exv4w3






Exhibit 4.3




 





ION Geophysical Corporation




and




 



Trustee




INDENTURE




Dated as of                     




SENIOR DEBT SECURITIES




      




 









 





ION GEOPHYSICAL CORPORATION

RECONCILIATION AND TIE BETWEEN TRUST

INDENTURE ACT OF 1939, AS AMENDED,

AND INDENTURE, DATED AS OF                     __, 20__




	 	 	 	 	 
	TRUST INDENTURE ACT SECTION	 	INDENTURE SECTION	 
	Section 310(a)(1)
	 	 	6.09 	 
	     (a)(2)
	 	 	6.09 	 
	     (a)(3)
	 	Not Applicable 	 
	     (a)(4)
	 	Not Applicable 	 
	     (a)(5)
	 	 	6.09 	 
	     (b)
	 	 	6.08 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Section 311
	 	 	6.13 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Section 312(a)
	 	 	4.01 	 
	     (b)
	 	4.04(a) and (b) 	 
	     (c)
	 	 	4.04(c) 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Section 313(a)
	 	 	4.03(a) 	 
	     (b)(1)
	 	Not Applicable
	(b)(2)
	 	 	4.03(a)	 
	     (c)
	 	 	4.03(a) 	 
	     (d)
	 	 	4.03(b) 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Section 314(a)
	 	 	4.02 	 
	     (a)(4)
	 	 	3.05 	 
	     (b)
	 	Not Applicable 	 
	     (c)(1)
	 	 	11.05 	 
	     (c)(2)
	 	 	11.05 	 
	     (c)(3)
	 	Not Applicable 	 
	     (d)
	 	Not Applicable 	 
	     (e)
	 	 	11.05 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Section 315(a)
	 	 	6.02(a)	 
	     (b)
	 	 	5.11 	 
	     (c)
	 	 	6.01 	 
	     (d)
	 	 	6.01	 
	     (d)(1)
	 	 	* 	 
	     (d)(2)
	 	 	6.02(b) 	 
	     (d)(3)
	 	 	6.02(c) 	 
	     (e) 
	 	 	5.12	 
	 
	 	 	 	 
	 
	 	 	 	 
	Section 316(a)(1)(A)
	 	 	5.09 	 
	     (a)(1)(B)
	 	 	5.10 	 
	     (a)(2)
	 	Not Applicable 	 
	     (b)
	 	 	5.07 	 
	     (c)
	 	 	7.02 	 
	 
	 	 	   	 






 









 





	 	 	 	 	 
	TRUST INDENTURE ACT SECTION	 	INDENTURE SECTION	 
	Section 317(a)(1)
	 	 	5.02 	 
	     (a)(2)
	 	 	5.02 	 
	     (b)
	 	 	3.04 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Section 318(a)
	 	 	11.07 	 





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




 





 




			
	*	 	Deemed included pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended.






 









 









TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Certain Terms Defined
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	Securities
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Forms Generally
	 	 	5	 
	Section 2.02. Form of Trustee’s Certificate of Authentication
	 	 	5	 
	Section 2.03. Amount Unlimited; Issuable in Series
	 	 	6	 
	Section 2.04. Authentication and Delivery of Securities
	 	 	8	 
	Section 2.05. Execution of Securities
	 	 	9	 
	Section 2.06. Certificate of Authentication
	 	 	10	 
	Section 2.07. Denomination and Date of Securities; Payments of Interest
	 	 	10	 
	Section 2.08. Registration, Transfer and Exchange
	 	 	10	 
	Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities
	 	 	12	 
	Section 2.10. Cancellation of Securities; Destruction Thereof
	 	 	13	 
	Section 2.11. Temporary Securities
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	Covenants of the Issuer
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Payment of Principal and Interest
	 	 	14	 
	Section 3.02. Offices for Payments, Etc
	 	 	14	 
	Section 3.03. Appointment to Fill a Vacancy in Office of Trustee
	 	 	15	 
	Section 3.04. Paying Agents
	 	 	15	 
	Section 3.05. Written Statement to Trustee
	 	 	16	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	Securityholders Lists and Reports by the Issuer and the Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders
	 	 	16	 
	Section 4.02. Reports by the Issuer
	 	 	16	 
	Section 4.03. Reports by the Trustee
	 	 	16	 
	Section 4.04. Preservation and Disclosure of Securityholders’ Lists.
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	Remedies of the Trustee and Securityholders on Event of Default
	 	 	 	 






-i-









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	Section 5.01. Event of Default Defined; Acceleration of Maturity; Waiver of Default
	 	 	18	 
	Section 5.02. Collection of Debt by Trustee; Trustee May Prove Debt
	 	 	20	 
	Section 5.03. Application of Proceeds
	 	 	22	 
	Section 5.04. Suits for Enforcement
	 	 	23	 
	Section 5.05. Restoration of Rights on Abandonment of Proceedings
	 	 	23	 
	Section 5.06. Limitations on Suits by Securityholders
	 	 	24	 
	Section 5.07. Unconditional Right of Securityholders to Institute Certain Suits
	 	 	24	 
	Section 5.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
	 	 	24	 
	Section 5.09. Control by Holders of Securities
	 	 	25	 
	Section 5.10. Waiver of Past Defaults
	 	 	25	 
	Section 5.11. Trustee to Give Notice of Default
	 	 	26	 
	Section 5.12. Right of Court to Require Filing of Undertaking to Pay Costs
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	Concerning the Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default
	 	 	26	 
	Section 6.02. Certain Rights of the Trustee
	 	 	27	 
	Section 6.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof
	 	28
	Section 6.04. Trustee and Agents May Hold Securities; Collections, Etc
	 	 	28	 
	Section 6.05. Moneys Held by Trustee
	 	 	29	 
	Section 6.06. Compensation and Indemnification of Trustee and Its Prior Claim
	 	 	29	 
	Section 6.07. Right of Trustee to Rely on Officer’s Certificate, Etc
	 	 	29	 
	Section 6.08. Indentures Creating Potential Conflicting Interests for the Trustee
	 	 	29	 
	Section 6.09. Persons Eligible for Appointment as Trustee
	 	 	29	 
	Section 6.10. Resignation and Removal; Appointment of Successor Trustee
	 	 	30	 
	Section 6.11. Acceptance of Appointment by Successor Trustee
	 	 	31	 
	Section 6.12. Merger, Conversion, Consolidation or Succession to Business of Trustee
	 	 	32	 
	Section 6.13. Preferential Collection of Claims Against the Issuer
	 	 	32	 






-ii-









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	ARTICLE 7
	 	 	 	 
	Concerning the Securityholders
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Evidence of Action Taken by Securityholders
	 	 	32	 
	Section 7.02. Proof of Execution of Instruments and of Holding of Securities
	 	 	33	 
	Section 7.03. Holders to Be Treated as Owners
	 	 	33	 
	Section 7.04. Securities Owned by Issuer Deemed Not Outstanding
	 	 	33	 
	Section 7.05. Right of Revocation of Action Taken
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	Supplemental Indentures
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Supplemental Indentures Without Consent of Securityholders
	 	 	34	 
	Section 8.02. Supplemental Indentures With Consent of Securityholders
	 	 	35	 
	Section 8.03. Effect of Supplemental Indenture
	 	 	36	 
	Section 8.04. Documents to Be Given to Trustee
	 	 	37	 
	Section 8.05. Notation on Securities in Respect of Supplemental Indentures
	 	 	37	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	Consolidation, Merger, Sale or Conveyance
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Issuer May Consolidate, Etc., on Certain Terms
	 	 	37	 
	Section 9.02. Successor Issuer Substituted
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	Satisfaction and Discharge of Indenture; Unclaimed Moneys
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Satisfaction and Discharge of Indenture
	 	 	38	 
	Section 10.02. Application by Trustee of Funds Deposited for Payment of Securities
	 	 	41	 
	Section 10.03. Repayment of Moneys Held by Paying Agent
	 	 	41	 
	Section 10.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
	 	 	41	 
	Section 10.05. Indemnity for U.S. Government Obligations
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Miscellaneous Provisions
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability
	 	 	41	 
	Section 11.02. Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities
	 	 	42	 
	Section 11.03. Successors and Assigns of Issuer Bound by Indenture
	 	 	42	 






-iii-









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	Section 11.04. Notices and Demands on Issuer, Trustee and Holders of Securities
	 	 	42	 
	Section 11.05. Officer’s Certificates and Opinions of Counsel; Statements to Be Contained Therein
	 	 	43	 
	Section 11.06. Payments Due on Saturdays, Sundays and Holidays
	 	 	44	 
	Section 11.07. Conflict of Any Provision of Indenture With Trust Indenture Act of 1939
	 	 	44	 
	Section 11.08. New York Law to Govern
	 	 	44	 
	Section 11.09. Counterparts
	 	 	44	 
	Section 11.10. Effect of Headings
	 	 	44	 
	Section 11.11. Securities in a Foreign Currency
	 	 	44	 
	Section 11.12. Judgment Currency
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	Redemption of Securities and Sinking Funds
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Applicability of Article
	 	 	45	 
	Section 12.02. Notice of Redemption; Partial Redemptions
	 	 	45	 
	Section 12.03. Payment of Securities Called for Redemption
	 	 	47	 
	Section 12.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption
	 	 	47	 
	Section 12.05. Mandatory and Optional Sinking Funds
	 	 	47	 






-iv-









 





     THIS INDENTURE, dated as of                      between ION Geophysical Corporation, a Delaware
corporation (the “Issuer”), and                     , a                      (the “Trustee”),



W I T N E S S E T H :




     WHEREAS, the Issuer may from time to time duly authorize the issue of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture;



     WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
and



     WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;



     NOW, THEREFORE:



     In consideration of the premises and the purchases of the Securities by the holders thereof,
the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities as follows:



ARTICLE 1

Definitions




     Section 1.01. Certain Terms Defined. The following terms (except as otherwise expressly
provided or unless the context otherwise clearly requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings specified in this Section.
All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939 or the
definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of
1939, including terms defined therein by reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise clearly requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force
at the date of this Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term “generally accepted accounting principles” means such accounting
principles as are generally accepted at the time of any computation. The words “herein”, “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular.



     “Board of Directors” means either the Board of Directors of the Issuer or any committee of
such Board duly authorized to act on its behalf.



 









 





     “Board Resolution” means a copy of one or more resolutions, certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted by the Board of Directors and to be in
full force and effect, and delivered to the Trustee.



