SUBORDINATED INDENTURE






Exhibit 4.6




INDENTURE




Between




LANCE, INC.,




Issuer,




and




[                    ],




Trustee,




Dated as of [____ __ ], 2009




 






Subordinated Debt Securities





 









 








Reconciliation and tie between

Trust Indenture Act of 1939 (the “Trust Indenture Act”)

and Indenture




	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section	 
	 
	310(a)(1)
	 	 	6.8	 
	(a)(2)
	 	 	6.8	 
	(b)
	 	 	6.9	 
	312(a)
	 	 	7.1	 
	(b)
	 	 	7.2	 
	(c)
	 	 	7.2	 
	313(a)
	 	 	7.3	 
	(b)(2)
	 	 	7.3	 
	(c)
	 	 	7.3	 
	(d)
	 	 	7.3	 
	314(a)
	 	 	7.4	 
	(c)(1)
	 	 	1.2	 
	(c)(2)
	 	 	1.2	 
	(e)
	 	 	1.2	 
	(f)
	 	 	1.2	 
	316(a) (last sentence)
	 	 	1.1	 
	(a)(1)(A)
	 	 	5.2, 5.12	 
	(a)(1)(B)
	 	 	5.13	 
	(b)
	 	 	5.8	 
	317(a)(1)
	 	 	5.3	 
	(a)(2)
	 	 	5.4	 
	(b)
	 	 	10.3	 
	318(a)
	 	 	1.8	 






     Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.




 









 









TABLE OF CONTENTS




Article 1

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




	 	 	 	 	 
	 
	 	 	 	 
	Section 1.1 Definitions

	 	 	1	 
	 
	 	 	 	 
	Section 1.2 Compliance Certificates and Opinions

	 	 	9	 
	 
	 	 	 	 
	Section 1.3 Form of Documents Delivered to Trustee

	 	 	10	 
	 
	 	 	 	 
	Section 1.4 Acts of Holders

	 	 	10	 
	 
	 	 	 	 
	Section 1.5 Notices, Etc., to Trustee and Company

	 	 	12	 
	 
	 	 	 	 
	Section 1.6 Notice to Holders of Securities; Waiver

	 	 	13	 
	 
	 	 	 	 
	Section 1.7 Language of Notices

	 	 	14	 
	 
	 	 	 	 
	Section 1.8 Conflict with Trust Indenture Act

	 	 	14	 
	 
	 	 	 	 
	Section 1.9 Effect of Headings and Table of Contents

	 	 	14	 
	 
	 	 	 	 
	Section 1.10 Successors and Assigns

	 	 	14	 
	 
	 	 	 	 
	Section 1.11 Separability Clause

	 	 	14	 
	 
	 	 	 	 
	Section 1.12 Benefits of Indenture

	 	 	14	 
	 
	 	 	 	 
	Section 1.13 Governing Law; Waiver of Trial by Jury; and Jurisdiction

	 	 	15	 
	 
	 	 	 	 
	Section 1.14 Legal Holidays

	 	 	15	 
	 
	 	 	 	 
	Section 1.15 Counterparts

	 	 	15	 
	 
	 	 	 	 
	Section 1.16 Judgment Currency

	 	 	15	 
	 
	 	 	 	 
	Section 1.17 No Security Interest Created

	 	 	16	 
	 
	 	 	 	 
	Section 1.18 Limitation on Individual Liability

	 	 	16	 
	 
	 	 	 	 
	Article 2

	SECURITIES FORMS

	 
	 	 	 	 
	Section 2.1 Forms Generally

	 	 	17	 
	 
	 	 	 	 
	Section 2.2 Form of Trustee’s Certificate of Authentication

	 	 	17	 
	 
	 	 	 	 
	Section 2.3 Securities in Global Form

	 	 	17	 


i








 









 





	 	 	 	 	 
	 
	 	 	 	 
	Article 3

	THE SECURITIES

	 
	 	 	 	 
	Section 3.1 Amount Unlimited; Issuable in Series

	 	 	18	 
	 
	 	 	 	 
	Section 3.2 Currency; Denominations

	 	 	22	 
	 
	 	 	 	 
	Section 3.3 Execution, Authentication, Delivery and Dating

	 	 	22	 
	 
	 	 	 	 
	Section 3.4 Temporary Securities

	 	 	24	 
	 
	 	 	 	 
	Section 3.5 Registration, Transfer and Exchange

	 	 	25	 
	 
	 	 	 	 
	Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities

	 	 	28	 
	 
	 	 	 	 
	Section 3.7 Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved

	 	 	29	 
	 
	 	 	 	 
	Section 3.8 Persons Deemed Owners

	 	 	31	 
	 
	 	 	 	 
	Section 3.9 Cancellation

	 	 	31	 
	 
	 	 	 	 
	Section 3.10 Computation of Interest

	 	 	32	 
	 
	 	 	 	 
	Section 3.11 CUSIP Numbers

	 	 	32	 
	 
	 	 	 	 
	Article 4

	SATISFACTION AND DISCHARGE OF INDENTURE

	 
	 	 	 	 
	Section 4.1 Satisfaction and Discharge

	 	 	32	 
	 
	 	 	 	 
	Section 4.2 Defeasance and Covenant Defeasance

	 	 	34	 
	 
	 	 	 	 
	Section 4.3 Application of Trust Money

	 	 	37	 
	 
	 	 	 	 
	Article 5

	REMEDIES

	 
	 	 	 	 
	Section 5.1 Events of Default

	 	 	38	 
	 
	 	 	 	 
	Section 5.2 Acceleration of Maturity; Rescission and Annulment

	 	 	40	 
	 
	 	 	 	 
	Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee

	 	 	41	 
	 
	 	 	 	 
	Section 5.4 Trustee May File Proofs of Claim

	 	 	41	 
	 
	 	 	 	 
	Section 5.5 Trustee May Enforce Claims Without Possession of Securities or Coupons

	 	 	42	 






ii




 









 





	 	 	 	 	 
	 
	 	 	 	 
	Section 5.6 Application of Money Collected

	 	 	42	 
	 
	 	 	 	 
	Section 5.7 Limitations on Suits

	 	 	43	 
	 
	 	 	 	 
	Section 5.8 Unconditional Right of Holders to Receive Principal and Any Premium, Interest and
Additional Amounts

	 	 	44	 
	 
	 	 	 	 
	Section 5.9 Restoration of Rights and Remedies

	 	 	44	 
	 
	 	 	 	 
	Section 5.10 Rights and Remedies Cumulative

	 	 	44	 
	 
	 	 	 	 
	Section 5.11 Delay or Omission Not Waiver

	 	 	44	 
	 
	 	 	 	 
	Section 5.12 Control by Holders of Securities

	 	 	44	 
	 
	 	 	 	 
	Section 5.13 Waiver of Past Defaults

	 	 	45	 
	 
	 	 	 	 
	Section 5.14 Waiver of Usury, Stay or Extension Laws

	 	 	45	 
	 
	 	 	 	 
	Section 5.15 Undertaking for Costs

	 	 	45	 
	 
	 	 	 	 
	Article 6

	THE TRUSTEE

	 
	 	 	 	 
	Section 6.1 Certain Duties and Responsibilities of the Trustee

	 	 	46	 
	 
	 	 	 	 
	Section 6.2 Certain Rights of Trustee

	 	 	47	 
	 
	 	 	 	 
	Section 6.3 Notice of Defaults

	 	 	49	 
	 
	 	 	 	 
	Section 6.4 Not Responsible for Recitals or Issuance of Securities

	 	 	49	 
	 
	 	 	 	 
	Section 6.5 May Hold Securities

	 	 	49	 
	 
	 	 	 	 
	Section 6.6 Money Held in Trust

	 	 	50	 
	 
	 	 	 	 
	Section 6.7 Compensation and Reimbursement

	 	 	50	 
	 
	 	 	 	 
	Section 6.8 Corporate Trustee Required; Eligibility

	 	 	51	 
	 
	 	 	 	 
	Section 6.9 Disqualification; Conflicting Interests

	 	 	51	 
	 
	 	 	 	 
	Section 6.10 Resignation and Removal; Appointment of Successor

	 	 	52	 
	 
	 	 	 	 
	Section 6.11 Acceptance of Appointment by Successor

	 	 	53	 
	 
	 	 	 	 
	Section 6.12 Merger, Conversion, Consolidation or Succession to Business

	 	 	54	 
	 
	 	 	 	 
	Section 6.13 Appointment of Authenticating Agent

	 	 	55	 






iii




 









 





	 	 	 	 	 
	 
	 	 	 	 
	Section 6.14 Trustee’s Application for Instructions from the Company

	 	 	56	 
	 
	 	 	 	 
	Article 7

	HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY

	 
	 	 	 	 
	Section 7.1 Company to Furnish Trustee Names and Addresses of Holders

	 	 	57	 
	 
	 	 	 	 
	Section 7.2 Preservation of Information; Communications to Holders

	 	 	57	 
	 
	 	 	 	 
	Section 7.3 Reports by Trustee

	 	 	57	 
	 
	 	 	 	 
	Section 7.4 Reports by Company

	 	 	58	 
	 
	 	 	 	 
	Article 8

	CONSOLIDATION, MERGER AND SALES

	 
	 	 	 	 
	Section 8.1 Company May Consolidate, Etc., Only on Certain Terms

	 	 	59	 
	 
	 	 	 	 
	Section 8.2 Successor Person Substituted for Company

	 	 	59	 
	 
	 	 	 	 
	Article 9

	SUPPLEMENTAL INDENTURES

	 
	 	 	 	 
	Section 9.1 Supplemental Indentures Without Consent of Holders

	 	 	60	 
	 
	 	 	 	 
	Section 9.2 Supplemental Indentures with Consent of Holders

	 	 	61	 
	 
	 	 	 	 
	Section 9.3 Execution of Supplemental Indentures

	 	 	62	 
	 
	 	 	 	 
	Section 9.4 Effect of Supplemental Indentures

	 	 	62	 
	 
	 	 	 	 
	Section 9.5 Reference in Securities to Supplemental Indentures

	 	 	62	 
	 
	 	 	 	 
	Section 9.6 Conformity with Trust Indenture Act

	 	 	63	 
	 
	 	 	 	 
	Section 9.7 Notice of Supplemental Indenture

	 	 	63	 
	 
	 	 	 	 
	Article 10

	COVENANTS

	 
	 	 	 	 
	Section 10.1 Payment of Principal, Any Premium, Interest and Additional Amounts

	 	 	63	 
	 
	 	 	 	 
	Section 10.2 Maintenance of Office or Agency

	 	 	63	 
	 
	 	 	 	 
	Section 10.3 Money for Securities Payments to Be Held in Trust

	 	 	64	 
	 
	 	 	 	 
	Section 10.4 Additional Amounts

	 	 	66	 
	 
	 	 	 	 
	Section 10.5 Maintenance of Properties

	 	 	67	 






iv




 









 






	 	 	 	 	 
	 
	 	 	 	 
	Section 10.6 [Intentionally Omitted]

	 	 	67	 
	 
	 	 	 	 
	Section 10.7 Corporate Existence

	 	 	67	 
	 
	 	 	 	 
	Section 10.8 Waiver of Certain Covenants

	 	 	67	 
	 
	 	 	 	 
	Section 10.9 Company Statement as to Compliance; Notice of Certain Defaults

	 	 	67	 
	 
	 	 	 	 
	Section 10.10 Calculation of Original Issue Discount

	 	 	68	 
	 
	 	 	 	 
	Article 11

	REDEMPTION OF SECURITIES

	 
	 	 	 	 
	Section 11.1 Applicability of Article

	 	 	68	 
	 
	 	 	 	 
	Section 11.2 Election to Redeem; Notice to Trustee

	 	 	68	 
	 
	 	 	 	 
	Section 11.3 Selection by Trustee of Securities to Be Redeemed

	 	 	68	 
	 
	 	 	 	 
	Section 11.4 Notice of Redemption

	 	 	69	 
	 
	 	 	 	 
	Section 11.5 Deposit of Redemption Price

	 	 	71	 
	 
	 	 	 	 
	Section 11.6 Securities Payable on Redemption Date

	 	 	71	 
	 
	 	 	 	 
	Section 11.7 Securities Redeemed in Part

	 	 	72	 
	 
	 	 	 	 
	Article 12

	[INTENTIONALLY OMITTED]

	 
	 	 	 	 
	Article 13

	REPAYMENT AT THE OPTION OF HOLDERS

	 
	 	 	 	 
	Section 13.1 Applicability of Article

	 	 	72	 
	 
	 	 	 	 
	Article 14

	SUBORDINATION OF SECURITIES

	 
	 	 	 	 
	Section 14.1 Subordination Terms

	 	 	73	 
	 
	 	 	 	 
	Article 15

	MEETINGS OF HOLDERS OF SECURITIES

	 
	 	 	 	 
	Section 15.1 Purposes for Which Meetings May Be Called

	 	 	73	 
	 
	 	 	 	 
	Section 15.2 Call, Notice and Place of Meetings

	 	 	73	 
	 
	 	 	 	 
	Section 15.3 Persons Entitled to Vote at Meetings

	 	 	74	 



v








 









 





	 	 	 	 	 
	 
	 	 	 	 
	Section 15.4 Quorum; Action

	 	 	74	 
	 
	 	 	 	 
	Section 15.5 Determination of Voting Rights; Conduct and Adjournment of Meetings

	 	 	75	 
	 
	 	 	 	 
	Section 15.6 Counting Votes and Recording Action of Meetings

	 	 	75	 
	 
	 	 	 	 
	Section 15.7 Action Without Meeting

	 	 	76	 
	 
	 	 	 	 





vi




 









 





     INDENTURE, dated as of [___, ___], 2009 (the “Indenture”), between LANCE, INC., a
corporation duly organized and existing under the laws of the State of North Carolina (the
"Company”), having its principal executive office located at 14120 Ballantyne Corporate Place,
Suite 350, Charlotte, North Carolina 28277, and ___, a banking corporation duly
organized and existing under the laws of the State of ___(the “Trustee”), having
its Corporate Trust Office located at ___.



