**EXHIBIT 4.1**

 

The Neiman Marcus Group, Inc.

 

and

 

The Bank of New York

 

Trustee

 

INDENTURE

 

Dated as of May 27, 1998

 

Providing for issuance of Securities inSeries

 

----

 

TABLE OF CONTENTS

 
| Recitals of the Company   |                                                    |
|---------------------------|---------------------------------------------------------|
|                      |                                                    |   |
| Agreements of the Parties |                                                    |
|                      |
| ARTICLE 1.           | Definitions and Other Provisions of General Application |
|                      | Section 101.                                       | Definitions |
|                      | Section 102.                                       | Compliance Certificates and Opinions |
|                      | Section 103.                                       | Form of Documents Delivered to Trustee |
|                      | Section 104.                                       | Acts of Securityholders |
|                      | Section 105.                                       | Notices, etc., to Trustee and Company |
|                      | Section 106.                                       | Notices to Securityholders; Waiver |
|                      | Section 107.                                       | Conflict with Trust Indenture Act |
|                      | Section 108.                                       | Effect of Headings and Table of Contents |
|                      | Section 109.                                       | Successors and Assigns |
|                      | Section 110.                                       | Separability Clause |
|                      | Section 111.                                       | Benefits of Indenture |
|                      | Section 112.                                       | Governing Law |
|                      | Section 113.                                       | Counterparts |
|                      |                                                    |   |
| ARTICLE 2.           | Security Forms                                          |
|                      | Section 201.                                       | Forms Generally |
|                      | Section 202.                                       | Forms of Securities |
|                      | Section 203.                                       | Form of Trustee’s Certificate of Authentication |
|                      | Section 204.                                       | Securities Issuable in the Form of a Global Security |
|                      |                                                    |   |
| ARTICLE 3.           | The Securities                                          |
|                      | Section 301.                                       | General Title; General Limitations; Issuable in Series; Terms of  Particular Series |
|                      | Section 302.                                       | Denominations |
|                      | Section 303.                                       | Execution, Authentication and Delivery and Dating |
|                      | Section 304.                                       | Temporary Securities |
|                      | Section 305.                                       | Registration, Transfer and Exchange |
|                      | Section 306.                                       | Mutilated, Destroyed, Lost and Stolen Securities |
|                      | Section 307.                                       | Payment of Interest; Interest Rights Preserved |
|                      | Section 308.                                       | Persons Deemed Owners |
|                      | Section 309.                                       | Cancellation |
|                      | Section 310.                                       | Computation of Interest |
|                      | Section 311.                                       | Medium-Term |
|                      | Section 312.                                       | CUSIP Numbers |
|                      |                                                    |   |
| ARTICLE 4.           | Satisfaction and Discharge                              |
|                      | Section 401.                                       | Satisfaction and Discharge of Indenture |
|                      | Section 402.                                       | Application of Trust Money |
|                      | Section 403.                                       | Defeasance Upon Deposit of Funds or Government Obligations |
|                           |                                                         |  |  |  |

 

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| ARTICLE 5. | Remedies                                                       |
|-----------------|----------------------------------------------------------------|
|            | Section 501.                                              | Events of Default |
|            | Section 502.                                              | Acceleration of Maturity; Rescission and Annulment |
|            | Section 503.                                              | Collection of Indebtedness and Suits for Enforcement by Trustee |
|            | Section 504.                                              | Trustee May File Proofs of Claim |
|            | Section 505.                                              | Trustee May Enforce Claims Without Possession of Securities |
|            | Section 506.                                              | Application of Money Collected |
|            | Section 507.                                              | Limitation on Suits |
|            | Section 508.                                              | Unconditional Right of Securityholders To Receive Principal, Premium  and Interest |
|            | Section 509.                                              | Restoration of Rights and Remedies |
|            | Section 510.                                              | Rights and Remedies Cumulative |
|            | Section 511.                                              | Delay or Omission Not Waiver |
|            | Section 512.                                              | Control by Securityholders |
|            | Section 513.                                              | Waiver of Past Defaults |
|            | Section 514.                                              | Undertaking for Costs |
|            |                                                           |   |
| ARTICLE 6. | The Trustee                                                    |
|            | Section 601.                                              | Certain Duties and Responsibilities |
|            | Section 602.                                              | Notice of Defaults |
|            | Section 603.                                              | Certain Rights of Trustee |
|            | Section 604.                                              | Not Responsible for Recitals or Issuance of Securities |
|            | Section 605.                                              | May Hold Securities |
|            | Section 606.                                              | Money Held in Trust |
|            | Section 607.                                              | Compensation and Reimbursement |
|            | Section 608.                                              | Disqualification; Conflicting Interests |
|            | Section 609.                                              | Corporate Trustee Required; Eligibility |
|            | Section 610.                                              | Resignation of Successor |
|            | Section 611.                                              | Acceptance of Appointment by Successor |
|            | Section 612.                                              | Merger, Conversion, Consolidation or Succession to Business |
|            | Section 613.                                              | Preferential Collection of Claims Against Company |
|            | Section 614.                                              | Appointment of Authentication Agent |
|            |                                                           |   |
| ARTICLE 7. | Securityholders’ Lists and Reports by Trustee and Company |
|            | Section 701.                                              | Company To Furnish Trustee Names and Addresses of Securityholders |
|            | Section 702.                                              | Preservation of Information; Communications to Securityholders |
|            | Section 703.                                              | Reports by Trustee |
|            | Section 704.                                              | Reports by Company |
|            |                                                           |   |
| ARTICLE 8. | Consolidation, Merger, Conveyance or Transfer                  |
|            | Section 801.                                              | When Company May Merge or Transfer Assets |
|                 |                                                                |  |  |

 

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| ARTICLE 9.  | Supplemental Indentures  |
|------------------|--------------------------|
|             | Section 901.        | Supplemental Indentures Without Consent of Securityholders |
|             | Section 902.        | Supplemental Indentures with Consent of Securityholders |
|             | Section 903.        | Execution of Supplemental Indentures |
|             | Section 904.        | Effect of Supplemental Indentures |
|             | Section 905.        | Conformity with Trust Indenture Act |
|             | Section 906.        | Reference in Securities to Supplemental Indentures |
|             |                     |   |
| ARTICLE 10. | Covenants                |
|             | Section 1001.       | Payment of Principal, Premium and Interest |
|             | Section 1002.       | Maintenance of Office or Agency |
|             | Section 1003.       | Money for Security Payments To Be Held in Trust |
|             | Section 1004.       | Statement as to Compliance |
|             | Section 1005.       | Legal Existence |
|             | Section 1006.       | Limitation on Liens |
|             | Section 1007.       | Limitation on Sale and Leasebacks |
|             | Section 1008.       | Waiver of Certain Covenants |
|             | Section 1009.       | Calculation of Original Issue Discount |
|             |                     |   |
| ARTICLE 11. | Redemption of Securities |
|             | Section 1101.       | Applicability of Article |
|             | Section 1102.       | Election To Redeem; Notice to Trustee |
|             | Section 1103.       | Selection by Trustee of Securities To Be Redeemed |
|             | Section 1104.       | Notice of Redemption |
|             | Section 1105.       | Deposit of Redemption Price |
|             | Section 1106.       | Securities Payable on Redemption Date |
|             | Section 1107.       | Securities Redeemed in Part |
|             | Section 1108.       | Provisions with Respect to any Sinking Funds |
|                  |                          |  |  |

 

Table Showing Reflection in Indenture of Certain Provisions of TrustIndenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990.

 

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| ** **             | ** ** | **Reflected In  Indenture** |
|------------------------|------------|-----------------------------|
| **TIA**                | ** ** | **Section**                 |
| Section 310(a)(1) |       | 609                         |
|                   | (a)(2)     |                        | 609 |
|                   | (a)(3)     |                        | Not Applicable |
|                   | (a)(4)     |                        | Not Applicable |
|                   | (a)(5)     |                        | 609 |
|                   | (b)        |                        | 608; 610 |
|                   | (c)        |                        | Not Applicable |
|                   |       |                        |   |
| Section 311(a)    |       | 613                         |
|                   | (b)        |                        | 613 |
|                   | (b)(2)     |                        | 703 |
|                   |       |                        |   |
| Section 312(a)    |       | 701; 702                    |
|                   | (b)        |                        | 702 |
|                   | (c)        |                        | 702 |
|                   |       |                        |   |
| Section 313(a)    |       | 703                         |
|                   | (b)        |                        | 703 |
|                   | (c)        |                        | 703 |
|                   | (d)        |                        | 703 |
|                   |       |                        |   |
| Section 314(a)(1) |       | 704                         |
|                   | (a)(2)     |                        | 704 |
|                   | (a)(3)     |                        | 704 |
|                   | (a)(4)     |                        | 1004 |
|                   | (b)        |                        | Not Applicable |
|                   | (c)(1)     |                        | 102 |
|                   | (c)(2)     |                        | 102 |
|                   | (c)(3)     |                        | Not Applicable |
|                   | (d)        |                        | Not Applicable |
|                   | (e)        |                        | 102 |
|                   |       |                        |   |
| Section 315(a)    |       | 601                         |
|                   | (b)        |                        | 602; 703 |
|                   | (c)        |                        | 601 |
|                   | (d)        |                        | 601 |
|                   | (d)(1)     |                        | 601 |
|                   | (d)(2)     |                        | 601 |
|                   | (d)(3)     |                        | 601 |
|                   | (e)        |                        | 514 |
|                   |       |                        |   |
| Section 316(a)    |       | 101                         |
|                   | (a)(1)(A)  |                        | 502; 512 |
|                   | (a)(1)(B)  |                        | 513 |
|                   | (a)(2)     |                        | Not Applicable |
|                   | (b)        |                        | 508 |
|                   | (c)        |                        | 104 |
|                   |       |                        |   |
| Section 317(a)(1) |       | 503                         |
|                   | (a)(2)     |                        | 504 |
|                   | (b)        |                        | 1003 |
|                   |       |                        |   |
| Section 318(a)    |       | 107                         |

 

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THIS INDENTURE between THE NEIMAN MARCUS GROUP, INC., a Delawarecorporation (hereinafter called the “Company”), having its principal office at27 Boylston Street, Box 1000, Chestnut Hill, MA 02167, and THE BANK OF NEWYORK, a New York banking corporation, as trustee (hereinafter called the“Trustee”), is made and entered into as of the 27th day of May, 1998.

 

Recitals of the Company

 

The Company has duly authorized the execution and delivery of thisIndenture to provide for the issuance of its unsecured and unsubordinateddebentures, notes, bonds or other evidences of indebtedness, to be issued in

one or more fully registered series.

 

All things necessary to make this Indenture a valid agreement of theCompany, in accordance with its terms, have been done.

 

Agreements of the Parties

 

To set forth or to provide for the establishment of the terms andconditions upon which the Securities are and are to be authenticated, issuedand delivered, and in consideration of the premises and the purchase ofSecurities by the Holders thereof, it is mutually covenanted and agreed asfollows, for the equal and proportionate benefit of all Holders of theSecurities or of a series thereof, as the case may be:

 

ARTICLE 1.  Definitions andOther Provisions of General Application

 

Section 1.11. Definitions.  For all purposes ofthis Indenture and of any indenture supplemental hereto, except as otherwiseexpressly provided or unless the context otherwise requires:

 

(a)                                  the terms defined inthis Article have the meanings assigned to them in this Article, andinclude the plural as well as the singular;

 

(b)                                 all other terms usedherein which are defined in the Trust Indenture Act or by Commission rule underthe Trust Indenture Act, either directly or by reference therein, have themeanings assigned to them therein;

 

(c)                                  all accounting termsnot otherwise defined herein have the meanings assigned to them in accordancewith generally accepted accounting principles and, except as otherwise hereinexpressly provided, the term “generally accepted accounting principles” withrespect to any computation required or permitted hereunder shall mean suchaccounting principles as are generally accepted in the United States of Americaat the date of such computation; and

 

(d)                                 all references in thisinstrument to designated “Articles”, “Sections” and other subdivisions are tothe designated Articles, Sections and other subdivisions of this instrument asoriginally executed.  The words “herein”,“hereof” and “hereunder” and other words of similar import refer to thisIndenture as a whole and not to any particular Article, Section or othersubdivision.

 

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Certain terms, used principally in Article Six, are defined inthat Article.

 

“Act”, when used with respect to any Securityholder, has the meaningspecified in Section 104.

 

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

 

“Authenticating Agent” means any Person authorized by the Trustee toauthenticate Securities under Section 614.

 

“Board of Directors” means either the board of directors of the Companyor any duly authorized committee of that board or any officers of the Companyacting pursuant to authority granted by the board of directors of the Companyor any committee of such board.

 

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

 

“Business Day” means, with respect to any series of Securities, eachday which is neither a Saturday, Sunday or other day on which bankinginstitutions in the pertinent Place or Places of Payment are authorized orrequired by law or executive order to be closed.

 

“Capital Stock” means, with respect to any corporation, any and allshares, interests, rights to purchase, warrants, options, participations orother equivalents of or interests (however designated) in stock issued by thatcorporation.

 

“Commission” means the Securities and Exchange Commission, as from timeto time constituted, created under the Securities Exchange Act of 1934, or, ifat any time after the execution of this instrument such Commission is notexisting and performing the duties now assigned to it under the Trust IndentureAct, then the body performing such duties at such time.

 

“Company” means the Person named as the “Company” in the firstparagraph of this instrument until a successor shall have become such pursuantto the applicable provisions of this Indenture, and thereafter “Company” shallmean such successor.

 

2

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“Company Request”, “Company Order” and “Company Consent” mean a writtenrequest, order or consent, respectively, signed in the name of the Company byits Chairman of the Board, a Vice Chairman, its President or a Vice President,and by its Treasurer, an Assistant Treasurer, its Secretary or an AssistantSecretary, and delivered to the Trustee.

 

“Consolidated Net Assets” means the total amount of all assetsappearing on the consolidated balance sheet of the Company and its RestrictedSubsidiaries (at their net book values, after deducting related depreciation,amortization and all other valuation reserves which have been set aside in connectionwith the business conducted and which are reflected on the aforementionedconsolidated balance sheet), less total current liabilities other thanlong-term liabilities due within one year.

 

“Corporate Trust Office” means the office of the Trustee in New York,New York at which at any particular time its corporate trust business shall beprincipally administered, which office at the date hereof is located at 101Barclay Street, Floor 21 West, New York, New York 10286.

 

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

 

“Depositary” means, unless otherwise specified by the Company pursuantto either Section 204 or 301, with respect to securities of any seriesissuable or issued as a Global Security, The Depository Trust Company, NewYork, New York, or any successor thereto registered as a clearing agency underthe Securities Exchange Act of 1934, as amended, or other applicable statute orregulation.

 

“Event of Default” has the meaning specified in Article Five.

 

“Funded Debt” means indebtedness of the Company or a RestrictedSubsidiary that matures by its terms one year or more after its creation orthat is extendable or renewable at the option of the obligor to a date one yearor more after the date of the incurrence or assumption of such indebtedness,and indebtedness classified as long-term debt under generally acceptedaccounting principles, in each case ranking in right of payment at least paripassu with the Securities.

 

“Global Security”, when used with respect to any series of Securitiesissued hereunder, means a Security which is executed by the Company andauthenticated and delivered by the Trustee to the Depositary or pursuant to theDepositary’s instruction, all in accordance with this Indenture and anindenture supplemental hereto, if any, or Board Resolution and pursuant to aCompany Request, which shall be registered in the name of the Depositary or itsnominee and which shall represent, and shall be denominated in an amount equalto the aggregate principal amount of, all of the Outstanding Securities of suchseries or any portion thereof, in either case having the same terms, including,without limitation, the same original issue date, date or dates on whichprincipal is due, and interest rate or method of determining interest.

 

“Holder”, when used with respect to any Security, means aSecurityholder.

 

3

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“Indenture” or “this Indenture” means this instrument as originallyexecuted or as it may from time to time be supplemented or amended by one ormore indentures supplemental hereto entered into pursuant to the applicableprovisions hereof and shall include the terms of particular series ofSecurities established as contemplated by Section 301.

 

“Independent”, when used with respect to any specified Person, meanssuch a Person who (1) is in fact independent, (2) does not have any directfinancial interest or any material indirect financial interest in the Companyor in any other obligor upon the Securities or in any Affiliate of the Companyor of such other obligor, and (3) is not connected with the Company or suchother obligor or any Affiliate of the Company or of such other obligor, as anofficer, employee, promoter, underwriter, trustee, partner, director or personperforming similar functions.  Wheneverit is herein provided that any Independent Person’s opinion or certificateshall be furnished to the Trustee, such Person shall be appointed by a CompanyOrder and approved by the Trustee in the exercise of reasonable care, and suchopinion or certificate shall state that the signer has read this definition andthat the signer is independent within the meaning hereof.

 

“Interest”, when used with respect to an Original Issue DiscountSecurity which by its terms bears interest only after Maturity, means interestpayable after Maturity.

 

“Interest Payment Date”, when used with respect to any series ofSecurities, means the Stated Maturity of any installment of interest on thoseSecurities.

 

“Lien” means any mortgage, pledge, lien, encumbrance, charge orsecurity interest.

 

“Maturity”, when used with respect to any Securities, means the date onwhich the principal of any such Security becomes due and payable as therein orherein provided, whether on a Repayment Date, at the Stated Maturity or bydeclaration of acceleration, call for redemption or otherwise.

 

“Officers’ Certificate” means a certificate signed by the Chairman ofthe Board, a Vice Chairman, the President or a Vice President, and by theTreasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary ofthe Company, and delivered to the Trustee. Wherever this Indenture requires that an Officers’ Certificate be signedalso by an accountant or other expert, such accountant or other expert (exceptas otherwise expressly provided in this Indenture) may be in the employ of theCompany, and shall be acceptable to the Trustee, which acceptance shall not beunreasonably withheld.  

 

“Opinion of Counsel” means a written opinion of counsel, who may(except as otherwise expressly provided in this Indenture) be an employee of orof counsel to the Company (who shall be at least at the level of seniorattorney).  Such counsel shall beacceptable to the Trustee, whose acceptance shall not be unreasonably withheld.

 

4

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“Original Issue Discount Security” means (i) any Security whichprovides for an amount less than the principal amount thereof to be due andpayable upon a declaration of acceleration of the Maturity thereof, and (ii)any other Security deemed an Original Issue Discount Security for United StatesFederal income tax purposes.

 

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

 

(i)                                     such Securitiestheretofore canceled by the Trustee or delivered to the Trustee forcancellation;

 

(ii)                                  such Securities forwhose payment or redemption money in the necessary amount has been theretoforedeposited with the Trustee or any Paying Agent (other than the Company) intrust or set aside and segregated in trust by the Company (if the Company shallact as its own paying agent) for the Holders of such Securities; provided that,if such Securities are to be redeemed, notice of such redemption has been dulygiven pursuant to this Indenture or provision therefor satisfactory to theTrustee has been made; and

 

(iii)                               such Securities inexchange for or in lieu of which other Securities have been authenticated anddelivered pursuant to this Indenture, or which shall have been paid pursuant tothe terms of Section 306 (except with respect to any such Security as towhich proof satisfactory to the Trustee is presented that such Security is heldby a person in whose hands such Security is a legal, valid and bindingobligation of the Company).

