exhibit41indenture






===================================================================                                                                       KEMPER CORPORATION                                                                               ----------                                             INDENTURE                                              Dated as of                                        [•]                                                                               ----------                                DEBT SECURITIES                                                                 U.S. BANK NATIONAL ASSOCIATION                                      Trustee            =================================================================== 





 






                                                                                                                                        CROSS-REFERENCE SHEET*  Trust Indenture  Act Section                                                                      Indenture Section   § 310(a) .............................................................................................................................................................. 11.04(a)       (b) .................................................................................................................................................. 11.04(b), 11.05  § 311  .................................................................................................................................................................. 11.01(f)  § 312(a) ................................................................................................................................................................... 10.03       (b) .................................................................................................................................................................. 11.10       (c) .................................................................................................................................................................. 11.10  § 313(a) .............................................................................................................................................................. 10.01(a)       (b) ............................................................................................................................................................. 10.01(a)       (c) ............................................................................................................................................................. 10.01(b)       (d) ............................................................................................................................................................. 10.01(b)  § 314(a)(1) .............................................................................................................................................................. 10.02       (a)(2) ............................................................................................................................................................. 10.02       (a)(4) ............................................................................................................................................................... 6.05       (c) ............................................................................................................................................................. 16.01(a)       (e) ............................................................................................................................................................. 16.01(b)  § 315(a)(1) ................................................................................................................................................ 11.02(b)(i)(A)       (a)(2) ............................................................................................................................................... 11.02(b)(i)(B)       (b) .................................................................................................................................................................. 11.03       (c) ............................................................................................................................................................. 11.02(a)       (d) ............................................................................................................................................................. 11.02(b)       (e) .................................................................................................................................................................... 7.08  § 316(a) (last sentence) .............................................................................................. 1.01 (definition of “Outstanding”)       (a)(1) ............................................................................................................................................................... 7.06       (b) .................................................................................................................................................................... 7.07       (c) ................................................................................................................................................ 8.02(e), 14.02(d)  § 317(a) ............................................................................................................................................................ 7.03, 7.04       (b) ............................................................................................................................................................... 6.03(c)  §318  ...................................................................................................................................................................... 16.02    *This cross-reference sheet shall not, for any purpose, be deemed to be a part of the Indenture.                                                    i   





 






                                                                                                               TABLE OF CONTENTS*                                                                           PAGE                                     ARTICLE I                                                                           DEFINITIONS   Section 1.01 Definitions................................................................................................................1                                    ARTICLE II                                                                       FORMS OF SECURITIES   Section 2.01 Terms of the Securities ..........................................................................................12  Section 2.02 Form of Trustee’s Certificate of Authentication ....................................................13  Section 2.03 Form of Trustee’s Certificate of Authentication by an Authenticating              Agent ......................................................................................................................13                                    ARTICLE III                                                                       THE DEBT SECURITIES   Section 3.01 Amount Unlimited; Issuable in Series ...................................................................14  Section 3.02 Denominations .......................................................................................................17  Section 3.03 Execution, Authentication, Delivery and Dating ...................................................17  Section 3.04 Temporary Securities .............................................................................................19  Section 3.05 Registrar .................................................................................................................20  Section 3.06 Transfer and Exchange ..........................................................................................20  Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities ..................................................24  Section 3.08 Payment of Interest; Interest Rights Preserved ......................................................25  Section 3.09 Cancellation ...........................................................................................................26  Section 3.10 Computation of Interest .........................................................................................26  Section 3.11 Currency of Payments in Respect of Securities .....................................................27  Section 3.12 Judgments ..............................................................................................................27  Section 3.13 CUSIP Numbers.....................................................................................................28                                    ARTICLE IV                                                                    REDEMPTION OF SECURITIES   Section 4.01 Applicability of Right of Redemption ...................................................................28                              *  The Table of Contents is not a part of the Indenture.                                        i   





 






Section 4.02 Selection of Securities to be Redeemed .................................................................28  Section 4.03 Notice of Redemption ............................................................................................29  Section 4.04 Deposit of Redemption Price .................................................................................29  Section 4.05 Securities Payable on Redemption Date ................................................................30  Section 4.06 Securities Redeemed in Part ..................................................................................30                                    ARTICLE V                                                                          SINKING FUNDS   Section 5.01 Applicability of Sinking Fund ...............................................................................30  Section 5.02 Mandatory Sinking Fund Obligation .....................................................................31  Section 5.03 Optional Redemption at Sinking Fund Redemption Price .....................................31  Section 5.04 Application of Sinking Fund Payment ...................................................................31                                    ARTICLE VI                                                            PARTICULAR COVENANTS OF THE COMPANY   Section 6.01 Payments of Securities ...........................................................................................32  Section 6.02 Paying Agent ..........................................................................................................33  Section 6.03 To Hold Payment in Trust......................................................................................33  Section 6.04 Merger, Consolidation and Sale of Assets .............................................................35  Section 6.05 Compliance Certificate ..........................................................................................35  Section 6.06 Conditional Waiver by Holders of Securities ........................................................35                                    ARTICLE VII                                                          REMEDIES OF TRUSTEE AND SECURITYHOLDERS   Section 7.01 Events of Default ...................................................................................................36  Section 7.02 Acceleration; Rescission and Annulment ..............................................................37  Section 7.03 Other Remedies ......................................................................................................39  Section 7.04 Trustee as Attorney-in-Fact ...................................................................................39  Section 7.05 Priorities .................................................................................................................40  Section 7.06 Control by Securityholders; Waiver of Past Defaults ............................................41  Section 7.07 Limitation on Suits .................................................................................................41  Section 7.08 Undertaking for Costs ............................................................................................42  Section 7.09 Remedies Cumulative ............................................................................................42                                   ARTICLE VIII                                                               CONCERNING THE SECURITYHOLDERS   Section 8.01 Evidence of Action of Securityholders ..................................................................42  Section 8.02 Proof of Execution or Holding of Securities..........................................................43  Section 8.03 Persons Deemed Owners .......................................................................................43  Section 8.04 Effect of Consents ..................................................................................................44                                        ii   





 






                                 ARTICLE IX                                                                            [RESERVED]                                    ARTICLE X                                                        REPORTS BY THE COMPANY AND THE TRUSTEE AND                            SECURITYHOLDERS’ LISTS   Section 10.01 Reports by Trustee .................................................................................................44  Section 10.02 Reports by the Company ........................................................................................44  Section 10.03 Securityholders’ Lists ............................................................................................45                                    ARTICLE XI                                                                    CONCERNING THE TRUSTEE   Section 11.01 Rights of Trustees; Compensation and Indemnity .................................................45  Section 11.02 Duties of Trustee ....................................................................................................48  Section 11.03 Notice of Defaults ..................................................................................................49  Section 11.04 Eligibility; Disqualification ...................................................................................50  Section 11.05 Resignation and Notice; Removal .........................................................................50  Section 11.06 Successor Trustee by Appointment .......................................................................51  Section 11.07 Successor Trustee by Merger .................................................................................53  Section 11.08 Right to Rely on Officer’s Certificate ....................................................................53  Section 11.09 Appointment of Authenticating Agent...................................................................53  Section 11.10 Communications by Securityholders with Other Securityholders .........................54                                    ARTICLE XII                                                           SATISFACTION AND DISCHARGE; DEFEASANCE   Section 12.01 Applicability of Article ..........................................................................................54  Section 12.02 Satisfaction and Discharge of Indenture ................................................................55  Section 12.03 Discharge or Defeasance upon Deposit of Moneys or U.S. Government              Obligations .............................................................................................................56  Section 12.04 Repayment to Company .........................................................................................58  Section 12.05 Indemnity for U.S. Government Obligations .........................................................58  Section 12.06 Deposits to Be Held in Escrow ..............................................................................58  Section 12.07 Application of Trust Money ...................................................................................58  Section 12.08 Deposits of Non-U.S. Currencies ...........................................................................59                                   ARTICLE XIII                                                                  IMMUNITY OF CERTAIN PERSONS   Section 13.01 No Personal Liability .............................................................................................59                                        iii   





 






                                ARTICLE XIV                                                                   SUPPLEMENTAL INDENTURES   Section 14.01 Without Consent of Securityholders ......................................................................60  Section 14.02 With Consent of Securityholders; Limitations ......................................................62  Section 14.03 Trustee Protected ...................................................................................................63  Section 14.04 Effect of Execution of Supplemental Indenture.....................................................63  Section 14.05 Notation on or Exchange of Securities ..................................................................64  Section 14.06 Conformity with TIA .............................................................................................64                                    ARTICLE XV                                                                  SUBORDINATION OF SECURITIES   Section 15.01 Agreement to Subordinate .....................................................................................64  Section 15.02 Distribution on Dissolution, Liquidation and Reorganization; Subrogation              of Securities ...........................................................................................................64  Section 15.03 No Payment on Securities in Event of Default on Senior Indebtedness ................66  Section 15.04 Payments on Securities Permitted ..........................................................................66  Section 15.05 Authorization of Securityholders to Trustee to Effect Subordination ...................67  Section 15.06 Notices to Trustee ..................................................................................................67  Section 15.07 Trustee as Holder of Senior Indebtedness .............................................................67  Section 15.08 Modifications of Terms of Senior Indebtedness ....................................................68  Section 15.09 Reliance on Judicial Order or Certificate of Liquidating Agent ............................68  Section 15.10 Satisfaction and Discharge; Discharge and Covenant Defeasance ........................68  Section 15.11 Trustee Not Fiduciary for Holders of Senior Indebtedness ...................................68                                   ARTICLE XVI                                                                   MISCELLANEOUS PROVISIONS   Section 16.01 Certificates and Opinions as to Conditions Precedent ...........................................69  Section 16.02 Trust Indenture Act Controls .................................................................................70  Section 16.03 Notices; Waiver of Notice .....................................................................................70  Section 16.04 No Adverse Interpretation of Other Agreements ...................................................71  Section 16.05 Legal Holiday.........................................................................................................71  Section 16.06 Effects of Headings and Table of Contents ...........................................................72  Section 16.07 Successors and Assigns..........................................................................................72  Section 16.08 Separability Clause ................................................................................................72  Section 16.09 Benefits of Indenture..............................................................................................72  Section 16.10 Counterparts Originals ...........................................................................................72  Section 16.11 Governing Law; Waiver of Trial by Jury ..............................................................72                                              iv   





 






                                                                                       INDENTURE dated as of [•], between Kemper Corporation, a Delaware corporation (the  “Company”), and U.S. Bank National Association, as trustee (the “Trustee”).                                   WITNESSETH:         WHEREAS, the Company has duly authorized the execution and delivery of this  Indenture to provide for the issuance of debentures, notes, bonds or other evidences of  indebtedness (the “Securities”) in an unlimited aggregate principal amount to be issued from  time to time in one or more series as provided in this Indenture; and         WHEREAS, all things necessary to make this Indenture a valid and legally binding  agreement of the Company, in accordance with its terms, have been done.         NOW, THEREFORE, THIS INDENTURE WITNESSETH:         That, in consideration of the premises and the purchase of the Securities by the Holders  thereof for the benefit of each other and the equal and proportionate benefit of all of the present  and future Holders of the Securities (and, to the extent the provisions of Article XV are  applicable to the Securities of any series, the benefit of Senior Indebtedness with respect to the  Securities of such series), each party agrees and covenants as follows:                                    ARTICLE I                                                                           DEFINITIONS         For all purposes of this Indenture, except as otherwise expressly provided or unless the  context otherwise requires:         (a)   the terms defined in this Article have the meanings assigned to them in this  Article and include the plural as well as the singular;         (b)   all terms used herein without definition which are defined in the Trust Indenture  Act, either directly or by reference therein, have the meanings assigned to them therein;         (c)   the words “herein”, “hereof” and “hereunder” and other words of similar import  refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;  and         (d)   references to “Article” or “Section” or other subdivision herein are references to  an Article, Section or other subdivision of the Indenture.         Section 1.01 Definitions.         Except as otherwise expressly provided or unless the context otherwise requires, the  terms defined in this Section 1.01 shall for all purposes of this Indenture have the meanings  hereinafter set forth:     





 






Affiliate:         The term “Affiliate,” with respect to any specified Person shall mean any other Person  directly or indirectly controlling or controlled by or under direct or indirect common control with  such specified Person. For the purposes of this definition, “control” when used with respect to  any specified Person means the power to direct the management and policies of such Person,  directly or indirectly, whether through the ownership of voting securities, by contract or  otherwise; and the terms “controlling” and “controlled” have meanings correlative to the  foregoing.   Authenticating Agent:         The term “Authenticating Agent” shall have the meaning assigned to it in Section 11.09.   Board of Directors:         The term “Board of Directors” shall mean either the board of directors of the Company   or the executive or any other committee of that board duly authorized to act in respect hereof.   Board Resolution:         The term “Board Resolution” shall mean a copy of a resolution or resolutions certified by  the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board  of Directors (or by a committee of the Board of Directors to the extent that any such committee  has been authorized by the Board of Directors to establish or approve the matters contemplated)  and to be in full force and effect on the date of such certification. References to any matter in this  Indenture being established in, by or pursuant to a Board Resolution shall include actions taken  and matters established pursuant to authority granted by one or more Board Resolutions.   Business Day:         The term “Business Day,” when used with respect to any Place of Payment or any other  particular location referred to in this Indenture or in the Securities, shall mean each Monday,  Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in  that Place of Payment or other location are authorized or obligated by law or executive order to  close.    Capital Stock:         The term “Capital Stock” shall mean:                  (a) in the case of a corporation, corporate stock;                  (b) in the case of an association or business entity, any and all shares,  interests, participations, rights or other equivalents (however designated) of corporate stock;                  (c) in the case of a partnership or limited liability company, partnership  interests (whether general or limited) or membership interests; and                                         2   





 






               (d) any other interest or participation that confers on a Person the right to  receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but  excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or  not such debt securities include any right of participation with Capital Stock.   Code:         The term “Code” shall mean the Internal Revenue Code of 1986, as amended.   Company:         The term “Company” shall mean the Person named as the “Company” in the first  paragraph of this Indenture until a successor Person shall have become such pursuant to the  applicable provisions of this Indenture, and thereafter “Company” shall mean such successor  Person.   Company Order:         The term “Company Order” shall mean a written order signed in the name of the  Company by the Chief Executive Officer, the President, the Chief Financial Officer, any  Executive Vice President, Senior Vice President or Vice President, the Treasurer or Corporate  Treasurer, any Assistant Treasurer or Assistant Corporate Treasurer, the Controller or Corporate  Controller, any Assistant Controller or Assistant Corporate Controller, the Secretary or any  Assistant Secretary of the Company, and delivered to the Trustee.   Corporate Trust Office:   The term “Corporate Trust Office,” or other similar term, shall mean the designated office of the  Trustee at which at any particular time its corporate trust business in respect of this Indenture  shall be administered, which office at the date hereof is located at EP-MN-WS3C, 60 Livingston  Avenue, St. Paul, MN 55107, or such other address as the Trustee may designate from time to  time by notice to the Holders and the Company, or the principal corporate trust office of any  successor Trustee (or such other address as such successor Trustee may designate from time to  time by notice to the Holders and the Company).  Covenant Defeasance:         The term “Covenant Defeasance” shall have the meaning assigned to it in Section 12.03.   Currency:         The term “Currency” shall mean U.S. Dollars or Foreign Currency.   Default:         The term “Default” shall have the meaning assigned to it in Section 11.03.                                          3   





 






Defaulted Interest:         The term “Defaulted Interest” shall have the same meaning assigned to it in Section  3.08(b).   Depositary:         The term “Depositary” shall mean, with respect to the Securities of any series issuable or  issued in whole or in part in the form of one or more Global Securities, each Person designated  by the Company as Depositary for the Securities of such series pursuant to Section 3.01 until one  or more successor Depositaries for the Securities of such series shall have become such pursuant  to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include,  with respect to the Securities of such series, each Person who is then a Depositary hereunder  with respect to the Securities of such series. If at any time there is more than one such Person,  “Depositary,” as used with respect to the Securities of any such series, shall mean each such  Person as Depositary with respect to the Securities of that series or, as used with respect to a  particular Global Security, each such Person that is a Depositary for such Global Security.   Designated Currency:         The term “Designated Currency” shall have the same meaning assigned to it in  Section 3.12.   Discharged:         The term “Discharged” shall have the meaning assigned to it in Section 12.03.   Event of Default:         The term “Event of Default” shall have the meaning specified in Section 7.01.   Exchange Act:         The term “Exchange Act” shall mean the United States Securities Exchange Act of 1934,  and the rules and regulations promulgated by the SEC thereunder and any statute successor  thereto, in each case as amended from time to time.   Exchange Rate:         The term “Exchange Rate” shall have the meaning assigned to it in Section 7.01.   Floating Rate Security:         The term “Floating Rate Security” shall mean a Security that provides for the payment of  interest at a variable rate determined periodically by reference to an interest rate index specified  pursuant to Section 3.01.                                          4   





 






Foreign Currency:         The term “Foreign Currency” shall mean a currency issued by the government of any  country other than the United States or a composite currency, the value of which is determined  by reference to the values of the currencies of any group of countries.   GAAP:         The term  “GAAP,” with respect to any computations required or permitted hereunder,  shall mean generally accepted accounting principles in the United States as in effect from time to  time.   Global Security:         The term “Global Security” shall mean any Security that evidences all or part of a series  of Securities, issued in fully-registered certificated form to the Depositary for such series (or  such Depositary’s nominee) in accordance with Section 3.03 and bearing the legend prescribed  in Section 3.03(g) and any other legend required by the Depositary for such series.   Holder; Holder of Securities:         The terms “Holder” and “Holder of Securities” are defined under “Securityholder; Holder  of Securities; Holder.”   Indebtedness:         The term “Indebtedness” shall mean any and all obligations of a Person for money  borrowed which, in accordance with GAAP, would be reflected on the balance sheet of such  Person as a liability on the date as of which Indebtedness is to be determined.   Indenture:         The term “Indenture” or “this Indenture” shall mean this instrument as originally  executed or as it may from time to time be supplemented or amended by one or more indentures  supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all  purposes of this instrument and any such supplemental indenture, the provisions of the Trust  Indenture Act that are deemed to be a part of and govern this instrument and any such  supplemental indenture, respectively. The term “Indenture” shall also include the terms of  particular series of Securities established as contemplated by Section 3.01; provided, however,  that if at any time more than one Person is acting as Trustee under this Indenture due to the  appointment of one or more separate Trustees for any one or more separate series of Securities,  “Indenture” shall mean, with respect to such series of Securities for which any such Person is  Trustee, this instrument as originally executed or as it may from time to time be supplemented or  amended by one or more indentures supplemental hereto entered into pursuant to the applicable  provisions hereof and shall include the terms of particular series of Securities for which such  Person is Trustee established as contemplated by Section 3.01, exclusive, however, of any  provisions or terms which relate solely to other series of Securities for which such Person is not  Trustee, regardless of when such terms or provisions were adopted, and exclusive of any                                         5   





 






provisions or terms adopted by means of one or more indentures supplemental hereto executed  and delivered after such person had become such Trustee, but to which such person, as such  Trustee, was not a party; provided, further that in the event that this Indenture is supplemented or  amended by one or more indentures supplemental hereto which are only applicable to certain  series of Securities, the term “Indenture” for a particular series of Securities shall only include  the supplemental indentures applicable thereto.   Individual Securities:         The term “Individual Securities” shall have the meaning specified in Section 3.01(p).   Interest:         The term “interest” shall mean, unless the context otherwise requires, interest payable on  any Securities, and with respect to an Original Issue Discount Security that by its terms bears  interest only after Maturity, interest payable after Maturity.   Interest Payment Date:         The term “Interest Payment Date” shall mean, with respect to any Security, the Stated  Maturity of an installment of interest on such Security.   Mandatory Sinking Fund Payment:         The term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in  Section 5.01(b).   Maturity:         The term “Maturity,” with respect to any Security, shall mean the date on which the  principal or an installment of principal of such Security shall become due and payable as therein  and herein provided, whether by declaration of acceleration, call for redemption or otherwise.   Members:         The term “Members” shall have the meaning assigned to it in Section 3.03(i).   Officer’s Certificate:         The term “Officer’s Certificate” shall mean a certificate signed by the Chief Executive  Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice  President or Vice President, the Treasurer or Corporate Treasurer, any Assistant Treasurer or  Assistant Corporate Treasurer, the Controller or Corporate Controller, any Assistant Controller  or Assistant Corporate Controller, the Secretary or any Assistant Secretary of the Company.  Each such certificate shall include the statements provided for in Section 16.01 if and to the  extent required by the provisions of such Section.                                          6   





 






Opinion of Counsel:         The term “Opinion of Counsel” shall mean an opinion in writing signed by one or more  legal counsel, who may be an employee of or of counsel to the Company, or may be one or more  other counsel that meets the requirements provided for in Section 16.01.   Optional Sinking Fund Payment:         The term “Optional Sinking Fund Payment” shall have the meaning assigned to it in  Section 5.01(b).   Original Issue Discount Security:         The term “Original Issue Discount Security” shall mean any Security that is issued with  “original issue discount” within the meaning of Section 1273(a) of the Code and the regulations  thereunder, or any successor provision, and any other Security designated by the Company as  issued with original issue discount for United States federal income tax purposes.   Outstanding:         The term “Outstanding,” when used with respect to Securities means, as of the date of  determination, all Securities theretofore authenticated and delivered under this Indenture, except:                  (a) Securities theretofore canceled by the Trustee or delivered to the  Trustee for cancellation;                  (b) Securities or portions thereof for the payment or redemption of which  money in the necessary amount has been theretofore deposited 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 (in each case  other than pursuant to Section 12.03); provided, however, that if such Securities or portions  thereof 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) Securities as to which the Company’s obligations have been Discharged  pursuant to Section 12.03 or as to which Covenant Defeasance has been effected pursuant to  Section 12.03, except, in each case, to the extent provided in Section 12.03; and                  (d) Securities that have been paid pursuant to Section 3.07(b) or in  exchange for or in lieu of which other Securities have been authenticated and delivered pursuant  to this Indenture, other than any such Securities in respect of which there shall have been  presented to a Responsible Officer of the Trustee proof satisfactory to it that such Securities are  held by a protected purchaser in whose hands such Securities are valid obligations of the  Company;   provided, however, that in determining whether the Holders of the requisite principal amount of  Securities of a series Outstanding have given or made any request, demand, authorization,  direction, notice, consent or waiver or performed any other action hereunder or are present for                                         7   