RECITALS




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its subordinated unsecured debentures, notes or other evidences
of indebtedness (the “Securities”), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more series and to have such
other provisions as shall be fixed as hereinafter provided.



     This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Securities and Exchange Commission promulgated thereunder,
that are required to be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE 1




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




     Section 1.1 Definitions.



     Except as otherwise expressly provided in or pursuant to this Indenture or unless the context
otherwise requires, for all purposes of this Indenture:




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




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




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



 









 






     (4) the words “herein”, “hereof”, “hereto” 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; and




     (5) references herein to Sections or Articles refer to Sections or Articles in this
Indenture.



     Certain terms used principally in certain Articles hereof are defined in those Articles.



     “Act”, when used with respect to any Holders, has the meaning specified in Section
1.4.“Additional Amount[s]” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes, assessments or other governmental charges imposed on Holders specified therein and
which are owing to such Holders.



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


     “Authenticating Agent” means any
Person authorized by the Trustee pursuant to Section 6.13 to act on behalf of the Trustee to
authenticate Securities of one or more series.“Authorized Newspaper” means a newspaper, in an
official language of the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not published on days that
are not Business Days in the place of publication, and of general circulation in each place in
connection with which the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the place of
publication.



     “Authorized Officer” means, when used with respect to the Company, the Chairman of the Board
of Directors, the President, any Vice President, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company.



     “Bearer Security” means any Security in the form established pursuant to Section 2.1 which is
payable to bearer.



     “Board of Directors” means the board of directors of the Company or any committee of that
board duly authorized to act generally or in any particular respect for the Company hereunder.



     “Board Resolution” means a copy of one or more resolutions, 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.



2









 





     “Business Day”, with respect to any Place of Payment or other location, means, unless
otherwise specified with respect to any Securities pursuant to Section 3.1, any day other than a
Saturday, Sunday or other day on which banking institutions in such Place of Payment or other
location are authorized or obligated by law, regulation or executive order to close.“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 execution of this
Indenture such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.



     “Common Stock” includes any capital stock of any class of the Company which has no preference
in respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is not subject to redemption by the
Company.



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



     “Company Request” and “Company Order” mean, respectively, a written request or order, as the
case may be, signed in the name of the Company by the Chairman of the Board of Directors, a Vice
Chairman, the Chief Executive Officer, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.



     “Consolidated Net Worth” means the excess over current liabilities of all assets properly
appearing on a consolidated balance sheet of the Company and its consolidated Subsidiaries after
deducting the minority interests of others in Subsidiaries.



     “Corporate Trust Office” means the corporate trust office of the Trustee at which at any
particular time its corporate trust business shall be principally administered, or the principal
corporate trust office of any successor Trustee.



     “Corporation” includes corporations and, except for purposes of Article Eight, associations,
companies, business trusts and limited liability companies.



     “Coupon” means any interest coupon appertaining to a Bearer Security.



     “Currency”, with respect to any payment, deposit or other transfer in respect of the principal
of or any premium or interest on or any Additional Amounts with respect to any Security, and with
respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof
or such Security, means Dollars.



     “CUSIP number” means the alphanumeric designation assigned to a Security by Standard & Poor’s
Corporation, CUSIP Service Bureau (or any Person to whom this function may be sold or otherwise
transferred).



     “Defaulted Interest” has the meaning specified in Section 3.7.



3









 





     “Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public
or private debts in the United States of America.“Event of Default” has the meaning specified in
Section 5.1.



     “Foreign Currency” means any currency, currency unit or composite currency issued by the
government of one or more countries other than the United States of America or by any recognized
confederation or association of such governments.



     “Government Obligations” means securities which are (i) direct obligations of the United
States of America or the other government or governments in the confederation which issued the
Foreign Currency in which the principal of or any premium or interest on such Security or any
Additional Amounts in respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such government or governments or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation
by the United States of America or such other government or governments, and which, in the case of
(i) or (ii), are not callable or redeemable except at the option of the holders thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian with respect to
any such Government Obligation or a specific payment of interest on or principal of or other amount
with respect to any such Government Obligation held by such custodian for the account of the holder
of a depository receipt, provided that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the Government Obligation or the specific payment of
interest on or principal of or other amount with respect to the Government Obligation evidenced by
such depository receipt.



     “Holder”, in the case of any Registered Security, means the Person in whose name such Security
is registered in the Security Register and, in the case of any Bearer Security, means the bearer
thereof and, in the case of any Coupon, means the bearer thereof.



     “Indebtedness” of any person means the principal of and premium, if any, and interest due on
indebtedness of such Person, whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, which is (a) indebtedness for money borrowed, (b) any obligation of,
or any obligation guaranteed by, such Person for the repayment of borrowed money, whether or not
evidenced by bonds, debentures, notes or other written instruments, (c) any obligation of, or any
such obligation guaranteed by, such Person evidenced by bonds, debentures, notes or similar written
instruments, including obligations assumed or incurred in connection with the acquisition of
property, assets or businesses (provided, however, that the deferred purchase price of any other
business or property or assets shall not be considered Indebtedness if the purchase price thereof
is payable in full within 90 days from the date on which such indebtedness was created), (d) any
obligations of such Person as lessee under leases required to be capitalized on the balance sheet
of the lessee under generally accepted accounting principles, (e) all obligations of such Person
for the reimbursement on any letter of credit, banker’s acceptance, security purchase facility or
similar credit transaction, (f) all obligations of such Person in respect of interest rate swap,
cap or other agreements, interest rate future or options contracts, currency swap arrangements,
currency future or option contracts and other



4









 







similar agreements, (g) all obligations of the types referred to in clauses (a) through (f)
above of other persons for the payment of which such Person is responsible or liable as obligor,
guarantor or otherwise, (h) all obligations of the types referred to in clauses (a) through (g)
above of other persons secured by any lien on any property or asset of such Person (whether or not
such obligation is assumed by such Person), and (i) any amendments, renewals, extensions,
modifications and refundings of any of the foregoing.



     “Indenture” means this instrument 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, with respect to any Security, by the terms and provisions of such Security and any
Coupon appertaining thereto established pursuant to Section 3.1 (as such terms and provisions may
be amended pursuant to the applicable provisions hereof).“Indexed Security” means a Security the
terms of which provide that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.



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



     “Judgment Currency” has the meaning specified in Section 1.16.“Maturity”, 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 or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase, notice of option to
elect repayment or otherwise, and includes the Redemption Date.



     “New York Banking Day” has the meaning specified in Section 1.16.



     “Office” or “Agency”, with respect to any Securities, means an office or agency of the Company
maintained or designated in a Place of Payment for such Securities pursuant to Section 10.2 or any
other office or agency of the Company maintained or designated for such Securities pursuant to
Section 10.2 or, to the extent designated or required by Section 10.2 in lieu of such office or
agency, the Corporate Trust Office of the Trustee.



     “Officer’s Certificate” means a certificate signed by the Chairman of the Board, a Vice
Chairman, the President or a Vice President of the Company that complies with the requirements of
Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel
for the Company or other counsel who shall be reasonably acceptable to the Trustee that, if
required by the Trust Indenture Act, complies with the requirements of Sections 314(c) and/or
314(e) of the Trust Indenture Act.



     “Original Issue Discount Security” means a Security issued pursuant to this Indenture which
provides for declaration of an amount less than the principal face amount thereof to be due and
payable upon acceleration pursuant to Section 5.2.



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



5









 






     (a) any such Security theretofore cancelled by the Trustee or the Security
Registrar or delivered to the Trustee or the Security Registrar for cancellation;




     (b) any such Security for whose payment at the Maturity thereof money in the
necessary amount has been theretofore deposited pursuant hereto (other than pursuant
to Section 4.2) with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and any Coupons
appertaining thereto, provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;




     (c) any such Security with respect to which the Company has effected defeasance
pursuant to the terms hereof, except to the extent provided in Section 4.2;




     (d) any such Security which has been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, unless there shall have been presented to the
Trustee proof satisfactory to it that such Security is held by a bona fide purchaser
in whose hands such Security is a valid obligation of the Company; and




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



     provided, however, that in determining whether the Holders of the requisite principal amount
of Outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, (i)
the principal amount of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall be equal to the
amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security
would be declared (or shall have been declared to be) due and payable upon a declaration of
acceleration thereof pursuant to Section 5.2 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such determination and that
shall be deemed Outstanding for such purposes shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture,
and (iii) Securities owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor, shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which shall have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee (A) the pledgee’s right
so to act with respect to such Securities



6









 







and (B) that the pledgee is not the Company or any other obligor upon the Securities or any
Coupons appertaining thereto or an Affiliate of the Company or such other obligor.



     “Paying Agent” means any Person authorized by the Company to pay the principal of, or any
premium or interest on, or any Additional Amounts with respect to, any Security or any Coupon on
behalf of the Company.



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



     “Place of Payment”, with respect to any Security, means the place or places where the
principal of, or any premium or interest on, or any Additional Amounts with respect to such
Security are payable as provided in or pursuant to this Indenture or such Security.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same indebtedness as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange
for or in lieu of a lost, destroyed, mutilated or stolen Security or any Security to which a
mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to evidence the same
indebtedness as the lost, destroyed, mutilated or stolen Security or the Security to which a
mutilated, destroyed, lost or stolen Coupon appertains.



     “Principal Property” means all real property and tangible personal property constituting a
manufacturing plant located within the United States owned by the Company or a Restricted
Subsidiary, exclusive of (i) motor vehicles, mobile materials-handling equipment and other rolling
stock, (ii) office furnishings and equipment, information and electronic data processing equipment,
(iii) any property financed through obligations issued by a state or possession of the United
States, or any political subdivision or instrumentality of the foregoing, on which the interest is
not, in the opinion of tax counsel of recognized standing or in accordance with a ruling issued by
the Internal Revenue Service, includible in gross income of the holder by reason of Section 103(a)
of the Internal Revenue Code (or any successor to such provision) as in effect at the time of the
issuance of such obligations, (iv) any real property held for development or sale, or (v) any
property the gross book value of which (including related land and improvements thereon and all
machinery and equipment included therein without deduction of any depreciation reserves) is less
than 10% of Consolidated Net Worth or which the Board of Directors of the Company determines is not
material to the operation of the business of the Company and its Subsidiaries taken as a whole.



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



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



     “Registered Security” means any Security established pursuant to Section 2.1 which is
registered in a Security Register.



7









 





     “Regular Record Date” for the interest payable on any Registered Security on any Interest
Payment Date therefor means the date, if any, specified in or pursuant to this Indenture or such
Security as the “Regular Record Date”.



     “Required Currency” has the meaning specified in Section 1.16.



     “Responsible Officer” means any vice president, any assistant vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, or any trust officer or any other
officer of the Trustee who has direct responsibility for the administration of this Indenture and,
for purposes of Section 6.1(3)(b) and the first proviso of Section 6.3, shall also include any
officer of the Trustee to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.



     “Restricted Subsidiary” means a Subsidiary (i) substantially all the property of which is
located, or substantially all the business of which is carried on, within the United States, and
(ii) which owns a Principal Property; provided, however, that the term shall not include any
Subsidiary which is solely or primarily engaged in the business of providing or obtaining financing
for the sale or lease of products sold or leased by the Company or any Subsidiary or which is
primarily engaged in the business of a finance company either on a secured or an unsecured basis.



     “Security” or “Securities” means any note or notes, bond or bonds, debenture or debentures, or
any other evidences of indebtedness, as the case may be, authenticated and delivered under this
Indenture; provided, however, that if at any time there is more than one Person acting as Trustee
under this Indenture, “Securities”, with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
3.5.



     “Special Record Date” for the payment of any Defaulted Interest on any Registered Security
means a date fixed by the Company pursuant to Section 3.7.



     “Stated Maturity”, with respect to any Security or any installment of principal thereof or
interest thereon or any Additional Amounts with respect thereto, means the date established by or
pursuant to this Indenture or such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is, or such Additional Amounts are, due and
payable.



     “Subsidiary” means any corporation, association, partnership, limited liability company or
other business entity of which at least a majority of all outstanding stock having ordinary voting
power in the election of directors of such entity is at the time, directly or indirectly, owned by
the Company or by one or more Subsidiaries or by the Company and one or more Subsidiaries.



8









 





     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and any reference
herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or
provision, as the case may be, as amended or replaced from time to time.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
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 each
Person who is then a Trustee hereunder; provided, however, that if at any time there is more than
one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of such series. “United
States”, except as otherwise provided in or pursuant to this Indenture or any Security, means the
United States of America (including the states thereof and the District of Columbia), its
territories and possessions and other areas subject to its jurisdiction.



     “United States Alien”, except as otherwise provided in or pursuant to this Indenture or any
Security, means any Person who, for United States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.



     “U.S. Depository” or “Depository” means, with respect to any Security issuable or issued in
the form of one or more global Securities, the Person designated as U.S. Depository or Depository
by the Company in or pursuant to this Indenture, which Person must be, to the extent required by
applicable law or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any successor to such Person.
If at any time there is more than one such Person, “U.S. Depository” or “Depository” shall mean,
with respect to any Securities, the qualifying entity which has been appointed with respect to such
Securities.



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



     Section 1.2 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 furnish to the Trustee an Officer’s Certificate stating or opining 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 or any of them is specifically
required by any provision of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.



9









 





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




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




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




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




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



     Section 1.3 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 an Opinion of Counsel, provided that such officer, after reasonable inquiry,
has no reason to believe and does not believe that the Opinion of Counsel with respect to the
matters upon which his certificate or opinion is based is erroneous. Any such Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company, provided that such counsel, after
reasonable inquiry, has no reason to believe, and does not believe 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 or any
Security, they may, but need not, be consolidated and form one instrument.