 

In determining whether the Holders of the requisite principal amount ofsuch Securities outstanding have given any request, demand, authorization,direction, notice, consent or waiver hereunder, (i) the principal amount of anyOriginal Issue Discount Security that shall be deemed to be Outstanding shallbe the amount of the principal thereof that would be due and payable as of thedate of the taking of such action upon a declaration of acceleration of theMaturity thereof and (ii) Securities owned by the Company or any other obligorupon the Securities or any Affiliate of the Company or of such other obligorshall be disregarded and deemed not to be Outstanding.  In determining whether the Trustee shall beprotected in relying upon any such request, demand, authorization, direction,notice, consent or waiver, only Securities which a Responsible Officer assignedto the corporate trust department of the Trustee actually knows to be owned bythe Company or any other obligor upon the Securities or any Affiliate of theCompany or such other obligor shall be so disregarded.  Securities so owned which have been pledgedin good faith may be regarded as Outstanding if the pledgee establishes to thesatisfaction of the Trustee the pledgee’s right to act as owner with respect tosuch Securities and that the pledgee is not the Company or any other obligorupon the Securities or any Affiliate of the Company or such other obligor.

 

5

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“Paying Agent” means any Person authorized by the Company to pay theprincipal of (and premium, if any) or interest on any Securities on behalf ofthe Company.  The Company initiallyauthorizes the Trustee to act as Paying Agent for the Securities on its behalf.  The Company may at any time and from time totime authorize one or more Persons, including the Company, to act as PayingAgent in addition to or in place of the Trustee with respect to any series ofSecurities issued under this Indenture.

 

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

 

“Place of Payment” means with respect to any series of Securitiesissued hereunder the city or political subdivision so designated with respectto the series of Securities in question in accordance with the provisions ofSection 301.

 

“Predecessor Securities” of any particular Security means everyprevious Security evidencing all or a portion of the same debt as thatevidenced by such particular Security; and, for the purposes of thisdefinition, any Security authenticated and delivered under Section 306 inlieu of a lost, destroyed or stolen Security shall be deemed to evidence thesame debt as the lost, destroyed or stolen Security.

 

“Preferred Stock” means, as to any Person, capital stock of such Personthat has a preference as to dividends or upon liquidation over the common stockof such Person.

 

“Principal Property” of a Person means all land, buildings, machineryand equipment, and leasehold interests and improvements in respect of theforegoing, that are located in the United States of America and that would bereflected on a consolidated balance sheet of such Person provided that the term“Principal Property” shall not include any land, building, machinery,equipment, leasehold interest or improvements which the Board of Directors ofthe Company by resolution determines not to be of material importance to thetotal business conducted by the Company and its Subsidiaries as anentirety.  Redemption Date”, when usedwith respect to any Security to be redeemed, means the date fixed for suchredemption by or pursuant to this Indenture.

 

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

 

“Regular Record Date” for the interest payable on any Security on anyInterest Payment Date means the date specified in such Security as the RegularRecord Date.

 

“Repayment Date”, when used with respect to any Security to be repaid,means the date fixed for such repayment pursuant to such Security.

 

6

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“Repayment Price”, when used with respect to any Security to be repaid,means the price at which it is to be repaid pursuant to such Security.

 

“Responsible Officer”, when used with respect to the Trustee, means anyvice president, any assistant secretary, any assistant treasurer, any seniortrust officer or trust officer or any other officer of the Trustee customarilyperforming functions similar to those performed by any of the above designatedofficers and also means, with respect to a particular corporate trust matter,any other officer to whom such matter is referred because of his knowledge ofand familiarity with the particular subject.

 

“Restricted Subsidiary” means any Subsidiary of the Company (other thana Subsidiary that is principally engaged in the business of owning or investingin real estate (a ‘Real Estate Subsidiary’), finance, credit, leasing,financial services or other similar operations, or any combination thereof),which itself, or with one or more other Restricted Subsidiaries, owns or leasesa Principal Property; PROVIDED, HOWEVER, that in the event that any RestrictedSubsidiary, in a single transaction or through a series of relatedtransactions, shall (i) be consolidated with or merge with or into a RealEstate Subsidiary or any of its subsidiaries or (ii) transfer (by lease,assignment, sale or otherwise) all or substantially all of its properties andassets to a Real Estate Subsidiary, then the term ‘Restricted Subsidiary’ shallinclude such Real Estate Subsidiary.

 

“Sale and Leaseback Transaction” means any arrangement with any Personpursuant to which the Company or any Restricted Subsidiary leases any PrincipalProperty that has been or is to be sold or transferred by the Company or theRestricted Subsidiary to such Person, other than (1) temporary leases for aterm, including renewals at the option of the lessee, of not more than threeyears, (2) leases between the Company and a Restricted Subsidiary or betweenRestricted Subsidiaries and (3) arrangements pursuant to any provision of lawwith an effect similar to the former Section 168(f)(8) of the InternalRevenue Code of 1954.

 

“Security” or “Securities” means any note or notes, bond or bonds,debenture or debentures, or any other evidences of indebtedness, as the casemay be, of any series authenticated and delivered from time to time under thisIndenture.

 

“Security Register” shall have the meaning specified inSection 305.

 

“Security Registrar” means the Person who keeps the Security Registerspecified in Section 305.  TheCompany initially appoints the Trustee to act as Security Registrar for theSecurities on its behalf.  The Companymay at any time and from time to time authorize any Person, including theCompany, to act as Security Registrar in place of the Trustee with respect toany series of Securities issued under this Indenture.

 

“Securityholder” means a Person in whose name a Security is registeredin the Security Register.

 

7

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“Special Record Date” for the payment of any Defaulted Interest (asdefined in Section 307) means a date fixed by the Trustee pursuant toSection 307.

 

“Stated Maturity” when used with respect to any Security or anyinstallment of principal thereof or interest thereon means the date specifiedin such Security as the fixed date on which the principal of such Security orsuch installment of principal or interest is due and payable.

 

“Subsidiary” of any corporation means a corporation, a majority ofwhose Capital Stock with voting power (other than Capital Stock having suchpower only by reason of the happening of a contingency) to elect a majority ofthe directors of such corporation is, at the date of determination, directly orindirectly owned by such corporation, by one or more Subsidiaries of suchcorporation or by such corporation and one or more Subsidiaries of suchcorporation.

 

“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939,as amended by the Trust Indenture Reform Act of 1990, and as in force at thedate as of which this instrument was executed except as provided inSection 905.

 

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

 

“U.S. Government Obligations” shall have the meaning specified inSection 403.

 

“Value” means, with respect to a Sale and Leaseback Transaction, as ofany particular time, an amount equal to the greater of (i) the net proceeds ofthe sale or transfer of the property leased pursuant to such Sale and LeasebackTransaction or (ii) the fair value, as determined by the Company, of suchproperty at the time of entering into such Sale and Leaseback Transaction, ineither case divided by the number of full years of the term of the lease andthen multiplied by the number of full years of such term remaining at the timeof determination, without regard to any renewal or extension options containedin the lease.

 

“Vice President” when used with respect to the Company or the Trusteemeans any vice president, whether or not designated by a number or a word orwords added before or after the title “vice president”, including, withoutlimitation, an assistant vice president.

 

Section 1.12.  ComplianceCertificates and Opinions.  Upon anyapplication or request by the Company to the Trustee to take any action underany provision of this Indenture, the Company shall furnish to the Trustee anOfficers’ Certificate stating that all conditions precedent, if any (includingany covenants compliance with which constitutes a condition precedent),provided for in this Indenture relating to the proposed action have beencomplied with and an opinion of Counsel stating that in the opinion of suchCounsel all such conditions precedent, if any (including any covenantscompliance with which constitutes a condition precedent), have been compliedwith, except that in the case of any such application or request as to whichthe furnishing of such documents is specifically required by any provision ofthis Indenture relating to such particular application or request, noadditional certificate or opinion need be furnished.

 

8

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Every certificate or opinion with respect to compliance with a conditionor covenant provided for in this Indenture (other than annual statements ofcompliance provided pursuant to Section 1004) shall include:

 

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

 

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

 

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

 

(4)                                  a statement as towhether, in the opinion of each such individual, such condition or covenant hasbeen complied with.

 

Section 1.13.  Form ofDocuments Delivered to Trustee.  In anycase where several matters are required to be certified by, or covered by anopinion of, any specified Person, it is not necessary that all such matters becertified by, or covered by the opinion of, only one such Person, or that theybe so certified or covered by only one document, but one such Person maycertify or give an opinion with respect to some matters and one or more othersuch Persons may certify or give an opinion as to the other matters, and anysuch Person may certify or give an opinion as to such matters in one or severaldocuments.

 

Any certificate or opinion of an officer of the Company may be based,insofar as it relates to legal matters, upon a certificate or opinion of, orrepresentations by, counsel, unless such officer knows, or in the exercise ofreasonable care should know, that the certificate or opinion or representationswith respect to the matters upon which his certificate or opinion is based areerroneous.  Any such certificate orOpinion of Counsel may be based, insofar as it relates to factual matters, upona certificate or opinion of, or representations by, an officer or officers ofthe Company stating that the information with respect to such factual mattersis in the possession of the Company, unless such counsel knows, or in theexercise of reasonable care should know, that the certificate or opinion orrepresentations with respect to such matters are erroneous.

 

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Where any Person is required to make, give or execute two or moreapplications, requests, consents, certificates, statements, opinions or otherinstruments under this Indenture, they may, but need not, be consolidated andform one instrument.

 

Section 1.14.  Acts ofSecurityholders.

 

(a)                                  Any request, demand,authorization, direction, notice, consent, waiver or other action provided bythis Indenture to be given or taken by Securityholders or Securityholders ofany series may be embodied in and evidenced by one or more instruments ofsubstantially similar tenor signed by such Securityholders in person or by anagent duly appointed in writing; and, except as herein otherwise expresslyprovided, such action shall become effective when such instrument orinstruments are delivered to the Trustee, and, where it is hereby expresslyrequired, to the Company.  Suchinstrument or instruments (and the action embodied therein and evidenced thereby)are herein sometimes referred to as the “Act” of the Securityholders signingsuch instrument or instruments.  Proof ofexecution of any such instrument or of a writing appointing any such agentshall be sufficient for any purpose of this Indenture and (subject toSection 601) conclusive in favor of the Trustee and the Company, if madein the manner provided in this Section.

 

(b)                                 The fact and date ofthe execution by any Person of any such instrument or writing may be proved bythe affidavit of a witness to such execution or by the certificate of anynotary public or other officer authorized by law to take acknowledgments ofdeeds, certifying that the individual signing such instrument or writingacknowledged to him the execution thereof. Where such execution is by an officer of a corporation or a member of apartnership, on behalf of such corporation or partnership, such certificate oraffidavit shall also constitute sufficient proof of his authority. The fact anddate of the execution of any such instrument or writing, or the authority ofthe person executing the same, may also be proved in any other manner which theTrustee deems sufficient.

 

(c)                                  The ownership ofSecurities shall be proved by the Security Register.

 

(d)                                 If the Company shallsolicit from the Holders any request, demand, authorization, direction, notice,consent, waiver or other action, the Company may, at its option, by BoardResolution, fix in advance a record date for the determination of Holdersentitled to give such request, demand, authorization, direction, notice,consent, waiver or other action, but the Company shall have no obligation to doso.  Such record date shall be not morethan 30 days prior to the date of its determination.  If such a record date is fixed, such request,demand, authorization, direction, notice, consent, waiver or other action maybe given before or after the record date, but only the Holders of record at theclose of business on the record date shall be deemed to be Holders for thepurposes of determining whether Holders of the requisite proportion ofSecurities Outstanding have authorized or agreed or consented to such request,demand, authorization, direction, notice, consent, waiver or other action, andfor that purpose the Securities Outstanding shall be computed as of the recorddate; provided that no such authorization, agreement or consent by the Holderson the record date shall be deemed effective unless it shall become effectivepursuant to the provisions of this Indenture not later than six months afterthe record date, and that no such authorization, agreement or consent may beamended, withdrawn or revoked once given by a Holder, unless the Company shallprovide for such amendment, withdrawal or revocation in conjunction with suchsolicitation of authorizations, agreements or consents or unless and to theextent required by applicable law.

 

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(e)                                  Any request, demand,authorization, direction, notice, consent, waiver or other action by the Holderof any Security shall bind the Holder of every Security issued upon thetransfer thereof or in exchange therefor or in lieu thereof, in respect ofanything done or suffered to be done by the Trustee or the Company in reliancethereon whether or not notation of such action is made upon such Security.

 

Section 1.15.  Notices,etc., to Trustee and Company.  Anyrequest, demand, authorization, direction, notice, consent, waiver or Act ofSecurityholders or other document provided or permitted by this Indenture to bemade upon, given or furnished to, or filed with,

 

(1)                                  the Trustee by anySecurityholder or by the Company shall be sufficient for every purposehereunder if made, given, furnished or filed in writing to or with the Trusteeat its Corporate Trust Office, Attention: Corporate Trust TrusteeAdministration, or

 

(2)                                  the Company by theTrustee or by any Securityholder shall be sufficient for every purposehereunder (except as provided in Section 501(4) or, in the case of arequest for repayment, as specified in the Security carrying the right torepayment) if in writing and mailed, first-class postage prepaid, to theCompany addressed to it at the address of its principal office specified in thefirst paragraph of this instrument, Attention: General Counsel, or at any otheraddress previously furnished in writing to the Trustee by the Company.

 

Section 1.16.  Notices toSecurityholders; Waiver.  Where thisIndenture or any Security provides for notice to Securityholders of any event,such notice shall be sufficiently given (unless otherwise herein or in suchSecurity expressly provided) if in writing and mailed, first-class postageprepaid, to each Securityholder affected by such event, at his address as itappears in the Security Register, not later than the latest date, and notearlier than the earliest date, prescribed for the giving of such notice.  In any case where notice to Securityholdersis given by mail, neither the failure to mail such notice, nor any defect inany notice so mailed, to any particular Securityholder shall affect thesufficiency of such notice with respect to other Securityholders.  Where this Indenture or any Security providesfor notice in any manner, such notice may be waived in writing by the Personentitled to receive such notice, either before or after the event, and suchwaiver shall be the equivalent of such notice. Waivers of notice by Securityholders shall be filed with the Trustee,but such filing shall not be a condition precedent to the validity of anyaction taken in reliance upon such waiver.

 

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In case, by reason of the suspension of regular mail service as aresult of a strike, work stoppage or otherwise, it shall be impractical to mailnotice of any event to any Securityholder when such notice is required to begiven pursuant to any provision of this Indenture, then any method ofnotification as shall be satisfactory to the Trustee and the Company shall bedeemed to be a sufficient giving of such notice.

 

Section 1.17.  Conflict withTrust Indenture Act.  If any provisionhereof limits, qualifies or conflicts with the duties imposed by any ofSections 310 to 317, inclusive, of the Trust Indenture Act through operation ofSection 318(c) thereof, such imposed duties shall control.

 

Section 1.18.  Effect ofHeadings and Table of Contents.  TheArticle and Section headings herein and the Table of Contents are forconvenience only and shall not affect the construction hereof.

 

Section 1.19.  Successorsand Assigns.  All covenants andagreements in this Indenture by the Company shall bind its successors andassigns, whether so expressed or not.

 

Section 1.110.  SeparabilityClause.  In case any provision in thisIndenture or in the Securities shall be invalid, illegal or unenforceable, thevalidity, legality and enforceability of the remaining provisions shall not inany way be affected or impaired thereby.

 

Section 1.111.  Benefits ofIndenture.  Nothing in this Indenture orin any Securities, express or implied, shall give to any Person, other than theparties hereto and their successors hereunder, any Authenticating Agent orPaying Agent, the Security Registrar and the Holders of Securities (or such ofthem as may be affected thereby), any benefit or any legal or equitable right,remedy or claim under this Indenture.

 

Section 1.112.  GoverningLaw.  This Indenture and the Securitiesshall be construed in accordance with and governed by the laws of the State ofNew York, without regard to conflicts of laws principles thereof.

 

Section 1.113. Counterparts.  This instrument maybe executed in any number of counterparts, each of which so executed shall bedeemed to be an original, but all such counterparts shall together constitutebut one and the same instrument.

 

ARTICLE 2.  Security Forms.

 

Section 2.11.  FormsGenerally.  The Securities shall havesuch appropriate insertions, omissions, substitutions and other variations asare required or permitted by this Indenture and may have such letters, numbersor other marks of identification and such legends or endorsements placedthereon, as may be required to comply with the rules of any securitiesexchange, or as may, consistently herewith, be determined by the officerexecuting such Securities, as evidenced by such officer’s execution of theSecurities.  Any portion of the text ofany Security may be set forth on the reverse thereof, with an appropriatereference thereto on the face of the Security.

 

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The definitive Securities shall be printed, lithographed or engraved orproduced by any combination of these methods on steel engraved borders or maybe produced in any other manner, all as determined by the officer executingsuch Securities, as evidenced by such officer’s execution of such Securities,subject, with respect to the Securities of any series, to the rules of anysecurities exchange on which such Securities are listed.

 

Section 2.12.  Forms ofSecurities.  Each Security shall be inone of the forms approved from time to time by or pursuant to a BoardResolution, or established in one or more indentures supplemental hereto.  Prior to the delivery of a Security to theTrustee for authentication in any form approved by or pursuant to a BoardResolution, the Company shall deliver to the Trustee the Board Resolution by orpursuant to which such form of Security has been approved, which BoardResolution shall have attached thereto a true and correct copy of the form ofSecurity which has been approved thereby or, if a Board Resolution authorizes aspecific officer or officers to approve a form of Security, a certificate ofsuch officer or officers approving the form of Security attached thereto.  Any form of Security approved by or pursuantto a Board Resolution must be acceptable as to form to the Trustee, suchacceptance to be evidenced by the Trustee’s authentication of Securities inthat form.

 

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Section 2.13.  Form ofTrustee’s Certificate of Authentication. The form of Trustee’s Certificate of Authentication for any Securityissued pursuant to this Indenture shall be substantially as follows:

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one ofthe Securities referred to in the within-mentioned Indenture.

 
|   | THE BANK OF NEW YORK, |
|--------|-----------------------|
|   | as Trustee,           |
|   |                  |
|   | By:                   |   |   |
|   | Authorized Signatory  |

 

Section 2.14.  SecuritiesIssuable in the Form of a Global Security.

 

(a)                                  If the Company shallestablish pursuant to Sections 202 and 301 that the Securities of a particularseries are to be issued in whole or in part in the form of one or more GlobalSecurities, then the Company shall execute and the Trustee or its agent shall,in accordance with Section 303 and the Company Order delivered to theTrustee or its agent thereunder, authenticate and make available for delivery,such Global Security or Securities, which (i) shall represent, and shall bedenominated in an amount equal to the aggregate principal amount of, theOutstanding Securities of such series to be represented by such Global Securityor Securities, or such portion thereof as the Company shall specify in aCompany Order, (ii) shall be registered in the name of the Depositary for suchGlobal Security or Securities or its nominee, (iii) shall be delivered by theTrustee or its agent to the Depositary or pursuant to the Depositary’sinstruction and (iv) shall bear a legend substantially to the following effect:“Unless this certificate is presented by an authorized representative of theDepositary to Issuer or its agent for registration of transfer, exchange, orpayment, and any certificate issued is registered in the name of the nominee ofthe Depositary or in such other name as is requested by an authorizedrepresentative of the Depositary (and any payment is made to the nominee of theDepositary or to such other entity as is requested by an authorizedrepresentative of the Depositary), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOFFOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as theregistered owner hereof, the nominee of the Depositary, has an interestherein.”

 

(b)                                 Notwithstanding anyother provision of this Section 204 or of Section 305, and subject tothe provisions of paragraph (c) below, unless the terms of a Global Securityexpressly permit such Global Security to be exchanged in whole or in part forindividual Securities, a Global Security may be transferred, in whole but notin part and in the manner provided in Section 305, only to a nominee ofthe Depositary for such Global Security, or to the Depositary, or a successorDepositary for such Global Security selected or approved by the Company, or toa nominee of such successor Depositary.

