accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating Agent having an office in
a Place of Payment designated by the Company with respect to such series of
Securities.


 


36

















 


ARTICLE
TEN


 


HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


SECTION 1001.
Lists of Holders


 


Semiannually, not later
than March 1 and September 1 in each year, commencing March 1,             ,
and at such other times as the Trustee may request in writing, the Company
shall furnish or cause to be furnished to the Trustee information as to the
names and addresses of the Holders, and the Trustee shall preserve such
information and similar information received by it in any other capacity and
afford to the Holders access to information so preserved by it, all to such
extent, if any, and in such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be furnished so long as the
Trustee shall be the Security Registrar.


 


SECTION 1002.
Reports by Trustee and Company


 


Not later than July 15
in each year, commencing July 15,
            , the
Trustee shall transmit to the Holders and the Commission a report, dated as of
the next preceding May 15, with respect to any events and other matters
described in Section 313(a) of the Trust Indenture Act, in such
manner and to the extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the Company shall file with the
Trustee (within 30 days after filing with the Commission in the case of reports
which pursuant to the Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such manner, as shall
be required by the Trust Indenture Act.


 


ARTICLE
ELEVEN


 


CONSOLIDATION,
MERGER, CONVEYANCE OR OTHER TRANSFER


 


SECTION 1101.
Company May Consolidate, Etc., Only on Certain Terms


 


The Company shall not
consolidate with or merge into any other corporation, or convey or otherwise
transfer or lease its properties and assets substantially as an entirety to any
Person, unless


 


(a) the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be a
Person organized and existing under the laws of the United States, any State
thereof or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and premium, if any, and interest, if any, on all Outstanding Securities and
the performance of every covenant of this Indenture on the part of the Company
to be performed or observed;


 


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


 


(c) the
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
or other transfer or lease and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transactions
have been complied with.


 


SECTION 1102.
Successor Corporation Substituted


 


Upon any consolidation by
the Company with or merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 1101, the
successor corporation formed by such consolidation or into which the Company is
merged or the Person to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such 


 


37

















 


successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities Outstanding hereunder.


 


ARTICLE
TWELVE


 


SUPPLEMENTAL
INDENTURES


 


SECTION 1201.
Supplemental Indentures Without Consent of Holders


 


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


 


(a) to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the
Securities, all as provided in Article Eleven; or


 


(b) to
add one or more covenants of the Company or other provisions for the benefit of
all Holders or for the benefit of the Holders of, or to remain in effect only
so long as there shall be Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof, or to surrender any right or
power herein conferred upon the Company; or


 


(c) to
add any additional Events of Default with respect to all or any series of
Securities Outstanding hereunder; or


 


(d) to
change or eliminate any provision of this Indenture or to add any new provision
to this Indenture; provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders of Securities of
any series or Tranche Outstanding on the date of such indenture supplemental
hereto in any material respect, such change, elimination or addition shall
become effective (1) with respect to such series or Tranche only pursuant
to the provisions of Section 1202 hereof or (2) when no Security of
such series or Tranche remains Outstanding; or


 


(e) to
provide collateral security for all but not part of the Securities; or


 


(f) to
establish the form or terms of Securities of any series or Tranche as
contemplated by Sections 201 and 301; or


 


(g) to
provide for the authentication and delivery of bearer securities and coupons
appertaining thereto representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement thereof and for the
giving of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental thereto; or


 


(h) to
evidence and provide for the acceptance of appointment hereunder by a separate
or successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of clause (b) of
Section 911; or


 


(i) to
provide for the procedures required to permit the Company to utilize, at its
option, a non-certificated system of registration for all, or any series or
Tranche of, the Securities; or


 


(j) to
change any place or places where (1) the principal of and premium, if any,
and interest, if any, on all or any series of Securities, or any Tranche
thereof, shall be payable, (2) all or any series of Securities, or any
Tranche thereof, may be surrendered for registration of transfer, (3) all
or any series of Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company in respect of
all or any series of Securities, or any Tranche thereof, and this Indenture may
be served; or


 


(k) to
cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other
changes to the provisions hereof or to add other provisions with respect to
matters or questions arising under this Indenture, provided that such other
changes or additions shall not adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect.