Section 1.4 Acts of Holders.




     (1) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by or pursuant to this Indenture to be 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. If, but only if,
Securities of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in or pursuant to



10









 






this Indenture to be given or taken by Holders of Securities of such series may,
alternatively, be embodied in and evidenced by the record of Holders of Securities of such
series voting in favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities of such series duly called and held in accordance with
the provisions of Article Fifteen, or a combination of such instruments and any such record.
Except as herein or therein 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 or 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 6.1) conclusive in favor of the Trustee
and the Company and any agent of the Trustee or the Company, if made in the manner provided
in this Section. The record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 15.6.



     Without limiting the generality of this Section 1.4, unless otherwise provided in or pursuant
to this Indenture, a Holder, including a U.S. Depository that is a Holder of a global Security, may
make, give or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depository that is a Holder of a global
Security may provide its proxy or proxies to the beneficial owners of interests in any such global
Security through such U.S. Depository’s standing instructions and customary practices.



     The Company shall fix a record date for the purpose of determining the Persons who are
beneficial owners of interest in any permanent global Security held by a U.S. Depository entitled
under the procedures of such U.S. Depository to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or
other Act provided in or pursuant to this Indenture to be made, given or taken by Holders. When
such a record date is fixed, the Holders on such record date or their duly appointed proxy or
proxies, and only such Persons, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other Act, whether or not such Holders remain
Holders after such record date. No such request, demand, authorization, direction, notice, consent,
waiver or other Act shall be valid or effective if made, given or taken more than 90 days after
such record date.




     (2) The fact and date of the execution by any Person of any such instrument or writing
referred to in this Section 1.4 may be proved in any reasonable manner; and the Trustee may
in any instance require further proof with respect to any of the matters referred to in this
Section.




     (3) The ownership, principal amount and serial numbers of Registered Securities held by
any Person, and the date of the commencement and the date of the termination of holding the
same, shall be proved by the Security Register.



11









 






     (4) The ownership, principal amount and serial numbers of Bearer Securities held by any
Person, and the date of the commencement and the date of the termination of holding the
same, may be proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other depositary reasonably
acceptable to the Company, wherever situated, if such certificate shall be deemed by the
Company and the Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (i) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (ii) such Bearer Security is produced to
the Trustee by some other Person, or (iii) such Bearer Security is surrendered in exchange
for a Registered Security, or (iv) such Bearer Security is no longer Outstanding. The
ownership, principal amount and serial numbers of Bearer Securities held by the Person so
executing such instrument or writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner which the Company and
the Trustee deem sufficient.




     (5) If the Company shall solicit from the Holders of any Registered Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act, the Company
may at its option (but is not obligated to), by Board Resolution, fix in advance a record
date for the determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act. 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
Registered Securities of record at the close of business on such record date shall be deemed
to be Holders for the purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.




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



     Section 1.5 Notices, Etc., to Trustee and Company.



     Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders
or other document provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,



12









 






     (1) the Trustee by any Holder or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or




     (2) the Company by the Trustee or any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to the attention of its Chief Financial Officer,
with a copy to the attention of its Corporate Counsel, at the address of its principal
office specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.



     Section 1.6 Notice to Holders of Securities; Waiver.



     Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture
provides for notice to Holders of Securities of any event,




     (1) such notice shall be sufficiently given to Holders of Registered Securities if in
writing and mailed, first-class postage prepaid, to each Holder of a Registered Security
affected by such event, at his address 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; and




     (2) such notice shall be sufficiently given to Holders of Bearer Securities, if any, if
published in an Authorized Newspaper and, if such Securities are then listed on any stock
exchange outside the United States, in an Authorized Newspaper in such city as the Company
shall advise the Trustee that such stock exchange so requires, on a Business Day at least
twice, the first such publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the giving of such notice.



     In any case where notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as
provided herein. Any notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given or provided. In the case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.



     In case by reason of the suspension of publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither failure to give notice by publication to Holders
of Bearer Securities as provided above, nor any defect in any notice so published,



13









 







shall affect the sufficiency of any notice mailed to Holders of Registered Securities as
provided above.



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



     Section 1.7 Language of Notices.



     Any request, demand, authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English language, except that, if the Company so
elects, any published notice may be in an official language of the country of publication.



     Section 1.8 Conflict with Trust Indenture Act.



     If any provision hereof limits, qualifies or conflicts with any duties under any required
provision of the Trust Indenture Act imposed hereon by Section 318(c) thereof, such required
provision shall control.



     Section 1.9 Effect of Headings and Table of Contents.



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



     Section 1.10 Successors and Assigns.



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



     Section 1.11 Separability Clause.



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



     Section 1.12 Benefits of Indenture.



     Nothing in this Indenture, any Security or any Coupon, express or implied, shall give to any
Person, other than (i) the parties hereto, (ii) any Security Registrar, (iii) any Paying Agent,
(iv) any Authenticating Agent, (v) the successors to each of the parties named in (i), (ii), (iii)
and (iv) of this paragraph and, (vi) the Holders of Securities or Coupons, any benefit or any legal
or equitable right, remedy or claim under this Indenture.



14









 





     Section 1.13 Governing Law; Waiver of Trial by Jury; and Jurisdiction.



     This Indenture, the Securities and the Coupons shall be governed by and construed in
accordance with the law of the State of New York (including without limitation Section 5-1401 of
the New York General Obligations Law or any successor to such statute). The Trustee, the Company,
and (by their acceptance of the Securities) the Holders, agree to submit to the non-exclusive
jurisdiction of any United States federal or state court located in the Borough of Manhattan, in
The City of New York in any action or proceeding arising out of or relating to this Indenture or
the Securities. The Trustee and the Company hereby knowingly, voluntarily and intentionally waive
any rights they may have to a trial by jury in respect of any litigation based hereon, or arising
out of, under or in connection with, this Indenture or any course of conduct, course of dealing,
statements (whether oral or written) or actions of the Trustee or the Company relating thereto. The
Company acknowledges and agrees that it has received full and sufficient consideration for this
provision and that this provision is a material inducement for the Trustee and the Holders entering
into this Indenture.



     Section 1.14 Legal Holidays.



     Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case
where any Interest Payment Date, Stated Maturity or Maturity of any Security, or the last date on
which a Holder has the right to convert or exchange Securities of a series that are convertible or
exchangeable, shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture, any Security or any Coupon other than a provision in any Security or
Coupon that specifically states that such provision shall apply in lieu hereof) payment need not be
made at such Place of Payment on such date, and such Securities need not be converted or exchanged
on such date but such payment may be made, and such Securities may be converted or exchanged, on
the next succeeding day that is a Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or at the Stated Maturity or Maturity or on such
last day for conversion or exchange, and no interest shall accrue on the amount payable on such
date or at such time for the period from and after such Interest Payment Date, Stated Maturity,
Maturity or last day for conversion or exchange, as the case may be, to such next succeeding
Business Day.



     Section 1.15 Counterparts.



     This Indenture may be executed in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.



     Section 1.16 Judgment Currency.



     The Company agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of, or premium or interest, if any, on, or Additional Amounts with
respect to, the Securities of any series (the “Required Currency”) into a currency in which a
judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase in The City of New
York the requisite amount of the Required Currency with the Judgment Currency on



15









 







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



     Section 1.17 No Security Interest Created.



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



     Section 1.18 Limitation on Individual Liability.



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




16











 





ARTICLE 2




SECURITIES FORMS




     Section 2.1 Forms Generally.



     Each Registered Security, Bearer Security, Coupon and temporary or permanent global Security
issued pursuant to this Indenture shall be in the form established by or pursuant to a Board
Resolution and set forth in an Officer’s Certificate or in one or more indentures supplemental
hereto, shall have such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by or pursuant to this Indenture or any indenture supplemental hereto and
may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon as may, consistently herewith, be determined by the officers executing such Security
or Coupon as evidenced by their execution of such Security or Coupon.



     Unless otherwise provided in or pursuant to this Indenture, any Securities, or the Board
Resolution or any indenture supplemental hereto establishing such series of Securities, the
Securities shall be issuable in registered form without Coupons and shall not be issuable upon the
exercise of warrants.



     Definitive Securities and definitive Coupons shall be printed, lithographed or engraved or
produced by any combination of these methods on a steel engraved border or steel engraved borders
or may be produced in any other manner, all as determined by the officers of the Company executing
such Securities or Coupons, as evidenced by their execution of such Securities or Coupons.



     Section 2.2 Form of Trustee’s Certificate of Authentication.



     Subject to Section 6.11, the Trustee’s certificate of authentication shall be in substantially
the following form:




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



	 	 	 	 	 	 	 
	 
	 	 	 	,	 	 
	 	 	 	 	 
	 

	 	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Authorized Officer







     Section 2.3 Securities in Global Form.



     If Securities of a series shall be issuable in global form, any such Security may provide that
it or any number of such Securities shall represent the aggregate amount of all Outstanding



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Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to
time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect exchanges. Any
endorsement of any Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect thereto. Subject to the
provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee shall deliver and redeliver,
in each case at the Company’s expense, any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 3.3 or 3.4 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall be in writing but need
not be accompanied by or contained in an Officer’s Certificate and need not be accompanied by an
Opinion of Counsel.



     Notwithstanding the provisions of Section 3.7, unless otherwise specified in or pursuant to
this Indenture, any Securities, or the Board Resolution or any indenture supplemental hereto
establishing such series of Securities, payment of principal of, any premium and interest on, and
any Additional Amounts in respect of, any Security in temporary or permanent global form shall be
made to the Person or Persons specified therein.



     Notwithstanding the provisions of Section 3.8 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company or the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a global Security (i) in
the case of a global Security in registered form, the Holder of such global Security in registered
form, or (ii) in the case of a global Security in bearer form, the Person or Persons specified
pursuant to Section 3.1.



ARTICLE 3




THE SECURITIES




     Section 3.1 Amount Unlimited; Issuable in Series.



     The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series.



     With respect to any Securities to be authenticated and delivered hereunder, there shall be
established in or pursuant to a Board Resolution and set forth in an Officer’s Certificate, or
established in one or more indentures supplemental hereto,




     (1) the title of such Securities and the series in which such Securities shall be
included;




     (2) any limit upon the aggregate principal amount of the Securities of such title or
the Securities of such series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer



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of, or in
exchange for, or in lieu of, other Securities of such series pursuant to Section 3.4, 3.5,
3.6, 9.5 or 11.7, upon repayment in part of any Registered Security of such series pursuant
to Article Thirteen, upon surrender in part of any Registered Security for conversion into
Common Stock or exchange for other securities pursuant to its terms, or pursuant to or as
contemplated by the terms of such Securities);




     (3) if such Securities are to be issuable as Registered Securities, as Bearer
Securities or alternatively as Bearer Securities and Registered Securities, and whether the
Bearer Securities are to be issuable with Coupons, without Coupons or both, and any
restrictions applicable to the offer, sale or delivery of the Bearer Securities and the
terms, if any, upon which Bearer Securities may be exchanged for Registered Securities and
vice versa;




     (4) if any of such Securities are to be issuable in global form, when any of such
Securities are to be issuable in global form and (i) whether such Securities are to be
issued in temporary or permanent global form or both, (ii) whether beneficial owners of
interests in any such global Security may exchange such interests for Securities of the same
series and of like tenor and of any authorized form and denomination, and the circumstances
under which any such exchanges may occur, if other than in the manner specified in Section
3.5, and (iii) the name of the Depository or the U.S. Depository, as the case may be, with
respect to any such global Security;




     (5) if any of such Securities are to be issuable as Bearer Securities or in global
form, the date as of which any such Bearer Security or global Security shall be dated (if
other than the date of original issuance of the first of such Securities to be issued);




     (6) if any of such Securities are to be issuable as Bearer Securities, whether interest
in respect of any portion of a temporary Bearer Security in global form payable in respect
of an Interest Payment Date therefor prior to the exchange, if any, of such temporary Bearer
Security for definitive Securities shall be paid to any clearing organization with respect
to the portion of such temporary Bearer Security held for its account and, in such event,
the terms and conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date;




     (7) the date or dates, or the method or methods, if any, by which such date or dates
shall be determined, on which the principal of such Securities is payable;




     (8) the rate or rates at which such Securities shall bear interest, if any, or the
method, or methods, if any, by which such rate or rates are to be determined, the date or
dates, if any, from which such interest shall accrue or the method or methods, if any, by
which such date or dates are to be determined, the Interest Payment Dates, if any, on which
such interest shall be payable and the Regular Record Date, if any, for the interest payable
on Registered Securities on any Interest Payment Date, whether and under what
circumstances Additional Amounts on such Securities or any of them shall be payable,
the notice, if any, to Holders regarding the determination of interest on a floating rate



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Security and the manner of giving such notice, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;




     (9) the place, or places where the principal of, any premium and interest on or any
Additional Amounts with respect to such Securities shall be payable, any of such Securities
that are Registered Securities may be surrendered for registration of transfer or exchange,
any of such Securities may be surrendered for conversion or exchange and notices or demands
to or upon the Company in respect of such Securities and this Indenture may be served, the
extent to which, or the manner in which, any interest payment or Additional Amounts on a
global Security on an Interest Payment Date, will be paid and the manner in which any
principal of or premium, if any, on any global Security will be paid;




     (10) whether any of such Securities are to be redeemable at the option of the Company
and, if so, the date or dates on which, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;




     (11) whether the Company is obligated to redeem or purchase any of such Securities or
at the option of any Holder thereof and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such Securities so redeemed or
purchased;




     (12) the denominations in which any of such Securities that are Registered Securities
shall be issuable if other than denominations of $1,000 and any integral multiples of
$1,000;




     (13) whether the Securities of the series will be convertible into shares of Common
Stock and/or exchangeable for other securities, and if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, and any deletions from or
modifications or additions to this Indenture to permit or to facilitate the issuance of such
convertible or exchangeable Securities or the administration thereof;




     (14) if other than the principal amount thereof, the portion of the principal amount of
any of such Securities that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2 or the method by which such portion is to be
determined;




     (15) [Intentionally Omitted]




     (16) [Intentionally Omitted]




     (17) whether the amount of payments of principal of, any premium or interest on or any
Additional Amounts with respect to such Securities may be determined with
reference to an index, formula or other method or methods (which index, formula or
method or methods may be based, without limitation, on one or more Currencies,



20









 







commodities,
equity securities, equity indices or other indices), and, if so, the terms and conditions
upon which and the manner in which such amounts shall be determined and paid or payable;




     (18) any deletions from, modifications of or additions to the Events of Default or
covenants of the Company with respect to any of such Securities, whether or not such Events
of Default or covenants are consistent with the Events of Default or covenants set forth
herein;




     (19) whether either or both of Section 4.2(2) relating to defeasance or Section 4.2(3)
relating to covenant defeasance shall not be applicable to the Securities of such series, or
any covenants in addition to those specified in Section 4.2(3) relating to the Securities of
such series which shall be subject to covenant of defeasance, and any deletions from, or
modifications or additions to, the provisions of Article Four in respect of the Securities
of such series;




     (20) whether any of such Securities are to be issuable upon the exercise of warrants,
and the time, manner and place for such Securities to be authenticated and delivered;




     (21) if any of such Securities are to be issuable in global form and are to be issuable
in definitive form (whether upon original issue or upon exchange of a temporary Security)
only upon receipt of certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or conditions;




     (22) if there is more than one Trustee, the identity of the Trustee and, if not the
Trustee, the identity of each Security Registrar, Paying Agent or Authenticating Agent with
respect to such Securities;




     (23) any additional or different subordination terms applicable to such Securities;




     (24) any other terms of such Securities and any other deletions from or modifications
or additions to this Indenture in respect of such Securities.