 






quorum purposes at any meeting of Securityholders, Securities owned by the Company or any  other obligor upon the Securities of such series or any Affiliate of the Company or of such other  obligor shall be disregarded and deemed not to be Outstanding, except that, in determining  whether the Trustee shall be protected in relying upon any such request, demand, authorization,  direction, notice, consent, waiver or other action or in determining the presence of a quorum at a  meeting of Securityholders, only Securities of such series that a Responsible Officer of the  Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have  been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the  satisfaction of the Trustee the pledgee’s right to act with respect to such Securities and that the  pledgee is not the Company or any other obligor upon such Securities or any Affiliate of the  Company or of such other obligor. In determining whether the Holders of the requisite principal  amount of Outstanding Securities of a series have given or made any request, demand,  authorization, direction, notice, consent or waiver or performed any other action hereunder or are  present for quorum purposes at any meeting of Securityholders, the principal amount of an  Original Issue Discount Security that shall be deemed to be Outstanding for such purpose shall  be the amount of the principal thereof that would be due and payable as of the date of such  determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.02  and the principal amount of a Security denominated in a Foreign Currency that shall be deemed  to be Outstanding for such purpose shall be the amount calculated pursuant to Section 3.11(b).   Paying Agent:         The term “Paying Agent” shall have the meaning assigned to it in Section 6.02(a).   Person:         The term “Person” shall mean an individual, a corporation, a limited liability company, a  partnership, an association, a joint stock company, a trust, an unincorporated organization or a  government or an agency or political subdivision thereof.   Place of Payment:         The term “Place of Payment” shall mean, when used with respect to the Securities of any  series, the place or places where the principal of and premium, if any, and interest on the  Securities of that series are payable as specified pursuant to Section 3.01.   Predecessor Security:         The term “Predecessor Security” shall mean, with respect to any Security, 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 3.07 in lieu of a lost, destroyed or stolen Security shall be deemed to  evidence the same Indebtedness as the lost, destroyed or stolen Security.                                          8   





 






Record Date:         The term “Record Date” shall mean, with respect to any interest payable on any Security  on any Interest Payment Date, the close of business on any date specified in such Security for the  payment of interest pursuant to Section 3.01.   Redemption Date:         The term “Redemption Date” shall mean, when used with respect to any Security to be  redeemed, in whole or in part, the date fixed for such redemption by or pursuant to this Indenture  and the terms of such Security, which, in the case of a Floating Rate Security, unless otherwise  specified pursuant to Section 3.01, shall be an Interest Payment Date only.   Redemption Price:         The term “Redemption Price,” when used with respect to any Security to be redeemed, in  whole or in part, shall mean the price at which it is to be redeemed pursuant to the terms of the  applicable Security and this Indenture.   Register:         The term “Register” shall have the meaning assigned to it in Section 3.05(a).   Registrar:         The term “Registrar” shall have the meaning assigned to it in Section 3.05(a).   Responsible Officer:         The term “Responsible Officer” of the Trustee hereunder shall mean any vice president,  any assistant vice president, any trust officer, any assistant trust officer or any other officer  associated with the corporate trust department of the Trustee customarily performing functions  similar to those performed by any of the above designated officers, who shall have direct  responsibility for the administration of this Indenture, and also means, with respect to a particular  corporate trust matter, any other officer of the Trustee to whom such matter is referred because  of such person’s knowledge of and familiarity with the particular subject.   SEC:         The term “SEC” shall mean the United States Securities and Exchange Commission, as  constituted from time to time.   Securities Act:         The term “Securities Act” shall mean the United States Securities Act of 1933 and the  rules and regulations promulgated by the SEC thereunder and any statute successor thereto, in  each case as amended from time to time.                                          9   





 






Security:         The term “Security” or “Securities” shall have the meaning stated in the recitals and shall  more particularly mean one or more of the Securities duly authenticated by the Trustee and  delivered pursuant to the provisions of this Indenture.   Security Custodian:         The term “Security Custodian” shall mean the custodian with respect to any Global  Security appointed by the Depositary, or any successor Person thereto, and shall initially be the  Paying Agent.    Securityholder; Holder of Securities; Holder:         The term “Securityholder” or “Holder of Securities” or “Holder” shall mean the Person in  whose name Securities shall be registered in the Register.   Senior Indebtedness:         The term “Senior Indebtedness” means the principal of (and premium, if any) and unpaid  interest on (x) Indebtedness of the Company, whether outstanding on the date hereof or  thereafter created, incurred, assumed or guaranteed, for money borrowed other than (a) any  Indebtedness of the Company which when incurred, and without respect to any election under  Section 1111(b) of the Federal Bankruptcy Code, was without recourse to the Company, (b) any  Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness to any employee of the  Company, (d) any liability for taxes, (e) Trade Payables and (f) any Indebtedness of the  Company which is expressly subordinate in right of payment to any other Indebtedness of the  Company, and (y) renewals, extensions, modifications and refundings of any such Indebtedness.  For purposes of this definition of “Senior Indebtedness,” the phrase “subordinated in right of  payment” means debt subordination only and not lien subordination, and accordingly, (i)  unsecured indebtedness shall not be deemed to be subordinated in right of payment to secured  indebtedness merely by virtue of the fact that it is unsecured, and (ii) junior liens, second liens  and other contractual arrangements that provide for priorities among Holders of the same or  different issues of indebtedness with respect to any collateral or the proceeds of collateral shall  not constitute subordination in right of payment. This definition may be modified or superseded  by a supplemental indenture.   Special Record Date:         The term “Special Record Date” shall have the meaning assigned to it in Section  3.08(b)(i).   Stated Maturity:         The term “Stated Maturity” when used with respect to any Security or any installment of  principal or interest thereon, shall mean the date specified in such Security as the fixed date on  which the principal (or any portion thereof) of or premium, if any, on such Security or such  installment of principal or interest is due and payable.                                         10   





 






Subsidiary:         The term “Subsidiary,” when used with respect to any Person, shall mean:                  (a) any corporation, limited liability company, association or other business  entity of which more than 50% of the total voting power of shares of Capital Stock entitled  (without regard to the occurrence of any contingency and after giving effect to any voting  agreement or stockholders’ agreement that effectively transfers voting power) to vote in the  election of directors, managers or trustees of the corporation, limited liability company,  association or other business entity is at the time owned or controlled, directly or indirectly, by  that Person or one or more of the other Subsidiaries of that Person (or a combination thereof);  and                  (b) any partnership (i) the sole general partner or the managing general  partner of which is such Person or a Subsidiary of such Person or (ii) the only general partners of  which are that Person or one or more Subsidiaries of that Person (or any combination thereof).   Successor:         The term “Successor” shall have the meaning assigned to it in Section 6.04.   Successor Company:         The term “Successor Company” shall have the meaning assigned to it in Section 3.06(i).   Trade Payables:         The term “Trade Payables” means accounts payable or any other Indebtedness or  monetary obligations to trade creditors created or assumed by the Company or any Subsidiary of  the Company in the ordinary course of business (including guarantees thereof or instruments  evidencing such liabilities).   Trust Indenture Act; TIA:         The term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939, as  amended, and the rules and regulations thereunder as in effect on the date of this Indenture,  except as provided in Section 14.06 and except to the extent any amendment to the Trust  Indenture Act expressly provides for application of the Trust Indenture Act as in effect on  another date.   Trustee:         The term “Trustee” shall mean the Person named as the “Trustee” in the first paragraph  of this Indenture until a successor Trustee shall have become such with respect to one or more  series of Securities pursuant to the applicable provisions of this Indenture, and thereafter  “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time  there is more than one such Person, “Trustee” as used with respect to the Securities of any series  shall mean the Trustee with respect to Securities of that series.                                         11   





 






U.S. Dollars:         The term “U.S. Dollars” shall mean such currency of the United States as at the time of  payment shall be legal tender for the payment of public and private debts.   U.S. Government Obligations:         The term “U.S. Government Obligations” shall have the meaning assigned to it in Section  12.03.   United States:         The term “United States” shall mean the United States of America (including the States  and the District of Columbia), its territories and its possessions and other areas subject to its  jurisdiction.   Wholly Owned Subsidiary:         The term “Wholly Owned Subsidiary,” when used with respect to any Person, shall  mean:                  (a) any corporation, limited liability company, association or other business  entity of which 100% of the total voting power of shares (other than directors’ qualifying shares  or an immaterial amount of shares required to be owned by other Persons pursuant to applicable  law) of Capital Stock entitled (without regard to the occurrence of any contingency and after  giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting  power) to vote in the election of directors, managers or trustees of the corporation, limited  liability company, association or other business entity is at the time owned or controlled, directly  or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a  combination thereof); and                  (b) any partnership (i) the sole general partner or the managing general  partner of which is such Person or a Wholly Owned Subsidiary of such Person or (ii) the only  general partners of which are that Person or one or more Wholly Owned Subsidiaries of that  Person (or any combination thereof).                                    ARTICLE II                                                                      FORMS OF SECURITIES         Section 2.01 Terms of the Securities.                  (a) The Securities of each series shall be substantially in the form set forth  in a Company Order or in one or more indentures supplemental hereto, and shall have such  appropriate insertions, omissions, substitutions and other variations as are required or not  prohibited by this Indenture, and may have such letters, numbers or other marks of identification  or designation and such legends or endorsements placed thereon as the Company may deem  appropriate and as are not prohibited by the provisions of this Indenture, or as may be required to                                         12   





 






comply with any law or with any rule or regulation made pursuant thereto or with any rule or  regulation of any securities exchange on which any series of the Securities may be listed or of  any automated quotation system on which any such series may be quoted, or to conform to  usage, all as determined by the officers executing such Securities as conclusively evidenced by  their execution of such Securities.                  (b) The terms and provisions of the Securities shall constitute, and are  hereby expressly made, a part of this Indenture, and, to the extent applicable, the Company and  the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and  provisions and to be bound thereby.         Section 2.02 Form of Trustee’s Certificate of Authentication.                  (a) Only such of the Securities as shall bear thereon a certificate  substantially in the form of the Trustee’s certificate of authentication hereinafter recited,  executed by the Trustee by manual signature, shall be valid or become obligatory for any  purpose or entitle the Holder thereof to any right or benefit under this Indenture.                  (b) Each Security shall be dated the date of its authentication, except that  any Global Security shall be dated as of the date specified as contemplated in Section 3.01.                  (c) The form of the Trustee’s certificate of authentication to be borne by the  Securities shall be substantially as follows:                   TRUSTEE’S CERTIFICATE OF AUTHENTICATION         This is one of the Securities of the series designated therein referred to in the within- mentioned Indenture.    Date of authentication: ___________       U.S. Bank National Association, as Trustee                                             By:                                                                                 Authorized Signatory            Section 2.03 Form of Trustee’s Certificate of Authentication by an Authenticating  Agent.  If at any time there shall be an Authenticating Agent appointed with respect to any series  of Securities, then the Trustee’s Certificate of Authentication by such Authenticating Agent to be  borne by Securities of each such series shall be substantially as follows:                   TRUSTEE’S CERTIFICATE OF AUTHENTICATION         This is one of the Securities of the series designated therein referred to in the within- mentioned Indenture.                                        13   





 






Date of authentication: ___________       U.S. Bank National Association, as Trustee                                             By: [NAME OF AUTHENTICATING AGENT]                                                        as Authenticating Agent                                             By:                                                                                 Authorized Signatory                                       ARTICLE III                                                                      THE DEBT SECURITIES         Section 3.01 Amount Unlimited; Issuable in Series.  The aggregate principal amount of  Securities that may be authenticated and delivered under this Indenture is unlimited. The  Securities may be issued in one or more series. There shall be set forth in a Company Order or in  one or more indentures supplemental hereto, prior to the issuance of Securities of any series:                  (a) the title of the Securities of such series (which shall distinguish the  Securities of such series from the Securities of all other series, except to the extent that additional  Securities of an existing series are being issued);                  (b) any limit upon the aggregate principal amount of the Securities of such  series that may be authenticated and delivered under this Indenture (except for Securities  authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other Securities of  such series pursuant to Section 3.04, 3.06, 3.07, 4.06, or 14.05);                  (c) the dates on which or periods during which the Securities of such series  may be issued, and the dates on, or the range of dates within, which the principal of and  premium, if any, on the Securities of such series are or may be payable or the method by which  such date or dates shall be determined or extended;                  (d) the rate or rates at which the Securities of such series shall bear interest,  if any, or the method by which such rate or rates shall be determined, whether such interest shall  be payable in cash or additional Securities of the same series or another class or series of  securities or shall accrue and increase the aggregate principal amount outstanding of such series  (including if such Securities were originally issued at a discount), the date or dates from which  such interest shall accrue, or the method by which such date or dates shall be determined, the  Interest Payment Dates on which any such interest shall be payable, and the Record Dates for the  determination of Holders to whom interest is payable on such Interest Payment Dates or the  method by which such date or dates shall be determined, the right, if any, to extend or defer  interest payments and the duration of such extension or deferral;                  (e)  if other than U.S. Dollars, the Currency in which Securities of such  series shall be denominated or in which payment of the principal of, premium, if any, or interest  on the Securities of such series shall be payable and any other terms concerning such payment;                                         14   





 






               (f) if the amount of payment of principal of, premium, if any, or interest on  the Securities of such series may be determined with reference to an index, formula or other  method, including, but not limited to, an index based on a Currency or Currencies other than that  in which the Securities are stated to be payable, the manner in which such amounts shall be  determined;                  (g) if the principal of, premium, if any, or interest on Securities of such  series are to be payable, at the election of the Company or a Holder thereof, in a Currency other  than that in which such Securities are denominated or stated to be payable without such election,  the period or periods within which, and the terms and conditions upon which, such election may  be made and the time and the manner of determining the exchange rate between the Currency in  which such Securities are denominated or payable without such election and the Currency in  which such Securities are to be paid if such election is made;                  (h) the place or places, if any, in addition to or instead of the Corporate  Trust Office of the Trustee where the principal of, premium, if any, and interest on Securities of  such series shall be payable, and where Securities of such series may be presented for  registration of transfer, exchange or conversion, and the place or places where notices and  demands to or upon the Company in respect of the Securities of such series may be made;                  (i) the price or prices at which, the period or periods within which or the  date or dates on which, and the terms and conditions upon which Securities of such series may be  redeemed, in whole or in part, at the option of the Company, if the Company is to have that  option;                  (j) the obligation or right, if any, of the Company to redeem, purchase or  repay Securities of such series pursuant to any sinking fund, amortization or analogous  provisions or at the option of a Holder thereof and the price or prices at which, the period or  periods within which or the date or dates on which, the Currency or Currencies in which and the  terms and conditions upon which Securities of such series shall be redeemed, purchased or  repaid, in whole or in part, pursuant to such obligation;                  (k) if other than denominations of $2,000 and integral multiples of $1,000  in excess thereof, the denominations in which Securities of such series shall be issuable;                  (l) if other than the principal amount thereof, the portion of the principal  amount of the Securities of such series which shall be payable upon declaration of acceleration  of the Maturity thereof pursuant to Section 7.02;                  (m) the guarantors, if any, of the Securities of such series, and the form and  terms of the guarantees (including provisions relating to seniority or subordination of such  guarantees and the release of the guarantors), if any, of any payment or other obligations on such  Securities and any additions or changes to this Indenture to permit or facilitate guarantees of  such Securities;                  (n) whether the Securities of such series are to be issued as Original Issue  Discount Securities and the amount of discount with which such Securities may be issued;                                         15   





 






               (o) provisions, if any, for the defeasance of Securities of such series in  whole or in part and any addition to or change in the provisions related to satisfaction and  discharge;                  (p) whether the Securities of such series are to be issued in whole or in part  in the form of one or more Global Securities and, in such case, the Depositary for such Global  Security or Global Securities, and the terms and conditions, if any, upon which interests in such  Global Security or Global Securities may be exchanged in whole or in part for the individual  securities represented thereby in definitive form registered in the name or names of Persons other  than such Depositary or a nominee or nominees thereof (“Individual Securities”);                  (q) the date as of which any Global Security of such series shall be dated if  other than the original issuance of the first Security of such series to be issued;                  (r) the form of the Securities of such series;                  (s) if the Securities of such series are to be convertible into or exchangeable  for any securities or property of any Person (including the Company), the terms and conditions  upon which such Securities will be so convertible or exchangeable, and any additions or changes  to this Indenture, if any, to permit or facilitate such conversion or exchange;                  (t) whether the Securities of such series are subject to subordination and the  terms of such subordination;                  (u) if any payment or other obligations on Securities of such series are to be  secured by any property, the nature of such security and provisions related thereto;                  (v) any restriction or condition on the transferability of the Securities of  such series;                   (w) any addition or change in the provisions related to compensation and  reimbursement of the Trustee which applies to Securities of such series;                  (x) any addition or change in the provisions related to supplemental  indentures set forth in Sections 14.01, 14.02 and 14.04 which applies to Securities of such series;                  (y) provisions, if any, granting special rights to Holders of Securities of  such series upon the occurrence of specified events;                   (z) any addition to or change in the Events of Default which applies to any  Securities of such series and any change in the right of  the Trustee or the requisite Holders of  such Securities to declare the principal amount thereof due and payable pursuant to Section 7.02  and any addition to or change in the provisions set forth in Article VII which applies to  Securities of such series;                  (aa) provisions, if any, to permit or facilitate the issuance of Securities of  such series in bearer form, registrable or not registrable as to principal and with or without  interest coupons;                                         16   





 






               (bb) any addition to or change in the covenants set forth in Article VI which  applies to Securities of such series; and                  (cc) any other terms of the Securities of such series (which terms shall not be  inconsistent with the provisions of the TIA, but may modify, amend, supplement or delete any of  the terms of this Indenture with respect to such series).   All Securities of any one series shall be substantially identical, except as to denomination and  except as may otherwise be provided herein or set forth in a Company Order or in one or more  indentures supplemental hereto.         Section 3.02 Denominations.  In the absence of any specification pursuant to Section  3.01 with respect to Securities of any series, the Securities of such series shall be issuable only as  Securities in denominations of $2,000 and integral multiples of $1,000 in excess thereof and  shall be payable only in U.S. Dollars.         Section 3.03 Execution, Authentication, Delivery and Dating.                  (a) The Securities shall be executed in the name and on behalf of the  Company by the manual or facsimile signature of its Chief Executive Officer, its President, its  Chief Financial Officer, one of its Executive Vice Presidents, Senior Vice Presidents or Vice  Presidents, its Controller or Corporate Controller, one of its Assistant Controllers or Assistant  Corporate Controllers, its Treasurer or Corporate Treasurer, one of its Assistant Treasurers or  Assistant Corporate Treasurers, its General Counsel, its Secretary or one of its Assistant  Secretaries. If the Person whose signature is on a Security no longer holds that office at the time  the Security is authenticated and delivered, the Security shall nevertheless be valid.                  (b) At any time and from time to time after the execution and delivery of  this Indenture, the Company may deliver Securities of any series executed by the Company to  the Trustee for authentication, together with a Company Order for the authentication and  delivery of such Securities and, if required pursuant to Section 3.01 with respect to the Securities  of such series, a supplemental indenture or Company Order setting forth the terms of the  Securities of such series. The Trustee shall thereupon authenticate and deliver such Securities  without any further action by the Company. The Company Order shall specify the amount of  Securities to be authenticated and the date on which the original issue of such Securities is to be  authenticated.                  (c) In authenticating the Securities of any series and accepting the  additional responsibilities under this Indenture in relation to such Securities, the Trustee shall  receive, and (subject to Section 11.02) shall be fully protected in relying upon, an Officer’s  Certificate and an Opinion of Counsel, each prepared in accordance with Section 16.01, stating  that the conditions precedent, if any, provided for in the Indenture which relate to such  authentication have been complied with.                  (d) The Trustee shall have the right to decline to authenticate and deliver  the Securities under this Section 3.03 if the issue of the Securities pursuant to this Indenture will  adversely 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.                                        17   





 






               (e) Each Security shall be dated the date of its authentication, except as  otherwise provided pursuant to Section 3.01 with respect to the Securities of such series.                  (f) Notwithstanding the provisions of Section 3.01 and of this Section 3.03,  if all of the Securities of any series are not to be originally issued at the same time, then the  documents required to be delivered pursuant to this Section 3.03 must be delivered only once  prior to the authentication and delivery of the first Security of such series;                  (g) If the Company shall establish pursuant to Section 3.01 that the  Securities of a series are to be issued in whole or in part in the form of one or more Global  Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or  more Global Securities that (i) shall represent an aggregate amount equal to the aggregate  principal amount of the Outstanding Securities of such series to be represented by such Global  Securities, (ii) shall be registered, if in registered form, in the name of the Depositary for such  Global Security or Global Securities or the nominee of such Depositary, (iii) shall be delivered  by the Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear  a legend substantially to the following effect (or to such other effect as may be required by such  Depositary):          “THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE        INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE        NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH        MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT        THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.          TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS        IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE        DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE        DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE        DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A        NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”          The aggregate principal amount of each Global Security may from time to time be  increased or decreased by adjustments made on the records of the Security Custodian, as  provided in this Indenture.                  (h) Each Depositary designated pursuant to Section 3.01 for a Global  Security in registered form must, at the time of its designation and at all times while it serves as  such Depositary, be a clearing agency registered under the Exchange Act and any other  applicable statute or regulation.                  (i) Members of, or participants in, the Depositary (“Members”) shall have  no rights under this Indenture with respect to any Global Security held on their behalf by the  Depositary or by the Security Custodian under such Global Security, and the Depositary may be  treated by the Company, the Trustee, the Paying Agent and the Registrar and any of their agents  as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the  foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the                                         18   