 

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(c)

 

(i)                                     If at any time theDepositary for a Global Security notifies the Company that it is unwilling orunable to continue as Depositary for such Global Security or if at any time theDepositary for the Securities for such series shall no longer be eligible or ingood standing under the Securities Exchange Act of 1934, as amended, or otherapplicable statute or regulation, the Company shall appoint a successorDepositary with respect to such Global Security.  If a successor Depositary for such GlobalSecurity is not appointed by the Company within 90 days after the Companyreceives such notice or becomes aware of such ineligibility, the Company willexecute, and the Trustee or its agent, upon receipt of a Company Request forthe authentication and delivery of individual Securities of such series inexchange for such Global Security, will authenticate and make available fordelivery individual Securities of such series of like tenor and terms in anaggregate principal amount equal to the principal amount of the Global Securityin exchange for such Global Security.

 

(ii)                                  The Company may atany time and in its sole discretion determine that the Securities of any seriesor portion thereof issued or issuable in the form of one or more GlobalSecurities shall no longer be represented by such Global Security orSecurities.  In such event the Companywill execute, and the Trustee, upon receipt of a Company Request for theauthentication and delivery of individual Securities of such series in exchangein whole or in part for such Global Security, will authenticate and makeavailable for delivery individual Securities of such series of like tenor andterms in definitive form in an aggregate principal amount equal to theprincipal amount of such Global Security or Securities representing such seriesor portion thereof in exchange for such Global Security or Securities.

 

(iii)                               If specified by theCompany pursuant to Sections 202 and 301 with respect to Securities issued orissuable in the form of a Global Security, the Depositary for such GlobalSecurity may surrender such Global Security in exchange in whole or in part forindividual Securities of such series of like tenor and terms in definitive formon such terms as are acceptable to the Company and such Depositary.  Thereupon the Company shall execute, and theTrustee or its agent shall authenticate and make available for delivery,without service charge, (1) to each Person specified by such Depositary a newSecurity or Securities of the same series of like tenor and terms and of anyauthorized denomination as requested by such Person in aggregate principal amountequal to and in exchange for such Person’s beneficial interest as specified bysuch Depositary in the Global Security; and (2) to such Depositary a new GlobalSecurity of like tenor and terms and in an authorized denomination equal to thedifference, if any, between the principal amount of the surrendered GlobalSecurity and the aggregate principal amount of Securities delivered to Holdersthereof.

 

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(iv)                              In any exchange providedfor in any of the preceding three paragraphs, the Company will execute and theTrustee or its agent will authenticate and make available for deliveryindividual Securities in definitive registered form in authorized denominations.  Upon the exchange of the entire principalamount of a Global Security for individual Securities, such Global Securityshall be canceled by the Trustee or its agent. Except as provided in the preceding paragraph, Securities issued inexchange for a Global Security pursuant to this Section shall beregistered in such names and in such authorized denominations as the Depositaryfor such Global Security, pursuant to instructions from its direct or indirectparticipants or otherwise, shall instruct the Trustee or the SecurityRegistrar.  The Trustee shall deliver atits Corporate Trust Office such Securities to the Persons in whose names suchSecurities are so registered.

 

ARTICLE 3.  The Securities.

 

Section 3.11.  GeneralTitle; General Limitations; Issuable in Series; Terms of ParticularSeries.  The aggregate principal amountof Securities which may be authenticated and delivered and Outstanding underthis Indenture is not limited.

 

The Securities may be issued in one or more series up to an aggregate principalamount of Securities as from time to time may be authorized by the Board ofDirectors.  All Securities of each seriesunder this Indenture shall in all respects be equally and ratably entitled tothe benefits hereof with respect to such series without preference, priority ordistinction on account of the actual time of the authentication and delivery orStated Maturity of the Securities of such series.

 

Each series of Securities shall be created either by or pursuant to aBoard Resolution or by an indenture supplemental hereto.  The Securities of each such series may bearsuch date or dates, be payable at such place or places, have such StatedMaturity or Maturities, be issuable at such premium over or discount from theirface value, bear interest at such rate or rates, from such date or dates,payable in such installments and on such dates and at such place or places tothe Holders of Securities registered as such on such Regular Record Dates, ormay bear no interest, and may be redeemable or repayable at such RedemptionPrice or Prices or Repayment Price or Prices, as the case may be, whether atthe option of the Holder or otherwise, and upon such terms, all as shall beprovided for in or pursuant to the Board Resolution or in the supplemental indenturecreating that series.  There may also beestablished in or pursuant to a Board Resolution or in a supplemental indentureprior to the issuance of Securities of each such series, provision for:

 

(1)                                  the exchange orconversion of the Securities of that series, at the option of the Holdersthereof, for or into new Securities of a different series or other securitiesexcept shares of capital stock of the Company or any subsidiary of the Companyor securities directly or indirectly convertible into or exchangeable for anysuch shares;

 

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(2)                                  a sinking or purchasefund or other analogous obligation;

 

(3)                                  a limitation on theaggregate principal amount of the Securities of that series;

 

(4)                                  the exchange or conversionof Securities of that series, at the option of the Holders thereof, for or intoother Securities of a different series or other securities;

 

(5)                                  the appointment bythe Trustee of an Authenticating Agent in one or more places other than thelocation of the office of the Trustee with power to act on behalf of theTrustee and subject to its direction in the authentication and delivery of theSecurities of any one or more series in connection with such transactions asshall be specified in the provisions of this Indenture or in or pursuant to theBoard Resolution or the supplemental indenture creating such series;

 

(6)                                  the portion of theprincipal amount of Securities of the series, if other than the principalamount thereof, which shall be payable upon declaration of acceleration of theMaturity thereof pursuant to Section 502 or provable in bankruptcypursuant to Section 504;

 

(7)                                  any Event of Defaultwith respect to the Securities of such series, if not set forth herein, and anyadditions, deletions or other changes to the Events of Default set forth hereinthat shall be applicable to the Securities of such series;

 

(8)                                  any covenant solelyfor the benefit of the Securities of such series and any additions, deletionsor other changes to the provisions of Sections 1006 and 1007 that shall beapplicable to the Securities of that series;

 

(9)                                  the inapplicabilityof Section 403 of this Indenture to the Securities of such series and anycovenant with respect to Section 403(b) established in or pursuant to aBoard Resolution or in a supplemental indenture as described above that has notalready been established herein;

 

(10)                            if the Securities of theseries shall be issued in whole or in part in the form of a Global Security orSecurities, the terms and conditions, if any, upon which such Global Securityor Securities may be exchanged in whole or in part for other individualSecurities; and the Depositary for such Global Security or Securities; and

 

(11)                            any other terms of theseries, all upon such terms as may be determined in or pursuant to a BoardResolution or in a supplemental indenture with respect to such series.  All Securities of the same series shall besubstantially identical in tenor and effect except as to denomination andexcept if issued pursuant to Section 311.

 

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The form of the Securities of each series shall be established pursuantto the provisions of this Indenture in or pursuant to the Board Resolution orin the supplemental indenture creating such series.  The Securities of each series shall bedistinguished from the Securities of each other series in such manner,reasonably satisfactory to the Trustee, as the Board of Directors maydetermine.

 

Unless otherwise provided with respect to Securities of a particularseries, the Securities of any series may only be issuable in registered form,without coupons.

 

Any terms or provisions in respect of the Securities of any seriesissued under this Indenture may be determined pursuant to this Section byproviding for the method by which such terms or provisions shall be determined.

 

Section 3.12. Denominations.  The Securities ofeach series shall be issuable in such denominations as shall be provided in theprovisions of this Indenture or in or pursuant to the Board Resolution or thesupplemental indenture creating such series. In the absence of any such provisions with respect to the Securities ofany series, the Securities of that series shall be issuable only in fullyregistered form in denominations of $1,000 and any integral multiple thereof.

 

Section 3.13.  Execution,Authentication and Delivery and Dating. The Securities shall be executed on behalf of the Company by itsChairman of the Board, its Vice Chairman, its President or one of its Vice Presidents.  The signature of any of these officers on theSecurities may be manual or facsimile.

 

Securities bearing the manual or facsimile signatures of individualswho were at any time the proper officers of the Company shall bind the Company,notwithstanding that such individuals or any of them have ceased to hold suchoffices prior to the authentication and delivery of such Securities or did nothold such offices at the date of such Securities.

 

At any time and from time to time after the execution and delivery ofthis Indenture, the Company may deliver Securities executed by the Company tothe Trustee for authentication; and the Trustee shall, upon Company Order,authenticate and make available for delivery such Securities as in thisIndenture provided and not otherwise.

 

Prior to any such authentication and delivery, the Trustee shall beentitled to receive, in addition to any Officers’ Certificate and Opinion ofCounsel required to be furnished to the Trustee pursuant to Section 102,and the Board Resolution and any certificate relating to the issuance of theseries of Securities required to be furnished pursuant to Section 202, anOpinion of Counsel stating that:

 

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(1)                                  all instrumentsfurnished to the Trustee conform to the requirements of the Indenture andconstitute sufficient authority hereunder for the Trustee to authenticate anddeliver such Securities;

 

(2)                                  the form and terms ofsuch Securities have been established in conformity with the provisions of thisIndenture;

 

(3)                                  such Securities, whencompleted by appropriate insertions and executed by the Company and deliveredto the Trustee for authentication in accordance with this Indenture,authenticated and delivered by the Trustee in accordance with this Indentureand issued by the Company in the manner and subject to any conditions specifiedin such Opinion of Counsel, will constitute legal, valid and bindingobligations of the Company enforceable in accordance with their terms (subject,as to enforcement of remedies, to applicable bankruptcy, reorganization,insolvency, moratorium or other laws and legal principles affecting creditors’rights generally from time to time in effect and to general equitableprinciples, whether applied in an action at law or in equity); and

 

(4)                                  the Indenture isqualified under the Trust Indenture Act; and, if the authentication anddelivery relates to a new series of Securities created by an indenturesupplemental hereto, also stating that the Company has corporate power toexecute and deliver any such supplemental indenture and has taken all necessarycorporate action for those purposes and any such supplemental indenture hasbeen executed and delivered and constitutes the legal, valid and bindingobligation of the Company enforceable in accordance with its terms (subject, asto enforcement of remedies, to applicable bankruptcy, reorganization,insolvency, moratorium or other laws and legal principles affecting creditors’rights generally from time to time in effect and to general equitableprinciples, whether applied in an action at law or in equity) and, if theauthentication and delivery relates to Securities of a series issued pursuantto Section 311, paragraphs (2) and (3) of the foregoing opinion shall readas follows:

 

“(2) the form of such Securities and the procedures for determining the termsof such Securities as set forth in the procedures relating thereto referred toin Section 311 have been established in conformity with the provisions ofthis Indenture; and

 

(3) such Securities, when completed by appropriate insertions and executedby the Company and delivered to the Trustee for authentication in accordancewith this Indenture, authenticated and delivered by the Trustee in accordancewith this Indenture and issued, delivered and paid for in accordance with theapplicable selling agency or distribution agreement, will have been duly issuedunder the Indenture and will constitute the legal, valid and bindingobligations of the Company enforceable in accordance with their terms (subject,as to enforcement of remedies, to applicable bankruptcy, reorganization,insolvency, moratorium or other laws and legal principles affecting creditors’rights generally from time to time in effect and to general equitable principles,whether applied in an action at law or in equity).”

 

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The Trustee shall not be required to authenticate such Securities ifthe issue thereof will adversely affect the Trustee’s own rights, duties orimmunities under the Securities and this Indenture.

 

Unless otherwise provided in the form of Security for any series, allSecurities shall be dated the date of their authentication.

 

No Security shall be entitled to any benefit under this Indenture or bevalid or obligatory for any purpose unless there appears on such Security acertificate of authentication substantially in the form provided for hereinexecuted by the Trustee by manual signature, and such certificate upon anySecurity shall be conclusive evidence, and the only evidence, that suchSecurity has been duly authenticated and delivered hereunder.

 

Section 3.14.  TemporarySecurities.  Pending the preparation ofdefinitive Securities of any series, the Company may execute, and, upon receiptof the documents required by Section 303, together with a Company Order,the Trustee shall authenticate and make available for delivery, temporarySecurities which are printed, lithographed, typewritten, mimeographed orotherwise produced, in any authorized denomination, substantially of the tenorof the definitive Securities in lieu of which they are issued and with suchappropriate insertions, omissions, substitutions and other variations as theofficers executing such Securities may determine, as evidenced by theirexecution of such Securities.

 

If temporary Securities of any series are issued, the Company willcause definitive Securities of such series to be prepared without unreasonabledelay.  After the preparation ofdefinitive Securities, the temporary Securities of such series shall beexchangeable for definitive Securities of such series upon surrender of thetemporary Securities of such series at the office or agency of the Company in aPlace of Payment, without charge to the Holder; and upon surrender forcancellation of any one or more temporary Securities the Company shall executeand the Trustee shall authenticate and make available for delivery in exchangetherefor a like principal amount of definitive Securities of such series ofauthorized denominations and of like tenor and terms.  Until so exchanged the temporary Securitiesof such series shall in all respects be entitled to the same benefits underthis Indenture as definitive Securities of such series.

 

Section 3.15.  Registration,Transfer and Exchange.  The Company shallkeep or cause to be kept a register or registers (herein sometimes referred toas the “Security Register”) in which, subject to such reasonable regulations asit may prescribe, the Company shall provide for the registration of Securities,or of Securities of a particular series, and for transfers of Securities or ofSecurities of such series.  Any suchregister shall be in written form or in any other form capable of beingconverted into written form within a reasonable time.  At all reasonable times the informationcontained in such register or registers shall be available for inspection bythe Trustee at the office or agency to be maintained by the Company as providedin Section 1002.  There shall beonly one Security Register per series of Securities.

 

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Subject toSection 204, upon surrender for transfer of any Security of any series atthe office or agency of the Company in a Place of Payment, the Company shallexecute, and the Trustee shall authenticate and make available for delivery, inthe name of the designated transferee or transferees, one or more newSecurities of such series of any authorized denominations, of a like aggregateprincipal amount and Stated Maturity and of like tenor and terms.

 

Subject toSection 204, at the option of the Holder, Securities of any series may beexchanged for other Securities of such series of any authorized denominations,of a like aggregate principal amount and Stated Maturity and of like tenor andterms, upon surrender of the Securities to be exchanged at such office oragency.  Whenever any Securities are sosurrendered for exchange, the Company shall execute, and the Trustee shallauthenticate and make available for delivery, the Securities which theSecurityholder making the exchange is entitled to receive.

 

All Securities issued upon any transfer or exchange of Securities shallbe the valid obligations of the Company, evidencing the same debt, and entitledto the same benefits under this Indenture, as the Securities surrendered uponsuch transfer or exchange.

 

Every Security presented or surrendered for transfer or exchange shall(if so required by the Company or the Trustee) be duly endorsed, or beaccompanied by a written instrument of transfer in form satisfactory to theCompany and the Security Registrar duly executed, by the Holder thereof or hisattorney duly authorized in writing.

 

Unless otherwise provided in the Security to be transferred orexchanged, no service charge shall be made on any Securityholder for anytransfer or exchange of Securities, but the Company may (unless otherwiseprovided in such Security) require payment of a sum sufficient to cover any taxor other governmental charge that may be imposed in connection with anytransfer or exchange of Securities, other than exchanges pursuant toSection 304 or 906 not involving any transfer.

 

The Company shall not be required (i) to issue, transfer or exchangeany Security of any series during a period beginning at the opening of business15 days before the day of the mailing of a notice of redemption of Securitiesof such series selected for redemption under Section 1103 and ending atthe close of business on the date of such mailing, or (ii) to transfer or exchangeany Security so selected for redemption in whole or in part.

 

None of the Company, the Trustee, any agent of the Trustee, any PayingAgent or the Security Registrar will have any responsibility or liability forany aspect of the records relating to or payments made on account of beneficialownership interests of a Global Security or for maintaining, supervising orreviewing any records relating to such beneficial ownership interests.

 

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Section 3.16.  Mutilated,Destroyed, Lost and Stolen Securities. If (i) any mutilated Security issurrendered to the Trustee, or the Company and the Trustee receive evidence totheir satisfaction of the destruction, loss or theft of any Security, and (ii)there is delivered to the Company and the Trustee such security or indemnity asmay be required by them to save each of them harmless, then, in the absence ofnotice to the Company or the Trustee that such Security has been acquired by abona fide purchaser, the Company shall execute and upon its request the Trusteeshall authenticate and make available for delivery, in exchange for or in lieuof any such mutilated, destroyed, lost or stolen Security, a new Security oflike tenor, series, stated maturity and principal amount, bearing a number notcontemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security hasbecome or is about to become due and payable, the Company in its discretionmay, instead of issuing a new Security, pay such Security.

 

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

 

Every new Security issued pursuant to this Section in lieu of anydestroyed, lost or stolen Security shall constitute an original additionalcontractual obligation of the Company, whether or not the destroyed, lost orstolen Security shall be at any time enforceable by anyone, and shall beentitled to all the benefits of this Indenture equally and proportionately withany and all other Securities of the same series duly issued hereunder.

 

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

 

Section 3.17.  Payment ofInterest;  Interest RightsPreserved.  Unless otherwise providedwith respect to such Security pursuant to Section 301, interest on anySecurity which is payable, and is punctually paid or duly provided for, on anyInterest Payment Date shall be paid to the Person in whose name that Security(or one or more Predecessor Securities) is registered at the close of businesson the Regular Record Date for such interest. Any interest on any Security which is payable, but is not punctuallypaid or duly provided for, on any Interest Payment Date (herein called “DefaultedInterest”) shall forthwith cease to be payable to the registered Holder on therelevant Regular Record Date by virtue of his having been such Holder; and,except as hereinafter provided, such Defaulted Interest may be paid by theCompany, at its election in each case, as provided in Clause (1)

or Clause (2) below:

 

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(1)                                  The Company may electto make payment of any Defaulted Interest to the Persons in whose names anysuch Securities (or their respective Predecessor Securities) are registered atthe close of business on a Special Record Date for the payment of suchDefaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee inwriting of the amount of Defaulted Interest proposed to be paid on each suchSecurity and the date of the proposed payment, and at the same time the Companyshall deposit with the Trustee an amount of money equal to the aggregate amountproposed to be paid in respect of such Defaulted Interest or shall makearrangements satisfac- tory to the Trustee for such deposit prior to the dateof the proposed payment, such money when deposited to be held in trust for thebenefit of the Persons entitled to such Defaulted Interest as in this Clause provided.  Thereupon the Trustee shall fix a SpecialRecord Date for the payment of such Defaulted Interest which shall be not morethan 15 nor less than 10 days prior to the date of the proposed payment and notless than 10 days after the receipt by the Trustee of the notice of theproposed payment.  The Trustee shallpromptly notify the Company of such Special Record Date and, in the name and atthe expense of the Company, shall cause notice of the proposed payment of suchDefaulted Interest and the Special Record Date therefor to be mailed, firstclass postage prepaid, to the Holder of each such Security at his address as itappears in the Security Register, not less than 10 days prior to such SpecialRecord Date.  Notice of the proposedpayment of such Defaulted Interest and the Special Record Date therefor havingbeen mailed as aforesaid, such Defaulted Interest shall be paid to the Personsin whose names such Securities (or their respective Predecessor Securities) areregistered on such Special Record Date and shall no longer be payable pursuantto the following Clause (2).