     All Securities of any one series and all Coupons, if any, appertaining to Bearer Securities of
such series shall be substantially identical except as to Currency of payments due thereunder,
denomination and the rate of interest thereon, or method of determining the rate of interest, if
any, Maturity, and the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth in the Officer’s
Certificate or in any indenture or indentures supplemental hereto pertaining to such series of
Securities. The terms of the Securities of any series may provide, without limitation, that the
Securities shall be authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officer’s Certificate or supplemental indenture and
that such persons are authorized to determine, consistent with such Officer’s Certificate or any
applicable supplemental indenture, such terms and conditions of the Securities of such series
as are specified in such Officer’s Certificate or supplemental indenture. All Securities of
any one series need not be issued at the same time and, unless otherwise so provided, a series may
be



21









 







reopened for issuances of additional Securities of such series or to establish additional terms
of such series of Securities.



     If any of the terms of the Securities of any series shall be established by action taken by or
pursuant to a Board Resolution, the Board Resolution shall be delivered to the Trustee at or prior
to the delivery of the Officer’s Certificate setting forth the terms of such series.



     Section 3.2 Currency; Denominations.



     Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and
interest on and any Additional Amounts with respect to the Securities shall be payable in Dollars.
Unless otherwise provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations of $1,000 and any
integral multiples of $1,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities in or pursuant to this Indenture.



     Section 3.3 Execution, Authentication, Delivery and Dating.



     Securities shall be executed on behalf of the Company by its Chairman of the Board, a Vice
Chairman, its Chief Executive Officer, its President, its Chief Financial Officer, its Treasurer,
or any Vice President elected by its Board of Directors. Coupons shall be executed on behalf of
the Company by the Treasurer or its Chief Financial Officer. The signature of any of these
officers on the Securities or any Coupons appertaining thereto may be manual or facsimile.



     Securities and any Coupons appertaining thereto bearing the manual or facsimile signatures of
individuals who were at any time the proper 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 and Coupons or did not hold such offices at the date
of original issuance of such Securities or Coupons.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities, together with any Coupons appertaining thereto, executed by the
Company, to the Trustee for authentication and, provided that the Board Resolution and Officer’s
Certificate or supplemental indenture or indentures with respect to such Securities referred to in
Section 3.1 and a Company Order for the authentication and delivery of such Securities have been
delivered to the Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof and of such Securities shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee shall be entitled
to receive, and (subject to Section 6.1) shall be fully protected in relying upon,



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





     (a) the form or forms and terms of such Securities and Coupons, if any, have
been established in conformity with the provisions of this Indenture;



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     (b) all conditions precedent to the authentication and delivery of such
Securities and Coupons, if any, appertaining thereto, have been complied with and
that such Securities and Coupons, when completed by appropriate insertions, and
executed by a duly authorized officer of the Company, delivered by a duly authorized
officer of the Company to the Trustee for authentication pursuant to this Indenture,
and authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute legally valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as enforcement thereof may be
subject to or limited by bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other similar laws
relating to or affecting creditors’ rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and will entitle the Holders thereof to the benefits of this
Indenture; such Opinion of Counsel need express no opinion as to the availability of
equitable remedies; and




     (c) the execution, delivery and performance of such Securities and Coupons, if
any, will not (assuming the Company’s compliance with all applicable state
securities or “Blue Sky” laws and except as would not result in a material adverse
effect on the business affairs, financial condition, earnings or results of
operations of the Company) result in any violation of any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to such Counsel, of any
federal or state government, government instrumentality or court having jurisdiction
over the Company or any of its properties, assets or operations;
and, to the extent that this Indenture is required to be qualified under the Trust
Indenture Act in connection with the issuance of such Securities, to the further
effect that:




     (d) this Indenture has been qualified under the Trust Indenture Act; and




     (2) an Officer’s Certificate stating that all conditions precedent to the execution,
authentication and delivery of such Securities and Coupons, if any, appertaining thereto,
have been complied with and that, to the best knowledge of the Person executing such
certificate, no event which is, or after notice or lapse of time would become, an Event of
Default with respect to any of the Securities shall have occurred and be continuing.



     If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Opinion of Counsel and an Officer’s Certificate at the time of issuance of
each Security, but such opinion and certificate, with appropriate modifications, shall be delivered
at or before the time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company that the Trustee
authenticate and deliver Securities of such series for original issue will be deemed to be a
certification by the



23









 







Company that all conditions precedent provided for in this Indenture relating to
authentication and delivery of such Securities continue to have been complied with.



     The Trustee shall not be required to authenticate or to cause an Authenticating Agent to
authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken.



     Each Registered Security shall be dated the date of its authentication. Each Bearer Security
and any Bearer Security in global form shall be dated as of the date specified in or pursuant to
this Indenture.



     No Security or Coupon appertaining thereto 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 in Section 2.2 or 6.13
executed by or on behalf of the Trustee or by the Authenticating Agent by the manual signature of
one of its Authorized Officers. Such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and delivered hereunder.
Except as permitted by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any
Bearer Security unless all Coupons appertaining thereto then matured have been detached and
cancelled.



     Section 3.4 Temporary Securities.



     Pending the preparation of definitive Securities, the Company may execute and deliver to the
Trustee and, upon Company Order, the Trustee shall authenticate and deliver, in the manner provided
in Section 3.3, temporary Securities in lieu thereof 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, in registered form or, if authorized in
or pursuant to this Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as the officers of the
Company executing such Securities may determine, as conclusively evidenced by their execution of
such Securities. Such temporary Securities may be in global form.



     Except in the case of temporary Securities in global form, which shall be exchanged in
accordance with the provisions thereof, if temporary Securities are issued, the Company shall cause
definitive Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities of the same series and containing terms and provisions that are identical to
those of any temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office or Agency for such
Securities, without charge to any Holder thereof. Upon surrender for cancellation of any one or
more temporary Securities (accompanied by any unmatured Coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series and containing
identical terms and provisions; provided, however, that no definitive Bearer Security, except as
provided in or pursuant to this Indenture, shall be delivered in exchange for a temporary
Registered Security; and provided further that a definitive Bearer Security shall be



24









 







delivered in exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or pursuant to this
Indenture with respect to a temporary global Security, until so exchanged the temporary Securities
of any series shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.



     Section 3.5 Registration, Transfer and Exchange.



     With respect to the Registered Securities of each series, if any, the Company shall cause to
be kept a register (each such register being herein sometimes referred to as the “Security
Register”) at an Office or Agency for such series in which, subject to such reasonable regulations
as, it may prescribe, the Company shall provide for the registration of the Registered Securities
of such series and of transfers of the Registered Securities of such series. Such Office or Agency
shall be the “Security Registrar” for that series of Securities. Unless otherwise specified in or
pursuant to this Indenture or the Securities, the Trustee shall be the initial Security Registrar
for each series of Securities. The Company shall have the right to remove and replace from time to
time the Security Registrar for any series of Securities; provided that no such removal or
replacement shall be effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be Security Registrar with
respect to a series of Securities, it shall have the right to examine the Security Register for
such series at all reasonable times. There shall be only one Security Register for each series of
Securities.



     Upon surrender for registration of transfer of any Registered Security of any series at any
Office or Agency for such series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more new Registered
Securities of the same series denominated as authorized in or pursuant to this Indenture, of a like
aggregate principal amount bearing a number not contemporaneously outstanding and containing
identical terms and provisions.



     At the option of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series containing identical terms and provisions, in any
authorized denominations, and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at any Office or Agency for such series. Whenever any Registered
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the exchange is
entitled to receive.



     If provided in or pursuant to this Indenture, with respect to Securities of any series, at the
option of the Holder, Bearer Securities of such series may be exchanged for Registered Securities
of such series containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons and all matured
Coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in



25









 







funds acceptable to the Company and the Trustee in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 10.2, interest represented by
Coupons shall be payable only upon presentation and surrender of those Coupons at an Office or
Agency for such series located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such Office or Agency for such series in
exchange for a Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of business at such
Office or Agency on the next succeeding Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such Office or Agency on the related date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the Person so surrendering
the Bearer Security), and interest or Defaulted Interest, as the case may be, shall not be payable
on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such Coupon when due in accordance with the provisions of this Indenture.



     If provided in or pursuant to this Indenture with respect to Securities of any series, at the
option of the Holder, Registered Securities of such series may be exchanged for Bearer Securities
upon such terms and conditions as may be provided in or pursuant to this Indenture with respect to
such series.



     Whenever any Securities are surrendered for exchange as contemplated by the immediately
preceding two paragraphs, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.



     Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture,
any Securities, or the Board Resolution or any indenture supplemental hereto establishing such
series of Securities, any global Security shall be exchangeable for definitive Securities only if
(i) the Depository is at any time unwilling, unable or ineligible to continue as depository and a
successor depository is not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a Company Order to the
effect that such global Security shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. If the beneficial owners of interests in
a global Security are entitled to exchange such interests for definitive Securities as the result
of an event described in clause (i), (ii) or (iii) of the preceding sentence, then without
unnecessary delay but in any event not later than the earliest date on which such interests may be
so exchanged, the Company shall deliver to the Trustee definitive Securities in such form and
denominations as are required by or pursuant to this Indenture, and of the same series, containing
identical terms and in aggregate principal amount equal to the principal



26









 







amount of such global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such global Security shall be surrendered from time to
time by the U.S. Depository or such other Depository as shall be specified in the Company Order
with respect thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be (which instructions shall be in writing but
need not be contained in or accompanied by an Officer’s Certificate or be accompanied by an Opinion
of Counsel), as shall be specified in the Company Order with respect thereto to the Trustee, as the
Company’s agent for such purpose, to be exchanged, in whole or in part, for definitive Securities
as described above without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like aggregate principal amount
of definitive Securities of the same series of authorized denominations and of like tenor as the
portion of such global Security to be exchanged, which (unless such Securities are not issuable
both as Bearer Securities and as Registered Securities, in which case the definitive Securities
exchanged for the global Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of Bearer Securities
or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner
thereof, but subject to the satisfaction of any certification or other requirements to the issuance
of Bearer Securities; provided, however, that no such exchanges may occur during a period beginning
at the opening of business 15 days before any selection of Securities of the same series to be
redeemed and ending on the relevant Redemption Date; and provided further that (unless otherwise
provided in or pursuant to this Indenture) no Bearer Security delivered in exchange for a portion
of a global Security shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such global Security shall be returned by the Trustee
to such Depository or the U.S. Depository, as the case may be, or such other Depository or U.S.
Depository referred to above in accordance with the instructions of the Company referred to above.
If a Registered Security is issued in exchange for any portion of a global Security after the close
of business at the Office or Agency for such Security where such exchange occurs on or after (i)
any Regular Record Date for such Security and before the opening of business at such Office or
Agency on the next succeeding Interest Payment Date, or (ii) any Special Record Date for such
Security and before the opening of business at such Office or Agency on the related proposed date
for payment of interest or Defaulted Interest, as the case may be, interest shall not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in respect of such
Registered Security, but shall be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of such portion of such
global Security shall be payable in accordance with the provisions of this Indenture.



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



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



27









 





     No service charge shall be made for any registration of transfer or exchange, or redemption of
Securities, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge and any other expenses (including fees and expenses of the Trustee) that may be
imposed in connection with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.



     Except as otherwise provided in or pursuant to this Indenture, the Company shall not be
required (i) to issue, register the transfer of or exchange any Securities during a period
beginning at the opening of business 15 days before the day of the selection for redemption of
Securities of like tenor and the same series under Section 11.3 and ending at the close of business
on the day of such selection, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, or (iii) to exchange any Bearer Security
so selected for redemption except, to the extent provided with respect to such Bearer Security,
that, such Bearer Security may be exchanged for a Registered Security of like tenor and the same
series, provided that such Registered Security shall be immediately surrendered for redemption with
written instruction for payment consistent with the provisions of this Indenture or (iv) to issue,
register the transfer of or exchange any Security which, in accordance with its terms, has been
surrendered for repayment at the option of the Holder, except the portion, if any, of such Security
not to be so repaid.