 


Without limiting the
generality of the foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at any time thereafter
shall be amended and


 


38

















 


(x) if
any such amendment shall require one or more changes to any provisions hereof
or the inclusion herein of any additional provisions, or shall by operation of
law be deemed to effect such changes or incorporate such provisions by
reference or otherwise, this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture Act, and the Company and
the Trustee may, without the consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes or additional
provisions; or


 


(y) if
any such amendment shall permit one or more changes to, or the elimination of,
any provisions hereof which, at the date of the execution and delivery hereof
or at any time thereafter, are required by the Trust Indenture Act to be
contained herein, this Indenture shall be deemed to have been amended to effect
such changes or elimination, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture supplemental hereto to evidence
such amendment hereof.


 


SECTION 1202.
Supplemental Indentures With Consent of Holders


 


With the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series then Outstanding under this Indenture, considered as
one class, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture; provided, however, that if there shall be Securities of
more than one series Outstanding hereunder and if a proposed supplemental
indenture shall directly affect the rights of the Holders of Securities of one
or more, but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one class, shall
be required; and provided, further, that if the Securities of any series shall
have been issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of Securities of one
or more, but less than all, of such Tranches, then the consent only of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected, considered as one class, shall
be required; and provided, further, that no such supplemental indenture shall:


 


(a) change
the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of interest thereon) or
change the method of calculating such rate or reduce any premium payable upon
the redemption thereof, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 802, or change the coin or
currency (or other property), in which any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity of any Security
(or, in the case of redemption, on or after the Redemption Date), without, in
any such case, the consent of the Holder of such Security, or


 


(b) reduce
the percentage in principal amount of the Outstanding Securities of any series
or any Tranche thereof, the consent of the Holders of which is required for any
such supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with any provision of this Indenture or of any
default hereunder and its consequences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the consent of the Holders of
each Outstanding Security of such series or Tranche, or


 


(c) modify
any of the provisions of this Section, Section 607 or Section 813
with respect to the Securities of any series, or any Tranche thereof, or except
to increase the percentages in principal amount referred to in this Section or
such other Sections or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the requirements
of clause (b) of Section 911 and clause (h) of Section 1201.


 


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


 


39

















 


It shall not be necessary
for any Act of Holders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of such Holder’s
right to consent under this Section shall be deemed to be a consent of
such Holder.


 


SECTION 1203.
Execution of Supplemental Indentures


 


In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties, immunities or liabilities under this Indenture or
otherwise.


 


SECTION 1204.
Effect of Supplemental Indentures


 


Upon the execution of any
supplemental indenture under this Article this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this
Indenture in its entirety, and, upon the execution and delivery thereof, any
such restatement shall supersede this Indenture as theretofore in effect for
all purposes.


 


SECTION 1205.
Conformity With Trust Indenture Act


 


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


 


SECTION 1206.
Reference in Securities to Supplemental Indentures


 


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


 


SECTION 1207.
Modification Without Supplemental Indenture


 


If the terms of any
particular series of Securities shall have been established in a Board
Resolution or an Officer’s Certificate pursuant to a Board Resolution as
contemplated by Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms may be
effected by means of a supplemental Board Resolution or Officer’s Certificate,
as the case may be, delivered to, and accepted by, the Trustee; provided,
however, that such supplemental Board Resolution or Officer’s Certificate shall
not be accepted by the Trustee or otherwise be effective unless all conditions
set forth in this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a supplemental indenture
shall have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer’s Certificate shall
be deemed to be a “supplemental indenture” for purposes of Section 1204
and 1206.


 


ARTICLE
THIRTEEN


 


MEETINGS
OF HOLDERS; ACTION WITHOUT MEETING


 


SECTION 1301.
Purposes for Which Meetings May Be Called


 


A meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
may be called at any time and from time to time pursuant to this Article to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series or Tranches.


 


40

















 


SECTION 1302.
Call, Notice and Place of Meetings


 


(a) The
Trustee may at any time call a meeting of Holders of Securities of one or more,
or all, series, or any Tranche or Tranches thereof, for any purpose specified
in Section 1301, to be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee shall determine, or, with
the approval of the Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.


 


(b) If
the Trustee shall have been requested to call a meeting of the Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
by the Company or by the Holders of 33% in aggregate principal amount of all of
such series and Tranches, considered as one class, for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series and
Tranches in the amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved by the Company, for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in clause (a) of this Section.


 


(c) Any
meeting of Holders of Securities of one or more, or all, series, or any Tranche
or Tranches thereof, shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are present in person or by
proxy and if representatives of the Company and the Trustee are present, or if
notice is waived in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or by such of them as are not present at
the meeting in person or by proxy, and by the Company and the Trustee.