 

(2)                                  The Company may makepayment of any Defaulted Interest in any other lawful manner not inconsistentwith the requirements of any securities exchange on which such Securities maybe listed, and upon such notice as may be required by such exchange, if, afternotice given by the Company to the Trustee of the proposed payment pursuant tothis Clause, such manner of payment shall be deemed practicable by the Trustee.

 

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

 

Section 3.18.  PersonsDeemed Owners.  The Company, the Trusteeand any agent of the Company or the Trustee may treat the Person in whose nameany Security is registered as the owner of such Security for the purpose ofreceiving payment of principal of (and premium, if any), and (subject toSection 307) interest on, such Security and for all other purposeswhatsoever, whether or not such Security be overdue, and neither the Company,the Trustee nor any agent of the Company or the Trustee shall be affected bynotice to the contrary.

 

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Section 3.19. Cancellation.  All Securitiessurrendered for payment, redemption, transfer, or exchange or credit against asinking fund shall, if surrendered to any Person other than the Trustee, bedelivered to the Trustee and, if not already canceled, shall be promptlycanceled by it.  The Company may at anytime deliver to the Trustee for cancellation any Securities previously authenticatedand delivered hereunder which the Company may have acquired in any mannerwhatsoever, and all Securities so delivered shall be promptly canceled by theTrustee.  No Security shall beauthenticated in lieu of or in exchange for any Securities canceled as providedin this Section, except as expressly permitted by this Indenture.  The Trustee shall deliver all canceledSecurities to the Company.

 

Section 3.110.  Computationof Interest.  Unless otherwise providedas contemplated in Section 301, interest on the Securities shall becalculated on the basis of a 360-day year of twelve 30-day months.

 

Section 3.111. Medium-Term.  Notwithstanding anycontrary provision herein, if all Securities of a series are not to beoriginally issued at one time, it shall not be necessary for the Company to deliverto the Trustee an Officers’ Certificate, Board Resolution, supplementalindenture, Opinion of Counsel or Company Order otherwise required pursuant toSections 102, 202, 301 and 303 at or prior to the time of authentication ofeach Security of such series if such documents are delivered to the Trustee orits agent at or prior to the authentication upon original issuance of the firstSecurity of such series to be issued; provided that any subsequent request bythe Company to the Trustee to authenticate Securities of such series uponoriginal issuance shall constitute a representation and warranty by the Companythat as of the date of such request, the statements made in the Officers’Certificate or other certificates delivered pursuant to Sections 102 and 202shall be true and correct as if made on such date.

 

A Company Order, Officers’ Certificate or Board Resolution or supplemental indenture delivered bythe Company to the Trustee in the circumstances set forth in the precedingparagraph may provide that Securities which are the subject thereof will beauthenticated and delivered by the Trustee or its agent on original issue fromtime to time in the aggregate principal amount established for such seriespursuant to such procedures acceptable to the Trustee as may be specified fromtime to time by Company Order upon the telephonic, electronic or written orderof persons designated in such Company Order, Officers’ Certificate,supplemental indenture or Board Resolution (any such telephonic or electronic instructionsto be promptly confirmed in writing by such persons) and that such persons areauthorized to determine, consistent with such Company Order, Officers’Certificate, supplemental indenture or Board Resolution, such terms andconditions of said Securities as are specified in such Company Order, Officers’Certificate, supplemental indenture or Board Resolution.

 

Section 3.112.  CUSIPNumbers.  The Company in issuing theSecurities may use “CUSIP” numbers (if then generally in use), and, if so, theTrustee shall use “CUSIP” numbers in notices of redemption as a convenience toHolders; provided that any such notice may state that no representation is madeas to the correctness of such numbers either as printed on the Securities or ascontained in any notice of a redemption and that reliance may be placed only onthe other identification numbers printed on the Securities, and any suchredemption shall not be affected by any defect in or omission of suchnumbers.  The Company will promptlynotify the Trustee of any change in the “CUSIP” numbers.

 

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ARTICLE 4.  Satisfaction andDischarge.

 

Section 4.11.  Satisfactionand Discharge of Indenture.  ThisIndenture shall cease to be of further effect with respect to any series ofSecurities (except as to any surviving rights of conversion or transfer orexchange of Securities of such series expressly provided for herein or in theform of Security for such series), and the Trustee, on demand of and at theexpense of the Company, shall execute proper instruments acknowledgingsatisfaction and discharge of this Indenture as to such series when

 

(1)                                  either

 

(A)                              all Securities of thatseries theretofore authenticated and delivered (other than (i) Securities ofsuch series which have been destroyed, lost or stolen and which have beenreplaced or paid as provided in Section 306, and (ii) Securities of suchseries for whose payment money has theretofore been deposited in trust orsegregated and held in trust by the Company and thereafter repaid to theCompany or discharged from such trust, as provided in Section 1003) havebeen delivered to the Trustee canceled or for cancellation; or

 

(B)                                all such Securities ofthat series not theretofore canceled or delivered to the Trustee forcancellation

 

(i)                                     have become dueand payable, or

 

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

 

(iii)                               are to be called forredemption within one year under arrangements satisfactory to the Trustee forthe giving of notice of redemption by the Trustee in the name, and at theexpense, of the Company,

 

and the Company, in the case of (i), (ii) or (iii) above, has depositedor caused to be deposited with the Trustee as trust funds in trust for thepurpose an amount, which shall be immediately due and payable, sufficient topay and discharge the entire indebtedness on such Securities not thereforecanceled or delivered to the Trustee for cancellation, for principal (andpremium, if any) and interest to the date of such deposit (in the case ofSecurities which have become due and payable), or to the Stated Maturity orRedemption Date, as the case may be;

 

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(2)                                  the Company has paidor caused to be paid all other sums payable hereunder by the Company withrespect to the Securities of such series; and

 

(3)                                  the Company hasdelivered to the Trustee an Officers’ Certificate and an Opinion of Counseleach stating that all conditions precedent herein provided for relating to thesatisfaction and discharge of this Indenture with respect to the Securities ofsuch series have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture withrespect to any series of Securities, the obligations of the Company to theTrustee with respect to that series under Section 607 shall survive andthe obliga- tions of the Trustee under Sections 402 and 1003 shall survive.

 

Section 4.12.  Applicationof Trust Money.  All money and U.S.Government Obligations (as defined below) deposited with the Trustee pursuantto Section 401 or Section 403 shall be held in trust and thedeposited money and the money from the U.S. Government Obligations shall beapplied by it, in accordance with the provisions of the series of Securities inrespect of which it was deposited and this Indenture, to the payment, eitherdirectly or through any Paying Agent (including the Company acting as its ownPaying Agent) as the Trustee may determine, to the Persons entitled thereto, ofthe principal (and premium, if any) and interest for whose payment such moneyor U.S. Government Obligations has been deposited with the Trustee; but suchmoney and U.S. Government Obligations need not be segregated from other fundsexcept to the extent required by law. Any money received from principal or interest payments on any U.S.Government Obligations in excess of the amount needed or to be needed to paythe Securities with respect to which such U.S. Government Obligations weredeposited as provided in Section 4.01 or 4.03 shall be paid over to theCompany upon receipt of a Company Request together with the opinion of anationally recognized firm of independent public accountants expressed in a writtencertification thereof delivered to the Trustee to the effect that such money isin excess of the amount needed or to be needed to pay such Securities.

 

Section 4.13.  DefeasanceUpon Deposit of Funds or Government Obligations.  Unless pursuant to Section 301 provisionis made that this Section shall not be applicable to the Securities of anyseries, at the Company’s option, either (a) the Company shall be deemed to havebeen Discharged (as defined below) from its obligations with respect to anyseries of Securities after the applicable conditions set forth below have beensatisfied or (b) the Company shall cease to be under any obligation to complywith any term, provision or condition set forth in, at the election of theCompany, any or all of Sections 1006, 1007 and subsection (5) ofSection 501 (and any other Sections applicable to such Securities that aredetermined pursuant to Section 301 to be subject to this provision) withrespect to any series of Securities at any time after the applicable conditionsset forth below have been satisfied:

 

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(1)                                  the Company shallhave deposited or caused to be deposited irrevocably with the Trustee as trustfunds in trust, specifically pledged as security for, and dedicated solely to,the benefit of the Holders of the Securities of such series (i) money in anamount, or (ii) the equivalent in direct obligations of, or obligations theprincipal of and interest on which are fully guaranteed by, the United Statesof America (“U.S. Government Obligations”) which through the payment ofinterest and principal in respect thereof in accordance with their terms willprovide, not later than one day before the due date of any payment, money in anamount, or (iii) a combination of (i) and (ii), sufficient, in the opinion(with respect to (ii) and (iii)) of a nationally recognized firm of independentpublic accountants expressed in a written certification thereof delivered tothe Trustee, to pay and discharge each installment of principal (includingmandatory sinking fund payments) and any premium of, interest on and anyrepurchase obligations with respect to the outstanding Securities of suchseries on the dates such installments of interest or principal or repurchaseobligations are due;

 

(2)                                  no Event of Defaultor event (including such deposit) which with notice or lapse of time wouldbecome an Event of Default with respect to the Securities of such series shallhave occurred and be continuing on the date of such deposit; and

 

(3)                                  the Company shallhave delivered to the Trustee an Opinion of Counsel to the effect that Holdersof the Securities of such series will not recognize income, gain or loss forFederal income tax purposes as a result of the Company’s exercise of its optionunder this Section 403 and will be subject to Federal income tax on thesame amount and in the same manner and at the same times as would have been thecase if such option had not been exercised, and, in the case of Securitiesbeing Discharged, such opinion shall be based upon at least one of thefollowing authorities (issued, enacted or promulgated after the date of thisIndenture), substantially on point and to the foregoing effect: (i) a publicruling of the Internal Revenue service, (ii) a private ruling of the InternalRevenue Service issued to the Company with respect to the securities, (iii) aprovision of the Internal Revenue Code, or (iv) a final regulation promulgatedby the Department of the Treasury.

 

“Discharged” means that the Company shall be deemed to have paid anddischarged the entire indebtedness represented by, and obligations under, theSecurities of such series and to have satisfied all the obligations under thisIndenture relating to the Securities of such series (and the Trustee, at the expenseof the Company, shall execute proper instruments acknowledging the same),except (A) the rights of Holders of Securities to receive, from the trust funddescribed in clause (1) above, payment of the principal and any premium of andany interest on such Securities when such payments are due; (B) the Company’sobligations with respect to such Securities under Sections 305, 306, 402, 1002and 1003; and (C) the rights, powers, trusts, duties and immunities of theTrustee hereunder.

 

The Company shall pay and indemnify the Trustee against any tax, fee orother charge imposed on or assessed against the U.S.  Government Obligations deposited pursuant tothis Article or the principal and interest received in respect thereofother than any such tax, fee or other charge which by law is for the account ofthe Holders of Outstanding Securities.

 

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ARTICLE 5.  Remedies.

 

Section 5.11.  Events ofDefault.  “Event of Default”, whereverused herein, means with respect to any series of Securities any one of thefollowing events (whatever the reason for such Event of Default and whether itshall be voluntary or involuntary or be effected by operation of law orpursuant to any judgment, decree or order of any court or any order, rule orregulation of any administrative or governmental body), unless such event iseither inapplicable to a particular series or it is specifically deleted ormodified in or pursuant to the supplemental indenture or Board Resolutioncreating such series of Securities or in the form of Security for such series:

 

(1)                                  default in thepayment of any interest upon any Security of that series when it becomes dueand payable, and continuance of such default for a period of 30 days; or

 

(2)                                  default in the paymentof the principal of (or premium, if any, on) any Security of that series at itsMaturity; or

 

(3)                                  default in thepayment of any sinking or purchase fund or analogous obligation when the samebecomes due by the terms of the Securities of such series; or

 

(4)                                  default in theperformance, or breach, of any covenant, warranty or agreement of the Companyin this Indenture in respect of the Securities of such series (other than acovenant, warranty or agreement in respect of the Securities of such series a defaultin the performance of which or the breach of which is elsewhere in thisSection specifically dealt with), all of such covenants, warranties andagreements in the Indenture which are not expressly stated to be for thebenefit of a particular series of Securities being deemed in respect of theSecurities of all series for this purpose, and continuance of such default orbreach for a period of 90 days after receipt by the Company from the Trustee orby the Company and the Trustee from the Holders of at least 25% in principalamount of the Outstanding Securities of such series, a written notice, byregistered or certified mail, specifying such default or breach and requiringit to be remedied and stating that such notice is a “Notice of Default” hereunder;or

 

(5)                                  a default under anybond, debenture, note or other evidence of indebtedness for money borrowed bythe Company or any Restricted Subsidiary (other than the Securities), or underany mortgage, indenture or instrument under which there may be secured orevidenced any indebtedness for money borrowed by the Company or any RestrictedSubsidiary (other than the Securities), whether such indebtedness now exists orshall hereafter be created, which default shall have resulted in indebtednessin excess of $15,000,000 becoming due and payable prior to the date on which itwould otherwise have become due and payable, without such indebtedness havingbeen discharged or such acceleration having been rescinded, annulled or stayedwithin 30 days after the date on which written notice thereof is given to theCompany by the Trustee or to the Company and the Trustee by Holders of at least25% in principal amount of the Securities then outstanding hereunder; or

 

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(6)                                  the entry of an orderfor relief against the Company under the Federal Bankruptcy Act by a courthaving jurisdiction in the premises or a decree or order by a court havingjurisdiction in the premises adjudging the Company a bankrupt or insolventunder any other applicable Federal or State law, or the entry of a decree ororder approving as properly filed a petition seeking reorganization,arrangement, adjustment or composition of or in respect of the Company underthe Federal Bankruptcy Code or any other applicable Federal or State law, orappointing a receiver, liquidator, assignee, trustee, sequestrator (or othersimilar official) of the Company or of any substantial part of its property, orordering the winding up or liquidation of its affairs, and the continuance ofany such decree or order unstayed and in effect for a period of 90 consecutivedays; or

 

(7)                                  the consent by theCompany to the institution of bankruptcy or insolvency proceedings against it,or the filing by it of a petition or answer or consent seeking reorganizationor relief under the Federal Bankruptcy Code or any other applicable Federal orState law, or the consent by it to the filing of any such petition or to theappointment of a receiver, liquidator, assignee, trustee, sequestrator (orother similar official) of the Company or of any substantial part of itsproperty, or the making by it of a general assignment for the benefit ofcreditors or the admission by it in writing of its inability to pay its debtsgenerally as they become due; or

 

(8)                                  any other Event ofDefault provided in or pursuant to the supplemental indenture or BoardResolution under which such series of Securities is issued or in the form ofSecurity for such series.

 

Section 5.12.  Accelerationof Maturity; Rescission and Annulment. If an Event of Default described in paragraph (1), (2), (3), (4) or (8)(if the Event of Default under paragraph (4) or (8) is with respect to lessthan all series of Securities then outstanding) of Section 501 occurs andis continuing with respect to any series, then and in each and every such case,unless the principal of all the Securities of such series shall have alreadybecome due and payable, either the Trustee or the Holders of not less than 25%in aggregate principal amount of the Securities of such series then Outstandinghereunder (each such series acting as a separate class), by notice in writingto the Company (and to the Trustee if given by Holders), may declare theprincipal amount (or, if the Securities of such series are Original IssueDiscount Securities, such portion of the principal amount as may be specifiedin the terms of that series) of all the Securities of such series and allaccrued interest thereon to be due and payable immediately, and upon any suchdeclaration the same shall become and shall be immediately due and payable,anything in this Indenture or in the Securities of such series contained to thecontrary notwithstanding.  If an Event ofDefault described in paragraph (4) or (8) (if the Event of Default under paragraph(4) or (8) is with respect to all series of Securities then Outstanding), (5),(6) or (7) of Section 501 occurs and is continuing, then and in each andevery such case, unless the principal of all the Securities shall have alreadybecome due and payable, either the Trustee or the Holders of not less than 25%in aggregate principal amount of all the Securities then Outstanding hereunder(treated as one class), by notice in writing to the Company (and to the Trusteeif given by Holders), may declare the principal amount (or, if any Securitiesare Original Issue Discount Securities, such portion of the principal amount asmay be specified in the terms thereof) of all the Securities then Outstandingand all accrued interest thereon to be due and payable immediately, and uponany such declaration the same shall become and shall be immediately due andpayable, anything in this Indenture or in the Securities contained to thecontrary notwithstanding.

 

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At any timeafter such a declaration of acceleration has been made with respect to theSecurities of any or all series, as the case may be, and before a judgment ordecree for payment of the money due has been obtained by the Trustee ashereinafter in this Article provided, the Holders of a majority in principalamount of the Outstanding Securities of such series, by written notice to theCompany and the Trustee, shall rescind and annul such declaration and itsconsequences if

 

(1)           the Company has paidor deposited with the Trustee a sum sufficient to pay

 

(A)          all overdueinstallments of interest on the Securities of such series,

 

(B)           the principal of(and premium, if any, on) any Securities of such series which have become dueotherwise than by such declaration of acceleration, and interest thereon at therate or rates prescribed therefor by the terms of the Securities of suchseries, to the extent that payment of such interest is lawful,

 

(C)           interest uponoverdue installments of interest at the rate or rates prescribed therefor bythe terms of the Securities of such series to the extent that payment of suchinterest is lawful, and

 

(D)          all sums paid oradvanced by the Trustee hereunder and the reasonable compensation, expenses,disbursements and advances of the Trustee, its agents and counsel and all otheramounts due the Trustee under Section 607;

 

and

 

(2)           all Events ofDefault with respect to such series of Securities, other than the nonpayment ofthe principal of the Securities of such series which have become due solely bysuch acceleration, have been cured or waived as provided in Section 513.

 

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

 

Section5.13.  Collection of Indebtedness andSuits for Enforcement by Trustee.  TheCompany covenants that if

 

(1)           default is made inthe payment of any installment of interest on any Security of any series whensuch interest becomes due and payable, or

 

(2)           default is made inthe payment of the principal of (or premium, if any, on) any Security at theMaturity thereof, or

 

(3)           default is made inthe payment of any sinking or purchase fund or analogous obligation when thesame becomes due by the terms of the Securities of any series,

 

and any suchdefault continues for any period of grace provided with respect to theSecurities of such series, the Company will, upon demand of the Trustee, pay toit, for the benefit of the Holder of any such Security (or the Holders of anysuch series in the case of Clause (3) above), the whole amount then due andpayable on any such Security (or on the Securities of any such series in thecase of Clause (3) above) for principal (and premium, if any) and interest,with interest, to the extent that payment of such interest shall be legallyenforceable, upon the overdue principal (and premium, if any) and upon overdueinstall- ments of interest, at such rate or rates as may be prescribed thereforby the terms of any such Security (or of Securities of any such series in thecase of Clause (3) above); and, in addition thereto, such further amount asshall be sufficient to cover the costs and expenses of collection, includingthe reasonable compensation, expenses, disbursements and advances of the Trustee,its agents and counsel and all other amounts due the Trustee under Section 607.

 

If the Companyfails to pay such amounts forthwith upon such demand, the Trustee, in its ownname and as trustee of an express trust, may institute a judicial proceedingfor the collection of the sums so due and unpaid, and may prosecute suchproceeding to judgment or final decree, and may enforce the same against theCompany or any other obligor upon the Securities of such series and collect themoney adjudged or decreed to be payable in the manner provided by law out ofthe property of the Company or any other obligor upon such Securities, whereversituated.

 

If an Event ofDefault with respect to any series of Securities occurs and is continuing, theTrustee may in its discretion proceed to protect and enforce its rights and therights of the Holders of Securities of such series by such appropriate judicialproceedings as the Trustee shall deem most effectual to protect and enforce anysuch rights, whether for the specific enforcement of any covenant or agreementin this Indenture or in aid of the exercise of any power granted herein, or toenforce any other proper remedy.