     The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so only if and when
expressly required by the terms of, this Indenture.



     Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.



     If any mutilated Security or a Security with a mutilated Coupon appertaining to it is
surrendered to the Trustee, subject to the provisions of this Section 3.6, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the
same series containing identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding to the Coupons, if
any, appertaining to the surrendered Security.



     If there be delivered to the Company and to the Trustee (i) evidence to their satisfaction of
the destruction, loss or theft of any Security or Coupon and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or Coupon has been acquired by a
protected purchaser, the Company shall execute and, upon the Company’s request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or stolen Coupon
appertains with all appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding to



28









 







the Coupons, if any, appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen Coupon appertains.



     Notwithstanding the foregoing provisions of this Section 3.6, in case any mutilated,
destroyed, lost or stolen Security or Coupon 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 or Coupon;
provided, however, that payment of principal of, any premium or interest on or any Additional
Amounts with respect to any Bearer Securities shall, except as otherwise provided in Section 10.2,
be payable only at an Office or Agency for such Securities located outside the United States and,
unless otherwise provided in or pursuant to this Indenture, any interest on Bearer Securities and
any Additional Amounts with respect to such interest shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.



     Upon the issuance of any new Security under this Section 3.6, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security, with any Coupons appertaining thereto issued pursuant to this Section 3.6
in lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen Coupon appertains shall constitute a separate obligation of the Company,
whether or not the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities
of such series and any Coupons, if any, duly issued hereunder.



     The provisions of this Section 3.6, as amended or supplemented pursuant to this Indenture with
respect to particular Securities or generally, shall be 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 or Coupons.




			
	      Section 3.7	 	Payment of Interest and Certain Additional Amounts; Rights to Interest and
Certain Additional Amounts Preserved.





     Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional
Amounts with respect to any Registered Security which shall be payable, and are punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest.



     Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional
Amounts with respect to any Registered Security which shall be payable, but shall not be punctually
paid or duly provided for, on any Interest Payment Date for such Registered Security (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant
Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in clause (1) or (2) below:



29









 






     (1) The Company may elect to make payment of any Defaulted Interest to the Person in
whose name such Registered Security (or a Predecessor Security thereof) shall be registered
at the close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed by the Company in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on
such Registered Security, the Special Record Date therefor 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 on or prior to the date
of the proposed payment, such money when so deposited to be held in trust for the benefit of
the Person entitled to such Defaulted Interest as in this clause provided. The Special
Record Date for the payment of such Defaulted Interest 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 notification to the Trustee of the proposed payment. The Trustee shall, in the name
and at the expense of the Company, cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to
the Holder of such Registered Security (or a Predecessor Security thereof) at his address as
it appears in the Security Register not less than 10 days prior to such Special Record Date.
The Trustee may, if so directed by the Company, in the name and at the expense of the
Company cause a similar notice to be published at least once in an Authorized Newspaper of
general circulation, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (2).




     (2) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Security 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 payment
shall be deemed practicable by the Trustee.



     Unless otherwise provided in or pursuant to this Indenture or the Securities of any particular
series pursuant to the provisions of this Indenture, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the address of the
Person entitled thereto as such address shall appear in the Security Register or by transfer to an
account maintained by the payee with a bank located in the United States.



     Subject to the foregoing provisions of this Section and Section 3.5, 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.



     In the case of any Registered Security of any series that is convertible into shares of Common
Stock or exchangeable for other securities, which Registered Security is converted or



30









 







exchanged after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Registered Security with respect to which the Stated Maturity is prior
to such Interest Payment Date), interest with respect to which the Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion or exchange, and such interest (whether or not punctually paid or duly provided for)
shall be paid to the Person in whose name that Registered Security (or one or more predecessor
Registered Securities) is registered at the close of business on such Regular Record Date. Except
as otherwise expressly provided in the immediately preceding sentence, in the case of any
Registered Security which is converted or exchanged, interest with respect to which the Stated
Maturity is after the date of conversion or exchange of such Registered Security shall not be
payable.



     Section 3.8 Persons Deemed Owners.



     Prior to due presentment of a Registered Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered in the Security Register as the owner of such Registered Security
for the purpose of receiving payment of principal of, any premium and (subject to Sections 3.5 and
3.7) interest on and any Additional Amounts with respect to such Registered Security and for all
other purposes whatsoever, whether or not any payment with respect to such Registered Security
shall be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.



     The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of
any Bearer Security or the bearer of any Coupon as the absolute owner of such Security or Coupon
for the purpose of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not any payment with respect to such Security or Coupon shall be overdue,
and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected
by notice to the contrary.



     No Holder of any beneficial interest in any global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such global Security, and such
Depository may be treated by the Company, the Trustee, and any agent of the Company or the Trustee
as the owner of such global Security for all purposes whatsoever. None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership interests of a
global Security or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.



     Section 3.9 Cancellation.



     All Securities and Coupons surrendered for payment, redemption, registration of transfer,
exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee, and any such Securities and Coupons, as well as Securities and Coupons surrendered
directly to the Trustee for any such purpose, shall be cancelled promptly by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner



31









 







whatsoever, and all Securities so delivered shall be cancelled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by or pursuant to this Indenture. All
cancelled Securities and Coupons held by the Trustee shall be disposed of by the Trustee in
accordance with its then practices, unless by a Company Order the Company directs their return to
it.



     Section 3.10 Computation of Interest.



     Except as otherwise provided in or pursuant to this Indenture, any Security, or the Board
Resolution or any indenture supplemental hereto establishing such series of Securities, interest on
the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.



     Section 3.11 CUSIP Numbers.



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



ARTICLE 4




SATISFACTION AND DISCHARGE OF INDENTURE




     Section 4.1 Satisfaction and Discharge.



     Upon the direction of the Company by a Company Order, this Indenture shall cease to be of
further effect with respect to any series of Securities specified in such Company Order and any
Coupons appertaining thereto, and the Trustee, on receipt of a Company Order, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when



          (1) either





     (a) all Securities of such series theretofore authenticated and delivered and
all Coupons appertaining thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for Registered Securities of such
series and maturing after such exchange whose surrender is not required or has been
waived as provided in Section 3.5, (ii) Securities and Coupons of such series which
have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.6, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender has been
waived as provided in Section 11.7, and (iv) Securities



32









 







and Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or




     (b) all Securities of such series and, in the case of (i) or (ii) below, any
Coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation




     (i) have become due and payable, or




     (ii) will become due and payable at their Stated Maturity within one
year, or




     (iii) if redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,




and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for such purpose, money in the
Currency in which such Securities are payable in an amount sufficient to pay and
discharge the entire indebtedness on such Securities and any Coupons appertaining
thereto not theretofore delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and any Additional Amounts with respect
to such Securities and any Coupons appertaining thereto, to the date of such deposit
(in the case of Securities which have become due and payable) or the Maturity
thereof or the date of redemption, as the case may be;




     (2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Outstanding Securities of such series and any Coupons
appertaining thereto; and




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



     In the event there are Securities of two or more series hereunder, the Trustee shall be
required to execute an instrument acknowledging satisfaction and discharge of this Indenture only
if requested to do so with respect to Securities of such series as to which it is Trustee and if
the other conditions thereto are met.



     Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the
obligations of the Company and the Trustee with respect to the Securities of such series under
Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of Additional Amounts,



33









 







if any, with respect to such Securities as contemplated by Section 10.4 (but only to the
extent that the Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to Section 4.1(1)(b)), and with respect to
any rights to convert or exchange such Securities into Common Stock or other securities shall
survive.



     Section 4.2 Defeasance and Covenant Defeasance.




     (1) Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities
of or within a series under clause (2) of this Section 4.2 shall not be applicable with
respect to the Securities of such series or (ii) covenant defeasance of the Securities of or
within a series under clause (3) of this Section 4.2 shall not be applicable with respect to
the Securities of such series, then such provisions, together with the other provisions of
this Section 4.2 (with such modifications thereto as may be specified pursuant to Section
3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons
appertaining thereto, and the Company may at its option by Board Resolution, at any time,
with respect to such Securities and any Coupons appertaining thereto, elect to have Section
4.2(2) or Section 4.2(3) be applied to such Outstanding Securities and any Coupons
appertaining thereto upon compliance with the conditions set forth below in this Section
4.2.




     (2) Upon the Company’s exercise of the above option applicable to this Section 4.2(2)
with respect to any Securities of or within a series, the Company shall be deemed to have
been discharged from its obligations with respect to such Outstanding Securities and any
Coupons appertaining thereto on the date the conditions set forth in clause (4) of this
Section 4.2 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto, which shall
thereafter be deemed to be “Outstanding” only for the purposes of clause (4) of this Section
4.2 and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and
to have satisfied all of its other obligations under such Securities and any Coupons
appertaining thereto and this Indenture insofar as such Securities and any Coupons
appertaining thereto are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of
such Outstanding Securities and any Coupons appertaining thereto to receive, solely from the
trust fund described in clause (4) of this Section 4.2 and as more fully set forth in such
clause, payments in respect of the principal of (and premium, if any) and interest, if any,
on, and Additional Amounts, if any, with respect to, such Securities and any Coupons
appertaining thereto when such payments are due, and any rights of such Holder to convert
such Securities into Common Stock or exchange such Securities for other securities, (ii) the
obligations of the Company and the Trustee with respect to such Securities under Sections
3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 10.4 (but only to the extent that the Additional
Amounts payable with respect to such Securities exceed the amount deposited in respect of
such Additional Amounts pursuant to Section 4.2(4)(a) below), and with respect to any rights
to convert such



34









 







Securities into Common Stock or exchange such Securities for other securities, (iii)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this
Section 4.2. The Company may exercise its option under this Section 4.2(2) notwithstanding
the prior exercise of its option under clause (3) of this Section 4.2 with respect to such
Securities and any Coupons appertaining thereto.




     (3) Upon the Company’s exercise of the option to have this Section 4.2(3) apply with
respect to any Securities of or within a series, the Company shall be released from its
obligations, to the extent specified pursuant to Section 3.1(19), under any covenant
applicable to such Securities, with respect to such Outstanding Securities and any Coupons
appertaining thereto on and after the date the conditions set forth in clause (4) of this
Section 4.2 are satisfied (hereinafter, “covenant defeasance”), and such Securities and any
Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with any such covenant, but shall continue to be
deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any Coupons
appertaining thereto, the Company may omit to comply with, and shall have no liability in
respect of, any term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any
such Section or such other covenant or by reason of reference in any such Section or such
other covenant to any other provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default under Section 5.1(4) or 5.1(8)
or otherwise, as the case may be, but, except as specified above, the remainder of this
Indenture and such Securities and Coupons appertaining thereto shall be unaffected thereby.




     (4) The following shall be the conditions to application of clause (2) or (3) of this
Section 4.2 to any Outstanding Securities of or within a series and any Coupons appertaining
thereto:




     (a) The Company shall irrevocably have deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of Section 6.8 who shall
agree to comply with the provisions of this Section 4.2 applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of such
Securities and any Coupons appertaining thereto, (1) an amount in Dollars in which
such Securities and any Coupons appertaining thereto are then specified as payable
at Stated Maturity, (2) Government Obligations or (3) a combination thereof,
applicable to such Securities and Coupons appertaining thereto (determined on the
basis of the Currency in which such Securities and Coupons appertaining thereto are
then specified as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide money in an amount, not later than one day before the due date of any
payment of principal of (and premium, if any) and interest, if any, on such
Securities and any Coupons appertaining thereto, sufficient, without consideration
of any reinvestment of such principal and



35









 







interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal of (and premium, if any) and interest,
if any, on such Outstanding Securities and any Coupons appertaining thereto at the
Stated Maturity of such principal or installment of principal or premium or
interest.




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




     (c) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to such Securities and any Coupons
appertaining thereto shall have occurred and be continuing on the date of such
deposit and, with respect to defeasance only, at any time during the period ending
on the 123rd day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).




     (d) In the case of an election under clause (2) of this Section 4.2, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from the Internal Revenue Service a letter ruling, or there
has been published by the Internal Revenue Service a revenue ruling, or (ii) since
the date of execution of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.




     (e) In the case of an election under clause (3) of this Section 4.2, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Outstanding Securities and any Coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.




     (f) The Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that, after the 123rd day after the date of deposit, all money and
Government Obligations (or other property as may be provided pursuant to Section
3.1) (including the proceeds thereof) deposited or caused to be deposited with the
Trustee (or other qualifying trustee) pursuant to this Section 4.2(4) to be held in
trust will not be subject to any case or proceeding (whether voluntary or
involuntary) in respect of the Company under any Federal or State bankruptcy,



36









 







insolvency, reorganization or other similar law, or any decree or order for
relief in respect of the Company issued in connection therewith.




     (g) The Company shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as
the case may be) have been complied with.




     (h) Notwithstanding any other provisions of this Section 4.2(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed on
the Company in connection therewith pursuant to Section 3.1.



     The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for
purposes of Section 4.3, the “Trustee”) against any tax, fee or other charge, imposed on or
assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal
or interest received in respect thereof other than any such tax, fee or other charge which by law
is for the account of the Holders of such Outstanding Securities and any Coupons appertaining
thereto.



     Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2
which, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Section 4.2.



     Section 4.3 Application of Trust Money.



     Subject to the provisions of the last paragraph of Section 10.3, all money and Government
Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds
thereof) deposited with the Trustee pursuant to Section 4.1 or 4.2 in respect of any Outstanding
Securities of any series and any Coupons appertaining thereto shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and any Coupons appertaining
thereto and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any Coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional Amounts, if any; but such
money and Government Obligations need not be segregated from other funds except to the extent
required by law.




37












 





ARTICLE 5




REMEDIES




     Section 5.1 Events of Default.