 






Registrar or any of their agents from giving effect to any written certification, proxy or other  authorization furnished by the Depositary or impair, as between the Depositary and its Members,  the operation of customary practices of the Depositary governing the exercise of the rights of an  owner of a beneficial interest in any Global Security. The Holder of a Global Security may grant  proxies and otherwise authorize any Person, including Members and Persons that may hold  interests through Members, to take any action that a Holder is entitled to take under this  Indenture or the Securities.                  (j) No Security shall be entitled to any benefit under this Indenture or be  valid or obligatory for any purpose unless there appears on such Security a certificate of  authentication substantially in one of the forms provided for herein duly executed by the Trustee  or by an Authenticating Agent by manual or facsimile signature of an authorized signatory of the  Trustee or such Authenticating Agent, and such certificate upon any Security shall be conclusive  evidence, and the only evidence, that such Security has been duly authenticated and delivered  hereunder and is entitled to the benefits of this Indenture.         Section 3.04 Temporary Securities.                  (a) Pending the preparation of definitive Securities of any series, the  Company may execute, and upon Company Order the Trustee shall authenticate and deliver,  temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise  reproduced, in any authorized denomination, substantially of the tenor of the definitive Securities  in lieu of which they are issued, in registered form and with such appropriate insertions,  omissions, substitutions and other variations as the officers executing such Securities may  determine, as conclusively evidenced by their execution of such Securities. Any such temporary  Security may be in the form of one or more Global Securities, representing all or a portion of the  Outstanding Securities of such series. Every such temporary Security shall be executed by the  Company and shall be authenticated and delivered by the Trustee upon the same conditions and  in substantially the same manner, and with the same effect, as the definitive Security or  Securities in lieu of which it is issued.                  (b) If temporary Securities of any series are issued, the Company will cause  definitive Securities of such series to be prepared without unreasonable delay. After the  preparation of definitive Securities of such series, the temporary Securities of such series shall be  exchangeable for definitive Securities of such series upon surrender of such temporary Securities  at the office or agency of the Company in a Place of Payment for such series, without charge to  the Holder. Upon surrender for cancellation of any one or more temporary Securities of any  series, the Company shall execute and the Trustee shall authenticate and deliver in exchange  therefor a like principal amount of definitive Securities of the same series of authorized  denominations and of like tenor. 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.                  (c) Upon any exchange of a portion of a temporary Global Security for a  definitive Global Security or for the Individual Securities represented thereby pursuant to this  Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee to  reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount                                         19   





 






of such temporary Global Security shall be reduced for all purposes by the amount so exchanged  and endorsed.         Section 3.05 Registrar.                  (a) The Company will keep, at an office or agency to be maintained by it in  a Place of Payment where Securities may be presented for registration or presented and  surrendered for registration of transfer or of exchange, and where Securities of any series that are  convertible or exchangeable may be surrendered for conversion or exchange, as applicable (the  “Registrar”), a security register for the registration and the registration of transfer or of exchange  of the Securities (the registers maintained in such office and in any other office or agency of the  Company in a Place of Payment being herein sometimes collectively referred to as the  “Register”), as in this Indenture provided, which Register shall at all reasonable times be open  for inspection by the Trustee. Such Register shall be in written form or in any other form capable  of being converted into written form within a reasonable time. The Company may have one or  more co-Registrars; the term “Registrar” includes any co-registrar.                  (b) The Company shall enter into an appropriate agency agreement with  any Registrar or co-Registrar not a party to this Indenture. The agreement shall implement the  provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of  the name and address of each such agent. If the Company fails to maintain a Registrar for any  series, the Trustee shall act as such and shall be entitled to appropriate compensation therefor  pursuant to Section 11.01. The Company or any Affiliate thereof may act as Registrar, co- Registrar or transfer agent.                   (c) The Company hereby appoints the Trustee at its Corporate Trust Office  as Registrar in connection with the Securities and this Indenture, until such time as another  Person is appointed as such.         Section 3.06 Transfer and Exchange.                  (a) Transfer.                      (i)  Upon surrender for registration of transfer of any Security        of any series at the Registrar the Company shall execute, and the Trustee or any        Authenticating Agent shall authenticate and deliver, in the name of the designated        transferee, one or more new Securities of the same series for like aggregate        principal amount of any authorized denomination or denominations. The transfer        of any Security shall not be valid as against the Company or the Trustee unless        registered at the Registrar at the request of the Holder, or at the request of his, her        or its attorney duly authorized in writing.                     (ii)  Notwithstanding any other provision of this Section, unless        and until it is exchanged in whole or in part for the Individual Securities        represented thereby, a Global Security representing all or a portion of the        Securities of a series may not be transferred except as a whole by the Depositary        for such series to a nominee of such Depositary or by a nominee of such        Depositary to such Depositary or another nominee of such Depositary or by such                                        20   





 






      Depositary or any such nominee to a successor Depositary for such series or a        nominee of such successor Depositary.                  (b) Exchange.                      (i)  At the option of the Holder, Securities of any series (other        than a Global Security, except as set forth below) may be exchanged for other        Securities of the same series for like aggregate principal amount of any authorized        denomination or denominations, upon surrender of the Securities to be exchanged        at the Registrar.                     (ii)  Whenever any Securities are so surrendered for exchange,        the Company shall execute, and the Trustee shall authenticate and deliver, the        Securities that the Holder making the exchange is entitled to receive.                  (c) Exchange of Global Securities for Individual Securities.  Except as  provided below in this subsection (c), owners of beneficial interests in Global Securities will not  be entitled to receive Individual Securities.                      (i)  Individual Securities shall be issued to all owners of        beneficial interests in a Global Security in exchange for such interests if: (A) at        any time the Depositary for the Securities of a series notifies the Company that it        is unwilling or unable to continue as Depositary for the Securities of such series        or if at any time the Depositary for the Securities of such series shall no longer be        eligible under Section 3.03(h) and, in each case, a successor Depositary is not        appointed by the Company within 90 days after the Company receives such notice        or becomes aware of such ineligibility, as applicable, or (B) the Company        executes and delivers to the Trustee and the Registrar an Officer’s Certificate        stating that such Global Security shall be so exchangeable.               In connection with the exchange of an entire Global Security for        Individual Securities pursuant to this subsection (c), such Global Security shall be        deemed to be surrendered to the Trustee for cancellation, and the Company shall        execute, and the Trustee, upon receipt of a Company Order for the authentication        and delivery of Individual Securities of such series, shall authenticate and deliver        to each beneficial owner identified by the Depositary in exchange for its        beneficial interest in such Global Security, an equal aggregate principal amount of        Individual Securities of authorized denominations.                      (ii)  The owner of a beneficial interest in a Global Security will        be entitled to receive an Individual Security in exchange for such interest if an        Event of Default has occurred and is continuing. Upon receipt by the Security        Custodian and Registrar of instructions from the Holder of a Global Security        directing the Security Custodian and Registrar to (x) issue one or more Individual        Securities in the amounts specified to the owner of a beneficial interest in such        Global Security and (y) debit or cause to be debited an equivalent amount of                                         21   





 






beneficial interest in such Global Security, subject to the rules and regulations of  the Depositary:                               (A) the Security Custodian and        Registrar shall notify the Company and the Trustee of such        instructions, identifying the owner and amount of such beneficial        interest in such Global Security;                              (B) the Company shall promptly        execute and the Trustee, upon receipt of a Company Order for the        authentication and delivery of Individual Securities of such series,        shall authenticate and deliver to such beneficial owner Individual        Securities in an equivalent amount to such beneficial interest in        such Global Security; and                              (C) the Security Custodian and        Registrar shall decrease such Global Security by such amount in        accordance with the foregoing. In the event that the Individual        Securities are not issued to each such beneficial owner promptly        after the Registrar has received a request from the Holder of a        Global Security to issue such Individual Securities, the Company        expressly acknowledges, with respect to the right of any Holder to        pursue a remedy pursuant to Section 7.07 hereof, the right of any        beneficial owner of Securities to pursue such remedy with respect        to the portion of the Global Security that represents such beneficial        owner’s Securities as if such Individual Securities had been issued.               (iii) If specified by the Company pursuant to Section 3.01 with  respect to a series of Securities, the Depositary for such series of Securities may  surrender a Global Security for such series of Securities in exchange in whole or  in part for Individual Securities of such series on such terms as are acceptable to  the Company and such Depositary. Thereupon, the Company shall execute, and  the Trustee shall authenticate and deliver, without service charge,                              (A) to each Person specified by such        Depositary a new Individual Security or new Individual Securities        of the same series, of any authorized denomination as requested by        such Person in aggregate principal amount equal to and in        exchange for such Person’s beneficial interest in the Global        Security; and                              (B) to such Depositary a new Global        Security in a denomination equal to the difference, if any, between        the principal amount of the surrendered Global Security and the        aggregate principal amount of Individual Securities delivered to        Holders thereof.                                   22                





 






                  (iv)  In any exchange provided for in clauses (i) through (iii), the        Company will execute and the Trustee will authenticate and deliver Individual        Securities in registered form in authorized denominations.                     (v)   Upon the exchange in full of a Global Security for        Individual Securities, such Global Security shall be canceled by the Trustee.        Individual Securities issued in exchange for a Global Security pursuant to this        Section shall be registered in such names and in such authorized denominations as        the Depositary for such Global Security, pursuant to instructions from its direct or        indirect participants or otherwise, shall instruct the Trustee. The Trustee shall        deliver such Securities to the Persons in whose names such Securities are so        registered.                  (d) All Securities issued upon any registration of transfer or exchange of  Securities shall be valid obligations of the Company evidencing the same debt, and entitled to the  same benefits under this Indenture, as the Securities surrendered for such registration of transfer  or exchange.                  (e) Every Security presented or surrendered for registration of transfer, or  for exchange or payment shall (if so required by the Company, the Trustee or the Registrar) be  duly endorsed, or be accompanied by a written instrument or instruments of transfer in form  satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder thereof  or by such Holder’s attorney duly authorized in writing.                  (f) No service charge will be made for any registration of transfer or  exchange of Securities. The Company or the Trustee may require payment of a sum sufficient to  cover any tax, assessment or other governmental charge that may be imposed in connection with  any registration of transfer or exchange of Securities, other than those expressly provided in this  Indenture to be made at the Company’s own expense or without expense or charge to the  Holders.                  (g) The Company shall not be required to (i) register, transfer or exchange  Securities of any series during a period beginning at the opening of business 15 days before the  day of the transmission of a notice of redemption of Securities of such series selected for  redemption under Section 4.03 and ending at the close of business on the day of such  transmission, or (ii) register, transfer or exchange any Security so selected for redemption in  whole or in part, except the unredeemed portion of any Security being redeemed in part.                  (h) Prior to the due presentation for registration of transfer or exchange of  any Security, the Company, the Trustee, the Paying Agent, the Registrar, any co-Registrar or any  of their agents shall deem and treat the Person in whose name a Security is registered as the  absolute owner of such Security (whether or not such Security shall be overdue and  notwithstanding any notation of ownership or other writing thereon) for all purposes whatsoever,  and none of the Company, the Trustee, the Paying Agent, the Registrar, any co-Registrar or any  of their agents shall be affected by any notice to the contrary.                                          23   





 






               (i) In case a successor Company (“Successor Company”) has executed an  indenture supplemental hereto with the Trustee pursuant to Article XIV, any of the Securities  authenticated or delivered pursuant to such transaction may, from time to time, at the request of  the Successor Company, be exchanged for other Securities executed in the name of the  Successor Company with such changes in phraseology and form as may be appropriate, but  otherwise identical to the Securities surrendered for such exchange and of like principal amount;  and the Trustee, upon Company Order of the Successor Company, shall authenticate and deliver  Securities as specified in such order for the purpose of such exchange. If Securities shall at any  time be authenticated and delivered in any new name of a Successor Company pursuant to this  Section 3.06 in exchange or substitution for or upon registration of transfer of any Securities,  such Successor Company, at the option of the Holders but without expense to them, shall provide  for the exchange of all Securities at the time Outstanding for Securities authenticated and  delivered in such new name.                  (j) Each Holder of a Security agrees to indemnify the Company and the  Trustee against any liability that may result from the transfer, exchange or assignment of such  Holder’s Security in violation of any provision of this Indenture and/or applicable United States  federal or state securities laws.                  (k) 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 (including any transfers  between or among Members or beneficial owners of interests in any Global Security) other than  to require delivery of such certificates and other documentation or evidence as are expressly  required by, and to do so if and when expressly required by the terms of, this Indenture, and to  examine the same to determine substantial compliance as to form with the express requirements  hereof.                  (l) Neither the Trustee nor any agent of the Trustee shall have any  responsibility or liability for any actions taken or not taken by the Depositary.         Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities.                  (a) If (i) any mutilated Security is surrendered to the Trustee at its  Corporate Trust Office or (ii) the Company and the Trustee receive evidence to their satisfaction  of the destruction, loss or theft of any Security, and there is delivered to the Company and the  Trustee security or indemnity satisfactory to them to save each of them and any Paying Agent  harmless, and neither the Company nor the Trustee receives notice that such Security has been  acquired by a protected purchaser, then the Company shall execute and upon Company Order the  Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated,  destroyed, lost or stolen Security, a new Security of the same series and of like tenor, form, terms  and principal amount, bearing a number not contemporaneously outstanding, that neither gain  nor loss in interest shall result from such exchange or substitution. In every case, the applicant  for a replacement Security shall furnish the Company and the Trustee such security or indemnity  as may be required by and satisfactory to them to save each of them harmless.                                          24   





 






               (b) In case any such mutilated, destroyed, lost or stolen Security has  become or is about to become due and payable, the Company in its discretion may, instead of  issuing a new Security, pay the amount due on such Security in accordance with its terms.                   (c) Upon the issuance of any new Security under this Section, the Company  may require the payment of a sum sufficient to cover any tax or other governmental charge that  may be imposed in respect thereto and any other expenses (including the fees and expenses of  the Trustee) connected therewith.                   (d) Every new Security of any series issued pursuant to this Section shall  constitute an original additional contractual obligation of the Company, whether or not the  destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled  to all the benefits of this Indenture equally and proportionately with any and all other Securities  of that series duly issued hereunder.                   (e) The provisions of this Section are exclusive and shall preclude (to the  extent lawful) all other rights and remedies with respect to the replacement or payment of  mutilated, destroyed, lost or stolen Securities.         Section 3.08 Payment of Interest; Interest Rights Preserved.                  (a) Interest on any Security that is payable and is 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 at the close of business on the  Record Date for such interest notwithstanding the cancellation of such Security upon any transfer  or exchange subsequent to the Record Date. Payment of interest on Securities shall be made at  the Corporate Trust Office (except as otherwise specified pursuant to Section 3.01) or, at the  option of the Company, by check mailed to the address of the Person entitled thereto as such  address shall appear in the Register or, in accordance with arrangements satisfactory to the  Trustee, by wire transfer to an account designated by the Holder.                   (b) Any interest on any Security that is payable but is not punctually paid or  duly provided for on any Interest Payment Date (herein called “Defaulted Interest”) shall  forthwith cease to be payable to the Holder on the relevant Record Date by virtue of his, her or  its having been such a Holder, and such Defaulted Interest may be paid by the Company, at its  election in each case, as provided in clause (i) or (ii) below:                       (i)  The Company may elect to make payment of any Defaulted        Interest to the Persons in whose names such Securities (or their respective        Predecessor Securities) are registered at the close of business on a special record        date for the payment of such Defaulted Interest (a “Special Record Date”), which        shall be fixed in the following manner. The Company shall notify the Trustee in        writing of the amount of Defaulted Interest proposed to be paid on each such        Security and the date of the proposed payment, and at the same time the Company        shall deposit with the Trustee an amount of money equal to the aggregate amount        proposed to be paid in respect of such Defaulted Interest or shall make        arrangements satisfactory to the Trustee for such deposit prior to the date of the                                         25   





 






      proposed payment, such money when deposited to be held in trust for the benefit        of the Persons entitled to such Defaulted Interest as in this clause provided.        Thereupon the Trustee shall fix a Special Record Date for the payment of such        Defaulted Interest which shall be not more than 15 calendar days and not less than        10 calendar days prior to the date of the proposed payment and not less than 10        calendar days after the receipt by the Trustee of the notice of the proposed        payment. The Trustee shall promptly notify the Company of such Special Record        Date and, in the name and at the expense of the Company, shall cause notice of        the proposed payment of such Defaulted Interest and the Special Record Date        therefor to be given to the Holders of such Securities not less than 10 calendar        days prior to such Special Record Date. Notice of the proposed payment of such        Defaulted Interest and the Special Record Date therefor having been given as        aforesaid, such Defaulted Interest shall be paid to the Persons in whose names        such Securities (or their respective Predecessor Securities) are registered at the        close of business on such Special Record Date and shall no longer be payable        pursuant to the following clause (ii).                     (ii)  The Company may make payment of any Defaulted Interest        on Securities in any other lawful manner not inconsistent with the requirements of        any securities exchange on which such Securities may be listed, and upon such        notice as may be required by such exchange, if, after notice given by the        Company to the Trustee of the proposed payment pursuant to this clause, such        manner of payment shall be deemed practicable by the Trustee.                   (c) Subject to the provisions set forth herein relating to Record Dates, each  Security delivered pursuant to any provision of this Indenture in exchange or substitution for, or  upon registration of transfer of, any other Security shall carry all the rights to interest accrued  and unpaid, and to accrue, which were carried by such other Security.         Section 3.09 Cancellation.  Unless otherwise specified pursuant to Section 3.01 for  Securities of any series, all Securities surrendered for payment, redemption, registration of  transfer or exchange or credit against any sinking fund or otherwise shall, if surrendered to any  Person other than the Trustee, be delivered to the Trustee for cancellation and shall be promptly  canceled by it and, if surrendered to the Trustee, shall be promptly canceled by it. The Company  may at any time deliver to the Trustee for cancellation any Securities previously authenticated  and delivered hereunder that the Company may have acquired in any manner whatsoever, and all  Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be  authenticated in lieu of or in exchange for any Securities canceled as provided in this Section,  except as expressly permitted by this Indenture. The Trustee shall dispose of all canceled  Securities held by it in accordance with its then customary procedures and deliver a certificate of  such disposal to the Company upon its request therefor. The acquisition of any Securities by the  Company shall not operate as a redemption or satisfaction of the Indebtedness represented  thereby unless and until such Securities are surrendered to the Trustee for cancellation.         Section 3.10 Computation of Interest.  Except as otherwise specified pursuant to  Section 3.01 for Securities of any series, interest on the Securities of each series shall be  computed on the basis of a 360-day year of twelve 30-day months.                                         26   





 






      Section 3.11 Currency of Payments in Respect of Securities.                  (a) Except as otherwise specified pursuant to Section 3.01 for Securities of  any series, payment of the principal of and premium, if any, and interest on Securities of such  series will be made in U.S. Dollars.                  (b) For purposes of any provision of the Indenture where the Holders of  Outstanding Securities may perform an action that requires that a specified percentage of the  Outstanding Securities of all series perform such action and for purposes of any decision or  determination of amounts due and unpaid for the principal of and premium, if any, and interest  on the Securities of all series in respect of which moneys are to be disbursed ratably, the  principal of and premium, if any, and interest on the Outstanding Securities denominated in a  Foreign Currency will be the amount in U.S. Dollars based upon exchange rates, determined as  specified pursuant to Section 3.01 for Securities of such series, as of the date for determining  whether the Holders entitled to perform such action have performed it or as of the date of such  decision or determination, as the case may be.                  (c) Any decision or determination to be made regarding exchange rates  shall be made by an agent appointed by the Company; provided, that such agent shall accept  such appointment in writing and the terms of such appointment shall, in the opinion of the  Company at the time of such appointment, require such agent to make such decision or  determination with respect to the Securities of any series by a method consistent with the method  provided pursuant to Section 3.01 for Securities of such series for the making of such decision or  determination. All decisions and determinations of such agent regarding exchange rates shall, in  the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the  Company, the Trustee and all Holders of the Securities.         Section 3.12 Judgments.  The Company may provide pursuant to Section 3.01 for  Securities of any series that (a) the obligation, if any, of the Company to pay the principal of,  premium, if any, and interest on the Securities of any series in a Foreign Currency or U.S.  Dollars (the “Designated Currency”) as may be specified pursuant to Section 3.01 is of the  essence and agrees that, to the fullest extent possible under applicable law, judgments in respect  of such Securities shall be given in the Designated Currency; (b) the obligation of the Company  to make payments in the Designated Currency of the principal of and premium, if any, and  interest on such Securities shall, notwithstanding any payment in any other Currency (whether  pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the  Designated Currency that the Holder receiving such payment may, in accordance with normal  banking procedures, purchase with the sum paid in such other Currency (after any premium and  cost of exchange) on the business day in the country of issue of the Designated Currency or in  the international banking community (in the case of a composite currency) immediately  following the day on which such Holder receives such payment; (c) if the amount in the  Designated Currency that may be so purchased for any reason falls short of the amount originally  due, the Company shall pay such additional amounts as may be necessary to compensate for such  shortfall; and (d) any obligation of the Company  not discharged by such payment shall be due as  a separate and independent obligation and, until discharged as provided herein, shall continue in  full force and effect.                                         27   





 