 


SECTION 1303.
Persons Entitled to Vote at Meetings


 


To be entitled to vote at
any meeting of Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one
or more Outstanding Securities of such series or Tranches by such Holder or
Holders. The only Persons who shall be entitled to attend any meeting of
Holders of Securities of any series or Tranche shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.


 


SECTION 1304.
Quorum; Action


 


The Persons entitled to vote
a majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which a meeting shall have been called as
hereinbefore provided, considered as one class, shall constitute a quorum for a
meeting of Holders of Securities of such series and Tranches; provided,
however, that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified percentage, which
is less than a majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series and Tranches, be dissolved. In any other case the meeting may be
adjourned for such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for
such period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by clause (e) of
Section 1305, notice of the reconvening of any meeting adjourned for more
than 30 days shall be given as provided in clause (a) of Section 1302
not less than ten days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series and Tranches which shall constitute a
quorum.


 


Except as limited by Section 1202,
any resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of 


 


41

















 


a majority in aggregate
principal amount of the Outstanding Securities of the series and Tranches with
respect to which such meeting shall have been called, considered as one class;
provided, however, that, except as so limited, any resolution with respect to
any action which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class, may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.


 


Any resolution passed or
decision taken at any meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have been held,
whether or not present or represented at the meeting.


 


SECTION 1305.
Attendance at Meetings; Determination of Voting Rights; Conduct and Adjournment
of Meetings


 


(a) Attendance
at meetings of Holders of Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to which it was given
unless and until specifically revoked by the Holder or future Holder of such
Securities before being voted.


 


(b) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities
in regard to proof of the holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.


 


(c) The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders
as provided in clause (b) of Section 1302, in which case the Company
or the Holders of Securities of the series and Tranches calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the meeting,
considered as one class.


 


(d) At
any meeting each Holder or proxy shall be entitled to one vote for each $1
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.


 


(e) Any
meeting duly called pursuant to Section 1302 at which a quorum is present
may be adjourned from time to time by Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class; and the meeting
may be held as so adjourned without further notice.


 


SECTION 1306.
Counting Votes and Recording Action of Meetings


 


The vote upon any
resolution submitted to any meeting of Holders shall be by written ballots on
which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities, of the series and Tranches with respect to which the
meeting shall have been called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports of
all votes cast at the meeting. A record of the proceedings of each meeting of
Holders shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more 


 


42

















 


persons having knowledge
of the facts setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.


 


SECTION 1307.
Action Without Meeting


 


In lieu of a vote of
Holders at a meeting as hereinbefore contemplated in this Article, any request,
demand, authorization, direction, notice, consent, waiver or other action may
be made, given or taken by Holders by written instruments as provided in Section 104.


 


ARTICLE
FOURTEEN


 


IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


SECTION 1401.
Liability Solely Corporate


 


No recourse shall be had
for the payment of the principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or
future of the Company or of any predecessor or successor corporation (either
directly or through the Company or a predecessor or successor corporation), whether
by virtue of any constitutional provision, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the Securities are solely
corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any incorporator, stockholder, officer or director,
past, present or future, of the Company or of any predecessor or successor
corporation (either directly or indirectly through the Company or any
predecessor or successor corporation), because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.


 


ARTICLE
FIFTEEN


 


SUBORDINATION


 


SECTION 1501.
Agreement to Subordinate


 


The Company covenants and
agrees, and each Holder of Securities of each series, by such Holder’s
acceptance thereof, likewise covenants and agrees, that the indebtedness
evidenced by the Securities of each series and the payment of the principal
thereof, premium, if any, sinking fund requirements therefor and interest
thereon shall be subordinate and subject in right of payment, to the extent and
in the manner hereinafter set forth, to the prior payment in full in cash or
cash equivalents of all Senior Debt.


 


SECTION 1502.
Distribution on Dissolution, Liquidation and Reorganization


 


Upon any distribution to
creditors of the Company in a liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
properties, or upon an assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of the Company (each such event, if
any, herein sometimes referred to as a “Proceeding”):


 


(a) all
principal of, premium, if any, interest (including interest after the
commencement of any such Proceeding at the rate specified in the applicable
Senior Debt) and commitment fees (the “Obligations”) due on, or to become due
on or in respect of, all Senior Debt shall first be paid in full in cash or
cash equivalents before any payment or distribution of any kind or character,
whether in cash, property or securities, by set off or otherwise (including any
payment or distribution which may be payable or deliverable by reason of the 


 