 

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Section5.14.  Trustee May File Proofs of Claim.  In case of the pendency of any receivership,insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,composition or other judicial proceeding relative to the Company or any otherobligor upon the Securities or the property of the Company or of such otherobligor or their creditors, the Trustee (irrespective of whether the principalof the Securities shall then be due and payable as therein expressed or bydeclaration or otherwise and irre- spective of whether the Trustee shall have madeany demand on the Company for the payment of overdue principal or interest)shall be entitled and empowered, by intervention in such proceedings orotherwise,

 

(i)            to file and prove aclaim for the whole amount of principal (and premium, if any) and interestowing and unpaid in respect of the Securities and to file such other papers ordocuments as may be necessary and advisable in order to have the claims of theTrustee (including any claim for the reasonable compensation, expenses,disbursements and advances of the Trustee, its agents and counsel and all otheramounts due the Trustee under Section 607) and of the Securityholders allowedin such judicial proceeding, and

 

(ii)           to collect andreceive any moneys or other property payable or deliverable on any such claimsand to distribute the same;

 

and any receiver, assignee,trustee, liquidator, sequestrator (or other similar official) in any suchjudicial proceeding is hereby authorized by each Securityholder to make suchpayment to the Trustee and in the event that the Trustee shall consent to themaking of such payments directly to the Securityholders, to pay to the Trusteeany amount due to it for the reasonable compensation, expenses, disbursementsand advances of the Trustee, its agents and counsel, and any other amounts duethe Trustee under Section 607.

 

Nothing hereincontained shall be deemed to authorize the Trustee to authorize or consent toor accept or adopt on behalf of any Securityholder any plan of reorganization,arrangement, adjustment or composition affecting the Securities or the rightsof any Holder thereof, or to authorize the Trustee to vote in respect of theclaim of any Securityholder in any such proceeding.

 

Section5.15.  Trustee May Enforce Claims WithoutPossession of Securities.  All rights ofaction and claims under this Indenture or the Securities of any series may beprosecuted and enforced by the Trustee without the possession of any of theSecurities of such series or the production thereof in any proceeding relatingthereto, and any such proceeding instituted by the Trustee shall be brought inits own name as trustee of an express trust, and any recovery of judgment shallafter provision for the payment of the reasonable compensation, expenses,disbursements and advances of the Trustee, its agent and counsel and any otheramounts due the Trustee under Section 607, be for the ratable benefit of theHolders of the Securities of the series in respect of which such judgment hasbeen recovered.

 

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Section5.16.  Application of MoneyCollected.  Any money collected by theTrustee with respect to a series of Securities pursuant to this Article shallbe applied in the following order, at the date or dates fixed by the Trusteeand, in case of the distribution of such money on account of principal (orpremium, if any) or interest, upon presentation of the Securities of suchseries and the notation thereon of the payment if only partially paid and uponsurrender thereof if fully paid:

 

FIRST:       To the payment ofall amounts due the Trustee under Section 607.

 

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

 

THIRD:     If any, to the Company.

 

Section5.17.  Limitation on Suits.  No Holder of any Security of any series shallhave any right to institute any proceeding, judicial or otherwise, with respectto this Indenture, or for the appointment of a receiver or trustee, or for anyother remedy hereunder, unless

 

(1)           such Holder haspreviously given written notice to the Trustee of a continuing Event of Defaultwith respect to Securities of such series;

 

(2)           the Holders of notless than 25% in principal amount of the Outstanding Securities of such seriesshall have made written request to the Trustee to institute proceedings inrespect of such Event of Default in its own name as Trustee hereunder;

 

(3)           such Holder orHolders have offered to the Trustee reasonable indemnity against the costs, expensesand liabilities to be incurred in compliance with such request;

 

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

 

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

 

it being understood andintended that no one or more Holders of Securities of such series shall haveany right in any manner whatever by virtue of, or by availing of, any provisionof this Indenture to affect, disturb or prejudice the rights of any otherHolders of Securities of such series, or to obtain or to seek to obtainpriority or preference over any other such Holders or to enforce any rightunder this Indenture, except in the manner herein provided and for the equaland proportionate benefit of all the Holders of all Securities of such series.

 

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Section5.18.  Unconditional Right ofSecurityholders To Receive Principal, Premium and Interest.  Notwithstanding any other provisions in thisIndenture, the Holder of any Security shall have the right, which is absoluteand unconditional, to receive payment of the principal of (and premium, if any)and (subject to Section 307) interest on such Security on the respective StatedMaturities expressed in such Security (or, in the case of redemption orrepayment, on the Redemption Date or Repayment Date, as the case may be) and toinstitute suit for the enforcement of any such payment, and such right shallnot be impaired without the consent of such Holder.

 

Section5.19.  Restoration of Rights andRemedies.  If the Trustee or anySecurityholder has instituted any proceeding to enforce any right or remedyunder this Indenture and such proceeding has been discontinued or abandoned forany reason, then and in every such case the Company, the Trustee and theSecurityholders shall, subject to any determination in such proceeding, berestored severally and respectively to their former positions hereunder, andthereafter all rights and remedies of the Trustee and the Securityholders shallcontinue as though no such proceeding had been instituted.

 

Section 5.110.  Rights and Remedies Cumulative.  No right or remedy herein conferred upon orreserved to the Trustee or to the Securityholders is intended to be exclusiveof any other right or remedy, and every right and remedy shall, to the extentpermitted by law, be cumulative and in addition to every other right and remedygiven hereunder or now or hereafter existing at law or in equity or otherwise(except as provided in the last sentence of Section 306).  The assertion or employment of any right orremedy hereunder, or otherwise, shall not prevent the concurrent assertion oremployment of any other appropriate right or remedy.

 

Section5.111.  Delay or Omission NotWaiver.  No delay or omission of theTrustee or of any Holder of any Security to exercise any right or remedyaccruing upon any Event of Default shall impair any such right or remedy orconstitute a waiver of any such Event of Default or an acquiescencetherein.  Every right and remedy given bythis Article or by law to the Trustee or to the Securityholders may beexercised from time to time, and as often as may be deemed expedient, by theTrustee or by the Securityholders, as the case may be.

 

Section5.112.  Control by Securityholders.  The Holders of a majority in principal amountof the Outstanding Securities of any series shall have the right to direct thetime, method and place of conducting any proceeding for any remedy available tothe Trustee or exercising any trust or power conferred on the Trustee withrespect to the Securities of such series, provided that

 

(1)           the Trustee shallhave the right to decline to follow any such direction if the Trustee, beingadvised by counsel, determines that the action so directed may not lawfully betaken or would conflict with this Indenture or if the Trustee in good faithshall, by a Responsible Officer, determine that the proceedings so directedwould involve it in personal liability or be unjustly prejudicial to theHolders not taking part in such direction, and

 

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(2)           the Trustee may takeany other action deemed proper by the Trustee which is not inconsistent withsuch direction.

 

Section5.113.  Waiver of Past Defaults.  The Holders of not less than a majority inprincipal amount of the Outstanding Securities of any series may on behalf ofthe Holders of all the Securities of such series waive any past defaulthereunder with respect to such series and its consequences, except a defaultnot theretofore cured

 

(1)           in the payment ofthe principal of (or premium, if any) or interest on any Security of suchseries, or in the payment of any sinking or purchase fund or analogousobligation with respect to the Securities of such series, or

 

(2)           in respect of acovenant or provision hereof which under Article Nine cannot be modified oramended without the consent of the Holder of each Outstanding Security of suchseries.

 

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

 

Section5.114.  Undertaking for Costs.  All parties to this Indenture agree, and eachHolder of any Security by his acceptance thereof shall be deemed to haveagreed, that any court may in its discretion require, in any suit for theenforcement of any right or remedy under this Indenture, or in any suit againstthe Trustee for any action taken or omitted by it as Trustee, the filing by anyparty litigant in such suit of an undertaking to pay the costs of such suit,and that such court may in its discretion assess reasonable costs, includingreasonable attorneys' fees and expenses, against any party litigant in suchsuit, having due regard to the merits and good faith of the claims or defensesmade by such party litigant; but the provisions of this Section shall not applyto any suit instituted by the Trustee, or to any suit instituted by anySecurityholder for the enforcement of the payment of the principal of (orpremium, if any) or interest on any Security on or after the respective StatedMaturities expressed in such Security (or, in the case of redemption orrepayment, on or after the Redemption Date or Repayment Date, as the case maybe).

 

ARTICLE 6.  The Trustee.

 

Section6.11.  Certain Duties andResponsibilities.

 

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

 

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(1)           the Trusteeundertakes to perform such duties and only such duties as are specifically setforth in this Indenture with respect to the Securities of such series, and noimplied covenants or obligations shall be read into this Indenture against theTrustee; and

 

(2)           in the absence ofbad faith on its part, the Trustee may, with respect to Securities of suchseries conclusively rely, as to the truth of the statements and the correctnessof the opinions expressed therein, upon certificates or opinions furnished tothe Trustee and conforming to the requirements of this Indenture, but in thecase of any such certificates or opinions which by any provision hereof arespecifically required to be furnished to the Trustee, the Trustee shall beunder a duty to examine the same to determine whether or not they conform tothe requirements of this Indenture (but need not confirm or investigate theaccuracy of mathematical calculations or other facts stated therein).

 

(b)           In case an Event ofDefault with respect to any series of Securities has occurred and iscontinuing, the Trustee shall exercise with respect to the Securities of suchseries such of the rights and powers vested in it by this Indenture, and usethe same degree of care and skill in their exercise, as a prudent person wouldexercise or use under the circumstances in the conduct of such person's ownaffairs.

 

(c)           No provision of thisIndenture shall be construed to relieve the Trustee from liability for its ownnegligent action, its own negligent failure to act, or its own willfulmisconduct, except that

 

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

 

(2)           the Trustee shallnot be liable for any error of judgment made in good faith by a ResponsibleOfficer, unless it shall be proved that the Trustee was negligent inascertaining the pertinent facts;

 

(3)           the Trustee shallnot be liable with respect to any action taken or omitted to be taken by it ingood faith in accordance with the direction of the Holders of a majority inprincipal amount of the Outstanding Securities of any series relating to thetime, method and place of conducting any proceeding for any remedy available tothe Trustee, or exercising any trust or power conferred upon the Trustee, underthis Indenture with respect to the Securities of such series; and

 

(4)           no provision of thisIndenture shall require the Trustee to expend or risk its own funds orotherwise incur any financial liability in the performance of any of its dutieshereunder, or in the exercise of any of its rights or powers, if it shall havereasonable grounds for believing that repayment of such funds or adequateindemnity against such risk or liability is not reasonably assured to it.

 

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(d)           Whether or nottherein expressly so provided, every provision of this Indenture relating tothe conduct or affecting the liability of or affording protection to theTrustee shall be subject to the provisions of this Section.

 

Section 6.12.  Notice of Defaults.  Within 90 days after the occurrence of anydefault hereunder with respect to Securities of any series, the Trustee shalltransmit by mail to all Securityholders of such series, as their names andaddresses appear in the Security Register, notice of such default hereunderactually known to the Trustee, unless such default shall have been cured orwaived; provided, however, that, except in the case of a default in the paymentof the principal of (or premium, if any) or interest on any Security of suchseries or in the payment of any sinking or purchase fund installment oranalogous obligation with respect to Securities of such series, the Trusteeshall be protected in withholding such notice if and so long as the board ofdirectors, the executive committee or a trust committee of directors and/orResponsible Officers of the Trustee in good faith determine that thewithholding of such notice is in the interests of the Securityholders of suchseries; and provided, further, that in the case of any default of the characterspecified in Section 501(4) with respect to Securities of such series no suchnotice to Securityholders of such series shall be given until at least 90 daysafter the occurrence thereof.  For thepurpose of this Section, the term "default", with respect toSecurities of any series, means any event which is, or after notice or lapse oftime or both would become, an Event of Default with respect to Securities ofsuch series.

 

Section6.13.  Certain Rights of Trustee.  Except as otherwise provided in Section 601:

 

(a)           the Trustee mayconclusively rely and shall be protected in acting or refraining from actingupon any resolution, certificate, statement, instrument, opinion, report,notice, request, direction, consent, order, bond, debenture, note, otherevidence of indebtedness or other paper or document believed by it to begenuine and to have been signed or presented by the proper party or parties;

 

(b)           any request ordirection of the Company mentioned herein shall be sufficiently evidenced by aCompany Request or Company Order and any resolution of the Board of Directorsmay be sufficiently evidenced by a Board Resolution;

 

(c)           whenever in theadministration of this Indenture the Trustee shall deem it desirable that amatter be proved or established prior to taking, suffering or omitting anyaction hereunder, the Trustee (unless other evidence be herein specificallyprescribed) may, in the absence of bad faith on its part, rely upon anOfficers' Certificate;

 

(d)           the Trustee may consultwith counsel of its selection and the advice of such counsel or any Opinion ofCounsel shall be full and complete authorization and protection in respect ofany action taken, suffered or omitted by it hereunder in good faith and inreliance thereon;

 

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(e)           the Trustee shall beunder no obligation to exercise any of the rights or powers vested in it bythis Indenture at the request or direction of any of the Securityholderspursuant to this Indenture, unless such Securityholders shall have offered tothe Trustee reasonable security or indemnity against the costs, expenses andliabilities which might be incurred by it in compliance with such request ordirection;

 

(f)            the Trustee shallnot be bound to make any investigation into the facts or matters stated in anyresolution, certificate, statement, instrument, opinion, report, notice,request, direction, consent, order, bond, debenture, note, other evidence ofindebtedness or other paper or document, but the Trustee, in its discretion,may make such further inquiry or investigation into such facts or matters as itmay see fit, and, if the Trustee shall determine to make such further inquiryor investigation, it shall be entitled to examine the books, records andpremises of the Company, personally or by agent or attorney (which shall be atthe sole cost of the Company in the event that such inquiry or investigationwas undertaken by the Trustee in the exercise of its reasonable discretion onbehalf of the Holders) and shall incur no liability or additional liability ofany kind by reason of such inquiry or investigation;

 

(g)           the Trustee mayexecute any of the trusts or powers hereunder or perform any duties hereundereither directly or by or through agents or attorneys and the Trustee shall notbe responsible for any misconduct or negligence on the part of any agent orattorney appointed with due care by it hereunder;

 

(h)           the Trustee shallnot be liable for any action taken, suffered, or omitted to be taken by it ingood faith and reasonably believed by it to be authorized or within thediscretion or rights or powers conferred upon it by this Indenture; and

 

(i)            the Trustee shallnot be deemed to have notice of any default or Event of Default unless a ResponsibleOfficer of the Trustee has actual knowledge thereof or unless written notice ofany event which is in fact such a default is received by the Trustee at theCorporate Trust Office of the Trustee, and such notice references theSecurities and this Indenture.

 

Section6.14.  Not Responsible for Recitals orIssuance of Securities.  The recitalscontained herein and in the Securities, except the certificates ofauthentication, shall be taken as the statements of the Company, and theTrustee assumes no responsibility for their correctness.  The Trustee makes no representations as tothe validity or sufficiency of this Indenture or of the Securities.  The Trustee shall not be accountable for theuse or application by the Company of Securities or the proceeds thereof.

 

Section6.15.  May Hold Securities.  The Trustee, any Paying Agent, the SecurityRegistrar or any other agent of the Company, in its individual or any othercapacity, may become the owner or pledgee of Securities and, subject toSections 608 and 613, may otherwise deal with the Company with the same rightsit would have if it were not Trustee, Paying Agent, Security Registrar or suchother agent.

 

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Section6.16.  Money Held in Trust.  Subject to the provisions of Section 1003hereof, all moneys received by the Trustee shall, until used or applied asherein provided, be held in trust for the purposes for which they werereceived, but need not be segregated from other funds except to the extent requiredby law.  The Trustee shall be under noliability for interest on any money received by it hereunder except asotherwise agreed in writing with the Company.

 

Section6.17.  Compensation andReimbursement.  The Company agrees

 

(1)           to pay to theTrustee from time to time such compensation as the Company and the Trusteeshall from time to time agree in writing for all services rendered by ithereunder (which compensation shall not be limited by any provision of law inregard to the compensation of a trustee of an express trust);

 

(2)           except as otherwiseexpressly provided herein to reimburse the Trustee upon its request for allreasonable expenses, disbursements and advances incurred or made by the Trusteein accordance with any provision of this Indenture (including the reasonablecompensation and the expenses and disbursements of its agents and counsel),except any such expense, disbursement or advance as may be attributable to itsnegligence or bad faith; and

 

(3)           to indemnify each ofthe Trustee or any predecessor Trustee for, and to hold it harmless against,any and all losses, damages, claims, liabilities or expenses, including taxes(other than taxes based upon, measured by, or determined by the income of theTrustee), incurred without negligence or bad faith on its part, arising out ofor in connection with the acceptance or administration of this trust, includingthe costs and expenses of defending itself against any claim or liability inconnection with the exercise or performance of any of its powers or dutieshereunder.

 

As securityfor the performance of the obligations of the Company under this Section theTrustee shall have a lien prior to the Securities upon all property and fundsheld or collected by the Trustee as such, except funds held in trust for thepayment of principal of (and premium, if any) or interest on particularSecurities.

 

When theTrustee incurs expenses or renders services in connection with an Event ofDefault specified in Section 501(6) or Section 501(7), the expenses (includingthe reasonable charges and expenses of its counsel) and the compensation forthe services are intended to constitute expenses of administration under anyapplicable Federal or State bankruptcy, insolvency or other similar law.

 

The provisionsof this Section shall survive the termination of this Indenture.

 

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Section6.18.  Disqualification; ConflictingInterests.  The Trustee for theSecurities of any series issued hereunder shall be subject to the provisions ofSection 310(b) of the Trust Indenture Act during the period of time providedfor therein.  In determining whether theTrustee has a conflicting interest as defined in Section 310(b) of the TrustIndenture Act with respect to the Securities of any series, there shall beexcluded this Indenture with respect to Securities of any particular series ofSecurities other than that series. Nothing herein shall prevent the Trustee from filing with the Commissionthe application referred to in the second to last paragraph of Section 310(b)of the Trust Indenture Act.

 

Section6.19.  Corporate Trustee Required;Eligibility.  There shall at all times bea Trustee hereunder with respect to each series of Securities, which shall beeither

 

(i)            a corporation organizedand doing business under the laws of the United States of America or of anyState, authorized under such laws to exercise corporate trust powers andsubject to supervision or examination by Federal or State authority, or

 

(ii)           a corporation orother Person organized and doing business under the laws of a foreigngovernment that is permitted to act as Trustee pursuant to a rule, regulationor order of the Commission, authorized under such laws to exercise corporatetrust powers, and subject to supervision or examination by authority of suchforeign government or a political subdivision thereof substantially equivalentto supervision or examination applicable to United States institutionaltrustees,

 

in either case having acombined capital and surplus of at least $50,000,000.  If such corporation publishes reports ofcondition at least annually, pursuant to law or to the requirements of theaforesaid supervising or examining authority, then for the purposes of thisSection, the combined capital and surplus of such corporation shall be deemedto be its combined capital and surplus as set forth in its most recent reportof condition so published.  Neither theCompany nor any person directly or indirectly controlling, controlled by, orunder common control with the Company shall serve as trustee for the Securitiesof any series issued hereunder.  If atany time the Trustee with respect to any series of Securities shall cease to beeligible in accordance with the provisions of this Section, it shall resign immediatelyin the manner and with the effect specified in Section 610.

 

Section6.110.  Resignation of Successor.