     “Event of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the supplemental indenture
or Board Resolution and set forth in an Officer’s Certificate establishing the terms of such series
pursuant to this Indenture:




     (1) default in the payment of any interest on any Security of such series, or any
Additional Amounts payable with respect thereto, when such interest becomes or such
Additional Amounts become due and payable, and continuance of such default for a period of
30 days; or




     (2) default in the payment of the principal of or any premium, if any, on any Security
of such series, or any Additional Amounts payable with respect thereto, when such principal
or premium becomes or such Additional Amounts become due and payable at their Maturity; or




     (3) [Intentionally Omitted]




     (4) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture, the Securities, or in the Board Resolution or any supplemental indenture
hereto establishing such series of Securities (other than a covenant or warranty a default
in the performance or the breach of which is elsewhere in this Section specifically dealt
with or which has been expressly included in this Indenture solely for the benefit of a
series of Securities other than such series), and continuance of such default or breach for
a period of 90 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a
“Notice of Default” hereunder; or




     (5) if any event of default as defined in any mortgage, indenture or instrument under
which there may be issued, or by which there may be secured or evidenced, any indebtedness
for money borrowed of the Company, whether such indebtedness now exists or shall hereafter
be created, shall happen and shall result in such indebtedness in principal amount in excess
of $10,000,000 becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable, and such acceleration shall not be rescinded or
annulled or otherwise cured within a period of 10 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal



38









 







amount of the Outstanding Securities of such series, a written notice specifying such
event of default and requiring the Company to cause such acceleration to be rescinded or
annulled or to cause such indebtedness to be discharged and stating that such notice is a
“Notice of Default” hereunder; or




     (6) the Company shall fail within 60 days to pay, bond or otherwise discharge any
uninsured judgment or court order for the payment of money in excess of $25,000,000, which
is not stayed on appeal or is not otherwise being appropriately contested in good faith; or




     (7) the entry by a court having competent jurisdiction of:




     (a) a decree or order for relief in respect of the Company in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or




     (b) a decree or order adjudging the Company to be insolvent, or approving a
petition seeking reorganization, arrangement, adjustment or composition of the
Company and such decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or




     (c) a final and non-appealable order appointing a custodian, receiver,
liquidator, assignee, trustee or other similar official of the Company or of any
substantial part of the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company; or




     (8) the commencement by the Company of a voluntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of a voluntary proceeding
seeking to be adjudicated insolvent or the consent by the Company to the entry of a decree
or order for relief in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any insolvency
proceedings against it, or the filing by the Company of a petition or answer or consent
seeking reorganization, arrangement, adjustment or composition of the Company or relief
under any applicable law, or the consent by the Company to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator, assignee,
trustee or similar official of the Company or any substantial part of the property of the
Company or the making by the Company of an assignment for the benefit of creditors, or the
taking of corporate action by the Company in furtherance of any such action; or




     (9) any other Event of Default provided in or pursuant to this Indenture or established
in or pursuant to a Board Resolution and set forth in an Officer’s Certificate, or
established in one or more indentures supplemental hereto establishing any series of
Securities with respect to Securities of such series.



39









 





     Section 5.2 Acceleration of Maturity; Rescission and Annulment.



     If an Event of Default with respect to Securities of any series at the time Outstanding (other
than an Event of Default specified in clause (7) or (8) of Section 5.1) occurs and is continuing,
then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series or set forth in the Board Resolution or any indenture supplemental hereto
establishing any series of Securities may declare the principal of all the Securities of such
series, or such lesser amount as may be provided for in 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 the
Holders), and upon any such declaration such principal or such lesser amount shall become
immediately due and payable.



     If an Event of Default specified in clause (7) or (8) of Section 5.1 occurs, all unpaid
principal of and accrued interest on the Outstanding Securities of that series shall ipso facto
become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder of any Security of that series.



     At any time after a declaration of acceleration with respect to the Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if




     (1) the Company has paid or deposited with the Trustee a sum of money sufficient to pay




     (a) all overdue installments of any interest on and Additional Amounts with
respect to all Securities of such series and any Coupon appertaining thereto,




     (b) the principal of and any premium on any Securities of such series which
have become due otherwise than by such declaration of acceleration and interest
thereon and any Additional Amounts with respect thereto at the rate or rates borne
by or provided for in such Securities,




     (c) to the extent that payment of such interest or Additional Amounts is
lawful, interest upon overdue installments of any interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and




     (d) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 6.7; and




     (2) all Events of Default with respect to Securities of such series, other than the
non-payment of the principal of, any premium and interest on, and any Additional Amounts
with respect to 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 5.13.



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



     Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.



     The Company covenants that if




     (1) default is made in the payment of any installment of interest on or any Additional
Amounts with respect to any Security or any Coupon appertaining thereto when such interest
or Additional Amounts shall have become due and payable and such default continues for a
period of 30 days, or




     (2) default is made in the payment of the principal of or any premium on any Security
or any Additional Amounts with respect thereto at their Maturity,


the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of such Securities and any Coupons appertaining thereto, the whole amount of money then due and
payable with respect to such Securities and any Coupons appertaining thereto, with interest upon
the overdue principal, any premium and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest and Additional Amounts at the rate
or rates borne by or provided for in such Securities, and, in addition thereto, such further amount
of money as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and all other amounts due to the Trustee under Section 6.7.




     If the Company fails to pay the money it is required to pay the Trustee pursuant to the
preceding paragraph forthwith upon the demand of the Trustee, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the collection of the money so
due and unpaid, and 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 any Coupons appertaining
thereto and collect the monies 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 and any Coupons
appertaining thereto, wherever situated.



     If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series and any Coupons appertaining thereto 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 such
Securities or in aid of the exercise of any power granted herein or therein, or to enforce any
other proper remedy.



     Section 5.4 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 of any series or the property of the Company or
such other obligor or their creditors, the Trustee (irrespective of whether the principal of the



41









 







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 any overdue principal, premium, interest or Additional Amounts) shall be entitled and empowered,
by intervention in such proceeding or otherwise,




     (1) to file and prove a claim for the whole amount, or such lesser amount as may be
provided for in the Securities of any applicable series, of the principal and any premium,
interest and Additional Amounts owing and unpaid in respect of the Securities and any
Coupons appertaining thereto 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 the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or
counsel and any other amounts due the Trustee under Section 6.7) and of the Holders of
Securities or any Coupons appertaining thereto allowed in such judicial proceeding, and




     (2) to collect and receive any monies 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 of Securities or any Coupons 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 of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under Section 6.7.




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



     Section 5.5 Trustee May Enforce Claims Without Possession of Securities or Coupons.



     All rights of action and claims under this Indenture or any of the Securities or Coupons may
be prosecuted and enforced by the Trustee without the possession of any of the Securities or
Coupons 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 or judgment, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit
of each and every Holder of the Securities or Coupons in respect of which such judgment has been
recovered.



     Section 5.6 Application of Money Collected.



     Any money collected by the Trustee pursuant to this Article or any money or other property
otherwise distributable in respect of the Company’s obligations under this Indenture



42









 







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 any premium, interest or
Additional Amounts, upon presentation of the Securities or Coupons, or both, as the case may be,
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 and any predecessor Trustee under
Section 6.7;




     SECOND: To the payment of the amounts then due and unpaid upon the Securities and any
Coupons for principal and any premium, interest and Additional Amounts 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 aggregate amounts due and payable on such Securities
and Coupons for principal and any premium, interest and Additional Amounts, respectively;




     THIRD: The balance, if any, to the Person or Persons entitled thereto.



     Section 5.7 Limitations on Suits.



     No Holder of any Security of any series or any Coupons appertaining thereto 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




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




     (2) the Holders of not less than 25% in principal amount of the Outstanding Securities
of such series 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;




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




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




     (5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of such series;


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 or any Security to
affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any
other series, or to obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.




43









 









			
	      Section 5.8 Unconditional Right of Holders to Receive Principal and Any Premium, Interest
and Additional Amounts.





     Notwithstanding any other provision in this Indenture, the Holder of any Security or Coupon
shall have the right, which is absolute and unconditional, to receive payment of the principal of,
any premium and (subject to Sections 3.5 and 3.7) interest on, and any Additional Amounts with
respect to such Security or payment of such Coupon, as the case may be, on the respective Stated
Maturity or Maturities therefor specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date or, in the case of repayment at the option of such Holder if
provided in or pursuant to this Indenture, on the date such repayment is due) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired without the consent
of such Holder.



     Section 5.9 Restoration of Rights and Remedies.



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



     Section 5.10 Rights and Remedies Cumulative.



     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security
or a Coupon is intended to be exclusive of any other right or remedy, and every right and remedy,
to the extent permitted by law, shall 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, to the extent permitted by
law, prevent the concurrent assertion or employment of any other appropriate right or remedy.



     Section 5.11 Delay or Omission Not Waiver.



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



     Section 5.12 Control by Holders of Securities.



     The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any



44









 







remedy available to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series and any Coupons appertaining thereto, provided that




     (1) such direction shall not be in conflict with any rule of law or with this Indenture
or with the Securities of such series or involve the Trustee in any personal liability or
expense,




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




     (3) such direction is not unduly prejudicial to the rights of the other Holders of
Securities of such series not joining in such action.



     Section 5.13 Waiver of Past Defaults.



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




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




     (2) in respect of a covenant or provision hereof which under Article Nine 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 Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.



     Section 5.14 Waiver of Usury, Stay or Extension Laws.



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



     Section 5.15 Undertaking for Costs.



     All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee



45









 







for any action taken or omitted by it as Trustee, the filing by any party litigant in such
suit of any 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 5.15 shall not apply 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 principal amount of Outstanding Securities of any series, 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 or Additional Amounts, if any, with respect to any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on or after the
Redemption Date, and, in the case of repayment, on or after the date for repayment) or for the
enforcement of the right, if any, to convert or exchange any Security into Common Stock or other
securities in accordance with its terms.



ARTICLE 6




THE TRUSTEE




     Section 6.1 Certain Duties and Responsibilities of the Trustee.




     (1) Except during the continuance of an Event of Default,




     (a) the Trustee undertakes to perform 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




     (b) in the absence of bad faith on its part, the Trustee may 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 (but need not
confirm or investigate the accuracy of mathematical calculations or other facts
stated therein).




     (2) In case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.




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




     (a) this Subsection shall not be construed to limit the effect of Subsection
(1) of this Section;



46









 






     (b) 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; and




     (c) the Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of any series, 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.




     (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.




     (5) No provision of this Indenture shall be deemed to impose any duty or obligation on
the Trustee to perform any act or acts, receive or obtain any interest in property or
exercise any interest in property, or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the
Trustee shall be unqualified or incompetent in accordance with applicable law, to perform
any such act or acts, to receive or obtain any such interest in property or to exercise any
such right, power, duty or obligation.




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



     Section 6.2 Certain Rights of Trustee.



     Subject to Section 6.1:




     (1) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, coupon or other
paper or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;




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




     (3) 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 shall be herein specifically



47









 







prescribed) may, in the absence of bad faith on its part, conclusively rely upon an
Officer’s Certificate;




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




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




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




     (7) 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;




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




     (9) the Trustee shall not be deemed to have or be charged with knowledge of any default
(as defined in this Section 6.2) or Event of Default with respect to the Securities of any
series or any Coupons unless a Responsible Officer of the Trustee has received at the
Corporate Trust Office of the Trustee written notice of such default or Event of Default
from the Company or any Holder of the Securities of such series, and such notice references
the Securities and this Indenture;




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




     (11) the Trustee may request that the Company deliver an Officer’s Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officer’s Certificate may be



48









 







signed by any persons authorized to sign an Officer’s Certificate, including any person
specified as so authorized in any such certificate previously delivered and not superseded;
and




     (12) the permissive right of the Trustee to take action under this Indenture shall not
be construed as a duty.



     Section 6.3 Notice of Defaults.



     Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of such series entitled
to receive reports pursuant to Section 7.3(3), notice of such default hereunder known to a
Responsible Officer of the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal of (or premium, if
any), or interest, if any, on, or Additional Amounts with respect to, any Security of such series,
the Trustee shall be protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the interests of the
Holders of Securities and Coupons of such series; and provided further that, in the case of any
default of the character specified in Section 5.1(5) with respect to Securities of such series, no
such notice to Holders shall be given until at least 10 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 with respect to Securities of such series.



     The Trustee shall not be deemed to have or be charged with knowledge of a default unless a
Responsible Officer receives at the Corporate Trust Office of the Trustee written notice of the
default giving rise thereto from the Company or any of the Holders and such notice references the
Securities and this Indenture.



     Section 6.4 Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities, except the Trustee’s certificate of
authentication, and in any Coupons shall be taken as the statements of the Company and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Securities
or the Coupons, except that the Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that
the statements made by it in any Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the Company of the
Securities or the proceeds thereof.



     Section 6.5 May Hold Securities.



     The Trustee, any Authenticating Agent, any Paying Agents, any Security Registrar or any other
Person that may be an agent of the Trustee or the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons and, subject to Sections



49









 







310(b) and 311 of the Trust Indenture Act, 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 Person.



     Section 6.6 Money Held in Trust.



     Except as provided in Section 4.3 and Section 10.3, money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required by law and shall be
held uninvested. The Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed to in writing with the Company.



     Section 6.7 Compensation and Reimbursement.



     The Company agrees:




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




     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture or arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder (including
the reasonable compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to the Trustee’s
negligence or willful misconduct; and




     (3) to indemnify, defend and hold the Trustee and its directors, officers, employees
and agents (collectively with the Trustee, the “Indemnities”) harmless from and against
every loss, liability or expense, including without limitation damages, fines, suits,
actions, demands, penalties, costs, out -of-pocket or incidental expenses, legal fees and
expenses, and the costs and expenses of defending or preparing to defend against any claim
(collectively, “Losses”), that may be imposed on, incurred by, or asserted against, any
Indemnitee for or in respect of the Trustee’s (1) execution and delivery of this Indenture,
(2) compliance or attempted compliance with or reliance upon any instruction or other
direction upon which the Trustee is authorized to rely pursuant to the terms of this
Indenture, and (3) performance under this Indenture, except in the case of such performance
only and with respect to any Indemnitee to the extent that the Loss resulted from such
Indemnitee’s negligence or willful misconduct.