43

















 


payment of any Junior
Subordinated Debt), on account of the principal of (and premium, if any) or
interest on any Securities or on account of any purchase, redemption,
retirement or other acquisition of Securities by the Company, any Subsidiary of
the Company, the Trustee or any Paying Agent or on account of any other
obligation of the Company in respect of any Securities (all such payments,
distributions, purchases, redemptions, retirements and acquisitions, whether or
not in connection with a Proceeding, herein referred to, individually and
collectively, as a “Securities Payment”), or before the Holders of the
Securities shall be entitled to retain any assets so paid or distributed in
respect thereof; and


 


(b) until
the Senior Debt is paid in full in cash or cash equivalents (as provided in
subsection (a) above), any Securities Payment to which the Holders of the
Securities or the Trustee for their benefit would be entitled except for the
provisions of this Section 1302, shall be paid or delivered by the Company
or any receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making such payment or distribution directly to the holders of Senior
Debt or their representative or representatives or the trustee or trustees
under any indenture pursuant to which any instruments evidencing any Senior
Debt may have been issued, as their respective interests may appear.


 


For purposes of this Article 15
only, the words “any payment or distribution of any kind or character, whether
in cash, property or securities” shall not be deemed to include (i) a
payment or distribution of stock or securities of the Company provided for by a
plan of reorganization or readjustment authorized by an order or decree of a
court of competent jurisdiction in a reorganization proceeding under any
applicable Bankruptcy Law or of any other corporation provided for by such plan
of reorganization or readjustment which stock or securities are subordinated in
right of payment to all then outstanding Senior Debt to the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in
this Article; or (ii) any deposit, or payment made therefrom, pursuant to Article 7,
with respect to any series of Securities; provided that, in the case of any
such payment from a defeasance trust, the assets deposited in trust to fund
such payment have been so deposited for any period of at least 90 consecutive
days without the occurrence of a blockage of payment on such series of
Securities pursuant to this Section 1502 or Section 1503 hereof. The
consolidation of the Company with, or the merger of the Company into, another Person
or the liquidation or dissolution of the Company following the conveyance or
transfer of all or substantially all of its properties and assets as an
entirety to another Person upon the terms and conditions set forth in Article 7
shall not be deemed a Proceeding for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer such properties and assets as
an entirety, as the case may be, shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions set forth in Article 7.


 


SECTION 1503.
No Payment When Senior Debt In Default


 


In the event that any
Senior Payment Default shall have occurred, then no Securities Payment shall be
made unless and until such Senior Payment Default shall have been cured or
waived in writing or shall have ceased to exist or all Obligations in respect
of such Senior Debt shall have been paid in full in cash or cash equivalents.


 


The provisions of this Section shall
not apply to any Securities Payment with respect to which Section 1502
hereof would be applicable.


 


SECTION 1504.
Payment to Holders of Senior Debt


 


Subject to the provisions
of Section 1506, in the event that, notwithstanding the provisions of Section 1502
or Section 1503, any Securities Payment shall be received by the Trustee
on behalf of the Holders of the Securities (i) from the Company in
violation of such provisions, or (ii) from any other Person under such
circumstances that such payment would, if made directly by the Company, be in
violation of such provisions, such payment or distribution shall be held by the
Trustee in trust for the benefit of, and shall immediately be paid over by the
Trustee, upon written request by a Person entitled to give notice on behalf of
such Senior Debt as specified in Section 1510, to the holders of Senior
Debt or their representative or representatives, or to the trustee or trustees
under any indenture under which any instrument evidencing any of such Senior
Debt may have been issued, as their respective interests may appear, for
application to the payment of Senior Debt.


 


Upon any payment or
distribution of assets or securities of the Company referred to in Sections
1502 and 1503, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree of a court of competent jurisdiction, or upon
any certificate of any liquidating trustee or agent or other similar Person
making any 


 


44

















 


payment or distribution
to the Trustee or to the Holders of the Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt, the amount thereof or payment
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 15. In the event that the Trustee
determines, in good faith, that further evidence is required with respect to
the right of any Person as a holder of Senior Debt to participate in any
payment or distribution referred to in Sections 1502 and 1503, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Debt held by such Person, as to the extent
to which such Person is entitled to participation in such payment or
distribution, and as to other facts pertinent to the rights of such Person
under Sections 1502 and 1503, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.