 

(a)           No resignation orremoval of the Trustee and no appointment of a successor Trustee pursuant tothis Article shall become effective until the acceptance of appointment by thesuccessor Trustee under Section 611.

 

(b)           The Trustee mayresign with respect to any series of Securities at any time by giving writtennotice thereof to the Company.  If aninstrument of acceptance by a successor Trustee shall not have been deliveredto the Trustee within 30 days after the giving of such notice of resignation,the resigning Trustee may petition, at the expense of the Company, any court ofcompetent jurisdiction for the appointment of a successor Trustee.

 

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(c)           The Trustee may beremoved with respect to any series of Securities at any time by Act of theHolders of a majority in principal amount of the Outstanding Securities of thatseries, delivered to the Trustee and to the Company.  If an instrument of acceptance by a successorTrustee shall not have been delivered to the Trustee within 30 days after thegiving of such notice of removal, the Trustee subject to removal may petitionany court of competent jurisdiction for the appointment of a successor Trustee.

 

(d)           If at any time:

 

(1)           the Trustee shallfail to comply with Section 310(b) of the Trust Indenture Act pursuant toSection 608 with respect to any series of Securities after written requesttherefor by the Company or by any Securityholder who has been a bona fideHolder of a Security of that series for at least 6 months, or

 

(2)           the Trustee shallcease to be eligible under Section 609 with respect to any series of Securitiesand shall fail to resign after written request therefor by the Company or byany such Securityholder, or

 

(3)           the Trustee shallbecome incapable of acting with respect to any series of Securities, or

 

(4)           the Trustee shall beadjudged a bankrupt or insolvent or a receiver of the Trustee or of itsproperty shall be appointed or any public officer shall take charge or controlof the Trustee or of its property or affairs for the purpose of rehabilitation,conservation or liquidation,

 

then, in any such case, (i) theCompany by a Board Resolution may remove the Trustee, with respect to theseries, or in the case of Clause (4), with respect to all series, or (ii)subject to Section 514, any Securityholder who has been a bona fide Holder of aSecurity of such series for at least 6 months may, on behalf of himself and allothers similarly situated, petition any court of competent jurisdiction for theremoval of the Trustee and the appointment of a successor Trustee with respectto the series, or, in the case of Clause (4), with respect to all series.

 

(e)           If the Trustee shallresign, be removed or become incapable of acting with respect to any series ofSecurities, or if a vacancy shall occur in the office of the Trustee withrespect to any series of Securities for any cause, the Company, by a BoardResolution, shall promptly appoint a successor Trustee for that series ofSecurities.  If, within one year aftersuch resignation, removal or incapacity, or the occurrence of such vacancy, asuccessor Trustee with respect to such series of Securities shall be appointedby Act of the Holders of a majority in principal amount of the OutstandingSecurities of such series delivered to the Company and the retiring Trustee,the successor Trustee so appointed shall, forthwith upon its acceptance of suchappointment, become the successor Trustee with respect to such series andsupersede the successor Trustee appointed by the Company with respect to suchseries.  If no successor Trustee withrespect to such series shall have been so appointed by the Company or theSecurityholders of such series and accepted appointment in the mannerhereinafter provided, subject to Section 514, any Securityholder who has been abona fide Holder of a Security of that series for at least 6 months may, onbehalf of himself and all others similarly situated, petition any court ofcompetent jurisdiction for the appointment of a successor Trustee with respectto such series.

 

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(f)            The Company shallgive notice of each resignation and each removal of the Trustee with respect toany series and each appointment of a successor Trustee with respect to anyseries by mailing written notice of such event by first-class mail, postageprepaid, to the Holders of Securities of that series as their names andaddresses appear in the Security Register. Each notice shall include the name of the successor Trustee and theaddress of its principal Corporate Trust office.

 

Section6.111.  Acceptance of Appointment bySuccessor.   Every successor Trusteeappointed hereunder shall execute, acknowledge and deliver to the Company andto the predecessor Trustee an instrument accepting such appointment, andthereupon the resignation or removal of the predecessor Trustee shall becomeeffective with respect to any series as to which it is resigning or beingremoved as Trustee, and such successor Trustee, without any further act, deedor conveyance, shall become vested with all the rights, powers, trusts andduties of the predecessor Trustee with respect to any such series; but, onrequest of the Company or the successor Trustee, such predecessor Trusteeshall, upon payment of its reasonable charges, if any, execute and deliver aninstrument transferring to such successor Trustee all the rights, powers andtrusts of the predecessor Trustee, and shall duly assign, transfer and deliverto such successor Trustee all property and money held by such predecessorTrustee hereunder with respect to all or any such series, subject neverthelessto its lien, if any, provided for in Section 607.  Upon request of any such successor Trustee,the Company shall execute any and all instruments for more fully and certainlyvesting in and confirming to such successor Trustee all such rights, powers andtrusts.

 

In case of theappointment hereunder of a successor Trustee with respect to the Securities ofone or more (but not all) series, the Company, the predecessor Trustee and eachsuccessor Trustee with respect to the Securities of any applicable series shallexecute and deliver an indenture supplemental hereto which shall contain suchprovisions as shall be deemed necessary or desirable to confirm that all therights, powers, trusts and duties of the predecessor Trustee with respect tothe Securities of any series as to which the predecessor Trustee is not beingsucceeded shall continue to be vested in the predecessor Trustee, and shall addto or change any of the provisions of this Indenture as shall be necessary toprovide for or facilitate the adminis- tration of the trusts hereunder by morethan one Trustee, it being understood that nothing herein or in suchsupplemental indenture shall constitute such Trustees co-trustees of the sametrust and that each such Trustee shall be Trustee of a trust or trustshereunder separate and apart from any trust or trusts hereunder administered byany other such Trustee.

 

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No successorTrustee with respect to any series of Securities shall accept its appointmentunless at the time of such acceptance such successor Trustee shall be qualifiedand eligible with respect to that series under this Article.

 

Section6.112.  Merger, Conversion, Consolidationor Succession to Business.  Anycorporation into which the Trustee may be merged or converted or with which itmay be consolidated, or any corporation resulting from any merger, conversionor consolidation to which the Trustee shall be a party, or any corporationsucceeding to all or substantially all of the corporate trust business of theTrustee, shall be the successor of the Trustee hereunder, provided suchcorporation shall be otherwise qualified and eligible under this Article,without the execution or filing of any paper or any further act on the part ofany of the parties hereto.  In case anySecurities shall have been authenticated, but not delivered, by the Trusteethen in office, any successor by merger, conversion or consolidation to suchauthenticating Trustee may adopt such authentication and deliver the Securitiesso authenticated with the same effect as if such successor Trustee had itselfauthenticated such Securities.

 

Section6.113.  Preferential Collection of ClaimsAgainst Company.

 

(a)           Subject toSubsection (b) of this Section, if the Trustee shall be or shall become acreditor, directly or indirectly, secured or unsecured, of the Company within 3months prior to a default, as defined in Subsection (c) of this Section, orsubsequent to such a default, then, unless and until such default shall becured, the Trustee shall set apart and hold in a special account for thebenefit of the Trustee individually, the Holders of the Securities and theholders of other indenture securities (as defined in Subsection (c) of thisSection):

 

(1)           an amount equal toany and all reduction in the amount due and owing upon any claim as suchcreditor in respect of principal or interest, effected after the beginning ofsuch 3-month period and valid as against the Company and its other creditors,except any such reduction resulting from the receipt or disposition of anyproperty described in paragraph (2) of this Subsection, or from the exercise ofany right of set-off which the Trustee could have exercised if a petition inbankruptcy had been filed by or against the Company upon the date of suchdefault; and

 

(2)           all propertyreceived by the Trustee in respect of any claim as such creditor, either assecurity therefor, or in satisfaction or composition thereof, or otherwise,after the beginning of such 3-month period, or an amount equal to the proceedsof any such property, if disposed of, subject, however, to the rights, if any,of the Company and its other creditors in such property or such proceeds.

 

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

 

(A)                              toretain for its own account (i) payments made on account of any such claim byany Person (other than the Company) who is liable thereon, and (ii) theproceeds of the bona fide sale of any such claim by the Trustee to a thirdperson, and (iii) distributions made in cash, securities or other property inrespect of claims filed against the Company in bankruptcy or receivership or inproceedings for reorganization pursuant to the Federal Bankruptcy Act orapplicable State law;

 

(B)                                torealize, for its own account, upon any property held by it as security for anysuch claim, if such property was so held prior to the beginning of such 3-monthperiod;

 

(C)                                torealize, for its own account, but only to the extent of the claim hereinaftermentioned, upon any property held by it as security for any such claim, if suchclaim was created after the beginning of such 3-month period and such propertywas received as security therefor simultaneously with the creation thereof, andif the Trustee shall sustain the burden of proving that at the time suchproperty was so received the Trustee had no reasonable cause to believe that adefault as defined in Subsection (c) of this Section would occur within 3months; or

 

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

 

For thepurposes of paragraphs (B), (C) and (D), property substituted after thebeginning of such 3-month period for property held as security at the time ofsuch substitution shall, to the extent of the fair value of the propertyreleased, have the same status as the property released, and, to the extentthat any claim referred to in any of such paragraphs is created in renewal ofor in substitution for or for the purpose of repaying or refunding anypre-existing claim of the Trustee as such creditor, such claim shall have thesame status as such pre-existing claim.

 

If the Trusteeshall be required to account, the funds and property held in such specialaccount and the proceeds thereof shall be apportioned between the Trustee, theSecurityholders and the holders of other indenture securities in such mannerthat the Trustee, the Securityholders and the holders of other indenturesecurities realize, as a result of payments from such special account andpayments of dividends on claims filed against the Company in bankruptcy orreceivership or in proceedings for reorganization pursuant to the FederalBankruptcy Act or applicable State law, the same percentage of their respectiveclaims, figured before crediting to the claim of the Trustee anything onaccount of the receipt by it from the Company of the funds and property in suchspecial Account and before crediting to the respective claims of the Trusteeand the Securityholders and the holders of other indenture securities dividendson claims filed against the Company in bankruptcy or receivership or inproceedings for reorganization pursuant to the Federal Bankruptcy Act orapplicable State law, but after crediting thereon receipts on account of theindebtedness represented by their respective claims from all sources other thanfrom such dividends and from the funds and property so held in such specialaccount.  As used in this paragraph, withrespect to any claim, the term "dividends" shall include anydistribution with respect to such claim, in bankruptcy or receivership orproceedings for reorganization pursuant to the Federal Bankruptcy Act orapplicable State law, whether such distribution is made in cash, securities, orother property, but shall not include any such distribution with respect to thesecured portion, if any, of such claim. The court in which such bankruptcy, receivership or proceedings forreorganization is pending shall have jurisdiction (i) to apportion between theTrustee and the Securityholders and the holders of other indenture securities,in accordance with the provisions-of this paragraph, the funds and propertyheld in such special account and proceeds thereof, or (ii) in lieu of suchapportionment, in whole or in part, to give to the provisions of this paragraphdue consideration in determining the fairness of the distributions to be madeto the Trustee and the Securityholders and the holders of other indenturesecurities with respect to their respective claims, in which event it shall notbe necessary to liquidate or to appraise the value of any securities or otherproperty held in such special account or as security for any such claim, or tomake a specific allocation of such distributions as between the secured andunsecured portions of such claims, or otherwise to apply the provisions of thisparagraph as a mathematical formula.

 

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Any Trusteewhich has resigned or been removed after the beginning of such 3-month periodshall be subject to the provisions of this Subsection as though suchresignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning ofsuch 3-month period, it shall be subject to the provisions of this Subsectionif and only if the following conditions exist:

 

(i)            the receipt ofproperty or reduction of claim, which would have given rise to the obligationto account, if such Trustee had continued as Trustee, occurred after thebeginning of such 3-month period; and

 

(ii)           such receipt ofproperty or reduction of claim occurred within 3 months after such resignationor removal.

 

(b)           There shall beexcluded from the operation of Subsection (a) of this Section a creditorrelationship arising from

 

(1)           the ownership oracquisition of securities issued under any indenture or any security orsecurities having a maturity of one year or more at the time of acquisition bythe Trustee;

 

(2)           advances authorizedby a receivership or bankruptcy court of competent jurisdiction, or by thisIndenture, for the purpose of preserving any property which shall at any timebe subject to the lien of this Indenture or of discharging tax liens or otherprior liens or encumbrances thereon, if notice of such advances and of thecircumstances surrounding the making thereof is given to the Securityholders atthe time and in the manner provided in this Indenture;

 

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(3)           disbursements madein the ordinary course of business in the capacity of trustee under anindenture, transfer agent, registrar, custodian, paying agent, fiscal agent ordepository, or other similar capacity;

 

(4)           an indebtednesscreated as a result of services rendered or premises rented; or an indebtednesscreated as a result of goods or securities sold in a cash transaction asdefined in Subsection (c) of this Section;

 

(5)           the ownership ofstock or of other securities of a corporation organized under the provisions ofSection 25(a) of the Federal Reserve Act, as amended, which is directly orindirectly a creditor of the Company; or

 

(6)           the acquisition,ownership, acceptance or negotiation of any drafts, bills of exchange,acceptances or obligations which fall within the classification ofself-liquidating paper as defined in Subsection (c) of this Section.

 

(c)           For the purposes ofthis Section only:

 

(1)           The term"default" means any failure to make payment in full of the principalof or interest on any of the Securities or upon the other indenture securitieswhen and as such principal or interest becomes due and payable.

 

(2)           The term "otherindenture securities" means securities upon which the Company is anobligor outstanding under any other indenture (i) under which the Trustee isalso trustee, (ii) which contains provisions substantially similar to theprovisions of this Section, and (iii) under which a default exists at the timeof the apportionment of the funds and property held in such special account.

 

(3)           The term "cashtransaction" means any transaction in which full payment for goods orsecurities sold is made within 7 days after delivery of the goods or securitiesin currency or in checks or other orders drawn upon banks or bankers and payableupon demand.

 

(4)           The term"self-liquidating paper" means any draft, bill of exchange,acceptance or obligation which is made, drawn, negotiated or incurred by theCompany for the purpose of financing the purchase, processing, manufacturing,shipment, storage or sale of goods, wares or merchandise and which is securedby documents evidencing title to, possession of, or a lien upon, the goods,wares or merchandise or the receivables or proceeds arising from the sale ofthe goods, wares or merchandise previously constituting the security, providedthe security is received by the Trustee simultaneously with the creation of thecreditor relationship with the Company arising from the making, drawing,negotiating or incurring of the draft, bill of exchange, acceptance orobligation.

 

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(5)           The term"Company" means any obligor upon the Securities.

 

Section6.114.  Appointment of AuthenticationAgent.  At any time when any of theSecurities remain Outstanding the Trustee, with the approval of the Company,may appoint an Authenticating Agent or Agents with respect to one or moreseries of Securities which shall be authorized to act on behalf of the Trusteeto authenticate Securities of such series issued upon exchange, registration oftransfer or partial redemption thereof or pursuant to Section 306, andSecurities so authenticated shall be entitled to the benefits of this Indentureand shall be valid and obligatory for all purposes as if authenticated by theTrustee hereunder.  Wherever reference ismade in this Indenture to the authentication and delivery of Securities by theTrustee or the Trustee's certificate of authentication, such reference shall bedeemed to include authentication and delivery on behalf of the Trustee by anAuthenticating Agent and a certificate of authentication executed on behalf ofthe Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shallat all times be a corporation organized and doing business under the laws ofthe United States of America, any State thereof or the District of Columbia,authorized under such laws to act as an Authenticating Agent, having a combinedcapital and surplus of not less than $50,000,000 and, if other than the Companyitself, subject to supervision or examination by Federal or Stateauthority.  If such Authenticating Agentpublishes reports of condition at least annually, pursuant to law or to therequirements of said supervising or examining authority, then for the purposesof this Section, the combined capital and surplus of such Authenticating Agentshall be deemed to be its combined capital and surplus as set forth in its mostrecent report of condition so published.  If at any time an Authenticating Agent shall cease to be eligible inaccordance with the provisions of this Section, such Authenticating Agent shallresign immediately in the manner and with the effect specified in this Section.

 

Anycorporation into which an Authenticating Agent may be merged or converted orwith which it may be consolidated, or any corporation resulting from anymerger, conversion or consolidation to which such Authenticating Agent shall bea party, or any corporation succeeding to the corporate agency or corporatetrust business of an Authenticating Agent, shall continue to be anAuthenticating Agent, provided such corporation shall be otherwise eligibleunder this Section, without the execution or filing of any paper or any furtheract on the part of the Trustee or the Authenticating Agent.

 

AnAuthenticating Agent may resign at any time by giving written notice thereof tothe Trustee and, if other than the Company, to the Company.  The Trustee may at any time terminate theagency of an Authenticating Agent by giving written notice thereof to suchAuthenticating Agent and, if other than the Company, to the Company.  Upon receiving such a notice of resignationor upon such a termination, or in case at any time such Authenticating Agent shallcease to be eligible in accordance with the provisions of this Section, theTrustee, with the approval of the Company, may appoint a successorAuthenticating Agent which shall be acceptable to the Company and shall mailwritten notice of such appointment by first-class mail, postage prepaid, to allHolders of Securities of the series with respect to which such AuthenticatingAgent will serve, as their names and addresses appear in the SecurityRegister.  Any successor AuthenticatingAgent upon acceptance of its appointment hereunder shall become vested with allthe rights, powers and duties of its predecessor hereunder, with like effect asif originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligibleunder the provisions of this Section.

 

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The Companyagrees to pay to each Authenticating Agent from time to time reasonablecompensation for its services under this Section.

 

If anappointment with respect to one or more series is made pursuant to thisSection, the Securities of such series may have endorsed thereon, in additionto the Trustee's certificate of authentication, an alternate certificate ofauthentication in the following form:

 

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This is one ofthe Securities referred to in the within-mentioned Indenture.

 
|   | THE BANK OF  NEW YORK   |
|--------|-------------------------|
|   | as Trustee,             |
|   |                    |
|   | By:                     |   |   |
|   | As Authenticating Agent |
|   |                    |
|   | By:                     |   |   |
|   | Authorized Officer      |

 

ARTICLE 7. Securityholders'Lists and Reports by Trustee and Company.

 

Section7.11.  Company To Furnish Trustee Namesand Addresses of Securityholders.  TheCompany will furnish or cause to be furnished to the Trustee

 

(1)           semi-annually notlater than December 1 and June 1 in each year in such form as the Trustee mayreasonably require, a list of the names and addresses of the Holders ofSecurities of each series as of a date not more than 15 days prior to the datesuch list is furnished, and

 

(2)           at such other timesas the Trustee may request in writing, within 30 days after the receipt by theCompany of any such request, a list of similar form and content as of a datenot more than 15 days prior to the date such list is furnished, except that nosuch list need be furnished so long as the Trustee is acting as Security Registrar.

 

Section7.12.  Preservation of Information;Communications to Securityholders.

 

(a)           The Trustee shallpreserve in as current a form as is reasonably practicable, the names andaddresses of Holders of Securities contained in the most recent list furnishedto the Trustee as provided in Section 701 and the names and addresses ofHolders of Securities received by the Trustee in its capacity as SecurityRegistrar.  The Trustee may destroy anylist furnished to it as provided in Section 701 upon receipt of a new list sofurnished.