     The Trustee’s claims under this Section shall have priority over all other claims against the
Company under this Indenture.



     As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities of any series upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of principal of, and
premium or interest on or any Additional Amounts with respect to particular Securities or any
Coupons appertaining thereto.



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     In addition to and without prejudice to its rights hereunder, when the Trustee incurs expenses
or renders services in connection with a default specified in Section 5.1, the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under applicable Federal or state bankruptcy,
insolvency or other similar law. “Trustee” for purposes of this Section 6.7 shall include any
predecessor Trustee, but the negligence, willful misconduct or bad faith of any Trustee shall not
affect the rights of any other Trustee under this Section 6.7.



     The provisions of this Section 6.7, including the lien and claim of the Trustee, shall survive
the satisfaction, discharge and termination of this Indenture for any reason of this Indenture,
including under Article IV hereof, the resignation or removal of the Trustee and any rejection or
termination under any applicable bankruptcy or insolvency law, and shall apply with equal force and
effect to the Trustee in each of its capacities hereunder and each agent, custodian and other
Person employed to act hereunder.



     Section 6.8 Corporate Trustee Required; Eligibility.



     There shall at all times be a Trustee hereunder that is a Corporation organized and doing
business under the laws of the United States of America, any state thereof or the District of
Columbia, that is eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000, and that is subject to supervision or examination by Federal or state authority. If at
any time the Trustee shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter specified in this
Article.



     Section 6.9 Disqualification; Conflicting Interests.



     If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, 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 conflict of interest arising from its capacity as trustee in respect of the
Securities of any other series.



     The Trustee shall comply with Section 310(b) of the Trust Indenture Act; provided, however,
that there shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture Act any
indenture or indentures under which other securities or certificates of interest or participation
in other securities of the Company are outstanding if the requirements for such exclusion set forth
in Section 310(b)(1) of the Trust Indenture Act are met.



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



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     Section 6.10 Resignation and Removal; Appointment of Successor.




     (1) 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 pursuant to Section 6.11.




     (2) Subject to Section 6.10(1), the Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of resignation, the
resigning or removed Trustee, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such series.




     (3) 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 the Company.




     (4) If at any time:




     (a) the Trustee shall fail to comply with the obligations imposed upon it under
Section 310(b) of the Trust Indenture Act with respect to Securities of any series
after written request therefor by the Company or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such series for at least six
months, or




     (b) the Trustee shall cease to be eligible under Section 6.8 and shall fail to
resign after written request therefor by the Company or any such Holder, or




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


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





     (5) 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, with respect to the Securities
of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of such 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



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applicable requirements of Section 6.11. If, within one year after such resignation,
removal or incapacity, 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
6.11, become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner required by Section 6.11,
any Holder of a Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to
the Securities of such series.




     (6) 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 the Holders of Registered Securities, if any, of such
series as their names and addresses appear in the Security Register and, if Securities of
such series are issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States. 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.




     (7) In no event shall any retiring Trustee be liable for the acts or omissions of any
successor Trustee hereunder.



     Section 6.11 Acceptance of Appointment by Successor.




     (1) Upon the appointment hereunder of any successor Trustee with respect to all
Securities, such successor Trustee so appointed shall execute, acknowledge and deliver to
the Company and the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the request of
the Company or such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and, subject to Section 10.3, shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim and lien provided for in
Section 6.7.




     (2) Upon the appointment hereunder of any successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring Trustee and such
successor Trustee shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (a) shall contain



53









 







such provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, such 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, (b) 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 (c) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the execution and
delivery of such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee shall have no
further responsibility for the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor Trustee
relates other than as hereinafter expressly set forth, and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee 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
such successor Trustee, such retiring Trustee, upon payment of its charges with respect to
the Securities of that or those series to which the appointment of such successor Trustee
relates and subject to Section 10.3 shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates, subject to its
claim and lien provided for in Section 6.7.




     (3) Upon request of any Person appointed hereunder as a successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or
(2) of this Section, as the case may be.




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



     Section 6.12 Merger, Conversion, Consolidation or Succession to Business.



     Any Corporation or eligible entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation or eligible entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Corporation or eligible
entity succeeding to all or substantially all of the corporate trust business of the Trustee,




54












 




shall be the successor of the Trustee hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.




     Section 6.13 Appointment of Authenticating Agent.



     The Trustee may appoint one or more Authenticating Agents acceptable to the Company with
respect to one or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of that or those series issued upon original issue, exchange,
registration of transfer, partial redemption or partial repayment or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.



     Each Authenticating Agent must be acceptable to the Company and, except as provided in or
pursuant to this Indenture, shall at all times be a Corporation that would be permitted by the
Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act,
is authorized under applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, it 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 all or
substantially all of the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, 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 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 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 and shall (i)
mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Registered Securities, if
any, of the series with respect to which such Authenticating Agent shall serve, as their names and
addresses appear in the Security Register, and (ii) if Securities of the series are issued as
Bearer Securities, publish notice of such 


55









 




appointment at least once in an Authorized Newspaper in
the place where such successor Authenticating Agent has its principal office if such office is
located outside the United States. 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 Company agrees to pay each Authenticating Agent from time to time reasonable compensation
for its services under this Section. If the Trustee makes such payments, it shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 6.7.



     The provisions of Sections 3.8, 6.4 and 6.5 shall be applicable to each Authenticating Agent.



     If an Authenticating Agent is appointed with respect to one or more series of Securities
pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to
or in lieu of the Trustee’s certificate of authentication, an alternate certificate of
authentication in substantially the following form:



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



	 	 	 	 	 	,
	 	 	 ,	
	 

	 	               
	 	as Trustee	 
	 
	 	 	 	 	
	 

	 	By	 	 	
	 

	 	 	 	 	
	 

	 	 	 	as Authenticating Agent	
	 
	 	 	 	 	
	 

	 	By	 	 	
	 

	 	 	 	 	
	 

	 	 	 	Authorized Officer	






     If all of the Securities of any 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 in writing (which writing need not be accompanied
by or contained in an Officer’s Certificate by the Company), shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such series
of Securities.



     Section 6.14 Trustee’s Application for Instructions from the Company.



     Any application by the Trustee for written instructions from the Company may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the



56









 




Trustee under this Indenture and the date on and/or after which such action shall be taken or
such omission shall be effective. The Trustee shall not be liable for any action taken by, or
omission of, the Trustee in accordance with a proposal included in such application on or after the
date specified in such application (which date shall not be less than three Business Days after the
date any officer of the Company actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Trustee shall have received written instructions in
response to such application specifying the action to be taken or omitted.




ARTICLE 7




HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY




     Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.



     In accordance with Section 312(a) of the Trust Indenture Act, the Company shall furnish or
cause to be furnished to the Trustee




     (1) semiannually with respect to Securities upon such dates as are set forth in or
pursuant to the Board Resolution or indenture supplemental hereto authorizing such series,
a list, in each case in such form as the Trustee may reasonably require, of the names and
addresses of Holders as of the applicable date, and




     (2) at such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished,




provided, however, that so long as the Trustee is the Security Registrar no such list shall be
required to be furnished.



     Section 7.2 Preservation of Information; Communications to Holders.



     The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the
Trust Indenture Act.



     Every Holder of Securities or Coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company, the Trustee, any Paying Agent or any Security
Registrar shall be held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.



     Section 7.3 Reports by Trustee.




     (1) Within 60 days after September 15 of each year commencing with the first September
15 following the first issuance of Securities pursuant to Section 3.3, if and to the extent
required by Section 313(a) of the Trust Indenture Act, the Trustee shall



57









 






transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such September 15
with respect to any of the events specified in said Section 313(a) which may have occurred
since the later of the immediately preceding September 15 and the date of this Indenture.




     (2) The Trustee shall transmit the reports required by Section 313(a) of the Trust
Indenture Act at the times specified therein.




     (3) Reports pursuant to this Section shall be transmitted in the manner and to the
Persons required by Sections 313(c) and 313(d) of the Trust Indenture Act. The Company will
promptly notify the Trustee when the Securities are listed on any stock exchange and of any
delisting thereof.



     Section 7.4 Reports by Company.



     The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:




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




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




     (3) transmit within 30 days after the filing thereof with the Trustee, in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.



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



58









 





ARTICLE 8




CONSOLIDATION, MERGER AND SALES




     Section 8.1 Company May Consolidate, Etc., Only on Certain Terms.



     The Company shall not consolidate with or merge into any other corporation or limited
liability company or convey or transfer its properties and assets substantially as an entirety to
any Person unless:




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




     (2) immediately after giving effect to such transaction, no Event of Default with
respect to any series of Securities, and no event which, after notice or lapse of time, or
both, would become an Event of Default with respect to any series of Securities, shall have
happened and be continuing; and




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



     Section 8.2 Successor Person Substituted for Company.



     Upon any consolidation by the Company with or merger of the Company into any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety to any Person in accordance with Section 8.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and (except in the case of a lease) be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein.



59









 





ARTICLE 9




SUPPLEMENTAL INDENTURES




     Section 9.1 Supplemental Indentures Without Consent of Holders.



     Without the consent of any Holders of Securities or Coupons, the Company (when authorized by
or pursuant to a Board Resolution) and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, for any of the following purposes:




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




     (2) to add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (as shall be specified in such supplemental indenture or
indentures) or to surrender any right or power herein conferred upon the Company; or




     (3) to add to or change any of the provisions of this Indenture to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any restrictions on
the payment of principal of, any premium or interest on or any Additional Amounts with
respect to Securities, to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be exchanged for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely affect the interests
of the Holders of Outstanding Securities of any series or any Coupons appertaining thereto
in any material respect; or




     (4) to establish the form or terms of Securities of any series and any Coupons
appertaining thereto as permitted by Sections 2.1 and 3.1; or




     (5) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11; or




     (6) to cure any ambiguity or to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture which shall
not adversely affect the interests of the Holders of Securities of any series then
Outstanding or any Coupons appertaining thereto in any material respect; or




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



60









 






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




     (9) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Article Four, provided that any such action shall not adversely affect the
interests of any Holder of an Outstanding Security of such series and any Coupons
appertaining thereto or any other Outstanding Security or Coupon in any material respect;
or




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




     (11) to amend or supplement any provision contained herein or in any supplemental
indenture, provided that no such amendment or supplement shall materially adversely affect
the interests of the Holders of any Securities then Outstanding.



     Section 9.2 Supplemental Indentures with Consent of Holders.



     With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company (when authorized by or pursuant to a
Company’s Board Resolution) and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture or of the Securities of such series; provided,
however, that no such supplemental indenture, without the consent of the Holder of each Outstanding
Security affected thereby, shall




     (1) change the Stated Maturity of the principal of, or any premium or installment of
interest on or any Additional Amounts with respect to, any Security, or reduce the
principal amount thereof or the rate (or modify the calculation of such rate) of interest
thereon or any Additional Amounts with respect thereto, or any premium payable upon the
redemption thereof or otherwise, or change the obligation of the Company to pay Additional
Amounts pursuant to Section 10.4 (except as contemplated by Section 8.1(1) and permitted by
Section 9.1(1)), or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2 or the amount thereof provable in bankruptcy pursuant to
Section 5.4, change the redemption provisions or adversely affect the right of repayment at
the option of any Holder as contemplated by Article Thirteen, or change the Currency in which the principal of,
any premium or interest on, or any Additional Amounts with respect to any Security is
payable, or impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of the Holder, on or after the
date for repayment), or



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     (2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 15.4 for quorum or voting, or




     (3) modify any of the provisions of this Section, Section 5.13 or Section 10.8, except
to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or




     (4) make any change that adversely affects the right to convert or exchange any
Security into or for Common Stock or other securities in accordance with its terms.



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



     It shall not be necessary for any Act of Holders of Securities under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.



     Section 9.3 Execution of Supplemental Indentures.



     As a condition to executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trust created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.1) 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 and an Officer’s Certificate stating that
all conditions precedent to the execution of such supplemental indenture have been fulfilled. The
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.



     Section 9.4 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 a Security theretofore or thereafter authenticated
and delivered hereunder and of any Coupon appertaining thereto shall be bound thereby.



     Section 9.5 Reference in Securities to Supplemental Indentures.



     Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a



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notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.




     Section 9.6 Conformity with Trust Indenture Act.



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



     Section 9.7 Notice of Supplemental Indenture.



     Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to Section 9.2, the Company shall transmit to the Holders of Outstanding Securities of any
series affected thereby a notice setting forth the substance of such supplemental indenture.



ARTICLE 10




COVENANTS




     Section 10.1 Payment of Principal, Any Premium, Interest and Additional Amounts.



     The Company covenants and agrees for the benefit of the Holders of the Securities of each
series that it will duly and punctually pay the principal of, any premium and interest on and any
Additional Amounts with respect to the Securities of such series in accordance with the terms
thereof, any Coupons appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable with respect to such
interest, shall be payable only upon presentation and surrender of the Coupons appertaining thereto
for such interest as they severally mature.



     Section 10.2 Maintenance of Office or Agency.