 


SECTION 1505.
Subrogation


 


Subject to the payment in
full in cash or cash equivalents of all Senior Debt at the time outstanding,
the Holders of the Securities shall be subrogated to the rights of each holder
of Senior Debt (to the extent of the payments or distributions made to such
holder pursuant to the provisions of Sections 1502, 1503 and 1504) to receive
payments or distributions of cash, assets or securities of the Company
applicable to the Senior Debt until the Securities shall be paid in full. No
payments or distributions to holders of Senior Debt of cash, assets or
securities of the Company to which Holders of Securities would be entitled
except for the provisions of this Article 15, and no payment over pursuant
to the provisions of this Article 15 to holders of such Senior Debt by the
Holders of Securities shall, as among the Company, its creditors other than the
holders of Senior Debt, and the Holders of the Securities, be deemed to be a
payment by the Company on account of the Senior Debt, it being understood that
the provisions of this Article 15 are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of the Senior Debt, on the other hand, and nothing contained in
this Article 15 or elsewhere in this Indenture, or in the Securities, is
intended to or shall impair, as between the Company, its creditors other than
the holders of Senior Debt, and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of, premium, if any, and interest on the
Securities, as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders
of Senior Debt, nor shall anything herein or therein prevent the Trustee or the
Holder of any Securities from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article 15 of the holders of Senior Debt in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.


 


SECTION 1506.
Payment on Securities Permitted


 


Nothing contained in this
Article 15 or elsewhere in this Indenture, or in any of the Securities,
shall prevent the Company from making payment of the principal of, sinking
fund, if any, premium, if any, or interest on the Securities, at any time,
except under the conditions described in Section 1503 and except during
the pendency of any Proceeding within the meaning of Section 1502. Nothing
contained in this Article 15 or elsewhere in this Indenture, or in any of
the Securities, shall prevent the application by the Trustee of any moneys
deposited with it hereunder for the purpose, to the payment of or on account of
the principal of, sinking fund, if any, or premium, if any, or interest on the
Securities, unless the Trustee shall have received written notice, directed to
it at its Corporate Trust Office as provided in Section 1510.


 


SECTION 1507.
Authorization of Holders to Trustee to Effect Subordination


 


Each Holder of
Securities, by such Holder’s acceptance thereof, authorizes and directs the
Trustee in such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate, as between the Holders of the Securities and the
holders of Senior Debt, the subordination provided in this Article 15 and
appoints the Trustee such Holder’s attorney-in-fact for any and all such
purposes.


 


SECTION 1508.
No Waiver of Subordination Provisions


 


No right of any present or
future holder of any Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act by any such
holder, or by any noncompliance by the Company with terms, provisions and 


 


45

















 


covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.


 


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


 


SECTION 1509.
Trustee as Holder of Senior Debt


 


The Trustee shall be
entitled to all the rights set forth in this Article 15 in respect of any
Senior Debt at any time held by it, to the same extent as any other holder of
Senior Debt, and nothing in Section 913 or elsewhere in this Indenture
shall deprive or be construed to deprive the Trustee of its rights as such
holder.


 


Nothing in this Article 15
shall apply to claims of, or payments to, the Trustee under or pursuant to Section 907
hereof.


 


SECTION 1510.
Notices to Trustee


 


The Company shall give
prompt written notice to the Trustee of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, but failure to give such notice shall not affect the subordination
of the Securities to the extent herein provided if notice is otherwise given as
hereinafter provided in this Section 1510.


 


Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company, any holder of Senior Debt or
any trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 801
hereof, shall be entitled in all respects to assume that no such facts exist.
Any notice required or permitted to be given to the Trustee by a holder of
Senior Debt or a trustee, fiduciary or transfer agent therefor shall be in
writing and shall be sufficient for every purpose hereunder in writing and
either (i) sent via facsimile to the Trustee, the receipt of which shall
be confirmed via telephone, or (ii) mailed, first class postage prepaid,
or sent overnight carrier, to the Trustee addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at any
other address furnished in writing to such holder of the Senior Debt by the
Trustee. Notwithstanding anything else contained herein, no notice, request or
other communication to or with the Trustee shall be deemed given unless
received by a Responsible Officer at the Trustee’s principal corporate trust
office.


 


SECTION 1511.
No Fiduciary Duty by Trustee to Holders of Senior Debt


 


The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or the Company or any other Person moneys
or assets to which any holders of Senior Debt shall be entitled by virtue of
this Article 15 or otherwise.


 


SECTION 1512.
Paying Agent Treated as Trustee


 


In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term “Trustee” as used in this Article 15
shall in such case (unless the context shall otherwise require) be construed as
extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article 15
in place of the Trustee.


 


46

















 


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


 


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


 


	
   

  	
  DATALINK CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF TRUSTEE],
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  



 


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