      Section 3.13 CUSIP Numbers.  The Company in issuing any Securities of a series may  use CUSIP, ISIN or other similar numbers, if then generally in use, and thereafter, with respect  to such series, the Trustee may use such numbers in any notice (including any notice of  redemption or exchange) with respect to such series 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 and that reliance may be placed only on the other  identification numbers printed on the Securities, and any such notice, redemption or exchange  shall not be affected by any defect in or omission of such numbers. The Company will notify the  Trustee of any change in the CUSIP, ISIN or other similar numbers.                                    ARTICLE IV                                                                   REDEMPTION OF SECURITIES         Section 4.01 Applicability of Right of Redemption. Redemption of Securities (other  than pursuant to a sinking fund, amortization or analogous provision) permitted by the terms of  any series of Securities shall be made (except as otherwise specified pursuant to Section 3.01 for  Securities of any series) in accordance with this Article; provided, however, that if any such  terms of a series of Securities shall conflict with any provision of this Article, the terms of such  series shall govern.         Section 4.02 Selection of Securities to be Redeemed.                  (a) If the Company shall at any time elect to redeem all or any portion of  the Securities of a series then Outstanding, it shall at least 30 days (or, if the Company is  requesting in accordance with Section 4.03(a) that the Trustee give the notice of redemption to  the Holders of Securities of such series to be redeemed, 35 days, unless a shorter period shall be  satisfactory to the Trustee) prior to the Redemption Date fixed by the Company notify the  Trustee of such Redemption Date and of the principal amount of the Securities of such series to  be redeemed, and, if less than all of the Securities of such series are to be redeemed, thereupon  the Trustee shall select the particular Securities of such series to be redeemed from the  Outstanding Securities of such Series not theretofore called for redemption by lot or in such  other manner as the Trustee shall deem appropriate and which may provide for the selection for  redemption of a portion of the principal amount of any Security of such series; provided that the  unredeemed portion of the principal amount of any Security shall be in an authorized  denomination (which shall not be less than the minimum authorized denomination) for such  Security; and provided further that to the extent the Securities of such series are represented by  one or more Global Securities, the Securities of such series to be redeemed shall be selected in  accordance with the procedures of the Depositary. In any case where more than one Security of  such series is registered in the same name, the Trustee may treat the aggregate principal amount  so registered as if it were represented by one Security of such series. Except with respect to  Securities represented by one or more Global Securities, the Trustee shall, as soon as practicable,  notify the Company in writing of the Securities and portions of Securities so selected.                  (b) 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 Security  redeemed or to be redeemed only in part, to the portion of the principal amount of such Security                                         28   





 






that has been or is to be redeemed. If the Company shall so direct, Securities registered in the  name of the Company or any Affiliate or any Subsidiary thereof shall not be included in the  Securities selected for redemption.         Section 4.03 Notice of Redemption.                  (a) Notice of redemption 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, not less than  30 nor more than 90 days prior to the Redemption Date, to the Holders of Securities of any series  to be redeemed in whole or in part pursuant to this Article, in the manner provided in Section  16.03. Any notice so given shall be conclusively presumed to have been duly given, whether or  not the Holder receives such notice. Failure to give such notice, or any defect in such notice to  the Holder of any Security of a series designated for redemption, in whole or in part, shall not  affect the sufficiency of any notice of redemption with respect to the Holder of any other  Security of such series.                   (b) All notices of redemption shall identify the Securities to be redeemed  (including CUSIP, ISIN or other similar numbers, if available) and shall state:                       (i)  such election by the Company to redeem Securities of such        series pursuant to provisions contained in this Indenture or the terms of the        Securities of such series or a supplemental indenture establishing such series, if        such be the case;                      (ii)  the Redemption Date;                      (iii) the Redemption Price or, if the Redemption Price is not        then known, the manner of calculation thereof;                      (iv)  if less than all Outstanding Securities of any series are to be        redeemed, the identification (and, in the case of partial redemption, the principal        amounts) of the Securities of such series to be redeemed;                      (v)   that on the Redemption Date the Redemption Price will        become due and payable upon each such Security to be redeemed, and that, if        applicable, interest thereon shall cease to accrue on and after said date;                      (vi)  the Place or Places of Payment where such Securities are to        be surrendered for payment of the Redemption Price; and                    (vii)  that the redemption is for a sinking fund, if such is the case;         Section 4.04 Deposit of Redemption Price.  On or prior to 11:00 a.m., New York City  time, on the Redemption Date for any Securities, the Company shall deposit 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 6.03) an amount of money in the Currency in which such Securities  are denominated (except as provided pursuant to Section 3.01) sufficient to pay the Redemption  Price of such Securities or any portions thereof that are to be redeemed on that date.                                         29   





 






      Section 4.05 Securities Payable on Redemption Date.  Notice of redemption having  been given as aforesaid, any Securities so to be redeemed shall, on the Redemption Date, become  due and payable at the Redemption Price and from and after such date (unless the Company shall  Default in the payment of the Redemption Price) such Securities shall cease to bear interest.  Upon surrender of any such Security for redemption in accordance with said notice, such  Security shall be paid by the Company at the Redemption Price; provided, however, that (unless  otherwise provided pursuant to Section 3.01) installments of interest that have a Stated Maturity  on or prior to the Redemption Date for such Securities shall be payable according to the terms of  such Securities and the provisions of Section 3.08.         If any Security called for redemption shall not be so paid upon surrender thereof for  redemption, the principal thereof and premium, if any, thereon shall, until paid, bear interest  from the Redemption Date at the rate prescribed therefor in the Security.         Section 4.06 Securities Redeemed in Part.  Any Security that is to be redeemed only in  part shall be surrendered at the Corporate Trust Office or such other office or agency of the  Company as is specified pursuant to Section 3.01 with, if the Company, the Registrar or the  Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory  to the Company, the Registrar and the Trustee duly executed by the Holder thereof or such  Holder’s 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  Security or Securities of the same series, of like tenor and form, 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; except that if a Global  Security is so redeemed, the balance of such Global Security shall be reduced in accordance with  the applicable procedures of the Depositary for such Global Security. In the case of a Security  providing appropriate space for such notation, at the option of the Holder thereof, the Trustee, in  lieu of delivering a new Security or Securities as aforesaid, may make a notation on such  Security of the payment of the redeemed portion thereof.                                    ARTICLE V                                                                          SINKING FUNDS         Section 5.01 Applicability of Sinking Fund.                  (a) Redemption of Securities permitted or required pursuant to a sinking  fund for the retirement of Securities of a series by the terms of such series of Securities shall be  made in accordance with such terms of such series of Securities and this Article, except as  otherwise specified pursuant to Section 3.01 for Securities of such series, provided, however,  that if any such terms of a series of Securities shall conflict with any provision of this Article, the  terms of such series shall govern.                  (b) The minimum amount of any sinking fund payment provided for by the  terms of Securities of any series is herein referred to as a “Mandatory Sinking Fund Payment,”  and any payment in excess of such minimum amount provided for by the terms of Securities of  any series is herein referred to as an “Optional Sinking Fund Payment.”  If provided for by the                                         30   





 






terms of Securities of any series, the cash amount of any Mandatory Sinking Fund Payment may  be subject to reduction as provided in Section 5.02.         Section 5.02 Mandatory Sinking Fund Obligation.  The Company may, at its option,  satisfy any Mandatory Sinking Fund Payment obligation, in whole or in part, with respect to a  particular series of Securities by (a) delivering to the Trustee Securities of such series in  transferable form theretofore purchased or otherwise acquired by the Company or redeemed at  the election of the Company pursuant to Section 4.03 or (b) receiving credit for Securities of  such series (not previously so credited) acquired by the Company and theretofore delivered to the  Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment obligation with an  amount equal to the Redemption Price specified in such Securities for redemption through  operation of the sinking fund and the amount of such Mandatory Sinking Fund Payment shall be  reduced accordingly. If the Company shall elect to so satisfy any Mandatory Sinking Fund  Payment obligation, it shall deliver to the Trustee not less than 45 days prior to the relevant  sinking fund payment date an Officer’s Certificate, which shall designate the Securities (and  portions thereof, if any) so delivered or credited and which shall be accompanied by such  Securities (to the extent not theretofore delivered) in transferable form. In case of the failure of  the Company, at or before the time so required, to give such notice and deliver such Securities  the Mandatory Sinking Fund Payment obligation shall be paid entirely in moneys.         Section 5.03 Optional Redemption at Sinking Fund Redemption Price.  In addition to  the sinking fund requirements of Section 5.02, to the extent, if any, provided for by the terms of a  particular series of Securities, the Company may, at its option, make an Optional Sinking Fund  Payment with respect to such Securities. Unless otherwise provided by such terms, (a) to the  extent that the right of the Company to make such Optional Sinking Fund Payment shall not be  exercised in any year, it shall not be cumulative or carried forward to any subsequent year, and  (b) such optional payment shall operate to reduce the amount of any Mandatory Sinking Fund  Payment obligation as to Securities of the same series. If the Company intends to exercise its  right to make such optional payment in any year it shall deliver to the Trustee not less than 45  days (or such shorter period as shall be satisfactory to the Trustee) prior to the relevant sinking  fund payment date an Officer’s Certificate stating that the Company will exercise such optional  right, and specifying the amount which the Company will pay on or before the next succeeding  sinking fund payment date. Such Officer’s Certificate shall also state that no Event of Default  has occurred and is continuing.         Section 5.04 Application of Sinking Fund Payment.                  (a) If the sinking fund payment or payments made in funds pursuant to  either Section 5.02 or 5.03 with respect to a particular series of Securities plus any unused  balance of any preceding sinking fund payments made in funds with respect to such series shall  exceed $50,000 (or a lesser sum if the Company shall so request, or such equivalent sum for  Securities denominated other than in U.S. Dollars), it shall be applied by the Trustee on the  sinking fund payment date next following the date of such payment, unless the date of such  payment shall be a sinking fund payment date, in which case such payment shall be applied on  such sinking fund payment date, to the redemption of Securities of such series at the redemption  price specified pursuant to Section 4.03(b). A sufficient principal amount of Securities of such  series to absorb said funds, as nearly as may be, shall be selected in the manner provided in                                         31   





 






Section 4.02 for redemption on such sinking fund payment date, and the Trustee shall, at the  expense and in the name of the Company, thereupon cause notice of redemption of the Securities  to be given in substantially the manner provided in Section 4.03(a) for the redemption of  Securities in part at the option of the Company, except that the notice of redemption shall also  state that the Securities are being redeemed for the sinking fund. Any sinking fund moneys not  so applied by the Trustee to the redemption of Securities of such series shall be added to the next  sinking fund payment received in funds by the Trustee and, together with such payment, shall be  applied in accordance with the provisions of this Section 5.04. Any and all sinking fund moneys  held by the Trustee on the last sinking fund payment date with respect to Securities of such  series, and not held for the payment or redemption of particular Securities of such series, shall be  applied by the Trustee to the payment of the principal of the Securities of such series at Maturity.                   (b) On or prior to each sinking fund payment date, the Company shall pay  to the Trustee a sum equal to all interest accrued to but not including the date fixed for  redemption on Securities to be redeemed on such sinking fund payment date pursuant to this  Section 5.04.                   (c) No Securities of a series shall be redeemed with sinking fund moneys  and no notice of redemption of Securities of such series by operation of the sinking fund shall be  given during the continuance of a Default in payment of interest on any Securities of such series  or of any Event of Default (other than an Event of Default occurring as a consequence of this  paragraph) of which a Responsible Officer of the Trustee has actual knowledge, except that if the  notice of redemption of any Securities of such series shall theretofore have been given in  accordance with the provisions hereof, such Securities shall be redeemed if funds sufficient for  that purpose shall be deposited with the Trustee in accordance with the terms of this Article.  Except as aforesaid, any moneys in the sinking fund at the time any such Default or Event of  Default shall occur and any moneys thereafter paid into the sinking fund shall, during the  continuance of such Default or Event of Default, be held as security for the payment of all the  Securities of such series; provided, however, that in case such Default or Event of Default shall  have been cured or waived as provided herein, such moneys shall thereafter be applied on the  next sinking fund payment date on which such moneys are required to be applied pursuant to the  provisions of this Section 5.04.                                    ARTICLE VI                                                           PARTICULAR COVENANTS OF THE COMPANY         The Company hereby covenants and agrees as follows:         Section 6.01 Payments of Securities.  The Company will duly and punctually pay the  principal of and premium, if any, on each series of Securities, and the interest which shall have  accrued thereon, at the dates and place and in the manner provided in the Securities and in this  Indenture.                                          32   





 






      Section 6.02 Paying Agent.                  (a) The Company will maintain in each Place of Payment for any series of  Securities, if any, an office or agency where Securities may be presented or surrendered for  payment, where Securities of such series may be surrendered for registration of transfer or  exchange and where notices and demands to or upon the Company in respect of the Securities  and this Indenture may be served (the “Paying Agent”). 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, and the Company hereby  appoints the Trustee as Paying Agent to receive all presentations, surrenders, notices and  demands.                   (b) The Company may also from time to time designate different or  additional offices or agencies where the Securities of any series may be presented or surrendered  for any or all such purposes (in or outside of such Place of Payment), and may from time to time  rescind any such designations; provided, however, that no such designation or rescission shall in  any manner relieve the Company of its obligations described in the preceding paragraph. The  Company will give prompt written notice to the Trustee of any such additional designation or  rescission of designation and of any change in the location of any such different or additional  office or agency. The Company shall enter into an appropriate agency agreement with any  Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this  Indenture that relate to such agent. The Company shall notify the Trustee of the name and  address of each such agent. The Company or any Affiliate thereof may act as Paying Agent.         Section 6.03 To Hold Payment in Trust.                  (a) If the Company or an Affiliate thereof shall at any time act as Paying  Agent with respect to any series of Securities, then, on or before the date on which the principal  of and premium, if any, or interest on any of the Securities of that series by their terms or as a  result of the calling thereof for redemption shall become payable, the Company or such Affiliate  will segregate and hold in trust for the benefit of the Holders of such Securities or the Trustee a  sum sufficient to pay such principal and premium, if any, or interest which shall have so become  payable until such sums shall be paid to such Holders or otherwise disposed of as herein  provided, and will notify the Trustee of its action or failure to act in that regard. Upon any  proceeding under any federal bankruptcy laws with respect to the Company or any Affiliate  thereof, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall replace  the Company or such Affiliate as Paying Agent.                   (b) If the Company shall appoint, and at the time have, a Paying Agent for  the payment of the principal of and premium, if any, or interest on any series of Securities, then  prior to 11:00 a.m., New York City time, on the date on which the principal of and premium, if  any, or interest on any of the Securities of that series shall become payable as aforesaid, whether  by their terms or as a result of the calling thereof for redemption, the Company will deposit with  such Paying Agent a sum sufficient to pay such principal and premium, if any, or interest, such  sum to be held in trust for the benefit of the Holders of such Securities or the Trustee, and (unless                                         33   





 






such Paying Agent is the Trustee), the Company or any other obligor of such Securities will  promptly notify the Trustee of its payment or failure to make such payment.                   (c) If the Paying Agent shall be other than the Trustee, the Company will  cause such Paying Agent 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 6.03, that  such Paying Agent shall:                       (i)  hold all moneys held by it for the payment of the principal        of and premium, if any, or interest on the Securities of that series in trust for the        benefit of the Holders of such Securities until such sums shall be paid to such        Holders or otherwise disposed of as herein provided;                      (ii)  give to the Trustee notice of any Default by the Company        or any other obligor upon the Securities of that series in the making of any        payment of the principal of and premium, if any, or interest on the Securities of        that series; and                      (iii) at any time during the continuance of any such Default,        upon the written request of the Trustee, pay to the Trustee all sums so held in trust        by such Paying Agent.                   (d) Anything in this Section 6.03 to the contrary notwithstanding, the  Company may at any time, for the purpose of obtaining a release, satisfaction or discharge of this  Indenture or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by  the Company or by any Paying Agent other than the Trustee as required by this Section 6.03,  such sums to be held by the Trustee upon the same trusts as those upon which such sums were  held by the Company or such Paying Agent.                   (e) Subject to applicable abandoned property law, any money deposited  with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of  the principal of and premium, if any, or interest on any Security of any series and remaining  unclaimed for two years after such principal and premium, if any, or interest has become due and  payable shall be paid to the Company upon Company Order along with any interest that has  accumulated thereon as a result of such money being invested at the direction of the Company,  or (if then held by the Company) shall be discharged from such trust, and the Holder of such  Security shall thereafter, as an unsecured general creditor, look only to the Company for payment  of such amounts without interest thereon, 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  a newspaper published in the English language, customarily published on each Business Day and  of general circulation in The City of New York, 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  publication, any unclaimed balance of such money then remaining will be repaid to the  Company.                                         34   





 






      Section 6.04 Merger, Consolidation and Sale of Assets.  The Company may not (a)  merge with or into or consolidate with or (b) sell, assign, transfer, lease or convey all or  substantially all of its properties and assets to, any Person other than, with respect to this  clause (b), a Wholly Owned Subsidiary of the Company, unless:                      (i)  the Company is the surviving corporation or the Person        formed by or surviving such merger or consolidation or to which such sale,        assignment, transfer, lease or conveyance shall have been made (the “Successor”),        if other than the Company, shall expressly assume by an indenture supplemental        hereto, executed and delivered to the Trustee, in form reasonably satisfactory to        the Trustee, all the obligations of the Company under the Securities and this        Indenture; and                     (ii)  immediately after giving effect to such transaction, no        Default shall have occurred and be continuing,   provided that the immediately-preceding clause (ii) shall not apply to (A) any merger of the  Company with or into, or any consolidation of the Company with, any Wholly Owned  Subsidiary of the Company or (B) any merger of the Company with or into, or any consolidation  of the Company with, an Affiliate of the Company solely for the purpose of the Company  reincorporating or reorganizing in another jurisdiction.         The Successor will be the successor to the Company, and will be substituted for and may  exercise every right and power and become the obligor on the Securities with the same effect as  if the Successor had been named as the Company herein, but, in the case of a lease of all or  substantially all of the properties and assets of the Company, the predecessor Company will not  be released from its obligations to pay the principal of and interest and premium, if any, on the  Securities.         Section 6.05 Compliance Certificate.  Except as otherwise provided as contemplated by  Section 3.01 with respect to any series of Securities, the Company shall furnish to the Trustee  annually, within 120 days after the end of each fiscal year of the Company ended after the date  hereof, a brief certificate from the principal executive officer, principal financial officer, or  principal accounting officer as to his or her knowledge of the Company’s compliance with all  conditions and covenants under this Indenture (which compliance shall be determined without  regard to any period of grace or requirement of notice provided under this Indenture) and, in the  event of any Default, specifying each such Default and the nature and status thereof of which  such person may have knowledge. Such certificates need not comply with Section 16.01 of this  Indenture.         Section 6.06 Conditional Waiver by Holders of Securities.  Anything in this Indenture  to the contrary notwithstanding, the Company may fail or omit in any particular instance to  comply with a covenant or condition set forth herein with respect to any series of Securities if the  Company shall have obtained and filed with the Trustee, prior to the time of such failure or  omission, evidence (as provided in Article VIII) of the consent of the Holders of a majority in  aggregate principal amount of the Securities of such series at the time Outstanding, either  waiving such compliance in such instance or generally waiving compliance with such covenant                                         35   





 






or condition, but no such waiver shall extend to or affect such covenant or condition except to  the extent so expressly waived, or impair any right consequent thereon and, until such waiver  shall have become effective, the obligations of the Company and the duties of the Trustee in  respect of any such covenant or condition shall remain in full force and effect.                                   ARTICLE VII                                                         REMEDIES OF TRUSTEE AND SECURITYHOLDERS         Section 7.01 Events of Default.  Except where otherwise indicated by the context or  where the term is otherwise defined for a specific purpose, the term “Event of Default” as used in  this Indenture with respect to Securities of any series shall mean one of the following described  events unless it is either inapplicable to a particular series or it is specifically deleted or modified  in the manner contemplated in Section 3.01:                   (a) the failure of the Company to pay any installment of interest on any  Security of such series when and as the same shall become due and payable, which failure shall  have continued unremedied for a period of 30 days;                   (b) the failure of the Company to pay the principal of (and premium, if any,  on) any Security of such series, when and as the same shall become due and payable, whether at  Maturity as therein expressed, by call for redemption (otherwise than pursuant to a sinking fund),  by declaration as authorized by this Indenture or otherwise;                   (c) the failure of the Company to pay a sinking fund installment, if any,  when and as the same shall become due and payable by the terms of a Security of such series,  which failure shall have continued unremedied for a period of 30 days;                   (d) the failure of the Company, subject to the provisions of Section 6.06, to  perform any covenants or agreements contained in this Indenture (including any indenture  supplemental hereto pursuant to which the Securities of such series were issued as contemplated  by Section 3.01) (other than a covenant or agreement which has been expressly included in this  Indenture solely for the benefit of a series of Securities other than that series and other than a  covenant or agreement a default in the performance of which is elsewhere in this Section 7.01  specifically addressed), which failure shall not have been remedied, and without provision  deemed to be adequate for the remedying thereof having been made, for a period of 90 days after  written notice shall have been given to the Company by the Trustee or shall have been given to  the Company and the Trustee by Holders of 25% or more in aggregate principal amount of the  Securities of such series then Outstanding, specifying such failure, requiring the Company to  remedy the same and stating that such notice is a “Notice of Default” hereunder;                  (e) the entry by a court having jurisdiction in the premises of a decree or  order for relief in respect of the Company in an involuntary case under the United States federal  bankruptcy laws, as now or hereafter constituted, or any other applicable United States federal or  state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a  receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the  Company or of substantially all the property of the Company or ordering the winding-up or                                         36   