     “Business Day” means, with respect to any Security, a day that in the city (or in any of the
cities, if more than one) in which amounts are payable, as specified in the form of such Security,
is not a day on which banking institutions are authorized or required by law or regulation to
close.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if at any time after the execution and
delivery of this Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act of 1939, then the body performing such duties on such date.



     “Common Stock” means shares of common stock, par value $0.01 per share, of the Issuer as the
same exists at the date of execution and delivery of this Indenture or as such stock may be
reconstituted from time to time.



     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, at the
date as of which this Indenture is dated, located at                                         .



     “Debt” of any Person means any debt for money borrowed which is created, assumed, incurred or
guaranteed in any manner by such Person or for which such Person is otherwise responsible or
liable, and shall expressly include any such guaranty thereof by such Person. For the purpose of
computing the amount of the Debt of any Person there shall be excluded all Debt of such Person for
the payment or redemption or satisfaction of which money or securities (or evidences of such Debt,
if permitted under the terms of the instrument creating such Debt) in the necessary amount shall
have been deposited in trust with the proper depositary, whether upon or prior to the maturity or
the date fixed for redemption of such Debt; and, in any instance where Debt is so excluded, for the
purpose of computing the assets of such Person there shall be excluded the money, securities or
evidences of Debt deposited by such Person in trust for the purpose of paying or satisfying such
Debt.



     “Depositary” means, with respect to the Securities of any series issuable or issued in the
form of one or more Global Securities, the Person designated as Depositary by the Issuer pursuant
to Section 2.04 until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as
used with respect to the Securities of any such series shall mean the Depositary with respect to
the Global Securities of that series.



     “Dollar” means the currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.



     “Event of Default” means any event or condition specified as such in Section 5.01.



2









 






     “Foreign Currency” means a currency issued by the government of a country other than the
United States.



     “Global Security”, means a Security evidencing all or a part of a series of Securities, issued
to the Depositary for such series in accordance with Section 2.04, and bearing the legend
prescribed in Section 2.04.



     “Holder”, “holder of Securities”, “Securityholder” or other similar terms mean the Person in
whose name such Security is registered in the Security register kept by the Issuer for that purpose
in accordance with the terms hereof.



     “Indenture” means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, and shall include the forms
and terms of particular series of Securities established as contemplated hereunder.



     “interest”, unless the context otherwise requires, refers to interest, and when used with
respect to non-interest bearing Securities, refers to interest payable after maturity, if any.



     “Issuer” means ION Geophysical Corporation and, subject to Article 9, its successors and
assigns.



     “Issuer Order” means a written statement, request or order of the Issuer signed in its name by
the chairman of the Board of Directors, the chief executive officer, the president or any vice president of the Issuer.



     “Market Exchange Rate” has the meaning set forth in Section 11.11.



     “Officer’s Certificate” means a certificate signed by the chairman of the Board of Directors,
the chief executive officer, the  president, any vice president, the treasurer, the secretary or any assistant secretary of the
Issuer and delivered to the Trustee. Each such certificate shall comply with Section 314 of the
Trust Indenture Act of 1939 and shall include the statements provided for in Section 11.05.



     “Opinion of Counsel” means an opinion in writing signed by the general corporate counsel or
such other legal counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and shall include the statements provided for in Section 11.05, if and to the
extent required hereby.



     “original issue date” of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.



     “Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.01.



     “Outstanding”, when used with reference to Securities, shall, subject to the provisions of
Section 7.04, mean, as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except




3











 







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




     (b) Securities, or portions thereof, for the payment or redemption of which moneys or
U.S. Government Obligations (as provided for in Section 10.01) in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent (other than the
Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying agent); provided, that
if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and




     (c) Securities in substitution for which other Securities shall have been authenticated
and delivered, or which shall have been paid, pursuant to the terms of Section 2.09 (except
with respect to any such Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a Person in whose hands such Security is a legal, valid and
binding obligation of the Issuer), Securities converted into Common Stock pursuant hereto
and Securities not deemed outstanding pursuant to Section 12.02.



     In determining whether the Holders of the requisite principal amount of Outstanding Securities
of any or all series have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.01.



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



     “principal” whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any”.



     “Responsible Officer”, when used with respect to the Trustee, means the chairman of the board
of directors, any vice chairman of the board of directors, the chairman of the trust committee, the
chairman of the executive committee, any vice chairman of the
executive committee, the chief executive officer, the  president,
any vice president, the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.



     “Security” or “Securities” has the meaning stated in the first recital of this Indenture, or,
as the case may be, Securities that have been authenticated and delivered under this Indenture.



4









 





     “Subsidiary” means a corporation of which stock having a majority of the voting power under
ordinary circumstances is owned, directly or indirectly, by the Issuer or by one or more
subsidiaries of the Issuer, or by the Issuer and one or more subsidiaries of the Issuer.



     “Trust Indenture Act of 1939” (except as otherwise provided in Sections 8.01 and 8.02) means
the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally
executed.



     “Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article 6, shall also include any successor trustee. “Trustee” shall also mean
or include each Person who is then a trustee hereunder and if at any time there is more than one
such Person, “Trustee” as used with respect to the Securities of any series shall mean the trustee
with respect to the Securities of such series.



     “U.S. Government Obligations” shall have the meaning set forth in Section 10.01(a).



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



     “Yield to Maturity” means the yield to maturity on a series of securities, calculated at the
time of issuance of such series, or, if applicable, at the most recent redetermination of interest
on such series, and calculated in accordance with accepted financial practice.



ARTICLE 2

Securities




     Section 2.01. Forms Generally. The Securities of each series shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or pursuant to one or more
Board Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to
(rather than set forth in) a Board Resolution, an Officer’s Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the officers executing such
Securities as evidenced by their execution of such Securities.



     The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such Securities
as evidenced by their execution of such Securities.



     Section 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of
authentication on all Securities shall be in substantially the following form:



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



5









 





	 	 	 	 	 	 	 
	 	 	 	 ,	 
	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	Authorized Officer	 	 






     Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.



     The Securities may be issued in one or more series. The terms of a series of Securities shall
be established prior to the initial issuance thereof in or pursuant to one or more Board
Resolutions of the Board of Directors and set forth in a Board Resolution, or, to the extent
established pursuant to (rather than set forth in) a Board Resolution, in an Officer’s Certificate
detailing such establishment and/or established in one or more indentures supplemental hereto. The
terms of such series reflected in such Board Resolution, Officer’s Certificate, or supplemental
indenture may include the following or any additional or different terms:




     (a) the designation of the Securities of the series (which may be part of a series of
Securities previously issued);




     (b) the terms and conditions, if applicable, upon which conversion or exchange of the
Securities into Common Stock will be effected, including the initial conversion or exchange
price or rate and any adjustments thereto, the conversion or exchange period and other
provisions in addition to or in lieu of those described herein;




     (c) any limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 2.08, 2.09, 2.11, 8.05 or 12.03);




     (d) if other than Dollars, the Foreign Currency in which the Securities of that series
are denominated;




     (e) any date on which the principal of the Securities of the series is payable;




     (f) the rate or rates at which the Securities of the series shall bear interest, if
any, the record date or dates for the determination of holders to whom interest is payable,
the date or dates from which such interest shall accrue and on which such interest shall be
payable and/or the method by which such rate or rates or date or dates shall be determined;




     (g) the place or places where the principal of and any interest on Securities of the
series shall be payable (if other than as provided in Section 3.02);




     (h) the price or prices at which, the period or periods within which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Issuer, pursuant to any sinking fund or otherwise;



6









 






     (i) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of
the series pursuant to any mandatory redemption, sinking fund or analogous provisions or at
the option of a Holder thereof and the price or prices at which and the period or periods
within which and any terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;




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




     (k) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof;




     (l) if other than the currency in which the Securities of that series are denominated,
the currency in which payment of the principal of or interest on the Securities of such
series shall be payable;




     (m) if the principal of or interest on the Securities of the series is to be payable,
at the election of the Issuer or a Holder thereof, in a currency other than that in which
the Securities are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;




     (n) if the amount of payments of principal of and interest on the Securities of the
series may be determined with reference to an index based on a currency other than that in
which the Securities of the series are denominated, the manner in which such amounts shall
be determined;




     (o) whether and upon what terms the Securities may be defeased;




     (p) whether and under what circumstances the Issuer will pay additional amounts on the
Securities of any series in respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Issuer will have the option to redeem such Securities
rather than pay such additional amounts;




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




     (r) any trustees, authenticating or paying agents, transfer agents or registrars or any
other agents with respect to the Securities of such series;




     (s) any other events of default or covenants with respect to the Securities of such
series in addition to or in lieu of those contained in this Indenture;




     (t) if the Securities of the series may be issued in exchange for surrendered
Securities of another series, or for other securities of the Issuer, pursuant to the terms
of such Securities or securities or of any agreement entered into by the Issuer, the ratio
of



7









 







the principal amount of the Securities of the series to be issued to the principal
amount of the Securities or securities to be surrendered in exchange, and any other material
terms of the exchange; and




     (u) any other terms of the series.



     The Issuer may from time to time, without notice to or the consent of the holders of any
series of Securities, create and issue further Securities of any such series ranking equally with
the Securities of such series in all respects (or in all respects other than the payment of
interest accruing prior to the issue date of such further Securities or except for the first
payment of interest following the issue date of such further Securities). Such further Securities
may be consolidated and form a single series with the Securities of such series and have the same
terms as to status, redemption or otherwise as the Securities of such series.



     Section 2.04. Authentication and Delivery of Securities. The Issuer may deliver Securities of
any series executed by the Issuer to the Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred
to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such
recipients as may be specified from time to time by an Issuer Order. The maturity date, original
issue date, interest rate and any other terms of the Securities of such series shall be determined
by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such
Issuer Order may authorize authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon:




     (a) an Issuer Order requesting such authentication and setting forth delivery
instructions if the Securities are not to be delivered to the Issuer;




     (b) any Board Resolution, Officer’s Certificate and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and terms of the
Securities were established;




     (c) an Officer’s Certificate setting forth the form or forms and terms of the
Securities stating that the form or forms and terms of the Securities have been established
pursuant to Sections 2.01 and 2.03 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and




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




     (i) the form or forms and terms of such Securities have been established
pursuant to Sections 2.01 and 2.03 and comply with this Indenture,




     (ii) the authentication and delivery of such Securities by the Trustee are
authorized under the provisions of this Indenture,



8









 






     (iii) such Securities when authenticated and delivered by the Trustee and
issued by the Issuer in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the Issuer, and




     (iv) all laws and requirements in respect of the execution and delivery by the
Issuer of the Securities have been complied with, and covering such other matters as
the Trustee may reasonably request.