 

(b)           If 3 or more Holdersof Securities of any series (hereinafter referred to as "applicants")apply in writing to the Trustee, and furnish to the Trustee reasonable proofthat each such applicant has owned a Security of such series for a period of atleast 6 months preceding the date of such application, and such applicationstates that the applicants desire to communicate with other Holders ofSecurities of such series or with the Holders of all Securities with respect totheir rights under this Indenture or under such Securities and is accompaniedby a copy of the form of proxy or other communication which such applicantspropose to transmit, then the Trustee shall, within 5 Business Days after thereceipt of such application, at its election, either

 

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(i)            afford suchapplicants access to the information preserved at the time by the Trustee inaccordance with Section 702(a), or

 

(ii)           inform suchapplicants as to the approximate number of Holders of Securities of such seriesor all Securities, as the case may be, whose names and addresses appear in theinformation preserved at the time by the Trustee in accordance with Section702(a), and as to the approximate cost of mailing to such Securityholders theform of proxy or other communication, if any, specified in such application.

 

If the Trusteeshall elect not to afford such applicants access to such information, theTrustee shall, upon the written request of such applicants, mail to each Holderof a Security of such series or to all Securityholders, as the case may be,whose names and addresses appear in the information preserved at the time bythe Trustee in accordance with Section 702(a), a copy of the form of proxy orother communication which is specified in such request, with reasonablepromptness after a tender to the Trustee of the material to be mailed and ofpayment, or provision for the payment, of the reasonable expenses of mailing,unless, within 5 days after such tender, the Trustee shall mail to suchapplicants and file with the Commission, together with a copy of the materialto be mailed, a written statement to the effect that, in the opinion of theTrustee, such mailing would be contrary to the best interests of the Holders ofSecurities of such series or all Securityholders, as the case may be, or wouldbe in violation of applicable law.  Suchwritten statement shall specify the basis of such opinion.  If the Commission, after opportunity for ahearing upon the objections specified in the written statement so filed, shallenter an order refusing to sustain any of such objections or if, after theentry of an order sustaining one or more of such objections, the Commissionshall find, after notice and opportunity for hearing, that all the objectionsso sustained have been met and shall enter an order so declaring, the Trusteeshall mail copies of such material to all Securityholders of such series or allSecurityholders, as the case may be, with reasonable promptness after the entryof such order and the renewal of such tender; otherwise the Trustee shall berelieved of any obligation or duty to such applicants respecting theirapplication.

 

(c)           Every Holder of Securities, byreceiving and holding the same, agrees with the Company and the Trustee thatneither the Company nor the Trustee shall be held accountable by reason of thedisclosure of any such information as to the names and addresses of the Holdersof Securities in accordance with Section 702(b), regardless of the source fromwhich such information was derived, and that the Trustee shall not be heldaccountable by reason of mailing any material pursuant to a request made underSection 702(b).

 

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Section7.13.  Reports by Trustee.

 

(a)           The term"reporting date" as used in this Section means April 1.  Within 60 days after the reporting date ineach year, beginning in 1999, the Trustee shall transmit by mail to allSecurityholders, as their names and addresses appear in the Security Register,a brief report dated as of such reporting date with respect to any of thefollowing events which may have occurred during the twelve months preceding thedate of such report (but if no such event has occurred within such period, noreport need be transmitted):

 

(1)           any change to itseligibility under Section 609 and its qualifications under Section 608;

 

(2)           the creation of orany material change to a relationship specified in Section 310(b)(1) throughSection 310(b)(10) of the Trust Indenture Act;

 

(3)           the character andamount of any advances (and if the Trustee elects so to state, thecircumstances surrounding the making thereof) made by the Trustee (as such)which remain unpaid on the date of such report, and for the reimbursement of whichit claims or may claim a lien or charge, prior to that of Securities of anyseries, on any property or funds held or collected by it as Trustee, exceptthat the Trustee shall not be required (but may elect) to report such advancesif such advances so remaining unpaid aggregate not more than 1/2 of 1% of theprincipal amount of the Securities of such series outstanding on the date ofsuch report;

 

(4)           any change to theamount, interest rate and maturity date of all other indebtedness owing by theCompany (or by any other obligor on the Securities) to the Trustee in itsindividual capacity, on the date of such report, with a brief description ofany property held as collateral security therefor, except an indebtedness basedupon a creditor relationship arising in any manner described in Section613(b)(2), (3), (4), or (6);

 

(5)           any change to theproperty and funds, if any, physically in the possession of the Trustee as suchon the date of such report;

 

(6)           any additional issueof Securities which the Trustee has not previously reported; and

 

(7)           any action taken bythe Trustee in the performance of its duties hereunder which it has notpreviously reported and which in its opinion materially affects the Securities,except action in respect of a default, notice of which has been or is to bewithheld by the Trustee in accordance with Section 602.

 

(b)           The Trustee shalltransmit by mail to all Securityholders, as their names and addresses appear inthe Security Register, a brief report with respect to the character and amountof any advances (and if the Trustee elects so to state, the circumstancessurrounding the making thereof) made by the Trustee (as such) since the date ofthe last report transmitted pursuant to Subsection (a) of this Section (or ifno such report has yet been so transmitted, since the date of execution of thisinstrument) for the reimbursement of which it claims or may claim a lien orcharge, prior to that of the Securities of any series, on property or fundsheld or collected by it as Trustee, and which it has not previously reportedpursuant to this Subsection, except that the Trustee shall not be required (butmay elect) to report such advances if such advances remaining unpaid at anytime aggregate 10% or less of the principal amount of the Securitiesoutstanding of such series at such time, such report to be transmitted within90 days after such time.

 

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(c)           A copy of each suchreport shall, at the time of such transmission to Securityholders, be furnishedto the Company and be filed by the Trustee with each stock exchange upon whichthe Securities are listed, and also with the Commission.  The Company will promptly notify the Trusteewhen the Securities are listed on any stock exchange, or any delisting thereof.

 

Section7.14.   Reports by Company.  The Company will

 

(1)           file with theTrustee, within 15 days after the Company is required to file the same with theCommission, copies of the annual reports and of the information, documents andother reports (or copies of such portions of any of the foregoing as theCommission may from time to time by rules and regulations prescribe) which theCompany may be required to file with the Commission pursuant to Section 13 orSection 15(d) of the Securities Exchange Act of 1934; or, if the Company is notrequired to file information, documents or reports pursuant to either of saidSections, then will file with the Trustee and the Commission, in accordancewith rules and regulations prescribed from time to time by the Commission, suchof the supplementary and periodic information, documents and reports which maybe required pursuant to Section 13 of the Securities Exchange Act of 1934 inrespect of a security listed and registered on a national securities exchangeas may be prescribed from time to time in such rules and regulations;

 

(2)           file with theTrustee and the Commission, in accordance with rules and regulations prescribedfrom time to time by the Commission, such additional information, documents andreports with respect to compliance by the Company with the conditions andcovenant of this Indenture as may be required from time to time by such rulesand regulations; and

 

(3)           transmit by mail toall Securityholders, as their names and addresses appear in the SecurityRegister, within 30 days after the filing thereof with the Trustee, suchsummaries of any information, documents and reports required to be filed by theCompany pursuant to paragraphs (1) and (2) of this Section as may be requiredby rules and regulations prescribed from time to time by the Commission.

 

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Delivery ofsuch reports, information and documents to the Trustee is for informationalpurposes only and the Trustee's receipt of such shall not constituteconstructive notice of any information contained therein or determinable frominformation contained therein, including the Company's compliance with any ofits covenants hereunder (as to which the Trustee is entitled to rely exclusivelyon Officers' Certificates).

 

ARTICLE 8.  Consolidation, Merger, Conveyance orTransfer.

 

Section8.11.   When Company May Merge orTransfer Assets.  The Company, in asingle transaction or through a series of related transactions, shall notconsolidate with or merge with or into any other Person or transfer (by lease,assignment, sale or otherwise) all or substantially all of its properties andassets to another Person or group of affiliated Persons, unless:

 

(a)           either (1) theCompany shall be the continuing corporation or (2) the Person (if other thanthe Company) formed by such consolidation or into which the Company is mergedor to which all or substantially all of the properties and assets of theCompany are trans- ferred (i) shall be a corporation, partnership or trustorganized and validly existing under the laws of the United States or any Statethereof or the District of Columbia and (ii) shall expressly assume, by anindenture supplemental hereto, executed and delivered to the Trustee, in formreasonably satisfactory to the Trustee, all of the obligations of the Companyunder the Securities and this Indenture and the performance of every covenantof this Indenture on the part of the Company to be performed or observed;

 

(b)           immediately aftergiving effect to such transaction, and the assumption contemplated by clause(a) above, no Event of Default, and no event which, after notice or lapse oftime, or both, would become an Event of Default, shall have occurred and becontinuing; and

 

(c)           the Company shallhave delivered to the Trustee an Officers' Certificate and an Opinion ofCounsel, each stating that such consolidation, merger or transfer and, if asupplemental indenture is required in connection with such transaction, suchsupplemental indenture, comply with this Article 8 and that all conditionsprecedent herein provided for relating to such transaction have been satisfied.

 

For purposesof the foregoing, the transfer (by lease, assignment, sale or otherwise) of theproperties and assets of one or more Restricted Subsidiaries (other than to theCompany or another direct or indirect wholly owned Subsidiary) in a singletransaction or through a series of related transactions, which, if such assetswere owned by the Company, would constitute all or substantially all of theproperties and assets of the Company, shall be deemed to be the transfer of allor substantially all of the properties and assets of the Company.

 

The successorPerson formed by such consolidation or into which the Company is merged or thesuccessor Person to which such conveyance, transfer or lease is made shallsucceed to, and be substituted for, and may exercise every right and power of,the Company under this Indenture with the same effect as if such successor hadbeen named as the Company herein, and thereafter, except in the case of a leaseof its properties and assets substantially as an entirety, the Company shall bedischarged and released from all obligations and covenants under this Indentureand the Securities.  The Trustee shallenter into a supplemental indenture to evidence the succession and substitutionof such successor Person and such discharge and release of the Company.

 

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ARTICLE 9.  Supplemental Indentures.

 

Section9.11.   Supplemental Indentures WithoutConsent of Securityholders.  Without theconsent of the Holders of any Securities, the Company, when authorized by aBoard Resolution, and the Trustee, at any time and from time to time, may enterinto one or more indentures supplemental hereto, in form satisfactory to theTrustee, for any of the following purposes:

 

(1)           to evidence thesuccession of another corporation to the Company, and the assumption by anysuch successor of the covenants of the Company herein and in the Securitiescontained; or

 

(2)           to add to thecovenants of the Company, or to surrender any right or power herein conferredupon the Company, for the benefit of the Holders of the Securities of any orall series (and if such covenants or the surrender of such right or power areto be for the benefit of less than all series of Securities, stating that suchcovenants are expressly being included or such surrenders are expressly beingmade solely for the benefit of one or more specified series); or

 

(3)           to cure anyambiguity, to correct or supplement any provision herein which may beinconsistent with any other provision herein, or to make any other provisionswith respect to matters or questions arising under this Indenture; or

 

(4)           to add to this Indenturesuch provisions as may be expressly permitted by the TIA, excluding, however,the provisions referred to in Section 316(a)(2) of the TIA as in effect at thedate as of which this instrument was executed or any corresponding provision inany similar Federal statute hereafter enacted; or

 

(5)           to establish anyform of Security, as provided in Article Two, and to provide for the issuanceof any series of Securities as provided in Article Three and to set forth theterms thereof, and/or to add to the rights of the Holders of the Securities ofany series; or

 

(6)           to evidence andprovide for the acceptance of appointment by another corporation as a successorTrustee hereunder with respect to one or more series of Securities and to addto or change any of the provi- sions of this Indenture as shall be necessary toprovide for or facilitate the administration of the trusts hereunder by morethan one Trustee, pursuant to Section 611; or

 

(7)           to add anyadditional Events of Default in respect of the Securities of any or all series(and if such additional Events of Default are to be in respect of less than allseries of Securities, stating that such Events of Default are expressly beingincluded solely for the benefit of one or more specified series); or

 

(8)           to provide for theissuance of Securities in coupon as well as fully registered form.

 

Nosupplemental indenture for the purposes identified in Clauses (2), (3) or (7)above may be entered into if to do so would adversely affect the interest ofthe Holders of Securities of any series.

 

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Section9.12.   Supplemental Indentures withConsent of Securityholders.  With theconsent of the Holders of not less than a majority in principal amount of theOutstanding Securities of each series affected by such supplemental indentureor indentures, by Act of said Holders delivered to the Company and the Trustee,the Company, when authorized by a Board Resolution, and the Trustee may enterinto an indenture or indentures supplemental hereto for the purpose of addingany provisions to or changing in any manner or eliminating any of theprovisions of this Indenture or of modifying in any manner the rights of theHolders of the Securities of each such series under this Indenture; provided,however, that no such supplemental indenture shall, without the consent of theHolder of each Outstanding Security affected thereby,

 

(1)           change the Maturityof the principal of, or the Stated Maturity of any premium on, or anyinstallment of interest on, any Security, or reduce the principal amountthereof or the interest or any premium thereon, or change the method ofcomputing the amount of principal thereof or interest thereon on any date orchange any Place of Payment where any Security or any premium or interestthereon is payable, or impair the right to institute suit for the enforcementof any such payment on or after the Maturity or the Stated Maturity, as thecase may be, thereof (or, in the case of redemption or repayment, on or afterthe Redemption Date or the Repayment Date as the case may be); or

 

(2)           reduce thepercentage in principal amount of the Outstanding Securities of any series, theconsent of whose Holders is required for any such supplemental indenture, orthe consent of whose Holders is required for any waiver of compliance withcertain provisions of this Indenture or certain defaults hereunder and theirconsequences, provided for in this Indenture; or

 

(3)           modify any of theprovisions of this Section, Section 513 or Section 1008, except to increase anysuch percentage or to provide that certain other provisions of this Indenturecannot be modified or waived without the consent of the Holder of eachOutstanding Security affected thereby.

 

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A supplementalindenture which changes or eliminates any covenant or other provision of thisIndenture which has expressly been included solely for the benefit of one ormore particular series of Securities, or which modifies the rights of theHolders of Securities of such series with respect to such covenant or otherprovision, shall be deemed not to affect the rights under this Indenture of theHolders of Securities of any other series.

 

It shall notbe necessary for any Act of Securityholders under this Section to approve theparticular form of any proposed supplemental indenture, but it shall besufficient if such Act shall approve the substance thereof.

 

The Companymay, but shall not be obligated to, fix a record date for the purpose ofdetermining the Persons entitled to consent to any indenture supplementalhereto.  If a record date is fixed, theHolders on such record date, or their duly designated proxies, and only suchPersons, shall be entitled to consent to such supplemental indenture, whether ornot such Holders remain Holders after such record date; provided, that unlesssuch consent shall have become effective by virtue of the requisite percentagehaving been obtained prior to the date which is six months after such recorddate, any such consent previously given shall automatically and without furtheraction by any Holder be canceled and of no further effect.

 

Section9.13.   Execution of SupplementalIndentures.  In executing, or acceptingthe additional trusts created by, any supplemental indenture permitted by thisArticle or the modifications thereby of the trusts created by this Indenture,the Trustee shall be entitled to receive, and (subject to Section 601) shall befully protected in relying upon, an Opinion of Counsel stating that the executionof such supplemental indenture is authorized or permitted by thisIndenture.  The Trustee may, but shallnot be obligated to, enter into any such supplemental indenture which affectsthe Trustee's own rights, duties or immunities under this Indenture orotherwise.

 

Section9.14.   Effect of SupplementalIndentures.  Upon the execution of anysupplemental indenture under this Article, this Indenture shall be modified inaccordance therewith, and such supplemental indenture shall form a part of thisIndenture for all purposes; and every Holder of Securities theretofore orthereafter authenticated and delivered hereunder shall be bound thereby to theextent provided therein.

 

Section9.15.   Conformity with Trust IndentureAct.   Every supplemental indentureexecuted pursuant to this Article shall conform to the requirements of the TIAas then in effect.

 

Section9.16.   Reference in Securities toSupplemental Indentures. Securities authenticated and delivered after theexecution of any supplemental indenture pursuant to this Article may, and shallif required by the Trustee, bear a notation in form approved by the Trustee asto any matter provided for in such supplemental indenture.  If the Company shall so determine, newSecurities so modified as to conform, in the opinion of the Trustee and theBoard of Directors, to any such supplemental indenture may be prepared andexecuted by the Company and authenticated and delivered by the Trustee inexchange for Outstanding Securities.

 

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ARTICLE 10. Covenants.

 

Section10.11.  Payment of Principal, Premium andInterest.  With respect to each series ofSecurities, the Company will duly and punctually pay the principal of (andpremium, if any) and interest on such Securities in accordance with their termsand this Indenture, and will duly comply with all the other terms, agreementsand conditions contained in, or made in the Indenture for the benefit of, theSecurities of such series.

 

Section10.12.  Maintenance of Office orAgency.  The Company will maintain anoffice or agency in each Place of Payment where Securities may be presented orsurrendered for payment, where Securities may be surrendered for transfer orexchange and where notices and demands to or upon the Company in respect of theSecurities and this Indenture may be served. The Company will give prompt written notice to the Trustee of thelocation, and of any change in the location, of such office or agency.  If at any time the Company shall fail tomaintain such office or agency or shall fail to furnish the Trustee with theaddress thereof, such presentations, surrenders, notices and demands may bemade or served at the principal Corporate Trust Office of the Trustee,Attention: Corporate Trust Trustee Administration, and the Company herebyappoints the Trustee its agent to receive all such presentations, surrenders,notices and demands.

 

Section10.13.  Money for Security Payments To BeHeld in Trust.  If the Company shall atany time act as its own Paying Agent for any series of Securities, it will, onor before each due date of the principal of (and premium, if any) or intereston, any of the Securities of such series, segregate and hold in trust for thebenefit of the Persons entitled thereto a sum sufficient to pay the principal(and premium, if any) or interest so becoming due until such sums shall be paidto such Persons or otherwise disposed of as herein provided, and will promptlynotify the Trustee of its action or failure to act.

 

Whenever theCompany shall have one or more Paying Agents for any series of Securities, itwill, prior to each due date of the principal of (and premium, if any) orinterest on, any Securities of such series, deposit with a Paying Agent a sumsufficient to pay the principal (and premium, if any) or interest so becomingdue, such sum to be held in trust for the benefit of the Persons entitled tosuch principal (and premium, if any) or interest, and (unless such Paying Agentis the Trustee) the Company will promptly notify the Trustee of its action orfailure so to act.

 

The Companywill cause each Paying Agent other than the Trustee for any series ofSecurities to execute and deliver to the Trustee an instrument in which suchPaying Agent shall agree with the Trustee, subject to the provi- sions of thisSection, that such Paying Agent will

 

(1)           hold all sums heldby it for the payment of principal of (and premium, if any) or interest onSecurities of such series in trust for the benefit of the Persons entitledthereto until such sums shall be paid to such Persons or otherwise disposed ofas herein provided;

 

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(2)           give the Trusteenotice of any default by the Company (or any other obligor upon the Securitiesof such series) in the making of any such payment of principal (and premium, ifany) or interest on the Securities of such series; and

 

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

 

The Companymay at any time, for the purpose of obtaining the satisfaction and discharge ofthis Indenture with respect to any series of Securities or for any otherpurpose, pay, or by Company Order direct any Paying Agent to pay, to theTrustee all sums held in trust by the Company or such Paying Agent in respectof each and every series of Securities as to which it seeks to discharge thisIndenture or, if for any other purpose, all sums so held in trust by theCompany in respect of all Securities, such sums to be held by the Trustee uponthe same trusts as those upon which such sums were held by the Company or suchPaying Agent; and, upon such payment by any Paying Agent to the Trustee, suchPaying Agent shall be released from all further liability with respect to suchmoney.