 






liquidation of its affairs, which decree or order shall have remained unstayed and in effect for a  period of 90 consecutive days;                   (f) the commencement by the Company of a voluntary case under the  United States federal bankruptcy laws, as now or hereafter constituted, or any other applicable  United States federal or state bankruptcy, insolvency or other similar law now or hereafter in  effect, or the consent by the Company to the entry of an order for relief in an involuntary case  under any such law, or the consent by the Company to the appointment of or taking possession  by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar official) of the  Company or of substantially all the property of the Company or the making by it of an  assignment for the benefit of creditors or the admission by it in writing of its inability to pay its  debts generally as they become due, or the taking of corporate action by the Company in  furtherance of any such action; or                   (g) the occurrence of any other Event of Default with respect to Securities  of such series as provided in Section 3.01;   provided, however, that no event described in clause (d) or (other than with respect to a payment  default) (g) above shall constitute an Event of Default hereunder until a Responsible Officer of  the Trustee has actual knowledge thereof or until a written notice of any such event is received  by the Trustee at the Corporate Trust Office, and such notice refers to the facts underlying such  event, the Securities generally, the Company and the Indenture.         Notwithstanding the foregoing provisions of this Section 7.01, if the principal or any  premium or interest on any Security is payable in Foreign Currency and such Foreign Currency  is not available to the Company for making payment thereof due to the imposition of exchange  controls or other circumstances beyond the control of the Company, the Company will be  entitled to satisfy its obligations to Holders of the Securities by making such payment in U.S.  Dollars in an amount equal to the equivalent in U.S. Dollars of the amount payable in such  Foreign Currency, as determined by the Company’s agent in accordance with Section 3.11(c)  hereof by reference to the noon buying rate in The City of New York for cable transfers for such  Foreign Currency (“Exchange Rate”), as such Exchange Rate is reported or otherwise made  available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate  is not then available, on the basis of the most recently available Exchange Rate, and any payment  made under such circumstances in U.S. Dollars where the required payment is in a Foreign  Currency will not constitute an Event of Default under this Indenture.         Section 7.02 Acceleration; Rescission and Annulment.                  (a) Except as otherwise provided as contemplated by Section 3.01 with  respect to any series of Securities, if any one or more of the above-described Events of Default  (other than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall happen with respect  to Securities of any series at the time Outstanding, then, and in each and every such case, during  the continuance of any such Event of Default, the Trustee or the Holders of 25% or more in  principal amount of the Securities of such series then Outstanding may declare the principal (or,  if the Securities of that series are Original Issue Discount Securities, such portion of the principal  amount as may be specified in the terms of that series) of and all accrued but unpaid interest (if                                         37   





 






any) on all the Securities of such series then Outstanding to be due and payable immediately by a  notice in writing to the Company (and to the Trustee if given by Holders), and upon any such  declaration such principal amount (or specified amount) and accrued but unpaid interest (if any)  shall become immediately due and payable. If an Event of Default specified in Section 7.01(e) or  7.01(f) occurs and is continuing with respect to Securities of any series at the time Outstanding,  then, in every such case, the principal amount (or, if the Securities of that series are Original  Issue Discount Securities, such portion of the principal amount as may be specified in the terms  of that series) of and all accrued but unpaid interest (if any) on all of the Securities of such series  then Outstanding shall automatically, and without any declaration or any other action on the part  of the Trustee or any Holder, become due and payable immediately. Upon payment of such  amounts in the Currency in which such Securities are denominated (subject to Section 7.01 and  except as otherwise provided pursuant to Section 3.01), all obligations of the Company in respect  of the payment of principal of and interest on the Securities of such series shall terminate.                  (b) The provisions of Section 7.02(a) are subject to the condition that, at  any time after the principal of all the Securities of such series, to which any one or more of the  above-described Events of Default is applicable, shall have been so declared to be due and  payable, and before a judgment or decree for payment of the money due has been obtained by the  Trustee as hereinafter provided in this Article, the Event of Default giving rise to such  declaration of acceleration shall, without further act, be deemed to have been waived, and such  declaration and its consequences shall, without further act, be deemed to have been rescinded  and annulled, if:                      (i)  the Company has paid or deposited with the Trustee or        Paying Agent a sum in the Currency in which such Securities are denominated        (subject to Section 7.01 and except as otherwise provided pursuant to Section        3.01) sufficient to pay                                     (A) all amounts owing the Trustee and              any predecessor trustee hereunder under Section 11.01(a)              (provided, however, that all sums payable under this clause (A)              shall be paid in U.S. Dollars);                                     (B) all arrears of interest, if any, upon              all the Securities of such series (with interest, to the extent that              interest thereon shall be legally enforceable, on any overdue              installment of interest at the rate borne by such Securities at the              rate or rates prescribed therefor in such Securities); and                                    (C) the principal of and premium, if              any, on any Securities of such series that have become due              otherwise than by such declaration of acceleration and interest              thereon; and                     (ii)  every other Default and Event of Default with respect to        Securities of that series, other than the non-payment of the principal of Securities                                         38   





 






      of that series which have become due solely by such declaration of acceleration,        have been cured or waived as provided in Section 7.06.                  (c) No such rescission shall affect any subsequent Default or impair any  right consequent thereon.                  (d) For all purposes under this Indenture, if a portion of the principal of any  Original Issue Discount Securities shall have been accelerated and declared due and payable  pursuant to the provisions hereof, then, from and after such declaration, unless such declaration  has been rescinded and annulled, the principal amount of such Original Issue Discount Securities  shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be  due and payable as a result of such acceleration, and payment of such portion of the principal  thereof as shall be due and payable as a result of such acceleration, together with interest, if any,  thereon and all other amounts owing thereunder, shall constitute payment in full of such Original  Issue Discount Securities.          Section 7.03 Other Remedies.  If the Company shall fail for a period of 30 days to pay  any installment of interest on the Securities of any series or shall fail to pay the principal of and  premium, if any, on any of the Securities of such series when and as the same shall become due  and payable, whether at Maturity, or by call for redemption (other than pursuant to the sinking  fund), by declaration as authorized by this Indenture, or otherwise, or shall fail for a period of 30  days to make any required sinking fund payment as to a series of Securities, then, except as  otherwise provided as contemplated by Section 3.01 with respect to Securities of such series,  upon demand of the Trustee, the Company will pay to the Paying Agent for the benefit of the  Holders of Securities of such series then Outstanding the whole amount which then shall have  become due and payable on all the Securities of such series, with interest on the overdue  principal and premium, if any, and (so far as the same may be legally enforceable) on the  overdue installments of interest at the rate borne by the Securities of such series, and all amounts  owing the Trustee and any predecessor trustee hereunder under Section 11.01(a).          In case the Company shall fail forthwith to pay such amounts upon such demand, the  Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to  institute any action or proceeding at law or in equity for the collection of the sums so due and  unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may  enforce any such judgment or final decree against the Company or any other obligor upon the  Securities of such series, and collect the moneys adjudged or decreed to be payable out of the  property of the Company or any other obligor upon the Securities of such series, wherever  situated, in the manner provided by law. Every recovery of judgment in any such action or other  proceeding, subject to the payment to the Trustee of all amounts owing the Trustee and any  predecessor trustee hereunder under Section 11.01(a), shall be for the ratable benefit of the  Holders of such series of Securities which shall be the subject of such action or proceeding. All  rights of action upon or under any of the Securities or this Indenture may be enforced by the  Trustee without the possession of any of the Securities and without the production of any thereof  at any trial or any proceeding relative thereto.         Section 7.04 Trustee as Attorney-in-Fact.  The Trustee is hereby appointed, and each  and every Holder of the Securities, by receiving and holding the same, shall be conclusively                                         39   





 






deemed to have appointed the Trustee, the true and lawful attorney-in-fact of such Holder, with  authority to make or file (whether or not the Company shall be in Default in respect of the  payment of the principal of, or interest on, any of the Securities), in its own name and as trustee  of an express trust or otherwise as it shall deem advisable, in any receivership, insolvency,  liquidation, bankruptcy, reorganization or other judicial proceeding relative to the Company or  any other obligor upon the Securities or to their respective creditors or property, any and all  claims, proofs of claim, proofs of debt, petitions, consents, other papers and documents and  amendments of any thereof, as may be necessary or advisable in order to have the claims of the  Trustee and any predecessor trustee hereunder and of the Holders of the Securities allowed in  any such proceeding and to collect and receive any moneys or other property payable or  deliverable on any such claim, and to execute and deliver any and all other papers and  documents and to do and perform any and all other acts and things, as it may deem necessary or  advisable in order to enforce in any such proceeding any of the claims of the Trustee and any  predecessor trustee hereunder and of any of such Holders in respect of any of the Securities; and  any receiver, assignee, trustee, custodian or debtor in any such proceeding is hereby authorized,  and each and every taker or Holder of the Securities, by receiving and holding the same, shall be  conclusively deemed to have authorized any such receiver, assignee, trustee, custodian or debtor,  to make any such payment or delivery only to or on the order of the Trustee, and to pay to the  Trustee any amount due it and any predecessor trustee hereunder under Section 11.01(a);  provided, however, that nothing herein contained shall be deemed to authorize or empower the  Trustee to consent to or accept or adopt, on behalf of any Holder of Securities, any plan of  reorganization or readjustment affecting the Securities or the rights of any Holder thereof, or to  authorize or empower the Trustee to vote in respect of the claim of any Holder of any Securities  in any such proceeding; provided further that the Trustee may, on behalf of the Holders, vote for  the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other  similar committee.         Section 7.05 Priorities.  Any moneys or properties distributable in respect of the  Company’s obligations under this Indenture after an Event of Default or collected by the Trustee  with respect to a series of Securities under this Article VII shall be applied in the following  order, at the date or dates fixed by the Trustee for the distribution of such moneys or properties  and, in the case of the distribution of such moneys or properties on account of the Securities of  any series, upon presentation of the Securities of such series, and stamping thereon the payment,  if only partially paid, and upon surrender thereof, if fully paid:                First: To the payment of all amounts due to the Trustee and any predecessor        trustee hereunder under Section 11.01(a).                Second: Subject to Article XV, to the payment of the amounts then due and        unpaid for principal of and any premium and interest on the Outstanding Securities in        respect of which or for the benefit of which such money has been collected, ratably,        without preference or priority of any kind, according to the amounts due and payable on        such Outstanding Securities for principal and any premium and interest, respectively.    Any surplus then remaining shall be paid to the Company or as directed by a court of competent  jurisdiction.                                         40   





 






      Section 7.06 Control by Securityholders; Waiver of Past Defaults.  The Holders of a  majority in principal amount of the Securities of any series at the time Outstanding may direct  the time, method and place of conducting any proceeding for any remedy available to the Trustee  hereunder, or of exercising any trust or power hereby conferred upon the Trustee with respect to  the Securities of such series, provided, however, that, subject to the provisions of Sections 11.01  and 11.02, the Trustee shall have the right to decline to follow any such direction if the Trustee  being advised by counsel determines that the action so directed may not lawfully be taken or  would be unduly prejudicial to Holders not joining in such direction or would involve the  Trustee in personal liability. The Holders of a majority in principal amount of the Securities of  any series at the time Outstanding may on behalf of the Holders of all of the Securities of such  series waive any past Default or Event of Default hereunder with respect to the Securities of such  series and its consequences except a Default in the payment of interest or any premium on or the  principal of the Securities of such series. Upon any such waiver, the Company, the Trustee and  the Holders of the Securities of such series shall be restored to their former positions and rights  hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or  Event of Default or impair any right consequent thereon. Whenever any Default or Event of  Default hereunder shall have been waived as permitted by this Section 7.06, said Default or  Event of Default shall for all purposes of the Securities of such series and this Indenture be  deemed to have been cured and to be not continuing.         Section 7.07 Limitation on Suits.  No Holder of any Security of any series shall have  any right to institute any action, suit or proceeding at law or in equity for the execution of any  trust hereunder or for the appointment of a receiver or for any other remedy hereunder, in each  case with respect to an Event of Default with respect to such series of Securities, unless (a) such  Holder previously shall have given to the Trustee written notice of one or more of the Events of  Default herein specified with respect to such series of Securities, (b) the Holders of not less than  25% in principal amount of the Securities of such series then Outstanding shall have requested  the Trustee in writing to take action in respect of the matter complained of, (c) such Holder or  Holders shall have offered to the Trustee security and indemnity satisfactory to it against the  costs, expenses and liabilities to be incurred therein or thereby, (d) the Trustee, for 60 days after  receipt of such notification, request and offer of indemnity, shall have neglected or refused to  institute any such action, suit or proceeding and (e) no direction inconsistent with such written  request shall have been given to the Trustee during such 60-day period by the Holders of a  majority in principal amount of the Securities of such series then Outstanding; and such  notification, request and offer of indemnity are hereby declared in every such case to be  conditions precedent to any such action, suit or proceeding by any Holder of any Security of  such series; it being understood and intended that no one or more of the Holders of Securities of  such series shall have any right in any manner whatsoever by his, her, its or their action to  enforce any right hereunder, except in the manner herein provided, and that every action, suit or  proceeding at law or in equity shall be instituted, had and maintained in the manner herein  provided and for the equal benefit of all Holders of the Outstanding Securities of such series;  provided, however, that nothing in this Indenture or in the Securities of such series shall affect or  impair the obligation of the Company, which is absolute and unconditional, to pay the principal  of, premium, if any, and interest on the Securities of such series to the respective Holders of such  Securities at the respective due dates in such Securities stated, or affect or impair the right, which  is also absolute and unconditional, of such Holders to institute suit to enforce the payment  thereof.                                        41   





 






      Section 7.08 Undertaking for Costs.  All parties to this Indenture and each Holder of  any Security, by such Holder’s acceptance thereof, shall be deemed to have agreed that any court  may in its discretion require, in any action, suit or proceeding for the enforcement of any right or  remedy under this Indenture, or in any action, suit or proceeding against the Trustee for any  action taken or omitted by it as Trustee, the filing by any party litigant in such action, suit or  proceeding of an undertaking to pay the costs of such action, suit or proceeding, and that such  court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and  expenses, against any party litigant in such action, suit or proceeding, having due regard to the  merits and good faith of the claims or defenses made by such party litigant; provided, however,  that the provisions of this Section 7.08 shall not apply to any action, suit or proceeding instituted  by the Trustee or the Company, to any action, suit or proceeding instituted by any one or more  Holders of Securities holding in the aggregate more than 25% in principal amount of the  Securities of any series Outstanding, or to any action, suit or proceeding instituted by any Holder  of Securities of any series for the enforcement of the payment of the principal of or premium, if  any, or the interest on, any of the Securities of such series, on or after the respective due dates  expressed in such Securities.         Section 7.09 Remedies Cumulative.  No remedy herein conferred upon or reserved to  the Trustee or to the Holders of Securities of any series is intended to be exclusive of any other  remedy or remedies, and each and every remedy shall be cumulative and shall be in addition to  every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.  No delay or omission of the Trustee or of any Holder of the Securities of any series to exercise  any right or power accruing upon any Default or Event of Default shall impair any such right or  power or shall be construed to be a waiver of any such Default or Event of Default or an  acquiescence therein; and every power and remedy given by this Article VII to the Trustee and to  the Holders of Securities of any series, respectively, may be exercised from time to time and as  often as may be deemed expedient by the Trustee or by the Holders of Securities of such series,  as the case may be. In case the Trustee or any Holder of Securities of any series shall have  proceeded to enforce any right under this Indenture and the proceedings for the enforcement  thereof shall have been discontinued or abandoned because of waiver or for any other reason or  shall have been adjudicated adversely to the Trustee or to such Holder of Securities, then and in  every such case the Company, the Trustee and the Holders of the Securities of such series shall  severally and respectively be restored to their former positions and rights hereunder, and  thereafter all rights, remedies and powers of the Trustee and the Holders of the Securities of such  series shall continue as though no such proceedings had been taken, except as to any matters so  waived or adjudicated.                                   ARTICLE VIII                                                              CONCERNING THE SECURITYHOLDERS         Section 8.01 Evidence of Action of Securityholders.  Whenever in this Indenture it is  provided that the Holders of a specified percentage or a majority in aggregate principal amount  of the Securities or of any series of Securities may take any action (including the making of any  demand or request, the giving of any notice, consent or waiver or the taking of any other action),  the fact that at the time of taking any such action the Holders of such specified percentage or  majority have joined therein may be evidenced by any instrument or any number of instruments                                         42   





 






of similar tenor executed by Securityholders in person, by an agent or by a proxy appointed in  writing, including through an electronic system for tabulating consents operated by the  Depositary for such series or otherwise (such action becoming effective, except as herein  otherwise expressly provided, when such instruments or evidence of electronic consents are  delivered to the Trustee and, where it is hereby expressly required, to the Company).         Section 8.02 Proof of Execution or Holding of Securities.  Proof of the execution of any  instrument by a Securityholder or such Securityholder’s agent or proxy and proof of the holding  by any Person of any of the Securities shall be sufficient if made in the following manner:                   (a) The fact and date of the execution by any Person of any such instrument  may be proved (i) by the certificate of any notary public or other officer in any jurisdiction who,  by the laws thereof, has power to take acknowledgments or proof of deeds to be recorded within  such jurisdiction, that the Person who signed such instrument did acknowledge before such  notary public or other officer the execution thereof, or (ii) by the affidavit of a witness of such  execution sworn to before any such notary or other officer. Where such execution is by a Person  acting in other than his or her individual capacity, such certificate or affidavit shall also  constitute sufficient proof of his or her authority.                   (b) The ownership of Securities of any series shall be proved by the  Register of such Securities or by a certificate of the Registrar for such series.                   (c) [Reserved].                   (d) The Trustee may require such additional proof of any matter referred to  in this Section 8.02 as it shall deem appropriate or necessary, so long as the requirement is a  reasonable one.                   (e) If the Company shall solicit from the Holders of Securities of any series  any action, the Company may, at its option fix in advance a record date for the determination of  Holders of Securities entitled to take such action, but the Company shall have no obligation to do  so. Any such record date shall be fixed at the Company’s discretion. If such a record date is  fixed, such action may be sought or given before or after the record date, but only the Holders of  Securities of record at the close of business on such record date shall be deemed to be Holders of  Securities for the purpose of determining whether Holders of the requisite proportion of  Outstanding Securities of such series have authorized or agreed or consented to such action, and  for that purpose the Outstanding Securities of such series shall be computed as of such record  date.         Section 8.03 Persons Deemed Owners.                  (a) The Company, the Trustee and any agent of the Company or the Trustee  shall treat the Person in whose name any Security is registered as the owner of such Security for  the purpose of receiving payment of principal of and premium, if any, and (subject to Section  3.08) interest, if any, on, such Security and for all other purposes whatsoever, whether or not  such Security 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. All payments made to the Holder of a                                         43   





 






Security, or upon such Holder’s order, shall be valid, and, to the extent of the sum or sums paid,  effectual to satisfy and discharge the liability for moneys payable upon such Security.                   (b) None of the Company, the Trustee, any Paying Agent or the Registrar  will have any responsibility or liability for any aspect of the records relating to or payments  made on account of beneficial ownership interests in a Global Security or for maintaining,  supervising or reviewing any records relating to such beneficial ownership interests.         Section 8.04 Effect of Consents.  After an amendment, supplement, waiver or other  action becomes effective as to any series of Securities, a consent to it by a Holder of such series  of Securities is a continuing consent conclusive and binding upon such Holder and every  subsequent Holder of the same Securities or portion thereof, and of any Security issued upon the  transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is not  made on any such Security. An amendment, supplement or waiver becomes effective in  accordance with its terms and thereafter binds every Holder.                                    ARTICLE IX                                                                           [RESERVED]                                    ARTICLE X                                                       REPORTS BY THE COMPANY AND THE TRUSTEE AND                           SECURITYHOLDERS’ LISTS         Section 10.01 Reports by Trustee.                  (a) So long as any Securities are outstanding, the Trustee shall transmit to  Holders such reports concerning the Trustee and its actions under this Indenture as may be  required pursuant to the Trust Indenture Act at the times and in the manner provided therein. If  required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after  each anniversary of the date of this Indenture, deliver to Holders a brief report dated as of such  anniversary date which complies with the provisions of such Section 313(a). The Trustee shall  comply with the provisions of Section 313(b) of the Trust Indenture Act to the extent applicable.                  (b) The Trustee shall, at the time of the transmission to the Holders of  Securities of any report pursuant to the provisions of this Section 10.01, file a copy of such  report with each stock exchange upon which the Securities are listed, if any, and also with the  SEC in respect of a Security listed and registered on a national securities exchange, if any. The  Company agrees to notify the Trustee when, as and if the Securities become listed on any stock  exchange or any delisting thereof.                   (c) The Company will reimburse the Trustee for all expenses incurred in the  preparation and transmission of any report pursuant to the provisions of this Section 10.01 and of  Section 10.02.         Section 10.02 Reports by the Company.  The Company shall file with the Trustee and  the SEC, and transmit to Holders, such information, documents and other reports, and such                                        44   





 






summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the  manner provided in the Trust Indenture Act; provided that, unless available on EDGAR (or any  successor system for the submission of documents to the SEC in electronic format), any such  information, documents or reports required to be filed with the SEC pursuant to Section 13 or  15(d) of the Exchange Act shall be filed with the Trustee within 30 days after the same is filed  with the SEC.         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 Officer’s Certificates).         Section 10.03 Securityholders’ Lists.  The Company covenants and agrees that it will  furnish or cause to be furnished to the Trustee:                   (a) semi-annually, within 15 days after each Record Date, but in any event  not less frequently than semi-annually, a list in such form as the Trustee may reasonably require  of the names and addresses of the Holders of Securities to which such Record Date applies, as of  such Record Date, and                   (b) at such other times as the Trustee may request in writing, within 30 days  after 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 shall be the Registrar, such lists shall not be  required to be furnished.                                    ARTICLE XI                                                                   CONCERNING THE TRUSTEE         Section 11.01 Rights of Trustees; Compensation and Indemnity.  The Trustee accepts the  trusts created by this Indenture upon the terms and conditions hereof, including the following, to  all of which the parties hereto and the Holders from time to time of the Securities agree:                   (a) The Trustee shall be entitled to such compensation as the Company and  the Trustee shall from time to time agree in writing for all services rendered by it hereunder  (including in any agent capacity in which it acts). The compensation of the Trustee shall not be  limited by any provision of law in regard to the compensation of a trustee of an express trust.  The Company shall reimburse the Trustee promptly upon its request for all reasonable out-of- pocket expenses, disbursements and advances incurred or made by the Trustee (including the  reasonable compensation, expenses and disbursements of its agents and counsel), except any  such expense, disbursement or advance as may be attributable to its own negligence, bad faith or  willful misconduct.         The Company also agrees to indemnify each of the Trustee and any predecessor Trustee  hereunder and their agents for, and to hold it harmless against, any and all loss, liability, damage,                                        45   