     The Company shall maintain in each Place of Payment for any series of Securities an Office or
Agency where Securities of such series (but not Bearer Securities, except as otherwise provided
below, unless such Place of Payment is located outside the United States) may be presented or
surrendered for payment, where Securities of such series may be surrendered for registration of
transfer or exchange, where Securities of such series that are convertible or exchangeable may be
surrendered for conversion or exchange, and where notices and demands to or upon the Company in
respect of the Securities of such series relating thereto and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company shall maintain, subject to
any laws or regulations applicable thereto, an Office or Agency in a Place of Payment for such
series which is located outside the United States where Securities of such series and any Coupons
appertaining thereto may be presented and surrendered for payment; provided, however, that if the
Securities of such series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or the Luxembourg Stock



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Exchange or any other stock exchange located outside the United States and such stock exchange
shall so require, the Company shall maintain a Paying Agent in London, Luxembourg or any other
required city located outside the United States, as the case may be, so long as the Securities of
such series are listed on such exchange. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such Office or Agency. If at any time the
Company shall fail to maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for payment at the
place specified for the purpose with respect to such Securities as provided in or pursuant to this
Indenture, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.




     Except as otherwise provided in or pursuant to this Indenture, no payment of principal,
premium, interest or Additional Amounts with respect to Bearer Securities shall be made at any
Office or Agency in the United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars, payment of
principal of, any premium or interest on and any Additional Amounts with respect to any such
Security may be made at the Corporate Trust Office of the Trustee or any Office or Agency
designated by the Company, if (but only if) payment of the full amount of such principal, premium,
interest or Additional Amounts at all offices outside the United States maintained for such purpose
by the Company in accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.



     The Company may also from time to time designate one or more other Offices or Agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an Office or
Agency in each Place of Payment for Securities of any series for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other Office or Agency.



     Section 10.3 Money for Securities Payments to Be Held in Trust.



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



     Whenever the Company shall have one or more Paying Agents for any series of Securities, it
shall, on or prior to each due date of the principal of, any premium or interest on or



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




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




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




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




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



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same terms as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.



     Except as otherwise provided herein or pursuant hereto, 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, any
premium or interest on or any Additional Amounts with respect to any Security of any series or any
Coupon appertaining thereto and remaining unclaimed for two years after such principal or any such
premium or interest or any such Additional Amounts shall have 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 the Holder of such Security or any Coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in each Place of
Payment for such series or to be mailed to Holders of Registered Securities of such series, or
both, notice 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



65









 




publication or mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable, any unclaimed balance
of such money then remaining will be repaid to the Company. Anything in this Section 10.3 to the
contrary notwithstanding, in the absence of a written request from the Company to return unclaimed
funds to the Company, the Trustee shall from time to time deliver all unclaimed funds to or as
directed by applicable escheat authorities, as determined by the Trustee in its sole discretion, in
accordance with the customary practices and procedures of the Trustee. Any unclaimed funds held by
the Trustee pursuant to this Section shall be held uninvested and without any liability for
interest.




     Section 10.4 Additional Amounts.



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



     Except as otherwise provided in or pursuant to this Indenture or the Securities of the
applicable series, if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to such series of Securities
(or if the Securities of such series shall not bear interest prior to Maturity, the first day on
which a payment of principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters set forth in the
below-mentioned Officer’s Certificate, the Company shall furnish to the Trustee and the principal
Paying Agent or Paying Agents, if other than the Trustee, an Officer’s Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if
any, or interest on the Securities of such series shall be made to Holders of Securities of such
series or the Coupons appertaining thereto who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officer’s Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such Holders of Securities
or Coupons, and the Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. The Company covenants to indemnify the Trustee
and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of or in connection with actions
taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this
Section.



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     Section 10.5 Maintenance of Properties.



     The Company will cause all its properties used in the conduct of its business to be maintained
and kept in good condition, repair and working order and supplied with all necessary equipment and
will 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 and advantageously conducted at all times; provided, however,
that nothing in this Section shall prevent the Company from discontinuing 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 and not disadvantageous in any material respect to the
Holders of the Securities.



     Section 10.6 [Intentionally Omitted]



     Section 10.7 Corporate Existence.



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



     Section 10.8 Waiver of Certain Covenants.



     The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Section 10.7 with respect to the Securities of any series if before the time
for such compliance the Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.



     Section 10.9 Company Statement as to Compliance; Notice of Certain Defaults.




     (1) The Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year, a written statement (which need not be contained in or accompanied by an
Officer’s Certificate) signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, stating that




     (a) a review of the activities of the Company during such year and of its
performance under this Indenture has been made under his or her supervision, and



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     (b) to the best of his or her knowledge, based on such review, (i) the Company
has complied with all the conditions and covenants imposed on it under this
Indenture throughout such year, or, if there has been a default in the fulfillment
of any such condition or covenant, specifying each such default known to him or her
and the nature and status thereof, and (ii) no event has occurred and is continuing
which is, or after notice or lapse of time or both would become, an Event of
Default, or, if such an event has occurred and is continuing, specifying each such
event known to him and the nature and status thereof.




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




     (3) The Trustee shall have no duty to monitor the Company’s compliance with the
covenants contained in this Article 10.



     Section 10.10 Calculation of Original Issue Discount.



     The Company shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount, if any, of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.



ARTICLE 11




REDEMPTION OF SECURITIES




     Section 11.1 Applicability of Article.



     Redemption of Securities of any series at the option of the Company as permitted or required
by the terms of such Securities shall be made in accordance with the terms of such Securities and
(except as otherwise provided herein or pursuant hereto) this Article.



     Section 11.2 Election to Redeem; Notice to Trustee.



     The election of the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of (a) less than all of
the Securities of any series or (b) all of the Securities of any series, with the same issue date,
interest rate or formula, Stated Maturity and other terms, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities
of such series to be redeemed.



     Section 11.3 Selection by Trustee of Securities to Be Redeemed.



     If less than all of the Securities of any series with the same issue date, interest rate or
formula, Stated Maturity and other terms are to be redeemed, the particular Securities to be



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redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee
from the Outstanding Securities of such series not previously called for redemption, in compliance
with the requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not then listed on a national securities exchange,
on a pro rata basis or by lot, or, by any other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions of the principal
amount of Registered Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of such series not
redeemed to less than the minimum denomination for a Security of such series established herein or
pursuant hereto.




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



     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 of such Securities which has been or is
to be redeemed.



     Unless otherwise specified in or pursuant to this Indenture or the Securities of any series,
if any Security selected for partial redemption is converted into Common Stock or exchanged for
other securities in part before termination of the conversion or exchange right with respect to the
portion of the Security so selected, the converted portion of such Security shall be deemed (so far
as may be) to be the portion selected for redemption. Securities which have been converted or
exchanged during a selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.



     Section 11.4 Notice of Redemption.



     Notice of redemption shall be given in the manner provided in Section 1.6, not less than 30
nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the
Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice by
mailing in the manner herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect
the validity of the proceedings for the redemption of any other Securities or portion thereof.



     Any notice that is mailed to the Holder of any Registered Securities in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not such Holder
receives the notice.



     All notices of redemption shall state:




     (1) the Redemption Date,




     (2) the Redemption Price,



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     (3) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed,




     (4) in case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount thereof remaining
unredeemed,




     (5) that, on the Redemption Date, the Redemption Price shall become due and payable
upon each such Security or portion thereof to be redeemed, and, if applicable, that
interest thereon shall cease to accrue on and after said date,




     (6) the place or places where such Securities, together (in the case of Bearer
Securities) with all Coupons appertaining thereto, if any, maturing after the Redemption
Date, are to be surrendered for payment of the Redemption Price and any accrued interest
and Additional Amounts pertaining thereto,




     (7) that, unless otherwise specified in such notice, Bearer Securities of any series,
if any, surrendered for redemption must be accompanied by all Coupons maturing subsequent
to the date fixed for redemption or the amount of any such missing Coupon or Coupons will
be deducted from the Redemption Price, unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is furnished,




     (8) if Bearer Securities of any series are to be redeemed and no Registered Securities
of such series are to be redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on the Redemption Date pursuant to Section
3.5 or otherwise, the last date, as determined by the Company, on which such exchanges may
be made,




     (9) in the case of Securities of any series that are convertible into Common Stock or
exchangeable for other securities, the conversion or exchange price or rate, the date or
dates on which the right to convert or exchange the principal of the Securities of such
series to be redeemed will commence or terminate and the place or places where such
Securities may be surrendered for conversion or exchange, and




     (10) the CUSIP numbers or the Euroclear or the Clearstream Banking, societe anonyme
reference numbers of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).



     A notice of redemption published as contemplated by Section 1.6 need not identify particular
Registered Securities to be redeemed.



     Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of
the Company.



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     Section 11.5 Deposit of Redemption Price.



     On or prior to any Redemption Date, the Company shall deposit, with respect to the Securities
of any series called for redemption pursuant to Section 11.4, with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money in the applicable Currency sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date, unless
otherwise specified pursuant to Section 3.1 or in the Securities of such series) any accrued
interest on and Additional Amounts with respect thereto, all such Securities or portions thereof
which are to be redeemed on that date.



     Section 11.6 Securities Payable on Redemption Date.



     Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the Coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with said notice,
together with all Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except as otherwise
provided in or pursuant to this Indenture or the Bearer Securities of such series, installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only upon presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 10.2), and provided
further that, except as otherwise specified in or pursuant to this Indenture or the Registered
Securities of such series, installments of interest on Registered Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the Regular Record
Dates therefor according to their terms and the provisions of Section 3.7.



     If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant
Coupons maturing after the Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing Coupons, or the surrender
of such missing Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing Coupon in respect of which a deduction shall have been made from
the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided,
however, that any interest or Additional Amounts represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an Office or Agency for
such Security located outside of the United States except as otherwise Provided in Section 10.2.



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



     Section 11.7 Securities Redeemed in Part.



     Any Registered Security which is to be redeemed only in part shall be surrendered at any
Office or Agency for such Security (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same series, containing
identical terms and provisions, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository or other Depository
for such Security in global form as shall be specified in the Company Order with respect thereto to
the Trustee, without service charge, a new Security in global form in a denomination equal to and
in exchange for the unredeemed portion of the principal of the Security in global form so
surrendered.



ARTICLE 12




[INTENTIONALLY OMITTED]




ARTICLE 13




REPAYMENT AT THE OPTION OF HOLDERS




     Section 13.1 Applicability of Article.



     Securities of any series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such option of the Holder to require
repayment of Securities before their Stated Maturity, for purposes of Section 3.9, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be cancelled. Notwithstanding anything to the contrary
contained in this Section 13.1, in connection with any repayment of Securities, the Company may
arrange for the purchase of any Securities by an agreement with one or more investment bankers or
other purchasers to purchase such Securities by paying to the Holders of such Securities on or
before the close of business on the repayment date an amount not less than the repayment price
payable by the Company on repayment of such Securities, and the obligation of the Company to pay the repayment price of such Securities shall be satisfied and discharged to the
extent such payment is so paid by such purchasers.




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ARTICLE 14




SUBORDINATION OF SECURITIES




     Section 14.1 Subordination Terms.



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



ARTICLE 15




MEETINGS OF HOLDERS OF SECURITIES




     Section 15.1 Purposes for Which Meetings May Be Called.



     A meeting of Holders of Securities of any series 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 Act provided by this Indenture to be made, given or taken by
Holders of Securities of such series.



     Section 15.2 Call, Notice and Place of Meetings.




     (1) The Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 15.1, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or, if Securities of such series have been
issued in whole or in part as Bearer Securities, in London or in such place outside the
United States as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, 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 1.6, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.




     (2) In case at any time the Company (by or pursuant to a Board Resolution) or the
Holders of at least 10% in principal amount of the Outstanding Securities of any series
shall have requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 15.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever shall be required pursuant to Section 1.6) 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 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, if Securities of such series are to be issued as Bearer Securities, in London
for such meeting and may call such meeting for such purposes by giving notice thereof as
provided in clause (1) of this Section.



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     Section 15.3 Persons Entitled to Vote at Meetings.



     To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series 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 15.4 Quorum; Action.



     The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a
series shall constitute a quorum for any meeting of Holders of Securities of such series. In the
absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be dissolved. In any
other case the meeting may be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any
reconvened meeting, such reconvened meeting may be further adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment of such reconvened
meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section
15.2(1), except that such notice need be given only once not less than five 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 which shall constitute a quorum.



     Except as limited by the proviso to Section 9.2, 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 a majority in principal amount of the Outstanding Securities
of that series; provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction, notice, consent, waiver
or other Act which this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage, which is less than a majority, in principal amount of the Outstanding
Securities of a series 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.



     Any resolution passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of Securities of such
series and the Coupons appertaining thereto, whether or not such Holders were present or
represented at the meeting.



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     Section 15.5 Determination of Voting Rights; Conduct and Adjournment of Meetings.




     (1) 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 of
such series in regard to proof of the holding of Securities of such series 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 1.4 and the appointment of
any proxy shall be proved in the manner specified in Section 1.4 or by having the signature
of the person executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 1.4 to certify to the holding of Bearer Securities. 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 1.4 or other proof.




     (2) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders of
Securities as provided in Section 15.2(2), in which case the Company or the Holders of
Securities of the series 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 principal amount of
the Outstanding Securities of such series represented at the meeting.




     (3) At any meeting, each Holder of a Security of such series or proxy shall be entitled
to one vote for each $1,000 principal amount of Securities of such series 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 of such series or proxy.




     (4) Any meeting of Holders of Securities of any series duly called pursuant to Section
15.2 at which a quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further notice.



     Section 15.6 Counting Votes and Recording Action of Meetings.



     The vote upon any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series 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



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meeting their verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section 15.2 and, if applicable,
Section 15.4. 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 15.7 Action Without Meeting.



     In lieu of a vote of Holders of a meeting as herein above contemplated in this Article, any
request, demand, authorization, direction, notice, consent, waiver or other action made, may be
given or taken by Holders by written instruments as provided in Section 1.4.



* * * *




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



	 	 	 	 	 
	 	LANCE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	 
	 	 	 
	 
	 	[                                        ] 

as Trustee

 	 
	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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