 

Any moneydeposited with the Trustee or any Paying Agent, or then held by the Company, intrust for the payment of the principal of (and premium, if any) or interest onany Security of any series and remaining unclaimed for two years after suchprincipal (and premium, if any) or interest has become due and payable shall bepaid to the Company on Company Request, or (if then held by the Company) shallbe discharged from such trust; and the Holder of such Security shallthereafter, as an unsecured general creditor, look only to the Company forpayment thereof, and all liability of the Trustee or such Paying Agent withrespect to such trust money, and all liability of the Company as trustee thereof,shall thereupon cease.  The Trustee orsuch Paying Agent, before being required to make any such repayment, may at theexpense of the Company mail to the Holders of the Securities as to which themoney to be repaid was held in trust, as their names and addresses appear inthe Security Register, a notice that such moneys remain unclaimed and that,after a date specified in the notice, which shall not be less than 30 days fromthe date on which the notice was first mailed to the Holders of the Securitiesas to which the money to be repaid was held in trust, any unclaimed balance ofsuch moneys then remaining will be paid to the Company free of the trustformerly impressed upon it.

 

Section10.14.  Statement as to Compliance.  The Company will deliver to the Trustee,within 120 days of the end of each fiscal year, a written statement signed bythe principal executive officer, principal financial officer or principalaccounting officer of the Company stating that

 

(1)           in the course of theperformance of his duties as an officer of the Company he would normally haveknowledge of the Company's performance under this Indenture and under the termsof the Securities; and

 

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(2)           to the best of hisknowledge, the Company has fulfilled all its obligations under this Indentureand has complied with all conditions and covenants on its part contained inthis Indenture through such year, or, if there has been a default in thefulfillment of any such obligation, covenant or condition, specifying each suchdefault known to him and the nature and status thereof.

 

For the purpose of this Section 1004, default and compliance shall bedetermined without regard to any grace period or requirement of notice providedpursuant to the terms of this Indenture.

 

Section 10.15.  LegalExistence.  Subject to Article Eight theCompany will do or cause to be done all things necessary to preserve and keepin full force and effect its legal existence.

 

Section 10.16.  Limitation onLiens.  The Company shall not create,assume or suffer to exist any Lien upon any Principal Property of the Companyor any Restricted Subsidiary or shares of Capital Stock or indebtedness of anySubsidiary to secure any debt of any Person, or permit any Restricted Subsidiaryso to do, without making effective provision whereby the Securities thenoutstanding and having the benefit of this Section shall be secured by the Lienequally and ratably with such debt for so long as such debt shall be sosecured, except that the foregoing shall not prevent the Company or anyRestricted Subsidiary from creating, assuming or suffering to exist Liens ofthe following character:

 

(1)         withrespect to any series of Securities, any Lien existing on the date of issuanceof the series;

 

(2)         anyLien existing on property owned or leased by, or shares of capital stock orindebtedness of, a Person at the time it becomes a Restricted Subsidiary;

 

(3)         anyLien existing on property at the time of the acquisition or lease thereof bythe Company or a Restricted Subsidiary;

 

(4)         anyLien on property of a corporation existing at the time such corporation ismerged or consolidated with the Company or a Restricted Subsidiary or at thetime of a sale, lease or other disposition of the properties of a corporationas an entirety or substantially as an entirety to the Company or a RestrictedSubsidiary;

 

(5)         anyLien to secure any debt on capital stock, property or assets incurred prior to,at the time of, or within 180 days after, or pursuant to financing arrangementsfor which a firm commitment is made by a bank, insurance company or otherlender or investor (not including the Company or any Restricted Subsidiary)within 180 days after, the acquisition of capital stock, property or assets forthe purpose of financing all or any part of the purchase price thereof;

 

(6)         anyLien to secure any debt incurred prior to, at the time of, or within 180 daysafter, or pursuant to financing arrangements for which a firm commitment ismade by a bank, insurance company or other lender or investor (not includingthe Company or any Restricted Subsidiary) within 180 days after, the completionof the construction and commencement of commercial operation, alteration,repair or improvement of property or assets for the purpose of financing all orany part of the cost thereof;

 

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(7)           any Lien securingdebt of a Restricted Subsidiary owing to the Company or to another RestrictedSubsidiary;

 

(8)           any Lien in favor ofany customer arising in respect of performance deposits and partial, progress,advance or other payments made by or on behalf of such customer for goodsproduced or to be produced for or services rendered or to be rendered to suchcustomer in the ordinary course of business, which Lien shall not exceed theamount of such deposits or payments;

 

(9)           mechanics',workmen's, repairmen's, materialmen's, carriers' and other similar Liensarising in the ordinary course of business; 

 

(10)         any Lien created byor resulting from any litigation or proceedings which are being contested ingood faith by appropriate proceedings; any Lien arising out of a judgment oraward against the Company and/or one or more Restricted Subsidiaries withrespect to which the Company and/or such Restricted Subsidiary or Subsidiariesare in good faith prosecuting an appeal or proceedings for review; or any Lienincurred by the Company and/or Restricted Subsidiaries for the purpose ofattaining a stay or discharge in the course of any legal proceedings to whichthe Company and/or Restricted Subsidiary or Subsidiaries are a party; or

 

(11)         any Lien for taxes orassessments or governmental charges or levies not yet due or delinquent, orwhich can thereafter be paid without penalty or which are being contested ingood faith by appropriate proceedings; any landlord's Lien on property heldunder lease and tenants' rights under leases; easements and any other liens ofa nature similar to those hereinabove described in this clause (11) which donot, in the opinion of the Company, materially impair the use of such propertyin the operation of the business of the Company or any Restricted Subsidiary orthe value of such property for the purposes of such business;

 

(12)         any Lien which may bedeemed to result from an agreement or commitment to exchange securities of aSubsidiary for other securities of the Company, whether or not such securitiesof a Subsidiary are placed in escrow for such purpose;

 

(13)         any Lien in favor ofthe United States of America or any State thereof or any other country, or anyagency, instrumentality or political subdivision or any of the foregoing, tosecure partial, progress, advance or other payments or performance pursuant tothe provisions of any contract or statute, or any Liens securing industrialdevelopment, pollution control, or similar revenue bonds;

 

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(14)         any extension,renewal or replacement (or successive extensions, renewals or replacements) inwhole or in part of any Lien referred to in clauses (1) through (13) above, solong as the principal amount of the debt secured thereby does not exceed theprincipal amount of debt so secured at the time of the extension, renewal orreplacement (except that, where an additional principal amount of debt isincurred to provide funds for the completion of a specific project, theadditional principal amount, and any related financing costs, may be secured bythe Lien as well) and the Lien is limited to all or part of the same propertysubject to the Lien so extended, renewed or replaced (plus improvements on theproperty); and

 

(15)         any Lien notpermitted by clauses (1) through (14) above securing debt which, together withthe aggregate outstanding principal amount of all other debt of the Company andits Restricted Subsidiaries which would otherwise be subject to the foregoingrestrictions and the aggregate Value of existing Sale and LeasebackTransactions which would be subject to the restrictions of Section 1007 but forthis clause (15), does not at any time exceed 15% of Consolidated Net Assets.

 

Section10.17.  Limitation on Sale andLeasebacks.  The Company shall not enterinto any Sale and Leaseback Transaction involving a Principal Property of theCompany or any Restricted Subsidiary, nor permit any Restricted Subsidiary soto do, unless either:

 

(1)           the Company or suchRestricted Subsidiary would be entitled to incur debt, in a principal amount atleast equal to the Value of such Sale and Leaseback Transaction, which issecured by Liens on the property to be leased (without equally and ratablysecuring the outstanding Securities) because such Liens would be of suchcharacter that no violation of any of the provisions of Section 1006 wouldresult, or

 

(2)           the Company duringthe 180 days immediately following the effective date of such Sale andLeaseback Transaction causes to be applied to either (i) the voluntaryretirement of Funded Debt (whether by redemption, defeasance, repurchase, orotherwise) an amount equal to the Value of such Sale and Leaseback Transaction,or (ii) the purchase of other property which will constitute "PrincipalProperty" having a fair value, as determined by the Company, at leastequal to the Value of such Sale and Leaseback Transaction; or

 

(3)           the Company or a RestrictedSubsidiary shall deliver to the Trustee or other applicable trustee forcancellation Securities or Funded Debt in an aggregate principal amount atleast equal to the Value of such Sale and Leaseback Transaction.

 

Section10.18.  Waiver of Certain Covenants. TheCompany may omit in respect of any series of Securities, in any particularinstance, to comply with any covenant or condition set forth in Sections 1006and 1007, if before or after the time for such compliance the Holders of atleast a majority in principal amount of the Securities at the time Outstandingof such series shall, by Act of such Securityholders, either waive suchcompliance in such instance or generally waive compliance with such covenant orcondition, but no such waiver shall extend to or affect such covenant orcondition except to the extent so expressly waived, and, until such waivershall become effective, the obligations of the Company and the duties of theTrustee in respect of any such covenant or condition shall remain in full forceand effect.

 

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Section10.19.  Calculation of Original IssueDiscount.  The Company shall file withthe Trustee promptly at the end of each calendar year (i) a written noticespecifying the amount of original issue discount (including daily rates andaccrual periods) accrued on Outstanding Securities as of the end of such yearand (ii) such other specific information relating to such original issuediscount as may then be relevant under the Internal Revenue Code of 1986, asamended from time to time.

 

ARTICLE 11. Redemption ofSecurities.

 

Section11.11.  Applicability of Article. TheCompany may reserve the right to redeem and pay before Stated Maturity all orany part of the Securities of any series, either by optional redemption,sinking or purchase fund or analogous obligation or otherwise, by provisiontherefor in the form of Security for such series established and approvedpursuant to Section 202 and on such terms as are specified in such form or inthe indenture supplemental hereto with respect to Securities of such series asprovided in Section 301.  Redemption ofSecurities of any series shall be made in accordance with the terms of suchSecurities and, to the extent that this Article does not conflict with suchterms, the succeeding Sections of this Article.

 

Section11.12.  Election To Redeem; Notice toTrustee.  The election of the Company toredeem any Securities redeemable at the election of the Company shall beevidenced by, or pursuant to authority granted by, a Board Resolution.  In case of any redemption at the election ofthe Company, the Company shall, at least 60 days prior to the Redemption Datefixed by the Company (unless a shorter notice shall be satisfactory to theTrustee), notify the Trustee of such Redemption Date and of the principalamount of Securities of such series and the Tranche (as defined in Section1103) to be redeemed.

 

In the case ofany redemption of Securities (i) prior to the expiration of any restriction on suchredemption provided in the terms of such securities or elsewhere in thisIndenture, or (ii) pursuant to an election of the Company which is subject to acondition specified in the terms of such Securities, the Company shall furnishthe Trustee with an Officers' Certificate evidencing compliance with suchrestriction or condition.

 

Section11.13.  Selection by Trustee ofSecurities To Be Redeemed.  If less thanall the Securities of like tenor and terms of any series (a"Tranche") are to be redeemed, the particular Securities to beredeemed shall be selected not more than 60 days prior to the Redemption Dateby the Trustee, from the Outstanding Securities of such Tranche not previouslycalled for redemption, by such method as the Trustee shall deem fair andappropriate (other than pro rata selection) and which may include provision forthe election for redemption of portions of the principal of Securities of suchTranche of a denomination larger than the minimum authorized denomination forSecurities of that series.  Unlessotherwise provided in the terms of a particular series of Securities, theportions of the principal of Securities so selected for partial redemptionshall be equal to the minimum authorized denomination of the Securities of suchseries, or an integral multiple thereof, and the principal amount which remainsoutstanding shall not be less than the minimum authorized denomination forSecurities of such series.  If less thanall the Securities of unlike tenor and terms of a series are to be redeemed,the particular Tranche of Securities to be redeemed shall be selected by theCompany.

 

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

 

For allpurposes of this Indenture, unless the context otherwise requires, allprovisions relating to the redemption of Securities shall relate, in the caseof any Security redeemed or to be redeemed only in part, to the portion of theprincipal of such Security which has been or is to be redeemed.

 

Section11.14.  Notice of Redemption.  Notice of redemption shall be given byfirst-class mail, postage prepaid, mailed not less than 30 nor more than 60days prior to the Redemption Date, to each holder of Securities to be redeemed,at his address appearing in the Security Register.

 

All notices ofredemption shall state:

 

(1)           the Redemption Date;

 

(2)           the RedemptionPrice;

 

(3)           the CUSIP number;

 

(4)           if less than allOutstanding Securities of any series are to be redeemed, the identification(and, in the case of partial redemption, the respective principal amounts) ofthe Securities to be redeemed, from the Holder to whom the notice is given;

 

(5)           that on theRedemption Date the Redemption Price will become due and payable upon each suchSecurity, and that interest, if any, thereon shall cease to accrue from andafter said date;

 

(6)           the place where suchSecurities are to be surrendered for payment of the Redemption Price, whichshall be the office or agency of the Company in the Place of Payment;

 

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(7)           that the redemptionis on account of a sinking or purchase fund, or other analogous obligation, ifthat be the case; and

 

(8)           that, if less thanthe entire principal amount of any security is being redeemed, a replacementsecurity for the remaining principal balance shall be issued to the Holder.

 

Notice ofredemption of Securities to be redeemed at the election of the Company shall begiven by the Company or, at the Company's request, by the Trustee in the nameand at the expense of the Company.

 

Section11.15.  Deposit of Redemption Price.  On or prior to 10:00 a.m., New York Citytime, on any Redemption Date, the Company shall deposit with the Trustee orwith a Paying Agent (or, if the Company is acting as its own Paying Agent,segregate and hold in trust as provided in Section 1003) an amount of moneysufficient to pay the Redemption Price of all the Securities which are to beredeemed on that date; provided that such amount shall be so deposited with theTrustee or Paying Agent in time for the Trustee or Paying Agent, as the casemay be, to pay such Redemption Price in accordance with its normal procedures.

 

Section11.16.  Securities Payable on RedemptionDate.  Notice of Redemption having beengiven as aforesaid, the Securities so to be redeemed shall, on the RedemptionDate, become due and payable at the Redemption Price therein specified and fromand after such date (unless the Company shall default in the payment of theRedemption Price) such Securities shall cease to bear interest.  Upon surrender of such Securities forredemption in accordance with the notice, such Securities shall be paid by theCompany at the Redemption Price.  Unlessotherwise provided with respect to such Securities pursuant to Section 301,installments of interest the Stated Maturity of which is on or prior to theRedemption Date shall be payable to the Holders of such securities registeredas such on the relevant Regular Record Dates according to their terms and theprovisions of Section 307.

 

If anySecurity called for redemption shall not be so paid upon surrender thereof forredemption, the principal shall, until paid, bear interest from the RedemptionDate at the rate borne by the Security, or as otherwise provided in suchSecurity.

 

Section11.17.  Securities Redeemed in Part.  Any Security which is to be redeemed only inpart shall be surrendered at the office or agency of the Company in the Placeof Payment with respect to that series (with, if the Company or the Trustee sorequires, due endorsement by, or a written instrument of transfer in formsatisfactory to the Company and the Trustee duly executed by, the Holderthereof or his attorney duly authorized in writing) and the Company shallexecute and the Trustee shall authenticate and make available for delivery tothe Holder of such Security without service charge, a new Security orSecurities of the same series and Stated Maturity and of like tenor and terms,of any authorized denomination as requested by such Holder in aggregateprincipal amount equal to and in exchange for the unredeemed portion of theprincipal of the Security so surrendered.

 

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Section11.18.  Provisions with Respect to anySinking Funds.  Unless the form or termsof any series of Securities shall provide otherwise, in lieu of making all orany part of any mandatory sinking fund payment with respect to such series ofSecurities in cash, the Company may at its option (1) deliver to the Trusteefor cancellation any Securities of such series theretofore acquired by theCompany, or (2) receive credit for any Securities of such series (notpreviously so credited) acquired by the Company (including by way of optionalredemption (pursuant to the sinking fund or otherwise) but not by way ofmandatory sinking fund redemption) and theretofore delivered to the Trustee forcancellation, and if it does so then (i) Securities so delivered or creditedshall be credited at the applicable sinking fund Redemption Price with respectto Securities of such series, and (ii) on or before the 60th day next precedingeach sinking fund Redemption Date with respect to such series of Securities,the Company will deliver to the Trustee (A) an Officers' Certificate specifyingthe portions of such sinking fund payment to be satisfied by payment of cashand by delivery or credit of Securities of such series acquired by the Company,and (B) such Securities, to the extent not previously surrendered.  Such Officers' Certificate shall also statethe basis for such credit and that the Securities for which the Company electsto receive credit have not been previously so credited and were not acquired bythe Company through operation of the mandatory sinking fund, if any, providedwith respect to such Securities and shall also state that no Event of Defaultwith respect to Securities of such series has occurred and is continuing.  All Securities so delivered to the Trusteeshall be canceled by the Trustee and no Securities shall be authenticated inlieu thereof.

 

If the sinkingfund payment or payments (mandatory or optional) with respect to any series of Securitiesmade in cash plus any unused balance of any preceding sinking fund paymentswith respect to Securities of such series made in cash shall exceed $50,000 (ora lesser sum if the Company shall so request), unless otherwise provided by theterms of such series of Securities, that cash shall be applied by the Trusteeon the sinking fund Redemption Date with respect to Securities of such seriesnext following the date of such payment to the redemption of Securities of suchseries at the applicable sinking fund Redemption Price with respect toSecurities of such series, together with accrued interest, if any, to the datefixed for redemption, with the effect provided in Section 1106.  The Trustee shall select, in the mannerprovided in Section 1103, for redemption on such sinking fund Redemption Date asufficient principal amount of Securities of such series to utilize that cashand shall thereupon cause notice of redemption of the Securities of such seriesfor the sinking fund to be given in the manner provided in section 1104 (andwith the effect provided in Section 1106) for the redemption of Securities inpart at the option of the Company.  Anysinking fund moneys not so applied or allocated by the Trustee to theredemption of Securities of such series shall be added to the next cash sinkingfund payment with respect to Securities of such series received by the Trusteeand, together with such payment, shall be applied in accordance with theprovisions of this Section 1108.  Any andall sinking fund moneys with respect to Securities of any series held by theTrustee at the Maturity of Securities of such series, and not held for thepayment or redemption of particular Securities of such series, shall be appliedby the Trustee, together with other moneys, if necessary, to be depositedsufficient for the purpose, to the payment of the principal of the Securitiesof such series at Maturity.

 

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Prior to eachsinking fund Redemption Date provided with respect to Securities of any series,the Company shall deposit with the Trustee cash in a sum equal to all accruedinterest, if any, to the date fixed for redemption on Securities to be redeemedon such sinking fund Redemption Date pursuant to this Section 1108; providedthat such cash shall be so deposited with the Trustee in time for the Trusteeto make the payment of such accrued interest in accordance with its normalprocedures.

 

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IN WITNESSWHEREOF, the parties hereto have caused this Indenture to be duly executed asof the day and year first above written.

 
|   | THE NEIMAN  MARCUS GROUP, INC. |
|--------|--------------------------------|
|   |                           |
|   |                           |
|   | By:                            | s/ Richard  A. Smith |   |
|   | Name:                          | Richard A.  Smith |
|   | Title:                         | Chairman and  Chief Executive Officer |
|   |                           |
|   |
|   | THE BANK OF  NEW YORK          |
|   | as Trustee,                    |
|   |                           |
|   |                           |
|   | By:                            | s/ Mary Jane  Schmalzel |   |
|   | Name:                          | Mary Jane  Schmalzel |
|   | Title:                         | Vice  President |
|        |                                |  |  |  |  |

 

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