 






claim, or expense, including taxes (other than taxes based upon, measured by or determined by  the income of the Trustee or any predecessor Trustee or any of their respective agents), incurred  without its own negligence, bad faith or willful misconduct, arising out of or in connection with  the acceptance or administration of the trust or trusts hereunder and the performance of its duties  (including in any agent capacity in which it acts), as well as the costs and expenses of defending  itself against any claim (whether asserted by the Company, or any Holder or any other Person) or  liability in connection with the exercise or performance of any of its powers or duties hereunder,  except those attributable to its own negligence, bad faith or willful misconduct. The Trustee shall  notify the Company promptly of any claim of which a Responsible Officer has received written  notice and for which it may seek indemnity. The Company shall defend the claim and the  Trustee shall cooperate in the defense. The Trustee may have one separate counsel of its  selection, and the Company shall pay the reasonable fees and expenses of such counsel. The  Company need not pay for any settlement made without its consent, which consent shall not be  unreasonably withheld or delayed.         As security for the performance of the obligations of the Company under this Section  11.01(a), the Trustee shall have a lien upon all property and funds held or collected by the  Trustee as such, except funds held in trust by the Trustee to pay principal of and interest on any  Securities. Notwithstanding any provisions of this Indenture to the contrary, the obligations of  the Company to compensate, reimburse and indemnify the Trustee under this Section 11.01(a)  shall survive the resignation or removal of the Trustee, the termination of this Indenture and any  satisfaction and discharge under Article XII. When the Trustee incurs expenses or renders  services after an Event of Default specified in clause (e) or (f) of Section 7.01 occurs, the  expenses and compensation for the services are intended to constitute expenses of administration  under any applicable federal or state bankruptcy, insolvency or similar laws.                  (b) The Trustee may execute any of the trusts or powers hereof and perform  any duty hereunder either directly or by its agents and attorneys and shall not be responsible for  any misconduct or negligence on the part of any agent or attorney appointed with due care by it  hereunder.                   (c) The Trustee shall not be responsible in any manner whatsoever for the  correctness of the recitals herein or in the Securities (except its certificates of authentication  thereon) contained, all of which are made solely by the Company, and the Trustee shall not be  responsible or accountable in any manner whatsoever for or with respect to the validity or  execution or sufficiency of this Indenture or of the Securities (except its certificates of  authentication thereon), and the Trustee makes no representation with respect thereto, except that  the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate  the Securities and perform its obligations hereunder and that the statements made by it in a  Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to  the qualifications set forth therein. The Trustee shall not be accountable for the use or application  by the Company of any Securities, or the proceeds of any Securities, authenticated and delivered  by the Trustee in conformity with the provisions of this Indenture.                   (d) The Trustee may consult with counsel of its selection, and, to the extent  permitted by Section 11.02, the advice of such counsel and any Opinion of Counsel shall be full  and complete authorization and protection in respect of any action taken or suffered by the                                         46   





 






Trustee hereunder in good faith and in accordance with the advice of such counsel or any  Opinion of Counsel.                   (e) The Trustee, to the extent permitted by Section 11.02, may rely  conclusively upon the certificate of the Secretary or one of the Assistant Secretaries of the  Company as to the adoption of any Board Resolution or resolution of the stockholders of the  Company, and any request, direction, order or demand of the Company mentioned herein shall  be sufficiently evidenced by, and 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 may rely conclusively upon, a Company Order or an  Officer’s Certificate of the Company (unless other evidence in respect thereof be herein  specifically prescribed).                   (f) Subject to Section 11.04, the Trustee or any agent of the Trustee, in its  individual or any other capacity, may become the owner or pledgee of Securities and, subject to  Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company with  the same rights it would have had if it were not the Trustee or such agent.                  (g) Money held by the Trustee in trust hereunder need not be segregated  from other funds except to the extent required by law. The Trustee shall be under no liability for  interest on any money received by it hereunder except as otherwise agreed in writing with the  Company.                   (h) Any action taken by the Trustee pursuant to any provision hereof at the  request or with the consent of any Person who at the time is the Holder of any Security shall be  conclusive and binding in respect of such Security upon all future Holders thereof or of any  Security or Securities which may be issued for or in lieu thereof in whole or in part, whether or  not such Security shall have noted thereon the fact that such request or consent had been made or  given.                   (i) Subject to the provisions of Section 11.02, the Trustee may conclusively  rely and shall be protected in acting or refraining from acting upon any resolution, certificate,  statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture  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.                   (j) Subject to the provisions of Section 11.02, the Trustee shall not be  under any obligation to exercise any of the rights or powers vested in it by this Indenture at the  request, order or direction of any of the Holders of the Securities, pursuant to any provision of  this Indenture, unless such Holders of the Securities shall have offered to the Trustee security or  indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred by it  therein or thereby.                   (k) Subject to the provisions of Section 11.02, the Trustee shall not be liable  for any action taken or omitted by it in good faith and believed by it to be authorized or within its  discretion or within the rights or powers conferred upon it by this Indenture.                                          47   





 






               (l) Subject to the provisions of Section 11.02, the Trustee shall not be  deemed to have knowledge or notice of any Default or Event of Default unless a Responsible  Officer of the Trustee has actual knowledge thereof or unless the Company or Holders of not less  than 25% of the Outstanding Securities notify the Trustee thereof.                   (m) Subject to the provisions of the first paragraph of Section 11.02, the  Trustee shall not be bound to make any investigation into the facts or matters stated in any  resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,  order, bond, debenture, note, other evidence of Indebtedness or other paper or document, but the  Trustee, may, but shall not be required to, make further inquiry or investigation into such facts or  matters as it may see fit.                   (n) 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.                   (o) In no event shall the Trustee be responsible or liable for any failure or  delay in the performance of its obligations hereunder arising out of or caused by, directly or  indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,  accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes  or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer  (software and hardware) services, it being understood that the Trustee shall use reasonable  efforts which are consistent with accepted practices in the banking industry to resume  performance as soon as practicable under the circumstances.                  (p) Anything in this Indenture notwithstanding, in no event shall the Trustee  be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind  whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has  been advised of the likelihood of such loss or damage and regardless of the form of action.         Section 11.02 Duties of Trustee.                  (a) If one or more of the Events of Default specified in Section 7.01 with  respect to the Securities of any series shall have happened, then, during the continuance thereof,  the Trustee shall, with respect to the Securities of such series, exercise such of the rights and  powers vested in it by this Indenture, and shall use the same degree of care and skill in their  exercise, as a prudent person would exercise or use under the circumstances in the conduct of  such person’s own affairs.                  (b) None of the provisions of this Indenture shall be construed as relieving  the Trustee from liability for its own negligent action, its own negligent failure to act, or its own  bad faith or willful misconduct, except that, notwithstanding anything in this Indenture to the  contrary,                       (i)  unless and until an Event of Default specified in Section        7.01 with respect to the Securities of any series shall have happened which at the        time is continuing,                                          48   





 






                                 (A) the Trustee undertakes to perform              such duties and only such duties with respect to the Securities of              that series as are specifically set out in this Indenture, and no              implied covenants or obligations shall be read into this Indenture              against the Trustee, whose duties and obligations shall be              determined solely by the express provisions of this Indenture; and                                    (B) the Trustee may conclusively rely,              as to the truth of the statements and the correctness of the opinions              expressed therein, in the absence of bad faith on the part of the              Trustee, upon certificates and opinions furnished to it pursuant to              the express provisions of this Indenture; but in the case of any such              certificates or opinions which, by the provisions of this Indenture,              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, statements, opinions or conclusions              stated therein);                      (ii)  the Trustee shall not be liable to any Holder of Securities or        to any other Person for any error of judgment made in good faith by a        Responsible Officer or Responsible Officers of the Trustee, unless it shall be        proved that the Trustee was negligent in ascertaining the pertinent facts; and                      (iii) the Trustee shall not be liable to any Holder of Securities or        to any other Person with respect to any action taken or omitted to be taken by it in        good faith, in accordance with the direction of Securityholders given as provided        in Section 7.06, relating to the time, method and place of conducting any        proceeding for any remedy available to it or exercising any trust or power        conferred upon it by this Indenture.                   (c) None of the provisions of this Indenture shall require the Trustee to  expend or risk its own funds or otherwise to incur any financial liability in the performance of  any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have  reasonable grounds for believing that repayment of such funds or adequate indemnity against  such risk or liability is not reasonably assured to it.                   (d) Whether or not therein expressly so provided, every provision of this  Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee  shall be subject to the provisions of this Section 11.02.         Section 11.03 Notice of Defaults.  Within 90 days after the occurrence thereof, and if  known to the Trustee, the Trustee shall give to the Holders of the Securities of a series notice of  each Default or Event of Default with respect to the Securities of such series known to the  Trustee (provided that, with respect to any Default specified in Section 7.01(d), such notice shall  not be given until at least 30 days after the occurrence of such Default), by transmitting such                                         49   





 






notice to Holders at their addresses as the same shall then appear on the Register, unless such  Default shall have been cured or waived before the giving of such notice (the term “Default”  being hereby defined to be the events specified in Section 7.01, which are, or after notice or lapse  of time or both would become, Events of Default as defined in said Section). Except in the case  of a Default or Event of Default in payment of the principal of, premium, if any, or interest on  any of the Securities of such series when and as the same shall become payable, or to make any  mandatory sinking fund payment as to Securities of the same series, the Trustee shall be  protected in withholding such notice, if and so long as a Responsible Officer or Responsible  Officers of the Trustee in good faith determine that the withholding of such notice is in the  interests of the Holders of the Securities of such series.         Section 11.04 Eligibility; Disqualification.                  (a) The Trustee shall at all times satisfy the requirements of TIA Section  310(a). The Trustee shall have a combined capital and surplus of at least $50 million as set forth  in its most recent published annual report of condition, and shall have a Corporate Trust Office.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this  Section 11.04, it shall resign immediately in the manner and with the effect hereinafter specified  in this Article.                   (b) The Trustee shall comply with TIA Section 310(b); provided, however,  that there shall be excluded from the operation of TIA Section 310(b)(i) any series of Securities  under this Indenture and 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 TIA Section 310(b)(i) are met. If the Trustee has or shall acquire a  conflicting interest within the meaning of Section 310(b) 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. If Section 310(b) of the  Trust Indenture Act is amended any time after the date of this Indenture to change the  circumstances under which a Trustee shall be deemed to have a conflicting interest with respect  to the Securities of any series or to change any of the definitions in connection therewith, this  Section 11.04 shall be automatically amended to incorporate such changes.         Section 11.05 Resignation and Notice; Removal.  The Trustee, or any successor to it  hereafter appointed, may at any time resign and be discharged of the trusts hereby created with  respect to any one or more or all series of Securities by giving to the Company notice in writing.  Such resignation shall take effect upon the appointment of a successor Trustee and the  acceptance of such appointment by such successor Trustee. Any Trustee hereunder may be  removed with respect to any series of Securities at any time by the filing with such Trustee and  the delivery to the Company of an instrument or instruments in writing signed by the Holders of  a majority in principal amount of the Securities of such series then Outstanding, specifying such  removal and the date when it shall become effective.         If at any time:         (1)   the Trustee shall fail to comply with the provisions of TIA Section 310(b) after  written request therefor by the Company or by any Holder who has been a bona fide Holder of a                                         50   





 






Security for at least six months (or, if it is a shorter period, the period since the initial issuance of  the Securities of such series), or         (2)   the Trustee shall cease to be eligible under Section 11.04 and shall fail to resign  after written request therefor by the Company or by any Holder who has been a bona fide Holder  of a Security for at least six months (or, if it is a shorter period, the period since the initial  issuance of the Securities of such series), or         (3)   the Trustee shall become incapable of acting or shall be adjudged a bankrupt or  insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer  shall take charge or 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 written notice to the Trustee may remove the Trustee  and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section  315(e), any Securityholder who has been a bona fide Holder of a Security for at least six months  (or, if it is a shorter period, the period since the initial issuance of the Securities of such series)  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 and the appointment of a  successor Trustee or Trustees.         Upon its resignation or removal, any Trustee shall be entitled to the payment of  reasonable compensation for the services rendered hereunder by such Trustee and to the payment  of all reasonable expenses incurred hereunder and all moneys then due to it hereunder. The  Trustee’s rights to indemnification provided in Section 11.01(a) shall survive its resignation or  removal.         Section 11.06 Successor Trustee by Appointment.                  (a) In case at any time the Trustee shall resign, or shall be removed (unless  the Trustee shall be removed as provided in Section 11.05, in which event the vacancy shall be  filled as provided in said subdivision), or shall become incapable of acting, or shall be adjudged  bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if  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 with respect to the Securities of one or  more series, a successor Trustee with respect to the Securities of that or those series (it being  understood that any such successor Trustee may be appointed with respect to the Securities of  one or more or all of such series and that at any time there shall be only one Trustee with respect  to the Securities of any series) may be appointed by the Holders of a majority in principal  amount of the Securities of that or those series then Outstanding, by an instrument or instruments  in writing signed in duplicate by such Holders and filed, one original thereof with the Company  and the other with the successor Trustee; but, until a successor Trustee shall have been so  appointed by the Holders of Securities of that or those series as herein authorized, the Company,  or, in case all or substantially all the assets of the Company shall be in the possession of one or  more custodians or receivers lawfully appointed, or of trustees in bankruptcy or reorganization  proceedings (including a trustee or trustees appointed under the provisions of the federal  bankruptcy laws, as now or hereafter constituted), or of assignees for the benefit of creditors,                                         51   





 






such receivers, custodians, trustees or assignees, as the case may be, by an instrument in writing,  shall appoint a successor Trustee with respect to the Securities of such series. Subject to the  provisions of Sections 11.04 and 11.05, upon the appointment as aforesaid of a successor Trustee  with respect to the Securities of any series, the Trustee with respect to the Securities of such  series shall cease to be Trustee hereunder. After any such appointment other than by the Holders  of Securities of that or those series, the Person making such appointment shall forthwith cause  notice thereof to be given to the Holders of Securities of such series, but any successor Trustee  with respect to the Securities of such series so appointed shall, immediately and without further  act, be superseded by a successor Trustee appointed by the Holders of Securities of such series in  the manner above prescribed, if such appointment be made prior to the expiration of one year  from the date of the giving of such notice by the Company, or by such receivers, trustees or  assignees.                   (b) If any Trustee with respect to the Securities of one or more series shall  resign or be removed and a successor Trustee shall not within 30 days thereafter have been  appointed by the Company or by the Holders of the Securities of such series or if any successor  Trustee so appointed shall not have accepted its appointment within 30 days after such  appointment shall have been made, the resigning Trustee at the expense of the Company may  apply to any court of competent jurisdiction for the appointment of a successor Trustee. If in any  other case a successor Trustee shall not be appointed pursuant to the foregoing provisions of this  Section 11.06 within three months after such appointment might have been made hereunder, the  Holder of any Security of the applicable series or any retiring Trustee at the expense of the  Company may apply to any court of competent jurisdiction to appoint a successor Trustee. Such  court may thereupon, in any such case, after such notice, if any, as such court may deem proper  and prescribe, appoint a successor Trustee.                   (c) Any successor Trustee appointed hereunder with respect to the  Securities of one or more series shall execute, acknowledge and deliver to its predecessor  Trustee and to the Company, or to the receivers, trustees, assignees or court appointing it, as the  case may be, an instrument accepting such appointment hereunder, and thereupon such successor  Trustee, without any further act, deed or conveyance, shall become vested with all the authority,  rights, powers, trusts, immunities, duties and obligations with respect to such series of such  predecessor Trustee with like effect as if originally named as Trustee hereunder, and such  predecessor Trustee, upon payment of its charges and disbursements then unpaid, shall thereupon  become obligated to pay over, and such successor Trustee shall be entitled to receive, all moneys  and properties held by such predecessor Trustee as Trustee hereunder, subject nevertheless to its  lien provided for in Section 11.01(a). Nevertheless, on the written request of the Company or of  the successor Trustee or of the Holders of at least 10% in principal amount of the Securities of  such series then Outstanding, such predecessor Trustee, upon payment of its said charges and  disbursements, shall execute and deliver an instrument transferring to such successor Trustee  upon the trusts herein expressed all the rights, powers and trusts of such predecessor Trustee and  shall assign, transfer and deliver to the successor Trustee all moneys and properties held by such  predecessor Trustee, subject nevertheless to its lien provided for in Section 11.01(a); and, upon  request of any such successor Trustee or the Company shall make, execute, acknowledge and  deliver any and all instruments in writing for more fully and effectually vesting in and  confirming to such successor Trustee all such authority, rights, powers, trusts, immunities, duties  and obligations.                                         52   





 






      Section 11.07 Successor Trustee by Merger.  Any Person into which the Trustee or any  successor to it in the trusts created by this Indenture shall be merged or converted, or any Person  with which it or any successor to it shall be consolidated, or any Person resulting from any  merger, conversion or consolidation to which the Trustee or any such successor to it shall be a  party, or any Person to which the Trustee or any successor to it shall sell or otherwise transfer all  or substantially all of the corporate trust business of the Trustee, shall be the successor Trustee  under this Indenture without the execution or filing of any paper or any further act on the part of  any of the parties hereto; provided that such Person shall be otherwise qualified and eligible  under this Article. In case at the time such successor to the Trustee shall succeed to the trusts  created by this Indenture with respect to one or more series of Securities, any of such Securities  shall have been authenticated but not delivered by the Trustee then in office, any successor to  such Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver  such Securities so authenticated; and in case at that time any of the Securities shall not have been  authenticated, any successor to the Trustee may authenticate such Securities either in the name of  any predecessor hereunder or in the name of the successor Trustee; and in all such cases such  certificates shall have the full force which it is anywhere in the Securities or in this Indenture  provided that the certificate of the Trustee shall have; provided, however, that the right to adopt  the certificate of authentication of any predecessor Trustee or authenticate Securities in the name  of any predecessor Trustee shall apply only to its successor or successors by merger, conversion  or consolidation.         Section 11.08 Right to Rely on Officer’s Certificate.  Subject to Section 11.02, and  subject to the provisions of Section 16.01 with respect to the certificates required thereby,  whenever in the administration of the provisions of this Indenture the Trustee shall deem it  necessary or desirable that a matter be proved or established prior to taking or suffering any  action hereunder, such matter (unless other evidence in respect thereof be herein specifically  prescribed) may, in the absence of negligence, bad faith or willful misconduct on the part of the  Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate or a  Company Order with respect thereto delivered to the Trustee, and such Officer’s Certificate or   Company Order, in the absence of negligence, bad faith or willful misconduct on the part of the  Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under  the provisions of this Indenture upon the faith thereof.         Section 11.09 Appointment of Authenticating Agent.  The Trustee may appoint an agent  (the “Authenticating Agent”) acceptable to the Company to authenticate the Securities, and the  Trustee shall give written notice of such appointment to all Holders of Securities of the series  with respect to which such Authenticating Agent will serve. Unless limited by the terms of such  appointment, any such Authenticating Agent may authenticate Securities whenever the Trustee  may do so. Each reference in this Indenture to authentication by the Trustee includes  authentication by the Authenticating Agent. 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.         Each Authenticating Agent shall at all times be a corporation organized and doing  business and in good standing under the laws of the United States, any State thereof or the  District of Columbia, authorized under such laws to act as Authenticating Agent, having a  combined capital and surplus of not less than $50,000,000 and subject to supervision or                                         53   





 






examination by Federal or State authority. If such corporation publishes reports of condition at  least annually, pursuant to law or to the requirements of said supervising or examining authority,  then for the purposes of this Article XI, the combined capital and surplus of such corporation  shall be deemed to be its combined capital and surplus as set forth in its most recent report of  condition so published. If at any time an Authenticating Agent shall cease to be eligible in  accordance with the provisions of this Article XI, it shall resign immediately in the manner and  with the effect specified in this Article XI.         Any corporation into which an Authenticating Agent may be merged or converted or with  which it may be consolidated, or any corporation resulting from any merger, conversion or  consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding  to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to  be an Authenticating Agent, provided such corporation shall be otherwise eligible under this  Article XI, without the execution or filing of any paper or any further act on the part of the  Trustee or the Authenticating Agent.         An Authenticating Agent may resign at any time by giving written notice thereof to the  Trustee and to the Company. The Trustee may at any time terminate the agency of an  Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the  Company. Upon receiving such a notice of resignation or upon such a termination, or in case at  any time such Authenticating Agent shall cease to be eligible in accordance with the provisions  of this Section 11.09, the Trustee may appoint a successor Authenticating Agent which shall be  acceptable to the Company and shall give written notice of such appointment to all Holders of  Securities of the series with respect to which such Authenticating Agent will serve. 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 11.09.         The Trustee agrees to pay to each Authenticating Agent from time to time reasonable  compensation for its services under this Section 11.09, and the Trustee shall be entitled to be  reimbursed for such payments, subject to the provisions of Section 11.01.         Section 11.10 Communications by Securityholders with Other Securityholders.  Holders  of Securities may communicate pursuant to Section 312(b) of the Trust Indenture Act with other  Holders with respect to their rights under this Indenture or the Securities. The Company, the  Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the Trust  Indenture Act with respect to such communications.                                   ARTICLE XII                                                          SATISFACTION AND DISCHARGE; DEFEASANCE         Section 12.01 Applicability of Article.  If, pursuant to Section 3.01, provision is made  for the defeasance of Securities of a series and if the Securities of such series are denominated  and payable only in U.S. Dollars (except as provided pursuant to Section 3.01), then the  provisions of this Article shall be applicable except as otherwise specified pursuant to Section                                         54   





 