     The Trustee shall have the right to decline to authenticate and deliver any Securities under
this Section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal liability to
existing Holders or would affect the Trustee’s own rights, duties or immunities under the
Securities, this Indenture or otherwise.



     The Issuer shall execute and the Trustee shall, in accordance with this Section with respect
to the Securities of a series, authenticate and deliver one or more Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series issued and not yet cancelled, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s
instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until
it is exchanged in whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary.”



     Each Depositary designated pursuant to this Section must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.



     Section 2.05. Execution of Securities. The Securities shall be signed on behalf of the Issuer
by the chairman of its Board of Directors, any vice chairman of its Board of Directors, its chief
executive officer, its principal financial officer, its president, any vice president or its
treasurer. Such signatures may be the manual or facsimile signatures of the present or any future
such officers. Typographical and other minor errors or defects in any such reproduction of any
such signature shall not affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.



     In case any officer of the Issuer who shall have signed any of the Securities shall cease to
be such officer before the Security so signed shall be authenticated and delivered by the Trustee
or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be such officer of the
Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security, shall be the proper officers of the Issuer, although



9









 







at the date of the execution and delivery of this Indenture any such person was not such an
officer.



     Section 2.06. Certificate of Authentication. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. The execution of such
certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.



     Section 2.07. Denomination and Date of Securities; Payments of Interest. The Securities of
each series shall be issuable in denominations established as contemplated by Section 2.03 or, if
not so established, in denominations of $1,000 and any integral multiple thereof. The Securities
of each series shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Issuer executing the same may determine with the
approval of the Trustee, as evidenced by the execution and authentication thereof. Unless
otherwise indicated in a Board Resolution, Officer’s Certificate or supplemental indenture for a
particular series, interest will be calculated on the basis of a 360-day year of twelve 30-day
months.



     Each Security shall be dated the date of its authentication. The Securities of each series
shall bear interest, if any, from the date, and such interest shall be payable on the dates,
established as contemplated by Section 2.03.



     The Person in whose name any Security of any series is registered at the close of business on
any record date applicable to a particular series with respect to any interest payment date for
such series shall be entitled to receive the interest, if any, payable on such interest payment
date notwithstanding any transfer, exchange or conversion of such Security subsequent to the record
date and prior to such interest payment date, except if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date for such series, in which case
such defaulted interest shall be paid to the Persons in whose names Outstanding Securities for such
series are registered at the close of business on a subsequent record date (which shall be not less
than five Business Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Issuer to the Holders of Securities not less than 15
days preceding such subsequent record date. The term “record date” as used with respect to any
interest payment date (except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the Securities of such series
established as contemplated by Section 2.03, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the 15th day of the next preceding
calendar month or, if such interest payment date is the 15th day of a calendar month, the first day
of such calendar month, whether or not such record date is a Business Day.



     Section 2.08. Registration, Transfer and Exchange. The Issuer will keep at each office or
agency to be maintained for the purpose as provided in Section 3.02 for each series of Securities a
register or registers in which, subject to such reasonable regulations as it may prescribe, it will
provide for the registration of Securities of such series and the registration of transfer of
Securities of such series. Such register shall be in written form in the English



10









 







language or in any other form capable of being converted into such form within a reasonable
time. At all reasonable times such register or registers shall be open for inspection by the
Trustee.



     Upon due presentation for registration of transfer of any Security of any series at any such
office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees
a new Security or Securities of the same series, maturity date, interest rate and original issue
date in authorized denominations for a like aggregate principal amount.



     At the option of the Holder thereof, Securities of any series (except a Global Security) may
be exchanged for a Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be exchanged at the agency
of the Issuer that shall be maintained for such purpose in accordance with Section 3.02 and upon
payment, if the Issuer shall so require, of the charges hereinafter provided. Whenever any
Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities surrendered upon any exchange or transfer provided for in this Indenture
shall be promptly cancelled and disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.



     All Securities presented for registration of transfer, exchange, redemption or payment shall
(if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his or her attorney duly authorized in writing.



     The Issuer may require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any exchange or registration of transfer
of Securities. No service charge shall be made for any such transaction.



     The Issuer shall not be required to exchange or register a transfer of (a) any Securities of
any series for a period of 15 days next preceding the first mailing of notice of redemption of
Securities of such series to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed.



     Notwithstanding any other provision of this Section 2.08, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Global Security representing all
or a portion of the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor Depositary.



     If at any time the Depositary for the Securities of a series notifies the Issuer that it is
unwilling or unable to continue as Depositary for the Securities of such series or if at any time
the Depositary for the Securities of a series shall no longer be eligible under Section 2.04, the
Issuer shall appoint a successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the Issuer within 90



11









 







days after the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer’s election pursuant to Section 2.03 that the Securities of such series be represented by a
Global Security shall no longer be effective and the Issuer will execute, and the Trustee, upon
receipt of an Officer’s Certificate for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in definitive registered
form, in any authorized denominations, in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing the Securities of such series, in exchange
for such Global Security or Securities.



     The Issuer may at any time and in its sole discretion determine that the Securities of any
series issued in the form of one or more Global Securities shall no longer be represented by a
Global Security or Securities. In such event the Issuer will execute, and the Trustee, upon
receipt of an Officer’s Certificate for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in definitive registered
form, in any authorized denominations, in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series, in exchange for such Global
Security or Securities.



     The Depositary for such Global Security may surrender such Global Security in exchange in
whole or in part for Securities of the same series in definitive registered form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service charge,




     (i) to the Person specified by such Depositary a new Security or Securities of the same
series, of any authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person’s beneficial interest in the
Global Security; and




     (ii) to such Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities authenticated and delivered pursuant to clause (i)
above.



     Upon the exchange of a Global Security for Securities in definitive registered form, in
authorized denominations, such Global Security shall be cancelled by the Trustee. Securities in
definitive registered form issued in exchange for a Global Security pursuant to this Section 2.08
shall be registered in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.



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



     Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen,
the Issuer in its discretion may execute, and upon the written request of any officer of the
Issuer,



12









 







the Trustee shall authenticate and deliver a new Security of the same series, maturity date,
interest rate and original issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer and to the Trustee and any agent of
the Issuer or the Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence
to their satisfaction of the destruction, loss or theft of such Security and of the ownership
thereof and in the case of mutilation or defacement shall surrender the Security to the Trustee.



     Upon the issuance of any substitute Security, the Issuer may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee) connected therewith. In
case any Security which has matured or is about to mature or has been called for redemption in
full, or is being surrendered for conversion in full, shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Security (with the
Holder’s consent, in the case of convertible Securities), pay or authorize the payment of the same
or convert, or authorize conversion of the same (without surrender thereof except in the case of a
mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer and
to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.



     Every substitute Security of any series issued pursuant to the provisions of this Section by
virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities of such series duly authenticated and delivered
hereunder. All Securities shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment
or conversion of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.



     Section 2.10. Cancellation of Securities; Destruction Thereof. All Securities surrendered for
exchange for Securities of the same series or for payment, redemption, registration of transfer,
conversion or for credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be delivered to the
Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee shall dispose of cancelled Securities held by it and deliver a
certificate of disposition to the Issuer. If the Issuer shall acquire any of the Securities, such




13











 




acquisition shall not operate as a redemption or satisfaction of the Debt represented by such
Securities unless and until the same are delivered to the Trustee for cancellation.




     Section 2.11. Temporary Securities. Pending the preparation of definitive Securities for any
series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities
for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be issuable in any
authorized denomination, and substantially in the form of the definitive Securities of such series
but with such omissions, insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such reference to any
provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by
the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to Section 3.02 and the Trustee
shall authenticate and deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having authorized
denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series, unless the benefits of
the temporary Securities are limited pursuant to Section 2.03.



ARTICLE 3

Covenants of the Issuer




     Section 3.01. Payment of Principal and Interest. The Issuer covenants and agrees for the
benefit of each series of Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities of such series (together with any additional
amounts payable pursuant to the terms of such Securities) at the place or places, at the respective
times and in the manner provided in such Securities and in this Indenture. The interest on
Securities (together with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to or upon the written order of the Holders thereof and at the option of the
Issuer may be paid by mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the Security register of the Issuer.



     Section 3.02. Offices for Payments, Etc. The Issuer will maintain (i) in                     , an
agency where the Securities of each series may be presented for payment, an agency where the
Securities of each series may be presented for exchange and conversion, if applicable, as provided
in this Indenture and an agency where the Securities of each series may be presented for
registration of transfer as in this Indenture provided and (ii) such further agencies in such
places as may be determined for the Securities of such series pursuant to Section 2.03.



     The Issuer will maintain in                     , an agency where notices and demands to or upon the
Issuer in respect of the Securities of any series or this Indenture may be served.



14









 





     The Issuer will give to the Trustee written notice of the location of each such agency and of
any change of location thereof. In case the Issuer shall fail to maintain any agency required by
this Section to be located in                     , or shall fail to give such notice of the location or
of any change in the location of any of the above agencies, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the Trustee.



     The Issuer may from time to time designate one or more additional agencies where the
Securities of a series may be presented for payment, where the Securities of that series may be
presented for exchange or conversion, if applicable, as provided in this Indenture and pursuant to
Section 2.03 and where the Securities of that series may be presented for registration of transfer
as in this Indenture provided, and the Issuer may from time to time rescind any such designation,
as the Issuer may deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain the agencies
provided for in this Section. The Issuer will give to the Trustee prompt written notice of any
such designation or rescission thereof.



     Section 3.03. Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.



     Section 3.04. Paying Agents. Whenever the Issuer shall appoint a paying agent other than the
Trustee with respect to the Securities of any series, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section,




     (a) that it will hold all sums received by it as such agent for the payment of the
principal of or interest on the Securities of such series (whether such sums have been paid
to it by the Issuer or by any other obligor on the Securities of such series) in trust for
the benefit of the Holders of the Securities of such series or of the Trustee,




     (b) that it will give the Trustee notice of any failure by the Issuer (or by any other
obligor on the Securities of such series) to make any payment of the principal of or
interest on the Securities of such series when the same shall be due and payable, and




     (c) that at any time during the continuance of any such failure, upon the written
request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust by
such paying agent.



     The Issuer will, on or prior to each due date of the principal of or interest on the
Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or
interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.



     If the Issuer shall act as its own paying agent with respect to the Securities of any series,
it will, on or before each due date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of
such series



15









 







a sum sufficient to pay such principal or interest so becoming due. The Issuer will promptly
notify the Trustee of any failure to take such action.



     Anything in this Section to the contrary notwithstanding, but subject to Section 10.01, the
Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such series by the Issuer or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein
contained.



     Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust
as provided in this Section is subject to the provisions of Sections 10.03 and 10.04.



     Section 3.05. Written Statement to Trustee. So long as any Securities are Outstanding
hereunder, the Issuer will deliver to the Trustee, within 120 days after the end of each fiscal
year of the Issuer ending after the date hereof, a written statement covering the previous fiscal
year, signed by two of its officers (which need not comply with Section 11.05), stating that in the
course of the performance of their duties as officers of the Issuer they would normally have
knowledge of any default by the Issuer in the performance or fulfillment of any covenant, agreement
or condition contained in this Indenture, stating whether or not they have knowledge of any such
default and, if so, specifying each such default of which the signers have knowledge and the nature
thereof.



ARTICLE 4

Securityholders Lists and Reports by the Issuer and the Trustee




     Section 4.01. Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders. The Issuer covenants and agrees that it will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Securities of each series pursuant to Section 312 of the Trust Indenture Act of
1939:




     (a) semiannually and not more than 15 days after each record date for the payment of
interest on such Securities, as hereinabove specified, as of such record date and on dates
to be determined pursuant to Section 2.03 for non-interest bearing Securities in each year,
and




     (b) at such other times as the Trustee may request in writing, within 30 days after
receipt by the Issuer of any such request as of a date not more than 15 days prior to the
time such information is furnished, provided, that, if and so long as the Trustee shall be
the Security registrar for such series, such list shall not be required to be furnished.



     Section 4.02. Reports by the Issuer. The Issuer covenants to comply with Section 314(a) of
the Trust Indenture Act insofar as it relates to information, documentations, and other reports
which the Issuer may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act.



     Section 4.03. Reports by the Trustee.



16









 






     (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture Act of 1939
at the times and in the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Trustee shall, within sixty days after each May 1 following the
date of the initial issuance of Securities under this Indenture deliver to Holders a brief
report, dated as of such May 1, which complies with the provisions of such Section 313(a).




     (b) A copy of each such report shall, at the time of such transmission to
Securityholders, be furnished to the Issuer and be filed by the Trustee with each stock
exchange upon which the Securities of any applicable series are listed and also with the
Commission. The Issuer agrees to promptly notify the Trustee with respect to any series when
and as the Securities of such series become admitted to trading on any national securities
exchange and of any delisting therefrom.



     Section 4.04. Preservation and Disclosure of Securityholders’ Lists.




     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of Securities
contained in the most recent list furnished to it as provided in Section 4.1 or maintained
by the Trustee in its capacity as Security registrar for such series, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 4.1 upon receipt of a
new list so furnished.




     (b) In case three or more Holders of Securities (hereinafter referred to as
“applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six months preceding
the date of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular series (in which case the
applicants must all hold Securities of such series) or with Holders of all Securities with
respect to their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after the receipt of
such application, at its election, either




     (i) afford to such applicants access to the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section, or




     (ii) inform such applicants as to the approximate number of Holders of Securities of
such series or all Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any, specified in such
application.


If the Trustee shall elect not to afford to such applicants access to such information, the Trustee
shall, upon the written request of such applicants, mail to each Securityholder of such series or
all Securities, as the case may be, whose name and address appear in the information preserved


17









 






at the time by the Trustee in accordance with the provisions of subsection (a) of this Section, a
copy of the form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the Commission together with a
copy of the material to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such
series or all Securities, as the case may be, or could be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission, after opportunity for
a hearing upon the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of such order sustaining one or
more of such objections, the Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.





     (c) Each and every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in accordance with
the provisions of subsection (b) of this Section, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under such subsection (b).



ARTICLE 5

Remedies of the Trustee and Securityholders on Event of Default




     Section 5.01. Event of Default Defined; Acceleration of Maturity; Waiver of Default. “Event
of Default”, with respect to Securities of any series wherever used herein, means each one of the
following events which shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):




     (a) default in the payment of any installment of interest upon any of the Securities of
such series as and when the same shall become due and payable, and continuance of such
default for a period of 30 days (or such other period as may be established for the
Securities of such series as contemplated by Section 2.03); or




     (b) default in the payment of all or any part of the principal on any of the Securities
of such series as and when the same shall become due and payable either at maturity, upon
redemption, by declaration or otherwise; or




     (c) default in the performance, or breach, of any covenant or warranty of the Issuer in
respect of the Securities of such series (other than a covenant or warranty in respect of
the Securities of such series a default in the performance or breach of which is



18









 







elsewhere in this Section specifically dealt with), and continuance of such default or
breach for a period of 90 days after there has been given, by registered or certified mail,
to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities of all series affected thereby, a written
notice specifying such default or breach and requiring it to be remedied and stating that
such notice is a “Notice of Default” hereunder; or




     (d) a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Issuer in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer
or for all or substantially all of its property and assets or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days; or




     (e) the Issuer shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Issuer or for any substantial part of its property and assets,
or make any general assignment for the benefit of creditors; or




     (f) any other Event of Default provided for in such series of Securities.




     (g) Notwithstanding any other provisions in this Indenture, if the terms of any
Securities so provide, at the election of the Issuer, the sole remedy for an Event of
Default relating to the failure to comply with Section 4.02 of this Indenture or Section
314(a)(1) of the Trust Indenture Act of 1939, will, for the period specified for the
Securities of such series, consist exclusively of the right to receive additional interest
on the Securities accruing at a rate specified for the Securities of such series. Such
additional interest will accrue on all outstanding Securities of such series from and
including the date on which an Event of Default relating to a failure to comply with the
reporting obligations in the Indenture first occurs to, but not including, the date on which
such Event of Default is cured or waived. The foregoing provisions in this Section 5.01(g)
will not affect the rights of Securityholders in the event of the occurrence of any other
Event of Default. In the event the Issuer does not elect to pay such additional interest
specified upon an Event of Default in accordance with this Section 5.01(g), the Securities
will be subject to acceleration as provided below.



     If an Event of Default described in clauses (a), (b), (c) or (f) occurs and is continuing,
then, and in each and every such case, unless the principal of all of the Securities of such series
shall have already become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding hereunder (each
such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the Securities of such series
are Original Issue Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of all Securities of such series and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same shall become



19









 







immediately due and payable. If an Event of Default described in clause (d) or (e) occurs and
is continuing, then and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, the entire principal (or, if any Securities are Original
Issue Discount Securities, such portion of the principal as may be specified in the terms thereof)
of all the Securities then Outstanding and interest accrued thereon, if any, shall be due and
payable immediately without any declaration or other act by the Trustee or any Holder.



     The foregoing provisions, however, are subject to the condition that if, at any time after the
principal (or, if the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of such series (or of
all the Securities, as the case may be) which shall have become due otherwise than by acceleration
(with interest upon such principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series, (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein—then and in every such case
the Holders of a majority in aggregate principal amount of all the Securities of such series, each
series voting as a separate class, (or of all the Securities, as the case may be, voting as a
single class) then Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to such series (or with respect to all the Securities, as the case may be)
and rescind and annul such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.



     For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.



     Section 5.02. Collection of Debt by Trustee; Trustee May Prove Debt. The Issuer covenants
that (a) in case default shall be made in the payment of any installment of interest on any of the
Securities of any series when such interest shall have become due and payable, and



20









 







such default shall have continued for a period of 30 days or (b) in case default shall be made
in the payment of all or any part of the principal of any of the Securities of any series when the
same shall have become due and payable, and such default shall have continued for a period of five
days, whether upon maturity of the Securities of such series or upon any redemption or by
declaration or otherwise—then, upon demand of the Trustee, the Issuer will pay to the Trustee for
the benefit of the Holders of the Securities of such series the whole amount that then shall have
become due and payable on all Securities of such series for principal or interest, as the case may
be (with interest to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series); and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor trustee, their respective agents,
attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor trustee except as a result of its negligence or bad faith.



     In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such Securities and collect in
the manner provided by law out of the property of the Issuer or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.



     In case there shall be pending proceedings relative to the Issuer or any other obligor upon
the Securities under Title 11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other obligor or its
property, or in case of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of the Issuer or such
other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be
due and payable as therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled
and empowered, by intervention in such proceedings or otherwise:




     (i) to file and prove a claim or claims for the whole amount of principal and interest
(or, if the Securities of any series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such series) owing and unpaid in
respect of the Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including any claim
for reasonable compensation to the Trustee and each predecessor trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor trustee,
except as a result of negligence or bad faith) and of the Securityholders allowed in any
judicial proceedings relative to the Issuer or other obligor



21









 







upon the Securities of any series, or to the creditors or property of the Issuer or
such other obligor,




     (ii) unless prohibited by applicable law and regulations, to vote on behalf of the
Holders of the Securities of any series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and




     (iii) to collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee and each
predecessor trustee except as a result of negligence or bad faith and all other amounts due
to the Trustee or any predecessor trustee pursuant to Section 6.06.



     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.



     All rights of action and of asserting claims under this Indenture, or under any of the
Securities of any series, may be enforced by the Trustee without the possession of any of the
Securities of such series or the production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor trustee and their
respective agents and attorneys, shall be for the ratable benefit of the Holders of the Securities
in respect of which such action was taken.



     In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party), the
Trustee shall be held to represent all the Holders of the Securities in respect to which such
action was taken, and it shall not be necessary to make any Holders of such Securities parties to
any such proceedings.



     Section 5.03. Application of Proceeds. Any moneys collected by the Trustee pursuant to this
Article in respect of any series shall be applied in the following order at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities in respect of which monies have been collected and
stamping (or otherwise noting) thereon the payment, or issuing Securities of such



22









 







series in reduced principal amounts in exchange for the presented Securities of like series if
only partially paid, or upon surrender thereof if fully paid:




     FIRST: To the payment of all amounts due to the Trustee or any predecessor trustee
pursuant to Section 6.06;




     SECOND: In case the principal of the Securities of such series in respect of which
moneys have been collected shall not have become and be then due and payable, to the payment
of interest on the Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the Persons entitled
thereto, without discrimination or preference;




     THIRD: In case the principal of the Securities of such series in respect of which
moneys have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of such series for
principal and interest, with interest upon the overdue principal, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities
of such series, then to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over principal, or of any installment of interest over any
other installment of interest, or of any Security of such series over any other Security of
such series, ratably to the aggregate of such principal and accrued and unpaid interest or
Yield to Maturity; and




     FOURTH: To the payment of the remainder, if any, to the Issuer or any other Person
lawfully entitled thereto.



     Section 5.04. Suits for Enforcement. In case an Event of Default has occurred, has not been
waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.



     Section 5.05. Restoration of Rights on Abandonment of Proceedings. In case the Trustee shall
have proceeded to enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee,
then and in every such case the Issuer and the Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such proceedings had been taken.



23









 





     Section 5.06. Limitations on Suits by Securityholders. No Holder of any Security of any
series shall have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under
or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity shall have failed to institute any such
action or proceeding and no direction inconsistent with such written request shall have been given
to the Trustee pursuant to Section 5.09; it being understood and intended, and being expressly
covenanted by the Holder of every Security with every other Holder and the Trustee, that no one or
more Holders of Securities of any series shall have any right in any manner whatever by virtue or
by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any
other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of Securities of the
applicable series. For the protection and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be given either at law
or in equity.



     Section 5.07. Unconditional Right of Securityholders to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any Security, the right
of any Holder of any Security to receive payment of the principal of and interest on such Security
on or after the respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, or for the enforcement of such
conversion right, shall not be impaired or affected without the consent of such Holder.



     Section 5.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.
Except as provided in Section 5.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.



     No delay or omission of the Trustee or of any Holder of Securities to exercise any right or
power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.06, every power and remedy given by this Indenture
or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Holders of Securities.



24









 





     Section 5.09. Control by Holders of Securities. The Holders of a majority in aggregate
principal amount of the Securities of each series affected (with each series voting as a separate
class) at the time Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series by this Indenture; provided,
that such direction shall not be otherwise than in accordance with law and the provisions of this
Indenture and provided, further, that (subject to the provisions of Section 6.01) the Trustee shall
have the right to decline to follow any such direction if the Trustee, being advised by counsel,
shall determine that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a trust committee of
directors or Responsible Officers of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series so affected not
joining in the giving of said direction, it being understood that (subject to Section 6.01) the
Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.



     Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions
by Securityholders.



     Section 5.10. Waiver of Past Defaults. Prior to the declaration of the acceleration of the
maturity of the Securities of any series as provided in Section 5.01, the Holders of a majority in
aggregate principal amount of the Securities of such series at the time Outstanding may on behalf
of the Holders of all the Securities of such series waive any past default or Event of Default
described in clause Section 5.01(c) or Section 5.01(f) of Section 5.01 (or, in the case of an
event specified in clause Section 5.01(c) or Section 5.01(f) of Section 5.01 which relates to less
than all series of Securities then Outstanding, the Holders of a majority in aggregate principal
amount of the Securities then Outstanding affected thereby (each series voting as a separate class)
may waive any such default or Event of Default, or, in the case of an event specified in clause
Section 5.01(c) or Section 5.01(f) (if the Event of Default under clause Section 5.01(c) or Section
5.01(f) relates to all series of Securities then Outstanding), Section 5.01(d) or Section 5.01(e)
of Section 5.01 the Holders of Securities of a majority in principal amount of all the Securities
then Outstanding (voting as one class) may waive any such default or Event of Default), and its
consequences except a default in respect of a covenant or provision hereof which cannot be modified
or amended without the consent of the Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.



     Upon any such waiver, such default shall cease to exist and be deemed to have been cured and
not to have occurred, and any Event of Default arising therefrom shall be deemed to have been
cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any right consequent
thereon.




25











 





     Section 5.11. Trustee to Give Notice of Default. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give notice of all defaults
with respect to that series known to the Trustee to all Holders of Securities of such series in the
manner and to the extent provided in Section 4.03, unless in each case such defaults shall have
been cured before the mailing or publication of such notice (the term “defaults” for the purpose of
this Section being hereby defined to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided, that, except in the case of default
in the payment of the principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund installment on such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the Securityholders of such
series.



     Section 5.12. Right of Court to Require Filing of Undertaking to Pay Costs. All parties to
this Indenture agree, and each Holder of any Security by his or her acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee,
to any suit instituted by any Securityholder or group of Securityholders of any series holding in
the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in
the case of any suit relating to or arising under clause Section 5.01(c) or Section 5.01(f) of
Section 5.01 (if the suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby, or in the case of
any suit relating to or arising under Section 5.01(c) or Section 5.01(f) (if the suit under Section
5.01(c) or Section 5.01(f) relates to all the Securities then Outstanding), Section 5.01(d) or
Section 5.01(e) of Section 5.01, 10% in aggregate principal amount of all Securities then
Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption or for the enforcement of a right to convert any Security in
accordance with the terms thereof.



ARTICLE 6

Concerning the Trustee




     Section 6.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default.
With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of a particular series and after
the curing or waiving of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a series has occurred
(which has not been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a



26









 







prudent person would exercise or use under the circumstances in the conduct of his or her own
affairs.



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



     Section 6.02. Certain Rights of the Trustee. In furtherance of and subject to the Trust
Indenture Act of 1939 and subject to Section 6.01:




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




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




     (c) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders pursuant to
Section 5.09 relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture;




     (d) none of the provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers if there
shall be reasonable ground for believing that the repayment of such funds or adequate
indemnity against such liability is not reasonably assured to it;




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




     (f) any request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof
be herein specifically prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the secretary or an assistant
secretary of the Issuer;




     (g) the Trustee may consult with counsel and any advice or Opinion of Counsel shall be
full and complete authorization and protection in respect of any action



27









 







taken, suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;




     (h) the Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this Indenture, unless such Securityholders
shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or thereby;




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




     (j) prior to the occurrence of an Event of Default hereunder and after the curing or
waiving of all Events of Default, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, security, or other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided, that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer
or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer upon
demand; and




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



     Section 6.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no representation as
to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Issuer of any of the Securities or of the proceeds
thereof.



     Section 6.04. Trustee and Agents May Hold Securities; Collections, Etc. The Trustee or any
agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from
the Issuer with the same rights it would have if it were not the Trustee or such agent.



28









 





     Section 6.05. Moneys Held by Trustee. Subject to the provisions of Section 10.04 hereof, all
moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except
to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for interest on any moneys received by it
hereunder.



     Section 6.06. Compensation and Indemnification of Trustee and Its Prior Claim. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of this Indenture or
the trusts hereunder and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and each predecessor trustee and to pay
or reimburse the Trustee and each predecessor trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge
of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the Holders of particular Securities, and the Securities are hereby subordinated
to such senior claim.



     Section 6.07. Right of Trustee to Rely on Officer’s Certificate, Etc. Subject to Sections
6.01 and 6.02, whenever in the administration of the trusts of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to taking or suffering
or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee,
be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.



     Section 6.08. Indentures Creating Potential Conflicting Interests for the Trustee. No
indentures are hereby specifically described for the purposes of Section 310(b)(1) of the Trust
Indenture Act of 1939.



     Section 6.09. Persons Eligible for Appointment as Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation having a combined capital and surplus of
at least $50,000,000 and shall be eligible in accordance with the provisions of Section 310(a) of
the Trust Indenture Act of 1939. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of a Federal, State or District of Columbia



29









 







supervising or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.



     Section 6.10. Resignation and Removal; Appointment of Successor Trustee. (a) The Trustee, or
any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or
all series of Securities by giving written notice of resignation to the Issuer and by mailing
notice of such resignation to the Holders of then Outstanding Securities of each series affected at
their addresses as they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself or herself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.




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




     (i) the Trustee shall fail to comply with the provisions of Section 310(b) of
the Trust Indenture Act of 1939 with respect to any series of Securities after
written request therefor by the Issuer or by any Securityholder who has been a bona
fide Holder of a Security or Securities of such series for at least six months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions
of Section 310(a) of the Trust Indenture Act of 1939 and shall fail to resign after
written request therefor by the Issuer or by any Securityholder; or




     (iii) the Trustee shall become incapable of acting with respect to any series
of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation;


then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to Section
315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months may on behalf of himself or herself
and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee with respect to such series.




30









 







Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.





     (c) The Holders of a majority in aggregate principal amount of the Securities of each
series at the time Outstanding may at any time remove the Trustee with respect to Securities
of such series and appoint a successor trustee with respect to the Securities of such series
by delivering to the Trustee so removed, to the successor trustee so appointed and to the
Issuer the evidence provided for in Section 7.01 of the action in that regard taken by the
Securityholders.




     (d) Any resignation or removal of the Trustee with respect to any series and any
appointment of a successor trustee with respect to such series pursuant to any of the
provisions of this Section 6.10 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 6.11.



     Section 6.11. Acceptance of Appointment by Successor Trustee. Any successor trustee appointed
as provided in Section 6.10 shall execute and deliver to the Issuer and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such series of its predecessor hereunder,
with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 10.04, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property
or funds held or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.06.



     If a successor trustee is appointed with respect to the Securities of one or more (but not
all) series, the Issuer, the predecessor trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of
any series as to which the predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust
or trusts under separate indentures.



     No successor trustee with respect to any series of Securities shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 310(a) of the Trust Indenture Act of 1939.



31









 





     Upon acceptance of appointment by any successor trustee as provided in this Section 6.11, the
Issuer shall mail notice thereof to the Holders of Securities of each series affected, by mailing
such notice to such Holders at their addresses as they shall appear on the Security register. If
the acceptance of appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to mail such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be given at the expense of
the Issuer.



     Section 6.12. Merger, Conversion, Consolidation or Succession to Business of Trustee. Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder; provided, that such corporation shall be qualified
under the provisions of Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 310(a) of the Trust Indenture Act of 1939, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.



     In case, at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities of any series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificate shall have the full force which it is
anywhere in the Securities of such series or in this Indenture provided that the certificate of the
Trustee shall have; provided, that the right to adopt the certificate of authentication of any
predecessor trustee or to authenticate Securities of any series in the name of any predecessor
trustee shall apply only to its successor or successors by merger, conversion or consolidation.



     Section 6.13. Preferential Collection of Claims Against the Issuer. If and when the Trustee
shall be or become a creditor of the Issuer (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act of 1939 regarding the collection of
claims against the Issuer (or any such other obligor).



ARTICLE 7

Concerning the Securityholders




     Section 7.01. Evidence of Action Taken by Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be
given or taken by a specified percentage in principal amount of the Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for any



32









 







purpose of this Indenture and (subject to Sections 6.01 and 6.02) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article.



     Section 7.02. Proof of Execution of Instruments and of Holding of Securities. Subject to
Sections 6.01 and 6.02, the execution of any instrument by a Holder or his agent or proxy may be
proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of Securities shall be
proved by the Register or by a certificate of the registrar thereof. The Issuer may set a record
date for purposes of determining the identity of Holders of any series entitled to vote or consent
to any action referred to in Section 7.01, which record date may be set at any time or from time to
time by notice to the Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the proposed date of such
vote or consent, and thereafter, notwithstanding any other provisions hereof, only Holders of such
series of record on such record date shall be entitled to so vote or give such consent or revoke
such vote or consent. Notice of such record date may be given before or after any request for any
action referred to in Section 7.01 is made by the Issuer.



     Section 7.03. Holders to Be Treated as Owners. The Issuer, the Trustee and any agent of the
Issuer or the Trustee may deem and treat the Person in whose name any Security shall be registered
upon the Security register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal of, and, subject to
the provisions of this Indenture, interest on, such Security and for all other purposes; and
neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by
any notice to the contrary. All such payments so made to any such Person, or upon his or her
order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable.



     Section 7.04. Securities Owned by Issuer Deemed Not Outstanding. In determining whether the
Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series
have concurred in any direction, consent or waiver under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which such determination is
being made or by any Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that, for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver, only Securities
which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer or any
other obligor on the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in accordance with such
advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officer’s
Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held
by or for the account of any of the above-described Persons;



33









 





     and, subject to Sections 6.01 and 6.02, the Trustee shall be entitled to accept such Officer’s
Certificate as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such determination.



     Section 7.05. Right of Revocation of Action Taken. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 7.01, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial numbers of the
Securities the Holders of which have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so
far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of
such Security and of any Securities issued in exchange or substitution therefor or on registration
of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any
such Security. Any action taken by the Holders of the percentage in aggregate principal amount of
the Securities of any or all series, as the case may be, specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all
the Securities affected by such action.



ARTICLE 8

Supplemental Indentures




     Section 8.01. Supplemental Indentures Without Consent of Securityholders. The Issuer, when
authorized by a resolution of its Board of Directors, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto in form satisfactory to the
Trustee for one or more of the following purposes:




     (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;




     (b) to evidence the succession of another corporation to the Issuer, or successive
successions, and the assumption by the successor corporation of the covenants, agreements
and obligations of the Issuer pursuant to Article 9;




     (c) to add to the covenants of the Issuer such further covenants, restrictions,
conditions or provisions as its Board of Directors and the Trustee shall consider to be for
the protection of the Holders of Securities, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, that in respect of any
such additional covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive such an Event of
Default;



34









 






     (d) to cure any ambiguity or to correct or supplement any provision contained herein or
in any supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture, or to conform this Indenture or
any supplemental indenture to the description of the Securities set forth in any prospectus
or prospectus supplement related to such series of Securities;




     (e) to provide for or add guarantors for the Securities of one or more series;




     (f) to establish the form or terms of Securities of any series as permitted by Sections
2.01 and 2.03;




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




     (h) to make any other change that is necessary or desirable; provided, that no such
action shall adversely affect the interests of the Holders of the Securities in any material
respect;




     (i) to make any change to the Securities of any series so long as no Securities of such
series are Outstanding; and




     (j) to make any other change to the Securities of any series that does not adversely
affect the rights of any Holder.



     The Trustee is hereby authorized to join with the Issuer in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.



     Any supplemental indenture authorized by the provisions of this Section may be executed
without the consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 8.02.



     Section 8.02. Supplemental Indentures With Consent of Securityholders. With the consent
(evidenced as provided in Article 7) of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its
Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the Holders of the Securities of each such series;
provided, that no such supplemental indenture shall, without the consent of the Holder of each
Security so affected, (a) extend the final maturity of any Security, or reduce




35












 




the principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or make the principal thereof
(including any amount in respect of original issue discount) or interest thereon payable in any
currency other than that provided in the Securities or in accordance with the terms thereof, or
reduce the amount of the principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 5.01 or the amount thereof
provable in bankruptcy pursuant to Section 5.02, or alter the provisions of Section 11.11 or 11.12,
or impair or affect the right of any Securityholder to institute suit for the payment or conversion
thereof or, in the case of convertible or exchangeable Securities, materially and adversely affect
the right to convert or exchange the Securities in accordance with their terms or, if the
Securities provide therefor, any right of repayment at the option of the Securityholder, or modify
any of the provisions of this paragraph except to increase any required percentage or to provide
that certain other provisions cannot be modified or waived without the consent of the Holder of
each Security so affected; provided, that no consent of any Holder of any Security shall be
necessary under this Section 8.02 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Section 8.01(e) of this Indenture, or (b) reduce the aforesaid percentage of
Securities of any series, the consent of the Holders of which is required for any such supplemental
indenture.




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



     Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of
Directors certified by the secretary or an assistant secretary of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders as aforesaid and other documents, if any, required by Section 7.01,
the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.



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



     Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall give a notice thereof to the Holders
of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the Security register,
and in each case such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental indenture.



     Section 8.03. Effect of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified



36









 








and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.



     Section 8.04. Documents to Be Given to Trustee. The Trustee, subject to the provisions of
Sections 6.01 and 6.02, may receive an Officer’s Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this Article 8 complies
with the applicable provisions of this Indenture.



     Section 8.05. Notation on Securities in Respect of Supplemental Indentures. Securities of any
series authenticated and delivered after the execution of any supplemental indenture pursuant to
the provisions of this Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the
Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series
then Outstanding.



ARTICLE 9

Consolidation, Merger, Sale or Conveyance




     Section 9.01. Issuer May Consolidate, Etc., on Certain Terms. The Issuer shall not
consolidate with or merge into any other Person (in a transaction in which the Issuer is not the
surviving corporation) or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless (a) the Person formed by such consolidation or into which the Issuer
is merged or the Person which acquires by conveyance or transfer, or which leases, the properties
and assets of the Issuer substantially as an entirety shall be (i) a corporation, limited liability
company, partnership or trust, (ii) shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and (iii) shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of every covenant of this
Indenture on the part of the Issuer to be performed, by supplemental indenture satisfactory in form
to the Trustee, executed and delivered to the Trustee, by the Person (if other than the Issuer)
formed by such consolidation or into which the Issuer shall have been merged or by the Person which
shall have acquired the Issuer’s assets; (b) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the Issuer or any Subsidiary as a
result of such transaction as having been incurred by the Issuer or such Subsidiary at the time of
such transaction, no Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing; and (c) the Issuer has
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such



37









 







supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.



     The conditions of (a)(ii) above shall not apply in the case of a corporation or entity not
organized under the laws of the United States of America, any State thereof or the District of
Columbia which shall agree, in form satisfactory to the Trustee, (i) to subject itself to the
jurisdiction of the United States district court for the Southern District of New York and (ii) to
indemnify and hold harmless the holders of all Securities against (A) any tax, assessment or
governmental charge imposed on such holders by a jurisdiction other than the United States or any
political subdivision or taxing authority thereof or therein with respect to, and withheld on the
making of, any payment of principal or interest on such Securities and which would not have been so
imposed and withheld had such consolidation, merger, sale or conveyance not been made and (B) any
tax, assessment or governmental charge imposed on or relating to, and any costs or expenses
involved in, such consolidation, merger, sale or conveyance.



     The restrictions in this Section 9.01 shall not apply to (i) the merger or consolidation of
the Issuer with one of its affiliates, if the Board of Directors determines in good faith that the
purpose of such transaction is principally to change the Issuer’s State of incorporation or convert
the Issuer’s form of organization to another form, or (ii) the merger of the Issuer with or into a
single direct or indirect wholly owned Subsidiary pursuant to Section 251(g) (or any successor
provision) of the General Corporation Law of the State of Delaware.



     Section 9.02. Successor Issuer Substituted. Upon any consolidation of the Issuer with, or
merger of the Issuer into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Issuer substantially as an entirety in accordance with Section 9.01, the
successor Person formed by such consolidation or into which the Issuer is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Issuer under this Indenture with the same effect as if such successor
Person had been named as the Issuer herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this Indenture and the
Securities.



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



ARTICLE 10

Satisfaction and Discharge of Indenture; Unclaimed Moneys




     Section 10.01. Satisfaction and Discharge of Indenture. (a) If at any time (i) the Issuer
shall have paid or caused to be paid the principal of and interest on all the Securities of any
series Outstanding hereunder (other than Securities of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.09) as and when the same
shall have become due and payable, or (ii) the Issuer shall have delivered to the Trustee for
cancellation all Securities of any series theretofore authenticated (other than any Securities of
such series which shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.09) or (iii) in the case of any series of Securities the exact amount
(including the currency of payment) of principal of and interest due on which on the dates



38









 







referred to in clause (B) below can be determined at the time of making the deposit referred
to in such clause, (A) all the Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and (B) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash
(other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with
Section 10.04) or, in the case of any series of Securities the payments on which may only be made
in Dollars, direct obligations of the United States of America, backed by its full faith and credit
(“U.S. Government Obligations”), maturing as to principal and interest in such amounts and at such
times as will insure the availability of cash sufficient to pay on any subsequent interest payment
date all interest due on such interest payment date on the Securities of such series and to pay at
maturity or upon redemption all Securities of such series (in each case other than any Securities
of such series which shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.09) not theretofore delivered to the Trustee for cancellation,
including principal and interest due or to become due to such date of maturity, as the case may be,
and if, in any such case, the Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer, including amounts due the Trustee pursuant to Section 6.06, with respect
to Securities of such series, then this Indenture shall cease to be of further effect with respect
to Securities of such series (except as to (1) rights of registration of transfer, conversion and
exchange of Securities of such series and the Issuer’s right of optional redemption, (2)
substitution of mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of Holders of
Securities to receive payments of principal thereof and interest thereon upon the original stated
due dates therefor (but not upon acceleration) and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (4) the rights (including the Trustee’s rights under
Section 10.05) and immunities of the Trustee hereunder and the Trustee’s obligations under Sections
10.02 and 10.04, (5) the rights of the Holders of Securities of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any of them and (6)
the obligations of the Issuer under Section 3.02), and the Trustee, on demand of the Issuer
accompanied by an Officer’s Certificate and an Opinion of Counsel which complies with Section 11.05
and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such series; provided, that the
rights of Holders of the Securities to receive amounts in respect of principal of and interest on
the Securities held by them shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are listed. The Issuer
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered
by the Trustee in connection with this Indenture or the Securities of such series.




     (b) The following provisions shall apply to the Securities of each series unless
specifically otherwise provided in a Board Resolution, Officer’s Certificate or indenture
supplemental hereto provided pursuant to Section 2.03. In addition to discharge of the
Indenture pursuant to the next preceding paragraph, in the case of any series of Securities
the exact amounts (including the currency of payment) of principal of and interest
subsequently due on which can be determined at the time of making the deposit referred to in
clause (vi)(A)(1) below, the Issuer shall be deemed to have paid and discharged the



39









 






entire Debt on all the Securities of such a series on the 121st day after the date of
the deposit referred to in subparagraph (vi)(A)(1) below, and the provisions of this
Indenture with respect to the Securities of such series shall no longer be in effect (except
as to (i) rights of registration of transfer, conversion and exchange of Securities of such
series, (ii) substitution of apparently mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of Holders of Securities to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of the Holders to receive sinking fund payments, if any,
(iv) the rights (including the Trustee’s rights under Section 10.05) and immunities of the
Trustee hereunder and the Trustee’s obligations with respect to the Securities of such
series under Sections 10.02 and 10.04, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them and (vi) the obligations of the Issuer under Section 3.02) and
the Trustee, at the expense of the Issuer, shall at the Issuer’s request, execute proper
instruments acknowledging the same, if




     (A) with reference to this provision the Issuer has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (1) cash in an amount, or (2) in the case
of any series of Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at such times and in
such amounts as will insure the availability of cash or (3) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee,
to pay (x) the principal and interest on all Securities of such series on the date
that such principal or interest is due and payable and (y) any mandatory sinking
fund payments on the day on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series;




     (B) such deposit will not result in a breach or violation of, or constitute a
default under, any agreement or instrument to which the Issuer is a party or by
which it is bound;




     (C) the Issuer has delivered to the Trustee an Officer’s Certificate and an
opinion of independent legal counsel satisfactory to the Trustee to the effect that
the Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling to the effect that Holders of the Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred; and




     (D) the Issuer has delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating
to the defeasance contemplated by this provision have been complied



40









 






with, and the Opinion of Counsel shall also state that such deposit does not
violate applicable law.



     Section 10.02. Application by Trustee of Funds Deposited for Payment of Securities. Subject
to Section 10.04, all moneys deposited with the Trustee (or other trustee) pursuant to Section
10.01 shall be held in trust and applied by it to the payment, either directly or through any
paying agent (including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent required by law.



     Section 10.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction
and discharge of this Indenture with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.



     Section 10.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any
moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal
of or interest on any Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have become due and payable, shall, upon
the written request of the Issuer and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee
for such series or such paying agent, and the Holder of the Securities of such series shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease; provided, however, that the Trustee or such paying agent, before being required to
make any such repayment with respect to moneys deposited with it for any payment in respect of
Securities of any series, shall at the expense of the Issuer mail by first-class mail to Holders of
such Securities at their addresses as they shall appear on the Security register notice that such
moneys remain and that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing or publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer.



     Section 10.05. Indemnity for U.S. Government Obligations. The Issuer shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.01 or the principal or interest received in respect of
such obligations.



ARTICLE 11

Miscellaneous Provisions




     Section 11.01. Incorporators, Stockholders, Officers and Directors of Issuer Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security, or because of any indebtedness evidenced



41









 







thereby, shall be had against any incorporator, as such, or against any past, present or
future stockholder, officer or director, as such, of the Issuer or of any successor, either
directly or through the Issuer or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue of the Securities.



     Section 11.02. Provisions of Indenture for the Sole Benefit of Parties and Holders of
Securities. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be
construed to give to any person, firm or corporation, other than the parties hereto and their
successors and the Holders of the Securities any legal or equitable right, remedy or claim under
this Indenture or under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their successors and of the Holders
of the Securities.



     Section 11.03. Successors and Assigns of Issuer Bound by Indenture. All the covenants,
stipulations, promises and agreements contained in this Indenture by or on behalf of the Issuer
shall bind its successors and assigns, whether so expressed or not.



     Section 11.04. Notices and Demands on Issuer, Trustee and Holders of Securities. Any notice
or demand which by any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to ION
Geophysical Corporation, 2105 CityWest Blvd, Suite 400, Houston, Texas 77042-2839, Attn: [R. Brian
Hanson]. Any notice, direction, request or demand by the Issuer or any Holder of Securities to or
upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if
given or made at                     ,                     , Attn:                     .



     Where this Indenture provides for notice to Holders of Securities, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder entitled thereto, at his or her last address as it
appears in the Security register. In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders.



     In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.



     In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice of any event to Holders of Securities when said notice is required to
be given pursuant to any provision of this Indenture or of the Securities, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice. Neither the failure to give notice, nor any defect in any notice so given,
to any



42









 







particular Holder of a Security shall affect the sufficiency of such notice with respect to
other Holders of Securities given as provided above.



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



     Section 11.05. Officer’s Certificates and Opinions of Counsel; Statements to Be Contained
Therein. Upon any application or demand by the Issuer to the Trustee to take any action under any
of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.



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



     Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or representations with respect to the matters
upon which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous. Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual matters, information
with respect to which is in the possession of the Issuer, upon the certificate, statement or
opinion of or representations by an officer or officers of the Issuer, unless such counsel knows
that the certificate, statement or opinion or representations with respect to the matters upon
which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.



     Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the
accounting matters upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that the same are
erroneous.



43









 





     Any certificate or opinion of any independent firm of public accountants filed with and
directed to the Trustee shall contain a statement that such firm is independent.



     Section 11.06. Payments Due on Saturdays, Sundays and Holidays. If the date of maturity of
interest on or principal of the Securities of any series or the date fixed for redemption or
repayment of any such Security, or the last day on which a Holder has the right to convert any
Security, shall not be a Business Day, then payment of interest or principal, or any conversion,
need not be made on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of maturity or the date fixed for redemption or on such
last day for conversion, and no interest shall accrue for the period after such date.



     Section 11.07. Conflict of Any Provision of Indenture With Trust Indenture Act of 1939. If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939, such incorporated provision shall control.



     Section 11.08. New York Law to Govern. This Indenture and each Security shall be deemed to be
a contract under the laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of such State, except as may otherwise be required by mandatory provisions
of law.



     Section 11.09. Counterparts. This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together constitute but one and the
same instrument.



     Section 11.10. Effect of Headings. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.



     Section 11.11. Securities in a Foreign Currency. Unless otherwise specified in an Officer’s
Certificate delivered pursuant to Section 2.03 of this Indenture with respect to a particular
series of Securities, whenever for purposes of this Indenture any action may be taken by the
Holders of a specified percentage in aggregate principal amount of Securities of all series or all
series affected by a particular action at the time Outstanding and, at such time, there are
Outstanding Securities of any series which are denominated in a currency other than Dollars, then
the principal amount of Securities of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate. For purposes of this Section 11.11, “Market Exchange Rate”
shall mean the noon Dollar buying rate for that currency for cable transfers quoted in The City of
New York as certified for customs purposes by the Federal Reserve Bank of New York. If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the Federal Reserve
Bank of New York as of the most recent available date, or quotations from one or more major banks
in The City of New York or in the country of issue of the currency in question, or such other
quotations as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a series denominated in a
currency other than Dollars in connection with any action taken by Holders of Securities pursuant
to the terms of this Indenture.



44









 





     All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding
upon the Issuer and all Holders.



     Section 11.12. Judgment Currency. The Issuer agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or interest on the
Securities of any series (the “Required Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day preceding that on which
final unappealable judgment is given and (b) its obligations under this Indenture to make payments
in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required Currency expressed
to be payable in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day
except a Saturday, Sunday or legal holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required by law or executive order to close.



ARTICLE 12

Redemption of Securities and Sinking Funds




     Section 12.01. Applicability of Article. The provisions of this Article shall be applicable
to the Securities of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series, except as otherwise specified, as contemplated by
Section 2.03 for Securities of such series.



     Section 12.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders
of Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall
be given by mailing notice of such redemption by first class mail, postage prepaid, at least 30
days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities
of such series at their last addresses as they shall appear upon the Security register. Any notice
which is given in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice or any defect in the
notice to the Holder of any Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other Security of such
series.



     The notice of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that payment will be made upon presentation




45












 




and surrender of such Securities, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue and shall also specify, if
applicable, the conversion price then in effect and the date on which the right to convert such
Securities or the portions thereof to be redeemed will expire. In case any Security of a series is
to be redeemed in part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.




     The notice of redemption of Securities of any series to be redeemed at the option of the
Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at
the expense of the Issuer.



     On or before the redemption date specified in the notice of redemption given as provided in
this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if
the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.04) an amount of money sufficient to redeem on the redemption date all the Securities of
such series so called for redemption (other than those theretofore surrendered for conversion into
Common Stock) at the appropriate redemption price, together with accrued interest to the date fixed
for redemption. If any Security called for redemption is converted pursuant hereto, any money
deposited with the Trustee or any paying agent or so segregated and held in trust for the
redemption of such Security shall be paid to the Issuer upon the Issuer’s request, or, if then held
by the Issuer, shall be discharged from such trust. The Issuer will deliver to the Trustee at
least 70 days prior to the date fixed for redemption (unless a shorter time period shall be
acceptable to the Trustee) an Officer’s Certificate (which need not comply with Section 11.05)
stating the aggregate principal amount of Securities to be redeemed. In case of a redemption at
the election of the Issuer prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officer’s Certificate stating that such restriction has been complied
with.



     If less than all the Securities of a series are to be redeemed, the Trustee shall select, in
such manner as it shall deem appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series selected for partial redemption, the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed. If any Security selected for partial redemption is
surrendered for conversion after such selection, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Upon any redemption of less
than all the Securities, the Issuer and the Trustee may treat as Outstanding Securities surrendered
for conversion during the period of 15 days next preceding the mailing of a notice of redemption,
and need not treat as Outstanding any Security authenticated and delivered during



46









 







such period in exchange for the unconverted portion of any Security converted in part during
such period.



     Section 12.03. Payment of Securities Called for Redemption. If notice of redemption has been
given as above provided, the Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
said date (unless the Issuer shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and, except as provided in Sections 6.05
and 10.04, such Securities shall cease from and after the date fixed for redemption to be
convertible into Common Stock, if applicable, and to be entitled to any benefit or security under
this Indenture, and the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of payment specified in
said notice, said Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed
for redemption; provided, that payment of interest becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of such Securities registered as such on the relevant
record date subject to the terms and provisions of Sections 2.03 and 2.07 hereof.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security and, if applicable, such Security shall remain
convertible into Common Stock until the principal of such Security shall have been paid or duly
provided for.



     Upon presentation of any Security redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Issuer, a new Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.



     Section 12.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption.
Securities shall be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in an Officer’s Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be given as being owned of
record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an
entity specifically identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.



     Section 12.05. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund
payment provided for by the terms of the Securities of any series is herein referred to as a
“mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by
the terms of the Securities of any series is herein referred to as an “optional sinking fund
payment”. The date on which a sinking fund payment is to be made is herein referred to as the
“sinking fund payment date”.



47









 





     In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10 and, if applicable,
receive credit for Securities (not previously so credited) converted into Common Stock and so
delivered to the Trustee for cancellation, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Issuer through any optional redemption
provision contained in the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price specified in such
Securities.



     On or before the 60th day next preceding each sinking fund payment date for any series, the
Issuer will deliver to the Trustee an Officer’s Certificate (which need not contain the statements
required by Section 11.05) (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series
and the basis for such credit, (b) stating that none of the Securities of such series has
theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer’s Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officer’s Certificate shall be irrevocable and upon
its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver such Officer’s
Certificate and Securities specified in this paragraph, if any, shall not constitute a default but
shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit Securities of such series in
respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.



     If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or a
lesser sum in Dollars or in any Foreign Currency if the Issuer shall so request) with respect to
the Securities of any particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking fund redemption
price together with accrued interest to the date fixed for redemption. If such amount shall be
$50,000 (or the equivalent thereof in any Foreign Currency) or less and the



48









 







Issuer makes no such request then it shall be carried over until a sum in excess of $50,000
(or the equivalent thereof in any Foreign Currency) is available. The Trustee shall select, in the
manner provided in Section 12.02, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities
of such series (or portions thereof) so selected. Securities shall be excluded from eligibility
for redemption under this Section if they are identified by registration and certificate number in
an Officer’s Certificate delivered to the Trustee at least 60 days prior to the sinking fund
payment date as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such Officer’s Certificate as
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Issuer. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall
so request the Trustee in writing), shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 12.02 (and with the effect
provided in Section 12.03) for the redemption of Securities of such series in part at the option of
the Issuer. The amount of any sinking fund payments not so applied or allocated to the redemption
of Securities of such series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not held for the payment
or redemption of particular Securities of such series, shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest
on, the Securities of such series at maturity. The Issuer’s obligation to make a mandatory or
optional sinking fund payment shall automatically be reduced by an amount equal to the sinking fund
redemption price allocable to any Securities or portions thereof called for redemption pursuant to
the preceding paragraph on any sinking fund payment date and converted into Common Stock; provided,
that, if the Trustee is not the conversion agent for the Securities, the Issuer or such conversion
agent shall give the Trustee written notice prior to the date fixed for redemption of the principal
amount of Securities or portions thereof so converted.



     On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or
shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.



     The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or give any notice of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been collected under Article
5 and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10, or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall



49









 







thereafter be applied on the next succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.



50









 





     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
                                        .



	 	 	 	 	 
	 	ION Geophysical Corporation

 	 
	 	By:  	 	 
	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	Attest:

 	 
	 	By:  	 	 
	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	                                        , Trustee

 	 
	 	By:  	 	 
	 	Title: 	 
	 	 	 	 
	 



51









 








Exhibit [      ]



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM,
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




ION Geophysical Corporation

[     ]% Note Due [     ]




			
	 	 	 
	No. [     ]
	 	CUSIP No.: [     ]
	 
	 	$[     ]






     ION Geophysical Corporation, a Delaware corporation (“Issuer”, which term includes any
successor corporation), for value received promises to pay to CEDE & CO. or registered assigns, the
principal sum of                      on                     .



     Interest Payment Dates:                      and                      (each, an “Interest Payment
Date”), commencing on                     .



     Interest Record Dates:                      and                      (each, an “Interest Record Date”).



     Reference is made to the further provisions of this Security contained herein, which will for
all purposes have the same effect as if set forth at this place.



 









 





     IN WITNESS WHEREOF, the Issuer has caused this Security to be signed manually or by facsimile
by its duly authorized officer under its corporate seal.



	 	 	 	 	 
	 	ION Geophysical Corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	Attest:

 	 
	By:  	 	 
	Name:  	 	 
	Title:  	 	 



2









 






	 	 	 	 	 




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



Dated: [     ]




	 	 	 	 	 
	 	                                        , Trustee

 	 
	 	By:  	 	 
	 	Title: 	 
	 	 	 	 
	 




3









 








(REVERSE OF SECURITY)




ION Geophysical Corporation




[     ]% Note Due [     ]




1. Interest.





     ION Geophysical Corporation, a Delaware corporation (the “Issuer”), promises to pay interest
on the principal amount of this Security at the rate per annum shown above. Cash interest on the
Securities will accrue from the most recent date to which interest has been paid or, if no interest
has been paid, from                     . The Issuer will pay interest semi-annually in arrears on each
Interest Payment Date, commencing                     . Interest will be computed on the basis of a
360-day year of twelve 30-day months.



     The Issuer shall pay interest on overdue principal from time to time on demand at the rate
borne by the Securities and on overdue installments of interest (without regard to any applicable
grace periods) to the extent lawful.



2. Method of Payment.




     The Issuer shall pay interest on the Securities (except defaulted interest) to the persons who
are the registered Holders at the close of business on the Interest Record Date immediately
preceding the Interest Payment Date notwithstanding any transfer or exchange of such Security
subsequent to such Interest Record Date and prior to such Interest Payment Date. Holders must
surrender Securities to the Trustee to collect principal payments. The Issuer shall pay Principal
and interest in money of the United States that at the time of payment is legal tender for payment
of public and private debts (“U.S. Legal Tender”). However, the payments of interest, and any
portion of the Principal (other than interest payable at maturity or on any redemption or repayment
date or the final payment of Principal) shall be made by the Paying Agent, upon receipt from the
Issuer of immediately available funds by                      [a./p.m.], New York City time (or such
other time as may be agreed to between the Issuer and the Paying Agent or the Issuer), directly to
a Holder (by Federal funds wire transfer or otherwise) if the Holder has delivered written
instructions to the Trustee 15 days prior to such payment date requesting that such payment will be
so made and designating the bank account to which such payments shall be so made and in the case of
payments of Principal surrenders the same to the Trustee in exchange for a Security or Securities
aggregating the same principal amount as the unredeemed principal amount of the Securities
surrendered.



3. Paying Agent.




     Initially,                      (the “Trustee”) will act as Paying Agent. The Issuer may change
any Paying Agent without notice to the Holders.



4









 





4. Indenture.




     The Issuer issued the Securities under an Indenture, dated as of                     ,
                     (the “Indenture”), between the Issuer and the Trustee. Capitalized terms herein
are used as defined in the Indenture unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the “TIA”), as in effect on the date
of the Indenture until such time as the Indenture is qualified under the TIA, and thereafter as in
effect on the date on which the Indenture is qualified under the TIA. Notwithstanding anything to
the contrary herein, the Securities are subject to all such terms, and holders of Securities are
referred to the Indenture and the TIA for a statement of them. To the extent the terms of the
Indenture and this Security are inconsistent, the terms of the Indenture shall govern.



5. Denominations; Transfer; Exchange.




     The Securities are in registered form, without coupons, in denominations of $1,000 and
multiples of $1,000. A Holder shall register the transfer of or exchange Securities in accordance
with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The Issuer need not issue,
authenticate, register the transfer of or exchange any Securities or portions thereof for a period
of fifteen (15) days before such series is selected for redemption, nor need the Issuer register
the transfer or exchange of any security selected for redemption in whole or in part.



6. Persons Deemed Owners.




     The registered Holder of a Security shall be treated as the owner of it for all purposes.



7. Unclaimed Funds.




     If funds for the payment of principal or interest remain unclaimed for two years, the Trustee
and the Paying Agent will repay the funds to the Issuer at its written request. After that, all
liability of the Trustee and such Paying Agent with respect to such funds shall cease.



8. Legal Defeasance and Covenant Defeasance.




     The Issuer may be discharged from its obligations under the Securities and under the Indenture
with respect to the Securities except for certain provisions thereof, and may be discharged from
obligations to comply with certain covenants contained in the Securities and in the Indenture with
respect to the Securities, in each case upon satisfaction of certain conditions specified in the
Indenture.



9. Amendment; Supplement; Waiver.




     Subject to certain exceptions, the Securities and the provisions of the Indenture relating to
the Securities may be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities of all series then outstanding



5









 







affected by such amendment or supplement (voting as one class), and any existing Default or
Event of Default or compliance with certain provisions may be waived with the consent of the
Holders of a majority in aggregate principal amount of all the Securities of such series, each
series voting as a separate class, (or of all the Securities, as the case may be, voting as a
single class) then outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture and the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in addition to or in
place of certificated Securities, or make any other change that does not adversely affect the
rights of any Holder of a Security.



10. Defaults and Remedies.




     If an Event of Default (other than certain bankruptcy Events of Default with respect to the
Issuer) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Securities of this series then outstanding (voting as a separate class) may declare all
of the Securities to be due and payable immediately in the manner and with the effect provided in
the Indenture. If a bankruptcy Event of Default with respect to the Issuer occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of all series
of Securities then outstanding (treated as one class) may declare all of the Securities to be due
and payable immediately in the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee is not obligated to enforce the Indenture or the Securities unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate principal amount of the Securities then outstanding to
direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.



11. Trustee Dealings with Issuer.




     The Trustee under the Indenture, in its individual or any other capacity, may become the owner
or pledgee of Securities and may otherwise deal with the Issuer as if it were not the Trustee.



12. No Recourse Against Others.




     No stockholder, director, officer, employee or incorporator, as such, of the Issuer or any
successor Person thereof shall have any liability for any obligation under the Securities or the
Indenture or for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the
Securities.



13. Authentication.




     This Security shall not be valid until the Trustee manually signs the certificate of
authentication on this Security.



6









 





14. Abbreviations and Defined Terms.




     Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).



15. CUSIP Numbers.




     Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Issuer has caused CUSIP numbers to be printed on the Securities as a convenience to
the Holders of the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other identification numbers
printed hereon.



16. Governing Law.




     The laws of the State of New York shall govern the Indenture and this Security thereof.



7









 





ASSIGNMENT FORM




I or we assign and transfer this Security to




 

(Print or type name, address and zip code of assignee or transferee)




 

(Insert Social Security or other identifying number of assignee or transferee)



and irrevocably appoint                                                             
agent to transfer this Security on the books of the Issuer. The agent may substitute another to
act for him.




	 	 	 	 	 	 	 
	Dated:

	 	 	 	Signed:	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Signed exactly as name appears on the other side of
this Security)






	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Participant in a recognized
Signature Guarantee Medallion
Program (or other signature
guarantor program reasonably
acceptable to the Trustee)
	 	 







8