3.01 for Securities of such series. Defeasance provisions, if any, for Securities denominated in a  Foreign Currency may be specified pursuant to Section 3.01.         Section 12.02 Satisfaction and Discharge of Indenture.  This Indenture, with respect to  the Securities of any series, shall, upon Company Order, cease to be of further effect (except as  to any surviving rights of registration of transfer or exchange of such Securities herein expressly  provided for and rights to receive payments of principal of and premium, if any, and interest on  such Securities), and the Trustee, at the expense of the Company, shall execute proper  instruments acknowledging satisfaction and discharge of this Indenture with respect to the  Securities of such series, when:                  (a) either:                       (i)  all Securities of such series theretofore authenticated and        delivered (other than (A) Securities that have been destroyed, lost or stolen and        that have been replaced or paid as provided in Section 3.07 and (B) Securities 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 6.03) have been delivered to the Trustee        for cancellation; or                     (ii)  all Securities of such series not theretofore delivered to the        Trustee for cancellation,                                     (A) have become due and payable, or                                    (B) will become due and payable at              their Stated Maturity within one year, or                                     (C) are to be called for redemption              within one year under arrangements satisfactory to the Trustee for              the giving of notice by the Trustee in the name, and at the expense,              of the Company,          and the Company, in the case of (A), (B) or (C) above, has deposited or caused to be        deposited with the Trustee or Paying Agent as trust funds in trust for the purpose an        amount in the Currency in which such Securities are denominated (except as otherwise        provided pursuant to Section 3.01) sufficient to pay and discharge the entire Indebtedness        on such Securities for principal and premium, if any, and interest to the date of such        deposit (in the case of Securities that have become due and payable) or to the Stated        Maturity or Redemption Date, as the case may be;                  (b) the Company has paid or caused to be paid all other sums payable  hereunder by the Company with respect to the Securities of such series; and                   (c) the Company has delivered to the Trustee an Officer’s Certificate and an  Opinion of Counsel each stating that all conditions precedent herein provided for relating to the  satisfaction and discharge of this Indenture with respect to such series have been complied with.                                         55   





 






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 11.01 and, if money shall  have been deposited with the Trustee pursuant to clause (a)(ii) of this Section with respect to  Securities of such series, the obligations of the Trustee with respect to the Securities of such  series under Section 12.07 and paragraph (e) of Section 6.03 shall survive.         Section 12.03 Discharge or Defeasance upon Deposit of Moneys or U.S. Government  Obligations.  At the Company’s option, either (a) the Company shall be deemed to have been  Discharged (as defined below) from its obligations with respect to Securities of any series on the  first day after the applicable conditions set forth below have been satisfied or (b) the Company  shall cease to be under any obligation to comply with any term, provision or condition set forth  in Section 6.04 and Section 10.02 with respect to Securities of any series (and, if so specified  pursuant to Section 3.01, any other covenant added for the benefit of such series pursuant to  Section 3.01) at any time after the applicable conditions set forth below have been satisfied (the  event described in this clause (b) being referred to herein as “Covenant Defeasance”) (and such  action or event under clause (a) or (b) of this paragraph in no circumstance may be construed as  an Event of Default under Section 7.01):                       (i)  the Company shall have deposited or caused to be        deposited irrevocably with the Trustee as trust funds in trust, specifically pledged        as security for, and dedicated solely to, the benefit of the Holders of the Securities        of such series (A) money in an amount, or (B) U.S. Government Obligations (as        defined below) that through the payment of interest and principal in respect        thereof in accordance with their terms will provide, not later than one day before        the due date of any payment, money in an amount, or (C) a combination of (A)        and (B), sufficient to pay and discharge each installment of principal (including        any mandatory sinking fund payments) of and premium, if any, and interest on,        the Outstanding Securities of such series on the dates such installments of interest        or principal and premium are due (provided that, if the amount of such deposit is        determined by reference to a Redemption Date or Redemption Dates with respect        to the Outstanding Securities of such series, the Company shall have given notice        of such redemption in accordance with the terms of this Indenture or shall have        made provision satisfactory to the Trustee for the giving of such notice);                      (ii)  no Default with respect to the Securities of such series shall        have occurred and be continuing on the date of such deposit (other than a Default        resulting from the borrowing of funds and the grant of any related liens to be        applied to such deposit); and                      (iii) the Company shall have delivered to the Trustee an        Opinion of Counsel to the effect that the beneficial owners of the Securities of        such series will not recognize income, gain or loss for United States federal        income tax purposes as a result of the Company’s exercise of its option under this        Section and will be subject to United States federal income tax on the same        amounts and in the same manner and at the same times as would have been the        case if such action had not been exercised and, in the case of the Securities of        such series being Discharged, such Opinion of Counsel must refer to or be based                                         56   





 






      on a ruling of the United States Internal Revenue Service or an applicable court to        that effect or a change in applicable United States federal income tax law        occurring after the original issue date of the Securities of such series.         “Discharged” means that the Company shall be deemed to have paid and discharged the  entire Indebtedness represented by, and obligations under, the Securities of such series and to  have satisfied all the obligations under this Indenture relating to the Securities of such series (and  the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the  same), except (x) the rights of Holders of Securities of such series to receive, from the trust fund  described in clause (i) above, payment of the principal of and premium, if any, and interest on  such Securities when such payments are due, (y) the Company’s obligations with respect to  Securities of such series under Sections 3.04, 3.06, 3.07, 6.02, 12.06 and 12.07 and (z) the rights,  powers, trusts, duties and immunities of the Trustee hereunder. Securities as to which the  Company’s obligations have been Discharged pursuant to this Section 12.03 will thereafter be  deemed to be Outstanding only for the purposes of the sections of the Indenture referred to in  clause (y) of the immediately-preceding sentence.         “U.S. Government Obligations” means securities that are (I) direct obligations of the  United States for the payment of which its full faith and credit is pledged or (II) obligations of a  Person controlled or supervised by and acting as an agency or instrumentality of the United  States the timely of payment of which is unconditionally guaranteed as a full faith and credit  obligation by the United States, that, in either case under clauses (I) or (II) are not callable or  redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued  by a bank or trust company as custodian with respect to any such U.S. Government Obligation or  a specific payment of interest on or principal of any such U.S. Government Obligation held by  such custodian for the account of the holder of a depositary 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 depositary receipt from any amount received by the custodian in  respect of the U.S. Government Obligation or the specific payment of interest on or principal of  the U.S. Government Obligation evidenced by such depositary receipt.         Covenant Defeasance with respect to the Securities of any series means that the Company  shall cease to be under any obligation to comply with, and shall have no liability in respect of,  any term, provision or condition set forth in Section 6.04 and Section 10.02 with respect to  Securities of such series (and, if so specified pursuant to Section 3.01, any other covenant added  for the benefit of such series pursuant to Section 3.01), whether directly or indirectly, by reason  of any reference elsewhere herein to any such Section or any such other covenant or by reason of  reference in any such Section or any 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. Securities of any series with respect to which Covenant Defeasance has been effected  pursuant to this Section 12.03 shall thereafter be deemed to be not Outstanding for the purposes  of any request, demand, authorization, direction, notice, consent, waiver or other action of  Holders (and the consequences of any thereof) in connection with any such Section or any such  other covenant with respect to the Securities of such series, but shall continue to be deemed to be  Outstanding for all other purposes hereunder (it being understood that such Securities shall not  be deemed outstanding for accounting purposes).                                         57   





 






      Section 12.04 Repayment to Company.  The Trustee and any Paying Agent shall  promptly pay to the Company (or to its designee) upon Company Order any excess moneys or  U.S. Government Obligations held by them at any time, including any such moneys or  obligations held by the Trustee under any escrow trust agreement entered into pursuant to  Section 12.06. The provisions of the paragraph (e) of Section 6.03 shall apply to any money held  by the Trustee or any Paying Agent under this Article that remains unclaimed for two years after  the Maturity of any series of Securities for which money or U.S. Government Obligations have  been deposited pursuant to Section 12.03.         Section 12.05 Indemnity for U.S. Government Obligations.  The Company shall pay and  shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against  the deposited U.S. Government Obligations or the principal or interest received on such U.S.  Government Obligations.         Section 12.06 Deposits to Be Held in Escrow.  Any deposits with the Trustee referred to  in Section 12.03 above shall be irrevocable (except to the extent provided in Sections 12.04 and  12.07) and shall be made under the terms of an escrow trust agreement. If any Outstanding  Securities of a series are to be redeemed prior to their Stated Maturity, whether pursuant to any  optional redemption provisions or in accordance with any mandatory or optional sinking fund  requirement, the applicable escrow trust agreement shall provide therefor and the Company shall  make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption  by the Trustee in the name, and at the expense, of the Company. The agreement shall provide  that, upon satisfaction of any mandatory sinking fund payment requirements, whether by deposit  of moneys, application of proceeds of deposited U.S. Government Obligations or, if permitted,  by delivery of Securities, the Trustee shall pay or deliver over to the Company as excess moneys  pursuant to Section 12.04 all funds or obligations then held under the agreement and allocable to  the sinking fund payment requirements so satisfied.          If Securities of a series with respect to which such deposits are made may be subject to  later redemption at the option of the Company or pursuant to optional sinking fund payments, the  applicable escrow trust agreement may, at the option of the Company, provide therefor. In the  case of an optional redemption in whole or in part, such agreement shall require the Company to  deposit with the Trustee on or before the date notice of redemption is given funds sufficient to  pay the Redemption Price of the Securities to be redeemed together with all unpaid interest  thereon to the Redemption Date. Upon such deposit of funds, the Trustee shall pay or deliver  over to the Company as excess funds pursuant to Section 12.04 all funds or obligations then held  under such agreement and allocable to the Securities to be redeemed. In the case of exercise of  optional sinking fund payment rights by the Company, such agreement shall, at the option of the  Company, provide that upon deposit by the Company with the Trustee of funds pursuant to such  exercise the Trustee shall pay or deliver over to the Company as excess funds pursuant to Section  12.04 all funds or obligations then held under such agreement for such series and allocable to the  Securities to be redeemed.         Section 12.07 Application of Trust Money.  Subject to applicable abandoned property  law:                                          58   





 






               (a) Neither the Trustee nor any other Paying Agent shall be required to pay  interest on any moneys deposited pursuant to the provisions of this Indenture, except such as it  shall agree with the Company in writing to pay thereon. Any moneys so deposited for the  payment of the principal of, or premium, if any, or interest on the Securities of any series and  remaining unclaimed for two years after the date of the maturity of the Securities of such series  or the date fixed for the redemption of all the Securities of such series at the time outstanding, as  the case may be, shall be repaid by the Trustee or such other Paying Agent to the Company upon  its written request and thereafter, anything in this Indenture to the contrary notwithstanding, any  rights of the Holders of Securities of such series in respect of which such moneys shall have been  deposited shall be enforceable only against the Company, and all liability of the Trustee or such  other Paying Agent with respect to such moneys shall thereafter cease.                   (b) Subject to the provisions of the foregoing paragraph, any moneys which  at any time shall be deposited by the Company or on its behalf with the Trustee or any other  Paying Agent for the purpose of paying the principal of, premium, if any, and interest on any of  the Securities shall be and are hereby assigned, transferred and set over to the Trustee or such  other Paying Agent in trust for the respective Holders of the Securities for the purpose for which  such moneys shall have been deposited; but such moneys need not be segregated from other  funds except to the extent required by law.         Section 12.08 Deposits of Non-U.S. Currencies.  Notwithstanding the foregoing  provisions of this Article, if the Securities of any series are payable in a Currency other than U.S.  Dollars, the Currency or the nature of the government obligations to be deposited with the  Trustee under the foregoing provisions of this Article shall be as set forth in the Company Order  or established in the supplemental indenture under which the Securities of such series are issued.                                   ARTICLE XIII                                                                 IMMUNITY OF CERTAIN PERSONS         Section 13.01 No Personal Liability.  No recourse shall be had for the payment of the  principal of, or the premium, if any, or interest on, any Security or for any claim based thereon or  otherwise in respect thereof or of the Indebtedness represented thereby, or upon any obligation,  covenant or agreement of this Indenture, against any incorporator, partner, stockholder, other  equity holder, officer, director, employee or controlling person, as such, past, present or future,  of the Company or of any predecessor or successor entity, either directly or through the  Company or any predecessor or successor entity, whether by virtue of any constitutional  provision, statute or rule of law, or by the enforcement of any assessment or penalty or  otherwise; it being expressly agreed and understood that this Indenture and the Securities are  solely obligations of the Company as such, and that no personal liability whatsoever shall attach  to, or be incurred by, any incorporator, partner, stockholder, other equity holder, officer, director,  employee or controlling person, as such, past, present or future, of the Company or of any  predecessor or successor entity, either directly or through the Company or any predecessor or  successor entity, because of the incurring of the Indebtedness hereby authorized or under or by  reason of any of the obligations, covenants or agreements contained in this Indenture or in any of  the Securities, or to be implied herefrom or therefrom, and that all liability, if any, of that  character against every such incorporator, partner, stockholder, other equity holder, officer,                                         59   





 






director, employee or controlling person, as such, past, present or future, of the Company or of  any predecessor or successor entity is, by the acceptance of the Securities by the Holders thereof  and as a condition of, and as part of the consideration for, the execution of this Indenture and the  issue of the Securities, expressly waived and released.                                   ARTICLE XIV                                                                  SUPPLEMENTAL INDENTURES         Section 14.01 Without Consent of Securityholders.  Except as otherwise provided as  contemplated by Section 3.01 with respect to any series of Securities, the Company and the  Trustee, at any time and from time to time, may enter into one or more indentures supplemental  hereto, in form satisfactory to the Trustee, for any one or more of or all the following purposes:                   (a) to add to the covenants and agreements of the Company, to be observed  thereafter and during the period, if any, in such supplemental indenture or indentures expressed,  and to add Events of Default, in each case for the protection or benefit of the Holders of all or  any series of the Securities (and if such covenants, agreements and Events of Default are to be  for the benefit of fewer than all series of Securities, stating that such covenants, agreements and  Events of Default are expressly being included for the benefit of such series as shall be identified  therein), or to surrender any right or power herein conferred upon the Company;                   (b) to add to, change or eliminate any of the provisions of this Indenture to  provide, change or eliminate any restrictions on the payment of principal of or premium, if any,  on Securities; provided that any such action shall not adversely affect the interests of the Holders  of Securities of any series in any material respect;                   (c) to add to, change or eliminate any of the provisions of this Indenture;  provided that any such addition, change or elimination shall become effective only when there is  no Outstanding Security of any series created prior to the execution of such supplemental  indenture that is entitled to the benefit of such provision and as to which such supplemental  indenture would apply;                   (d) to evidence the succession of another Person to the Company, or  successive successions, and the assumption by such successor of the covenants and obligations  of the Company contained in the Securities of one or more series and in this Indenture or any  supplemental indenture;                   (e) to evidence and provide for the acceptance of appointment hereunder by  a successor Trustee with respect to one or more series of Securities and to add to or change any  of the provisions of this Indenture as shall be necessary for or facilitate the administration of the  trusts hereunder by more than one Trustee, pursuant to the requirements of Section 11.06(c), or  to evidence any changes to this Indenture pursuant to Sections 11.05, 11.06 or 11.07 hereof as  permitted by the terms thereof;                  (f) to secure any series of Securities or to release any collateral or lien  securing Securities of any series in accordance with the terms of the Securities of such series;                                         60   





 






               (g) to cure any ambiguity or to correct or supplement any provision  contained herein or in any indenture supplemental hereto which may be defective or inconsistent  with any other provision contained herein or in any supplemental indenture or to conform the  terms hereof, as amended and supplemented, that are applicable to the Securities of any series to  the description of the terms of such Securities in the offering memorandum, prospectus  supplement or other offering document applicable to such Securities at the time of initial sale  thereof;                  (h) to add to or change or eliminate any provision of this Indenture as shall  be necessary or desirable in accordance with any amendments to the Trust Indenture Act;                   (i) to add guarantors or co-obligors with respect to any series of Securities  or to release guarantors from their guarantees of Securities in accordance with the terms of the  applicable series of Securities;                  (j) to make any change in any series of Securities that does not adversely  affect in any material respect the rights of the Holders of such Securities;                  (k) to provide for uncertificated Securities in addition to or in place of  certificated Securities or to add to or change any of the provisions of this Indenture to such  extent as shall be necessary to permit or facilitate the issuance of Securities in uncertificated  form;                  (l) to comply with the requirements of any applicable securities depositary;                  (m) 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;  provided that any such action shall not adversely affect the interests of the Holders of Securities  of such series or any other series of Securities in any material respect;                  (n) to prohibit the authentication and delivery of additional series of  Securities;                  (o) to establish the form of any certifications required to be furnished  pursuant to the terms of this Indenture or any series of Securities or to add to the rights of the  holders of any series of Securities; or                   (p)  to establish the form and terms of Securities of any series as permitted  in Section 3.01, or to authorize the issuance of additional Securities of a series previously  authorized or to add to the conditions, limitations or restrictions on the authorized amount, terms  or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth,  or other conditions, limitations or restrictions thereafter to be observed.         Subject to the provisions of Section 14.03, the Trustee is authorized to join with the  Company in the execution of any such supplemental indenture, to make the further agreements  and stipulations which may be therein contained and to accept the conveyance, transfer,  assignment, mortgage or pledge of any property or assets thereunder.                                          61   





 






      Any supplemental indenture authorized by the provisions of this Section 14.01 may be  executed by the Company and the Trustee without the consent of the Holders of any of the  Securities at the time Outstanding.         Section 14.02 With Consent of Securityholders; Limitations.                  (a) With the consent of the Holders (evidenced as provided in Article VIII)  of a majority in aggregate principal amount of the Outstanding Securities of each series affected  by such supplemental indenture voting separately, the Company and the Trustee may, from time  to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose  of adding any provisions to or changing in any manner or eliminating any provisions of this  Indenture or of modifying in any manner the rights of the Holders of the Securities of such series  to be affected; provided, however, that, except as otherwise provided as contemplated by  Section 3.01 with respect to the Securities of such series, no such supplemental indenture shall,  without the consent of the Holder of each Outstanding Security of each such series affected  thereby,                       (i)  extend the Stated Maturity of the principal of, or any        installment of interest on, any Security, or reduce the principal amount thereof or        the interest thereon or any premium payable upon redemption thereof, or change        the place of payment where, or the Currency in which, the principal of and        premium, if any, or interest on such Security is denominated or payable, 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 7.02, or impair the right to institute suit for the enforcement of        any payment on or after the Stated Maturity thereof (or, in the case of redemption,        on or after the Redemption Date), or materially adversely affect the economic        terms of any right to convert or exchange any Security as may be provided        pursuant to Section 3.01; or                      (ii)  reduce the percentage in principal amount of the        Outstanding Securities of any series, the consent of whose Holders is required for        any 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                      (iii) modify any of the provisions of this Section, Section 7.06        or Section 6.06, except to increase any such percentage or to provide that certain        other provisions of this Indenture cannot be modified or waived without the        consent of the Holder of each Outstanding Security affected thereby; provided,        however, that this clause shall not be deemed to require the consent of any Holder        with respect to changes in the references to “the Trustee” and concomitant        changes in this Section and Section 6.06, or the deletion of this proviso, in        accordance with the requirements of Sections 11.06 and 14.01(e); or                      (iv)  modify, without the written consent of the Trustee, the        rights, duties or immunities of the Trustee;                                          62   





 






provided further that no supplemental indenture shall modify the provisions of Article  XV or the rights of Senior Indebtedness in any manner that would alter or impair the  subordination of Securities to which Article XV is applicable with respect to Senior  Indebtedness then outstanding, unless each holder of such Senior Indebtedness has  consented thereto in writing.                    (b) A supplemental indenture that changes or eliminates any provision of  this Indenture which has expressly been included solely for the benefit of one or more particular  series of Securities or which modifies the rights of the Holders of Securities of such series with  respect to such covenant or other provision, shall be deemed not to affect the rights under this  Indenture of the Holders of Securities of any other series.                   (c) It shall not be necessary for the consent of the Securityholders under  this Section 14.02 to approve the particular form of any proposed supplemental indenture, but it  shall be sufficient if such consent shall approve the substance thereof.                   (d) The Company may set a record date for purposes of determining the  identity of the Holders of each series of Securities entitled to give a written consent or waive  compliance by the Company as authorized or permitted by this Section. Such record date shall  not be more than 30 days prior to the first solicitation of such consent or waiver or the date of the  most recent list of Holders furnished to the Trustee prior to such solicitation pursuant to  Section 312 of the Trust Indenture Act.                   (e) Promptly after the execution by the Company and the Trustee of any  supplemental indenture pursuant to the provisions of this Section 14.02, the Company shall give  a notice, setting forth in general terms the substance of such supplemental indenture, to the  Holders of Securities. Any failure of the Company to give such notice, or any defect therein,  shall not, however, in any way impair or affect the validity of any such supplemental indenture.         Section 14.03 Trustee Protected.  Upon the request of the Company, accompanied by the  Officer’s Certificate and Opinion of Counsel required by Section 16.01 and evidence reasonably  satisfactory to the Trustee of consent of the Holders if the supplemental indenture is to be  executed pursuant to Section 14.02, the Trustee shall join with the Company in the execution of  said supplemental indenture unless said supplemental indenture affects the Trustee’s own rights,  duties or immunities under this Indenture or otherwise, in which case the Trustee may in its  discretion, but shall not be obligated to, enter into said supplemental indenture. The Trustee shall  be fully protected in relying upon such Officer’s Certificate and Opinion of Counsel.         Section 14.04 Effect of Execution of Supplemental Indenture.  Upon the execution of  any supplemental indenture pursuant to the provisions of this Article XIV, this Indenture shall be  deemed to be modified and amended in accordance therewith and, except as herein otherwise  expressly provided, the respective rights, limitations of rights, obligations, duties and immunities  under this Indenture of the Trustee, the Company and the Holders of all of the Securities or of  the Securities of any series affected, as the case may be, shall thereafter be determined, exercised  and enforced hereunder subject in all respects to such modifications and amendments, and all the  terms and conditions of any such supplemental indenture shall be and be deemed to be part of the  terms and conditions of this Indenture for any and all purposes.                                         63   





 






      Section 14.05 Notation on or Exchange of Securities.  Securities of any series  authenticated and delivered after the execution of any supplemental indenture pursuant to the  provisions of this Article may bear a notation in the form approved by the Trustee as to any  matter provided for in such supplemental indenture. If the Company or the Trustee shall so  determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board  of Directors of the Company, to any modification of this Indenture contained in any such  supplemental indenture may be prepared and executed by the Company and authenticated and  delivered by the Trustee in exchange for the Securities then Outstanding in equal aggregate  principal amounts, and such exchange shall be made without cost to the Holders of the  Securities.         Section 14.06 Conformity with TIA.  Every supplemental indenture executed pursuant to  the provisions of this Article shall conform to the requirements of the Trust Indenture Act as then  in effect.                                   ARTICLE XV                                                                 SUBORDINATION OF SECURITIES         Section 15.01 Agreement to Subordinate. In the event a series of Securities is designated  as subordinated pursuant to Section 3.01, and except as otherwise provided in a Company Order  or in one or more indentures supplemental hereto, the Company, for itself, its successors and  assigns, covenants and agrees, and each Holder of Securities of such series by his, her or its  acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and  premium, if any) and interest, if any, on each and all of the Securities of such series is hereby  expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment  to the prior payment in full of all Senior Indebtedness. In the event a series of Securities is not  designated as subordinated pursuant to Section 3.01(t), this Article XV shall have no effect upon  the Securities of such series.         Section 15.02 Distribution on Dissolution, Liquidation and Reorganization; Subrogation  of Securities.                   (a) Subject to Section 15.01, upon any distribution of assets of the  Company upon any dissolution, winding up, liquidation or reorganization of the Company,  whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an  assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the  Company or otherwise (subject to the power of a court of competent jurisdiction to make other  equitable provision reflecting the rights conferred in this Indenture upon the Senior Indebtedness  and the holders thereof with respect to the Securities and the holders thereof by a lawful plan of  reorganization under applicable bankruptcy law):                      (i)  the holders of all Senior Indebtedness shall be entitled to        receive payment in full of the principal thereof (and premium, if any) and interest        due thereon before the Holders of the Securities are entitled to receive any        payment upon the principal (or premium, if any) or interest, if any, on        Indebtedness evidenced by the Securities; and                                         64   





 






                  (ii)  any payment or distribution of assets of the Company of        any kind or character, whether in cash, property or securities, to which the        Holders of the Securities or the Trustee would be entitled except for the        provisions of this Article XV shall be paid by the liquidation trustee or agent or        other Person making such payment or distribution, whether a trustee in        bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders        of Senior Indebtedness or their representative or representatives or to the trustee        or trustees under any indenture under which any instruments evidencing any of        such Senior Indebtedness may have been issued, ratably according to the        aggregate amounts remaining unpaid on account of the principal of (and premium,        if any) and interest on the Senior Indebtedness held or represented by each, to the        extent necessary to make payment in full of all Senior Indebtedness remaining        unpaid, after giving effect to any concurrent payment or distribution to the holders        of such Senior Indebtedness; and                     (iii) in the event that, notwithstanding the foregoing, any        payment or distribution of assets of the Company of any kind or character,        whether in cash, property or securities prohibited by the foregoing, shall be        received by the Trustee or the Holders of the Securities before all Senior        Indebtedness is paid in full, such payment or distribution shall be paid over, upon        written notice to a Responsible Officer of the Trustee at its Corporate Trust        Office, to the holder of such Senior Indebtedness or his, her or its representative        or representatives or to the trustee or trustees under any indenture under which        any instrument evidencing any of such Senior Indebtedness may have been        issued, ratably as aforesaid, as calculated by the Company, for application to        payment of all Senior Indebtedness remaining unpaid until all such Senior        Indebtedness shall have been paid in full, after giving effect to any concurrent        payment or distribution to the holders of such Senior Indebtedness.                  (b) Subject to the payment in full of all Senior Indebtedness, the Holders of  the Securities shall be subrogated to the rights of the holders of Senior Indebtedness (to the  extent that distributions otherwise payable to such holder have been applied to the payment of  Senior Indebtedness) to receive payments or distributions of cash, property or securities of the  Company applicable to Senior Indebtedness until the principal of (and premium, if any) and  interest, if any, on the Securities shall be paid in full and no such payments or distributions to the  Holders of the Securities of cash, property or securities otherwise distributable to the holders of  Senior Indebtedness shall, as between the Company, its creditors other than the holders of Senior  Indebtedness, and the Holders of the Securities be deemed to be a payment by the Company to or  on account of the Securities. It is understood that the provisions of this Article XV are and are  intended solely for the purpose of defining the relative rights of the Holders of the Securities, on  the one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing contained  in this Article XV or elsewhere in this Indenture or in the Securities is intended to or shall  impair, as between the Company, its creditors other than the holders of Senior Indebtedness, and  the Holders of the Securities, the obligation of the Company, which is unconditional and  absolute, to pay to the Holders of the Securities the principal of (and premium, if any) and  interest, if any, on the Securities as and when the same shall become due and payable in  accordance with their terms, or to affect the relative rights of the Holders of the Securities and                                         65   





 






creditors of the Company other than the holders of Senior Indebtedness, nor shall anything  herein or in the Securities prevent the Trustee or the Holder of any Security from exercising all  remedies otherwise permitted by applicable law upon default under this Indenture, subject to the  rights, if any, under this Article XV of the holders of Senior Indebtedness in respect of cash,  property or securities of the Company received upon the exercise of any such remedy. Upon any  payment or distribution of assets of the Company referred to in this Article XV, the Trustee,  subject to the provisions of Section 15.05, shall be entitled to conclusively rely upon a certificate  of the liquidating trustee or agent or other person making any distribution to the Trustee for the  purpose of ascertaining the Persons entitled to participate in such distribution, the holders of  Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable  thereon, the amount or amounts paid or distributed thereof and all other facts pertinent thereto or  to this Article XV.         Section 15.03 No Payment on Securities in Event of Default on Senior Indebtedness.  Subject to Section 15.01, no payment by the Company on account of principal (or premium, if  any), sinking funds or interest, if any, on the Securities shall be made at any time if: (i) a default  on Senior Indebtedness exists that permits the holders of such Senior Indebtedness to accelerate  its maturity and (ii) the default is the subject of judicial proceedings or the Company has  received notice of such default. The Company may resume payments on the Securities when full  payment of amounts then due for principal (and premium, if any), sinking funds and interest on  Senior Indebtedness has been made or duly provided for in money or money’s worth.         In the event that, notwithstanding the foregoing, any payment shall be received by the  Trustee when such payment is prohibited by the preceding paragraph of this Section 15.03, such  payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the  holders of such Senior Indebtedness or their respective representatives, or to the trustee or  trustees under any indenture pursuant to which any of such Senior Indebtedness may have been  issued, as their respective interests may appear, as calculated by the Company, but only to the  extent that the holders of such Senior Indebtedness (or their representative or representatives or a  trustee) notify the Trustee in writing within 90 days of such payment of the amounts then due  and owing on such Senior Indebtedness and only the amounts specified in such notice to the  Trustee shall be paid to the holders of such Senior Indebtedness.         Section 15.04 Payments on Securities Permitted. Subject to Section 15.01, nothing  contained in this Indenture or in any of the Securities shall (a) affect the obligation of the  Company to make, or prevent the Company from making, at any time except as provided in  Sections 15.02 and 15.03, payments of principal of (or premium, if any) or interest, if any, on the  Securities or (b) prevent the application by the Trustee of any moneys or assets deposited with it  hereunder to the payment of or on account of the principal of (or premium, if any) or interest, if  any, on the Securities, unless a Responsible Officer of the Trustee shall have received at its  Corporate Trust Office written notice of any fact prohibiting the making of such payment from  the Company or from the holder of any Senior Indebtedness or from the trustee for any such  holder, together with proof satisfactory to the Trustee of such holding of Senior Indebtedness or  of the authority of such trustee more than two Business Days prior to the date fixed for such  payment.                                          66   





 






      Section 15.05 Authorization of Securityholders to Trustee to Effect Subordination.  Subject to Section 15.01, each Holder of Securities by his acceptance thereof authorizes and  directs the Trustee on his, her or its behalf to take such action as may be necessary or appropriate  to effectuate the subordination as provided in this Article XV and appoints the Trustee his  attorney-in-fact for any and all such purposes.         Section 15.06 Notices to Trustee. The Company shall give prompt written notice to a  Responsible Officer of the Trustee at its Corporate Trust Office of any fact known to the  Company that would prohibit the making of any payment of monies or assets to or by the Trustee  in respect of the Securities of any series pursuant to the provisions of this Article XV. Subject to  Section 15.01, notwithstanding the provisions of this Article XV or any other provisions of this  Indenture, neither the Trustee nor any Paying Agent (other than the Company) shall be charged  with knowledge of the existence of any Senior Indebtedness or of any fact which would prohibit  the making of any payment of moneys or assets to or by the Trustee or such Paying Agent,  unless and until a Responsible Officer of the Trustee or such Paying Agent shall have received  (in the case of a Responsible Officer of the Trustee, at the Corporate Trust Office of the Trustee)  written notice thereof from the Company or from the holder of any Senior Indebtedness or from  the trustee for any such holder, together with proof satisfactory to the Trustee of such holding of  Senior Indebtedness or of the authority of such trustee and, prior to the receipt of any such  written notice, the Trustee shall be entitled in all respects conclusively to presume that no such  facts exist; provided, however, that if at least two Business Days prior to the date upon which by  the terms hereof any such moneys or assets may become payable for any purpose (including,  without limitation, the payment of either the principal (or premium, if any) or interest, if any, on  any Security) a Responsible Officer of the Trustee shall not have received with respect to such  moneys or assets the notice provided for in this Section 15.06, then, anything herein contained to  the contrary notwithstanding, the Trustee shall have full power and authority to receive such  moneys or assets and to apply the same to the purpose for which they were received, and shall  not be affected by any notice to the contrary which may be received by it within two Business  Days prior to such date. The Trustee shall be entitled to rely on the delivery to it of a written  notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee on  behalf of such holder) to establish that such a notice has been given by a holder of Senior  Indebtedness or a trustee on behalf of any such holder. In the event that the Trustee determines in  good faith that further evidence is required with respect to the right of any Person as a holder of  Senior Indebtedness to participate in any payment or distribution pursuant to this Article XV, the  Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee  as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is  entitled to participate in such payment or distribution and any other facts pertinent to the rights of  such Person under this Article XV and, if such evidence is not furnished, the Trustee may defer  any payment to such Person pending judicial determination as to the right of such Person to  receive such payment.         Section 15.07 Trustee as Holder of Senior Indebtedness. Subject to Section 15.01, the  Trustee in its individual capacity shall be entitled to all the rights set forth in this Article XV in  respect of any Senior Indebtedness at any time held by it to the same extent as any other holder  of Senior Indebtedness and nothing in this Indenture shall be construed to deprive the Trustee of  any of its rights as such holder. Nothing in this Article XV shall apply to claims of, or payments  to, the Trustee under or pursuant to Sections 7.05 or 11.01.                                         67   





 






      Section 15.08 Modifications of Terms of Senior Indebtedness. Subject to Section 15.01,  any renewal or extension of the time of payment of any Senior Indebtedness or the exercise by  the holders of Senior Indebtedness of any of their rights under any instrument creating or  evidencing Senior Indebtedness, including, without limitation, the waiver of default thereunder,  may be made or done all without notice to or assent from the Holders of the Securities or the  Trustee. No compromise, alteration, amendment, modification, extension, renewal or other  change of, or waiver, consent or other action in respect of, any liability or obligation under or in  respect of, or of any of the terms, covenants or conditions of any indenture or other instrument  under which any Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or  not such release is in accordance with the provisions of any applicable document, shall in any  way alter or affect any of the provisions of this Article XV or of the Securities relating to the  subordination thereof.         Section 15.09 Reliance on Judicial Order or Certificate of Liquidating Agent. Subject to  Section 15.01, upon any payment or distribution of assets of the Company referred to in this  Article XV, the Trustee and the Holders of the Securities shall be entitled to conclusively rely  upon any order or decree entered by any court of competent jurisdiction in which such  insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or  similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating  trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making  such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the  purpose of ascertaining the Persons entitled to participate in such payment or distribution, the  holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or  payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent  thereto or to this Article XV.         Section 15.10 Satisfaction and Discharge; Discharge and Covenant Defeasance. Subject  to Section 15.01, amounts and U.S. Government Obligations deposited in trust with the Trustee  pursuant to and in accordance with Article XII and not, at the time of such deposit, prohibited to  be deposited under Sections 15.02 or 15.03 shall not be subject to this Article XV.         Section 15.11 Trustee Not Fiduciary for Holders of Senior Indebtedness.  With respect to  the holders of Senior Indebtedness, the Trustee undertakes to perform or observe only such of its  covenants and obligations as are specifically set forth in this Article XV, and no implied  covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this  Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the  holders of Senior Indebtedness. The Trustee shall not be liable to any such holder if it shall pay  over or distribute to or on behalf of Holders of Securities or the Company, or any other Person,  moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this  Article XV or otherwise.                                          68   





 






                                ARTICLE XVI                                                                  MISCELLANEOUS PROVISIONS         Section 16.01 Certificates and Opinions as to Conditions Precedent.                  (a) Upon any request or application by the Company to the Trustee to take  any action under any of the provisions of this Indenture, the Company shall furnish to the  Trustee an Officer’s Certificate stating that all conditions precedent, 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 have been complied  with, except that in the case of any such application or demand as to which the furnishing of such  document is specifically required by any provision of this Indenture relating to such particular  application or demand, no additional certificate or opinion need be furnished.                  (b) Each certificate or opinion provided for in this Indenture and delivered  to the Trustee with respect to compliance with a condition or covenant provided for in this  Indenture (other than the certificates provided pursuant to Section 6.05 of this Indenture) shall  include (i) a statement that the Person giving such certificate or opinion has read such covenant  or condition; (ii) 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; (iii) a  statement that, in the view or opinion of such Person, he or she has made such examination or  investigation as is necessary to enable such Person to express an informed view or opinion as to  whether or not such covenant or condition has been complied with; and (iv) a statement as to  whether or not, in the view or opinion of such Person, such condition or covenant has been  complied with.                  (c) Any certificate, statement or opinion of an officer of the Company may  be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations  by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that  the certificate or opinion or representations with respect to the matters upon which his or her  certificate, statement or opinion is based are erroneous. Any certificate, statement or opinion of  counsel may be based, insofar as it relates to factual matters, upon a certificate, statement or  opinion of, or representations by, an officer or officers of the Company stating that the  information with respect to such factual matters is in the possession of the Company, unless such  counsel knows, or in the exercise of reasonable care should know, that the certificate, statement  or opinion or representations with respect to such matters are erroneous.                   (d) Any certificate, statement or opinion of an officer of the Company or of  counsel to the Company may be based, insofar as it relates to accounting matters, upon a  certificate or opinion of, or representations by, an accountant or firm of accountants, unless such  officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know,  that the certificate or opinion or representations with respect to the accounting matters upon  which his or her certificate, statement or opinion may be based are erroneous. Any certificate or  opinion of any firm of independent registered public accountants filed with the Trustee shall  contain a statement that such firm is independent.                                          69   





 






               (e) 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.                   (f) Where any Person is required to make, give or execute two or more  applications, requests, consents, certificates, statements, opinions or other instruments under this  Indenture, they may, but need not, be consolidated and form one instrument.         Section 16.02 Trust Indenture Act Controls.  If and to the extent that any provision of  this Indenture limits, qualifies or conflicts with the duties imposed by, or another provision  included in this Indenture which is required to be included in this Indenture by any of the  provisions of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or  incorporated provision shall control.         Section 16.03 Notices; Waiver of Notice.                  (a) Any notice, demand or other communication authorized by this  Indenture to be made upon, given or furnished to, or filed with the Company or the Trustee shall  be sufficiently made, given, furnished or filed for all purposes if it shall be in writing and mailed,  delivered or telefaxed (or, in the case of such notice, demand or other communication by the  Company to the Trustee, sent by e-mail or otherwise sent in accordance with  Section 16.03(a)(ii)):                      (i)  in the case of such notice, demand or other communication        to be made upon, given or furnished to, or filed with the Company, to the        Company at 200 E. Randolph Street, Suite 3300, Chicago, Illinois, 60601,        Attention: Chief Financial Officer, Facsimile No.: (312) 645-8727, or at such        other address or facsimile number as the Company may designate from time to        time by notice to the Trustee; and                     (ii)  in the case of such notice, demand or other communication        to be made upon, given or furnished to, or filed with the Trustee, at the Corporate        Trust Office of the Trustee, Attention: Rick Prokosch, Facsimile No.: (651) 466-       7430, E-mail Address: rick.prokosch@usbank.com (or such other facsimile        number or e-mail address as the Trustee may designate from time to time by        notice to the Company).   Any such notice, demand or other communication shall be in the English language.         The  Trustee  agrees  to  accept  and  act  upon  instructions  or directions  pursuant  to  this  Indenture  sent  by  unsecured  e-mail,  pdf,  facsimile  transmission  or  other  similar  unsecured  electronic  methods,  provided,  however,  that  the  Trustee  shall  have  received  an  incumbency  certificate  listing  persons  designated  to  give such  instructions  or  directions  and  containing  specimen  signatures  of  such  designated  persons,  which  such  incumbency  certificate  shall  be  amended and replaced whenever a person is to be added or deleted from the listing.  If the Company                                        70   





 






elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic  method)  and  the  Trustee  in  its  discretion  elects  to  act  upon  such  instructions,  the  Trustee’s  understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for  any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and  compliance with such instructions notwithstanding such instructions conflict or are inconsistent  with a subsequent written instruction. The Company agrees to assume all risks arising out of the  use  of  such  electronic  methods  to  submit  instructions  and  directions  to  the  Trustee,  including  without  limitation  the  risk  of  the  Trustee  acting  on  unauthorized  instructions,  and  the  risk  or  interception and misuse by third parties.                 (b) Any notice or other communication required or permitted to be given to  Securityholders shall be sufficiently given (unless otherwise herein expressly provided):                      (i)  if given in writing by first class mail, postage prepaid, to        such Holders at their addresses as the same shall appear on the Register; provided,        that in the event of suspension of regular mail service or by reason of any other        cause it shall be impracticable to give notice by mail, then such notification as        shall be given with the approval of the Trustee shall constitute sufficient notice        for every purpose hereunder; or                     (ii)  in the case of any Holder of a Global Security, if        transmitted to the Depositary for such Security (or its designee) in accordance        with the applicable procedures of such Depositary.                  (c) Where this Indenture provides for notice in any manner, such notice  may be waived in writing by the Person entitled to receive such notice, either before or after the  event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall  be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any  action taken in reliance on such waiver. In any case where notice to Holders is given by mail;  neither the failure to mail such notice nor any defect in any notice so mailed to any particular  Holder shall affect the sufficiency of such notice with respect to other Holders, and any notice  that is mailed in the manner herein provided shall be conclusively presumed to have been duly  given. In any case where notice to Holders is given by publication, any defect in any notice so  published as to any particular Holder shall not affect the sufficiency of such notice with respect  to other Holders, and any notice that is published in the manner herein provided shall be  conclusively presumed to have been duly given.         Section 16.04 No Adverse Interpretation of Other Agreements.  This Indenture may not  be used to interpret another indenture, loan agreement or debt agreement of the Company or any  Affiliate of the Company. Any such indenture, loan agreement or debt agreement may not be  used to interpret this Indenture.         Section 16.05 Legal Holiday.  Unless otherwise specified pursuant to Section 3.01, in  any case where any Interest Payment Date, Redemption Date or Maturity of any Security of any  series shall not be a Business Day at any Place of Payment for the Securities of that series, then  payment of principal and premium, if any, or interest need not be made at such Place of Payment  on such date, but may be made on the next succeeding Business Day at such Place of Payment  with the same force and effect as if made on such Interest Payment Date, Redemption Date or                                         71   





 






Maturity and no interest shall accrue on such payment for the period from and after such Interest  Payment Date, Redemption Date or Maturity, as the case may be, to such Business Day if such  payment is made or duly provided for on such Business Day.         Section 16.06 Effects 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 16.07 Successors and Assigns.  All covenants and agreements in this Indenture  by the parties hereto shall bind their respective successors and assigns and inure to the benefit of  their permitted successors and assigns, whether so expressed or not.         Section 16.08 Separability Clause.  In case any provision in this Indenture or in the  Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the  remaining provisions shall not in any way be affected or impaired thereby.         Section 16.09 Benefits of Indenture.  Nothing in this Indenture expressed and nothing  that may be implied from any of the provisions hereof is intended, or shall be construed, to  confer upon, or to give to, any Person other than the parties hereto and their successors and the  Holders of the Securities and, as to any series of Securities to which Article XV is applicable,  Senior Indebtedness, any benefit or any right, remedy or claim under or by reason of this  Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all  covenants, conditions, stipulations, promises and agreements in this Indenture contained shall be  for the sole and exclusive benefit of the parties hereto and their successors and of the Holders of  the Securities.         Section 16.10 Counterparts Originals.  This Indenture may be executed in any number of  counterparts, each of which so executed shall be deemed to be an original, but all such  counterparts shall together constitute but one and the same instrument.         Section 16.11 Governing Law; Waiver of Trial by Jury.  This Indenture and the  Securities shall be deemed to be contracts made under the law of the State of New York, and for  all purposes shall be governed by and construed in accordance with the law of said State.         EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY  ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY  JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING  OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.                               [Signature page follows.]                                          72   





 






                                                                                       IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as  of the date first written above.                                             KEMPER CORPORATION                                              By:                                                                             Name:                                               Title:                                                  U.S. BANK NATIONAL ASSOCIATION, as                                            Trustee                                              By:                                                                             Name:                                               Title: