exv4w2



 





Exhibit 4.2




BORDERS
GROUP, INC.




TO




                                        




AS TRUSTEE




INDENTURE




DATED AS OF                    , 200_




SUBORDINATED DEBT SECURITIES




 









 








	 	 	 	 	 
	ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.1 DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS
	 	 	8	 
	 
	 	 	 	 
	SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE
	 	 	9	 
	 
	 	 	 	 
	SECTION 1.4 ACTS OF HOLDERS; RECORD DATES
	 	 	9	 
	 
	 	 	 	 
	SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY
	 	 	11	 
	 
	 	 	 	 
	SECTION 1.6 NOTICE TO HOLDERS; WAIVER
	 	 	11	 
	 
	 	 	 	 
	SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT
	 	 	12	 
	 
	 	 	 	 
	SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS
	 	 	12	 
	 
	 	 	 	 
	SECTION 1.9 SUCCESSORS AND ASSIGNS
	 	 	12	 
	 
	 	 	 	 
	SECTION 1.10 SEPARABILITY CLAUSE
	 	 	12	 
	 
	 	 	 	 
	SECTION 1.11 BENEFITS OF INDENTURE
	 	 	12	 
	 
	 	 	 	 
	SECTION 1.12 GOVERNING LAW
	 	 	12	 
	 
	 	 	 	 
	SECTION 1.13 LEGAL HOLIDAYS
	 	 	13	 
	 
	 	 	 	 
	SECTION 1.14 INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS
	 	 	13	 
	 
	 	 	 	 
	SECTION 1.15 INDENTURE MAY BE EXECUTED IN COUNTERPARTS
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 2 SECURITY FORMS
	 	 	13	 
	 
	 	 	 	 
	SECTION 2.1 FORMS GENERALLY
	 	 	13	 
	 
	 	 	 	 
	SECTION 2.2 FORM OF FACE OF SECURITY
	 	 	14	 
	 
	 	 	 	 
	SECTION 2.3 FORM OF REVERSE OF SECURITY
	 	 	15	 
	 
	 	 	 	 
	SECTION 2.4 FORM OF LEGEND FOR GLOBAL SECURITIES
	 	 	20	 
	 
	 	 	 	 
	SECTION 2.5 FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION
	 	 	20	 
	 
	 	 	 	 
	SECTION 2.6 FORM OF CONVERSION NOTICE
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 3 THE SECURITIES
	 	 	21	 






i









 






	 	 	 	 	 
	SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES
	 	 	21	 
	 
	 	 	 	 
	SECTION 3.2 DENOMINATIONS
	 	 	24	 
	 
	 	 	 	 
	SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
	 	 	24	 
	 
	 	 	 	 
	SECTION 3.4 TEMPORARY SECURITIES
	 	 	26	 
	 
	 	 	 	 
	SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE
	 	 	26	 
	 
	 	 	 	 
	SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
	 	 	28	 
	 
	 	 	 	 
	SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
	 	 	28	 
	 
	 	 	 	 
	SECTION 3.8 PERSONS DEEMED OWNERS
	 	 	29	 
	 
	 	 	 	 
	SECTION 3.9 CANCELLATION
	 	 	30	 
	 
	 	 	 	 
	SECTION 3.10 COMPUTATION OF INTEREST
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 4 SATISFACTION AND DISCHARGE
	 	 	30	 
	 
	 	 	 	 
	SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	30	 
	 
	 	 	 	 
	SECTION 4.2 APPLICATION OF TRUST MONEY
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 5 REMEDIES
	 	 	31	 
	 
	 	 	 	 
	SECTION 5.1 EVENTS OF DEFAULT
	 	 	31	 
	 
	 	 	 	 
	SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
	 	 	33	 
	 
	 	 	 	 
	SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
	 	 	34	 
	 
	 	 	 	 
	SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM
	 	 	34	 
	 
	 	 	 	 
	SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
	 	 	34	 
	 
	 	 	 	 
	SECTION 5.6 APPLICATION OF MONEY COLLECTED
	 	 	35	 
	 
	 	 	 	 
	SECTION 5.7 LIMITATION ON SUITS
	 	 	35	 
	 
	 	 	 	 





ii









 






	 	 	 	 	 
	SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST AND TO CONVERT
	 	 	36	 
	 
	 	 	 	 
	SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES
	 	 	36	 
	 
	 	 	 	 
	SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE
	 	 	36	 
	 
	 	 	 	 
	SECTION 5.11 DELAY OR OMISSION NOT WAIVER
	 	 	36	 
	 
	 	 	 	 
	SECTION 5.12 CONTROL BY HOLDERS
	 	 	36	 
	 
	 	 	 	 
	SECTION 5.13 WAIVER OF PAST DEFAULTS
	 	 	37	 
	 
	 	 	 	 
	SECTION 5.14 UNDERTAKING FOR COSTS
	 	 	37	 
	 
	 	 	 	 
	SECTION 5.15 WAIVER OF USURY, STAY OR EXTENSION LAWS
	 	 	37	 
	 
	 	 	 	 
	ARTICLE 6 THE TRUSTEE
	 	 	38	 
	 
	 	 	 	 
	SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES
	 	 	38	 
	 
	 	 	 	 
	SECTION 6.2 NOTICE OF DEFAULTS
	 	 	38	 
	 
	 	 	 	 
	SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE
	 	 	38	 
	 
	 	 	 	 
	SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
	 	 	39	 
	 
	 	 	 	 
	SECTION 6.5 MAY HOLD SECURITIES AND ACT AS TRUSTEE UNDER OTHER INDENTURES
	 	 	40	 
	 
	 	 	 	 
	SECTION 6.6 MONEY HELD IN TRUST
	 	 	40	 
	 
	 	 	 	 
	SECTION 6.7 COMPENSATION AND REIMBURSEMENT
	 	 	40	 
	 
	 	 	 	 
	SECTION 6.8 CONFLICTING INTERESTS
	 	 	41	 
	 
	 	 	 	 
	SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
	 	 	41	 
	 
	 	 	 	 
	SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
	 	 	41	 
	 
	 	 	 	 
	SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
	 	 	42	 
	 
	 	 	 	 
	SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
	 	 	43	 
	 
	 	 	 	 
	SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
	 	 	44	 






iii









 






	 	 	 	 	 
	SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT
	 	 	44	 
	 
	 	 	 	 
	ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	45	 
	 
	 	 	 	 
	SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
	 	 	45	 
	 
	 	 	 	 
	SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS
	 	 	46	 
	 
	 	 	 	 
	SECTION 7.3 REPORTS BY TRUSTEE
	 	 	46	 
	 
	 	 	 	 
	SECTION 7.4 REPORTS BY COMPANY
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	46	 
	 
	 	 	 	 
	SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
	 	 	46	 
	 
	 	 	 	 
	SECTION 8.2 SUCCESSOR SUBSTITUTED
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 9 SUPPLEMENTAL INDENTURES
	 	 	47	 
	 
	 	 	 	 
	SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
	 	 	47	 
	 
	 	 	 	 
	SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
	 	 	49	 
	 
	 	 	 	 
	SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES
	 	 	50	 
	 
	 	 	 	 
	SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
	 	 	50	 
	 
	 	 	 	 
	SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT
	 	 	50	 
	 
	 	 	 	 
	SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
	 	 	50	 
	 
	 	 	 	 
	SECTION 9.7 SUBORDINATION UNIMPAIRED
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 10 COVENANTS
	 	 	51	 
	 
	 	 	 	 
	SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
	 	 	51	 
	 
	 	 	 	 
	SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY
	 	 	51	 
	 
	 	 	 	 
	SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
	 	 	51	 






iv









 






	 	 	 	 	 
	SECTION 10.4 STATEMENT BY OFFICERS AS TO DEFAULT
	 	 	52	 
	 
	 	 	 	 
	SECTION 10.5 EXISTENCE
	 	 	52	 
	 
	 	 	 	 
	SECTION 10.6 MAINTENANCE OF PROPERTIES
	 	 	52	 
	 
	 	 	 	 
	SECTION 10.7 PAYMENT OF TAXES AND OTHER CLAIMS
	 	 	53	 
	 
	 	 	 	 
	SECTION 10.8 WAIVER OF CERTAIN COVENANTS
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 11 REDEMPTION OF SECURITIES
	 	 	53	 
	 
	 	 	 	 
	SECTION 11.1 APPLICABILITY OF ARTICLE
	 	 	53	 
	 
	 	 	 	 
	SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE
	 	 	53	 
	 
	 	 	 	 
	SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
	 	 	54	 
	 
	 	 	 	 
	SECTION 11.4 NOTICE OF REDEMPTION
	 	 	54	 
	 
	 	 	 	 
	SECTION 11.5 DEPOSIT OF REDEMPTION PRICE
	 	 	55	 
	 
	 	 	 	 
	SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE
	 	 	56	 
	 
	 	 	 	 
	SECTION 11.7 SECURITIES REDEEMED IN PART
	 	 	56	 
	 
	 	 	 	 
	ARTICLE 12 SINKING FUNDS
	 	 	56	 
	 
	 	 	 	 
	SECTION 12.1 APPLICABILITY OF ARTICLE
	 	 	56	 
	 
	 	 	 	 
	SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
	 	 	56	 
	 
	 	 	 	 
	SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND
	 	 	57	 
	 
	 	 	 	 
	ARTICLE 13 DEFEASANCE AND COVENANT DEFEASANCE
	 	 	57	 
	 
	 	 	 	 
	SECTION 13.1 COMPANY’S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE
	 	 	57	 
	 
	 	 	 	 
	SECTION 13.2 DEFEASANCE AND DISCHARGE
	 	 	57	 
	 
	 	 	 	 
	SECTION 13.3 COVENANT DEFEASANCE
	 	 	58	 
	 
	 	 	 	 
	SECTION 13.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
	 	 	58	 






v









 






	 	 	 	 	 
	SECTION 13.5 DEPOSITED MONEY, U.S. GOVERNMENT OBLIGATIONS AND FOREIGN
GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS
	 	 	60	 
	 
	 	 	 	 
	SECTION 13.6 REINSTATEMENT
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 14 CONVERSION OF SECURITIES
	 	 	61	 
	 
	 	 	 	 
	SECTION 14.1 APPLICABILITY OF ARTICLE
	 	 	61	 
	 
	 	 	 	 
	SECTION 14.2 EXERCISE OF CONVERSION PRIVILEGE
	 	 	62	 
	 
	 	 	 	 
	SECTION 14.3 NO FRACTIONAL SHARES
	 	 	63	 
	 
	 	 	 	 
	SECTION 14.4 ADJUSTMENT OF CONVERSION PRICE
	 	 	63	 
	 
	 	 	 	 
	SECTION 14.5 NOTICE OF CERTAIN CORPORATE ACTIONS
	 	 	63	 
	 
	 	 	 	 
	SECTION 14.6 RESERVATION OF SHARES OF COMMON STOCK
	 	 	64	 
	 
	 	 	 	 
	SECTION 14.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION
	 	 	64	 
	 
	 	 	 	 
	SECTION 14.8 NONASSESSABILITY.
	 	 	64	 
	 
	 	 	 	 
	SECTION 14.9 PROVISION IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS
	 	 	65	 
	 
	 	 	 	 
	SECTION 14.10 DUTIES OF TRUSTEE REGARDING CONVERSION
	 	 	66	 
	 
	 	 	 	 
	SECTION 14.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 15 SUBORDINATION OF SECURITIES
	 	 	66	 
	 
	 	 	 	 
	SECTION 15.1 AGREEMENT OF SUBORDINATION
	 	 	66	 
	 
	 	 	 	 
	SECTION 15.2 PAYMENTS TO HOLDERS
	 	 	67	 
	 
	 	 	 	 
	SECTION 15.3 SUBROGATION OF SECURITIES
	 	 	69	 
	 
	 	 	 	 
	SECTION 15.4 AUTHORIZATION TO EFFECT SUBORDINATION
	 	 	69	 
	 
	 	 	 	 
	SECTION 15.5 NOTICE TO TRUSTEE
	 	 	70	 
	 
	 	 	 	 
	SECTION 15.6 TRUSTEE’S RELATION TO SENIOR DEBT
	 	 	70	 
	 
	 	 	 	 
	SECTION 15.7 NO IMPAIRMENT OF SUBORDINATION
	 	 	71	 
	 
	 	 	 	 
	SECTION 15.8 CERTAIN CONVERSIONS/EXCHANGES DEEMED PAYMENT
	 	 	71	 






vi









 






	 	 	 	 	 
	SECTION 15.9 ARTICLE APPLICABLE TO PAYING AGENTS
	 	 	71	 
	 
	 	 	 	 
	SECTION 15.10 SENIOR DEBT ENTITLED TO RELY
	 	 	71	 
	 
	 	 	 	 
	SECTION 15.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT
	 	 	72	 
	 
	 	 	 	 
	SECTION 15.12 TRUST MONIES NOT SUBORDINATED
	 	 	72	 






vii









 






INDENTURE




INDENTURE , dated as of                                         , 200_, between Borders
Group,
Inc., a corporation duly organized and existing under the laws of the State of Michigan (herein
called the “Company”), having its principal executive
office at 100 Phoenix Drive, Ann Arbor, Michigan 48108, and                                         , as
Trustee (herein called the “Trustee”).



RECITALS OF THE COMPANY




The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured subordinated debentures, notes or other evidences
of indebtedness (herein called the “Securities”), to be issued in one or more series as provided in
this Indenture.



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



NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE 1




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




SECTION 1.1 DEFINITIONS.




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



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



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



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



(4) all references to “$” refer to the lawful currency of the United States of America;




(5) unless the context otherwise requires, any reference to an “Article” or a “Section” refers
to an Article or a Section, as the case may be, of this Indenture; and






1









 








(6) 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.



“Act,” when used with respect to any Holder, has the meaning specified in Section 1.4.



“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person.



“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to
act on behalf of the Trustee to authenticate Securities of one or more series.



“Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board empowered to act for it with respect to this Indenture.



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



“Business Day,” when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.



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



“Common Stock” includes any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is not subject to redemption by the
Company; provided, however, subject to the provisions of Section 14.9, shares issuable upon
conversion of Securities shall include only shares of the class designated as Common Stock of the
Company at the date of this Indenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and which are not subject to redemption by the Company; provided,
further, that if at any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.



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



“Company Request” or “Company Order” means a written request or order signed in the name of
the Company by its Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or a Vice President, and by its principal financial officer, its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.



2









 





“Control” when used with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.



“Corporate Trust Office” means the corporate trust office of the Trustee at                         , Attention: Corporate Trust Department, or such other
office, designated by the Trustee by written notice to the Company, at which at any particular time
its corporate trust business shall be administered.



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



“Covenant Defeasance” has the meaning specified in Section 13.3.



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



“Defeasance” has the meaning specified in Section 13.2.



“Depositary” means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 3.1.



“Designated Senior Debt” means the Company’s obligations under any particular Senior Debt in
which the instrument creating or evidencing the same or the assumption or guarantee thereof (or
related agreements or documents to which the Company is a party) expressly provides that such
Senior Debt shall be “Designated Senior Debt” for purposes of this Indenture (provided that such
instrument, agreement or other document may place limitations and conditions on the right of such
Senior Debt to exercise the rights of Designated Senior Debt). If any payment made to any holder of
any Designated Senior Debt or its Representative with respect to such Designated Senior Debt is
rescinded or must otherwise be returned by such holder or Representative upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, the reinstated Indebtedness of the
Company arising as a result of such rescission or return shall constitute Designated Senior Debt
effective as of the date of such rescission or return.



“Euro” or “Euros” means the currency adopted by those nations participating in the third stage
of the economic and monetary union provisions of the Treaty on European Union, signed at Maastricht
on February 2, 1992.



“European Economic Area” means the member nations of the European Economic Area pursuant to
the Oporto Agreement on the European Economic Area dated May 2, 1992, as amended.



“European Union” means the member nations of the European Union established by the Treaty of
European Union, signed at Maastricht on February 2, 1992, which amended the Treaty of Rome
establishing the European Community.



“Event of Default” has the meaning specified in Section 5.1.



“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.



“Expiration Date” has the meaning specified in Section 1.4.



3









 





“Foreign Government Obligation” means with respect to Securities of any series which are not
denominated in the currency of the United States of America (x) any security which is (i) a direct
obligation of the government which issued or caused to be issued the currency in which such
security is denominated and for the payment of which obligations its full faith and credit is
pledged or, with respect to Securities of any series which are denominated in euros, a direct
obligation of any member nation of the European Union for the payment of which obligation the full
faith and credit of the respective nation is pledged so long as such nation has a credit rating at
least equal to that of the highest rated member nation of the European Economic Area, or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or instrumentality of a
government specified in clause (i) above the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the such government, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any
Foreign Government Obligation which is specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any Foreign Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Foreign Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.



“Global Security” means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 2.4 (or such legend as may be specified as contemplated
by Section 3.1 for such Securities).



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



“Indebtedness” means, with respect to any Person, and without duplication, (a) all
indebtedness, obligations and other liabilities (contingent or otherwise) of such Person for
borrowed money (including obligations of such Person in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection agreements, and any loans or
advances from banks, whether or not evidenced by notes or similar instruments) or evidenced by
bonds, debentures, notes or similar instruments (whether or not the recourse of the lender is to
the whole of the assets of such person or to only a portion thereof), other than any account
payable or other accrued current liability or obligation incurred in the ordinary course of
business in connection with the obtaining of materials or services; (b) all reimbursement
obligations and other liabilities (contingent or otherwise) of such Person with respect to letters
of credit, bank guarantees or bankers’ acceptances; (c) all obligations and liabilities (contingent
or otherwise) in respect of leases of such Person required, in conformity with generally accepted
accounting principles, to be accounted for as capitalized lease obligations on the balance sheet of
such Person and all obligations and other liabilities (contingent or otherwise) under any lease or
related document (including a purchase agreement) in connection with the lease of real property
which provides that such Person is contractually obligated to purchase or cause a third party to
purchase the leased property and thereby guarantee a minimum residual value of the leased property
to the lessor and the obligations of such Person under such lease or related document to purchase
or to cause a third party to purchase such leased property; (d) all obligations of such Person
(contingent or otherwise) with respect to an interest rate or other swap, cap or collar agreement
or other similar instrument or agreement or foreign currency hedge, exchange, purchase or similar
instrument or agreement; (e) all direct or indirect guaranties or similar agreements by such Person
in respect of, and obligations or liabilities (contingent or otherwise) of such Person to purchase
or otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness,
obligations or liabilities of another person of the kind described in clauses (a) through (d)
above; (f) any indebtedness or other obligations described in clauses (a) through (e) above secured
by any





4









 








mortgage, pledge, lien or other encumbrance existing on property which is owned or held by such
Person, regardless of whether the indebtedness or other obligation secured thereby shall have been
assumed by such Person; and (g) any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any indebtedness, obligation or liability of the kind
described in clauses (a) through (f) above.



“Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 3.1; provided, however, that if at any time more than one Person is acting as Trustee under
this Indenture due to the appointment of one or more separate Trustees for any one or more separate
series of Securities, “Indenture” shall mean, with respect to such series of Securities for which
any such Person is Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof and shall include the terms of particular series of Securities for
which such Person is Trustee established as contemplated by Section 3.1, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed and delivered
after such Person had become such Trustee, but to which such person, as such Trustee, was not a
party; provided, further that in the event that this Indenture is supplemented or amended by one or
more indentures supplemental hereto which are only applicable to certain series of Securities, the
term “Indenture” for a particular series of Securities shall only include the supplemental
indentures applicable thereto.



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



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



“Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.



“Maturity,” when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, repurchase at the option of the
Holder, upon redemption or otherwise.



“Notice of Default” means a written notice of the kind specified in Section 5.1(4).



“Officers’ Certificate” means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, the President or a Vice President, and by the
principal financial officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’
Certificate given pursuant to Section 10.4 shall be the principal executive, financial or
accounting officer of the Company.



“Opinion of Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Company, and who shall be reasonably acceptable to the Trustee.



5









 





“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 5.2.



“Outstanding,” when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except (1) Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (2) Securities
for whose payment or redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; (3) Securities as to which Defeasance has been effected pursuant to Section 13.2; and
(4) Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as
of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed
to be Outstanding shall be the amount of the principal thereof which would be due and payable as of
such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.2, (B) if,
as of such date, the principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be Outstanding shall
be the amount as specified or determined as contemplated by Section 3.1, (C) the principal amount
of a Security denominated in one or more non-U.S. dollar currencies or currency units which shall
be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the
manner provided as contemplated by Section 3.1, of the principal amount of such Security (or, in
the case of a Security described in clause (A) or (B) above, of the amount determined as provided
in such clause), and (D) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be 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 Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.



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



“Payment Blockage Notice” has the meaning specified in Section 15.2.



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



“Place of Payment,” when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 3.1.






6









 








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



“Record Date” means any Regular Record Date or Special Record Date.



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



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



“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.1.



“Representative” means the (a) indenture trustee or other trustee, agent or representative for
any Senior Debt or (b) with respect to any Senior Debt that does not have any such trustee, agent
or other representative, (i) in the case of such Senior Debt issued pursuant to an agreement
providing for voting arrangements as among the holders or owners of such Senior Debt, any holder or
owner of such Senior Debt acting with the consent of the required persons necessary to bind such
holders or owners of such Senior Debt and (ii) in the case of all other such Senior Debt, the
holder or owner of such Senior Debt.



“Responsible Officer” means, when used with respect to the Trustee, an officer of the Trustee
in the Corporate Trust Office assigned and duly authorized by the Trustee to administer its
corporate trust matters.



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



“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.



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



“Senior Debt” means the principal of, premium, if any, interest (including all interest
accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowable as a claim in any such proceeding) and rent payable
on or in connection with, and all fees, costs, expenses and other amounts accrued or due on or in
connection with, Indebtedness of the Company, whether outstanding on the date of this Indenture or
thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Company (including
all deferrals, renewals, extensions or refundings of, or amendments, modifications or supplements
to, the foregoing), unless in the case of any particular Indebtedness the instrument creating or
evidencing the same or the assumption or guarantee thereof expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities or expressly provides that
such Indebtedness is “pari passu” or “ junior” to the Securities. Notwithstanding the foregoing,
the term Senior Debt shall not include
any Indebtedness of the Company to any Subsidiary of the Company. If any payment made to any holder
of any Senior Debt or its Representative with respect to such Senior Debt is rescinded or must
otherwise be returned by such holder or Representative upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, the





7









 








reinstated Indebtedness of the Company arising as a result of such rescission or return shall
constitute Senior Debt effective as of the date of such rescission or return.



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



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



“Subsidiary” means a Person of which at least a majority of the outstanding voting stock
having the power to elect a majority of the board of directors of such Person (in the case of a
corporation) is, or of which at least a majority of the equity interests (in the case of a Person
which is not a corporation) are, at the time owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, “voting stock” means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.



“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.



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



“U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the
United States of America for the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in clause (x) above and
held by such bank for the account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.



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



SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.




Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as





8









 








may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.



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



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



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



(3) a statement that, in the opinion of each such individual, he 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



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



SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.




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



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



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



SECTION 1.4 ACTS OF HOLDERS; RECORD DATES.




Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly






9









 








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 and, where it is hereby
expressly required, to the Company. The Trustee shall promptly deliver to the Company copies of all
such instrument or instruments delivered to the Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.



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



The ownership of Securities shall be proved by the Security Register.



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



The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, vote, notice, consent, waiver or other action provided or permitted by
this Indenture to be given, made or taken by Holders of Securities of such series, provided that
the Company may not set a record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration, request or direction referred to
in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set
forth in Section 1.6.



The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to
institute proceedings referred to in Section 5.7(2), or (iv) any direction referred to in Section
5.12, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding






10









 








Securities of such series on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction, whether or not such Holders remain Holders after
such record date; provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6.



With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on or
prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.



Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.



SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY.




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



(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (or by facsimile transmissions, provided
that oral confirmation of receipt shall have been received) to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, or



(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, personally delivered or sent via overnight courier to the Company addressed to it
at the address of its principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the Company, Attention: Chief
Financial Officer.



SECTION 1.6 NOTICE TO HOLDERS; WAIVER.




Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or






11









 








delivered by hand or overnight courier, to each Holder affected by such event, at its address as it
appears in the Security Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. Neither the failure to mail or
deliver by hand or overnight courier any notice, nor any defect in any notice so mailed or
delivered by hand or overnight courier, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. 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.



In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT.




If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under the Trust Indenture Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act, which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.



SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS.




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



SECTION 1.9 SUCCESSORS AND ASSIGNS.




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



SECTION 1.10 SEPARABILITY CLAUSE.




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



SECTION 1.11 BENEFITS OF INDENTURE.




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



SECTION 1.12 GOVERNING LAW.




THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5–1401 AND 5–1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK).



12









 





SECTION 1.13 LEGAL HOLIDAYS.




In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security or the last date on which a Holder has the right to convert a Security at a particular
conversion price shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) or, if applicable to a particular series of Securities,
conversion need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, at the Stated Maturity or on such last day for
conversion, as the case may be.



SECTION 1.14 INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS.




No recourse for the payment of the principal of or premium, if any, or interest on any
Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental
indenture or in any Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, agent, officer, or director or
subsidiary, as such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture and the
issue of the Securities.



SECTION 1.15 INDENTURE MAY BE EXECUTED IN COUNTERPARTS.




This instrument 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.



ARTICLE 2




SECURITY FORMS




SECTION 2.1 FORMS GENERALLY.




The Securities of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established by or pursuant to a Board Resolution 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
such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication
and delivery of such Securities. Any such Board Resolution or record of such action shall have
attached thereto a true and correct copy of the form of Security referred to therein approved by or
pursuant to such Board Resolution.



13









 





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 2.2 FORM OF FACE OF SECURITY.




[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER.]




BORDERS
GROUP, INC.




			
	NO.                     
	 	$                    
	 
	 	CUSIP:                                    






Borders
Group, Inc., a corporation duly organized and existing under the laws of
Michigan (herein called the “Company,” which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to                     , or registered assigns, the principal sum of                                        
dollars on                                          [IF THE
SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY, INSERT — , and to pay interest thereon from                     
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi- annually on                      and                      in each
year, commencing                                         , at the rate of                                         % per annum,
until the principal hereof is paid or made available for payment [IF APPLICABLE, INSERT — ,
provided that any principal and premium, and any such installment of interest, which is overdue
shall bear interest at the rate of                     % per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment, and such interest shall be payable on demand]. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided
in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the                     or                     (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].



[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT — The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of                     % per annum (to the extent
that the payment of such interest shall be legally enforceable), from the dates such amounts






14









 








are due until they are paid or made available for payment. Interest on any overdue principal or
premium shall be payable on demand. [Any such interest on overdue principal or premium which is not
paid on demand shall bear interest at the rate of                     % per annum (to the extent
that the payment of such interest on interest shall be legally enforceable), from the date of such
demand until the amount so demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]]



Payment of the principal of (and premium, if any) and [IF APPLICABLE, INSERT — any such]
interest on this Security will be made at the office or agency of the Company maintained for that
purpose in                    , in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts [IF
APPLICABLE, INSERT — ; provided, however, that at the option of the Company payment of interest may
be made by check mailed to the address of the Person entitled thereto as such address shall appear
in the Security Register] .



Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.



IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



Dated:                    




BORDERS
GROUP, INC.




By:

Title:




ATTEST:




SECTION 2.3 FORM OF REVERSE OF SECURITY.




This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
                    , 200___(herein called the “Indenture,” which term shall have the meaning
assigned to it in such instrument), between the Company and                             , as Trustee (herein called the “Trustee,” which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture and all indentures supplemental thereto
for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the holders of Senior Debt and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and delivered. This Security
is one of the series designated on the face hereof [IF APPLICABLE, INSERT — , limited in aggregate
principal amount to $                    ] .






15









 








[IF APPLICABLE, INSERT — The Securities of this series are subject to redemption upon not less than
[IF APPLICABLE, INSERT — 30] days’ notice by mail, [IF APPLICABLE, INSERT — (1) on                     
in any year commencing with the year                     and ending with the year
                     through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [IF APPLICABLE, INSERT — on or after
                    , 20___], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount): If redeemed [IF
APPLICABLE, INSERT — on or before                     ,                     %, and if redeemed]
during the 12-month period beginning                     of the years indicated,



	 	 	 	 	 	 	 
	YEAR	 	REDEMPTION PRICE	 	YEAR	 	REDEMPTION PRICE
	 
	 	 	 	 	 	 





and thereafter at a Redemption Price equal to                     % of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT — (whether through operation of
the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]



[IF APPLICABLE, INSERT — The Securities of this series are subject to redemption upon not less
than [if applicable, insert — 30] days’ notice by mail, (1) on                      in any year
commencing with the year                      and ending with the year                      through
operation of the sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount) set forth in the
table below, and (2) at any time [IF APPLICABLE, INSERT — on or after                     ], as
a whole or in part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period beginning                     
of the years indicated,



	 	 	 	 	 
	 	 	 	 	REDEMPTION PRICE FOR
	 	 	 	 	REDEMPTION OTHERWISE THAN
	 	 	REDEMPTION PRICE FOR REDEMPTION	 	THROUGH OPERATION OF THE
	 	 	THROUGH OPERATION OF THE	 	SINKING
	YEAR	 	SINKING FUND	 	FUND
	 
	 	 	 	 





and thereafter at a Redemption Price equal to                     % of the principal amount,
together in the case of any such redemption (whether through operation of the sinking fund or
otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]



[IF APPLICABLE, INSERT — Notwithstanding the foregoing, the Company may not, prior to                     
, redeem any Securities of this series as contemplated by [IF APPLICABLE, INSERT —
clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of less than                     
% per annum.]



16









 





[IF APPLICABLE, INSERT — The sinking fund for this series provides for the redemption on                     
, in each year beginning with the year                      and ending with the year
                     of [IF APPLICABLE, INSERT — not less than $                     (“mandatory
sinking fund”) and not more than] $                     aggregate principal amount of Securities of
this series. Securities of this series acquired or redeemed by the Company otherwise than through
[IF APPLICABLE, INSERT — mandatory] sinking fund payments may be credited against subsequent [IF
APPLICABLE, INSERT — mandatory] sinking fund payments otherwise required to be made IF APPLICABLE,
INSERT — , in the inverse order in which they become due].]



[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT — In the event of redemption of
this Security in part only, a new Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]



[IF APPLICABLE, INSERT — The Indenture contains provisions for defeasance at any time of [the
entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.]



[IF THE SECURITY IS CONVERTIBLE INTO COMMON STOCK OF THE COMPANY, INSERT — Subject to the
provisions of the Indenture, the Holder of this Security is entitled, at its option, at any time on
or before [INSERT DATE] (except that, in case this Security or any portion hereof shall be called
for redemption, such right shall terminate with respect to this Security or portion hereof, as the
case may be, so called for redemption at the close of business on the first Business Day next
preceding the date fixed for redemption as provided in the Indenture unless the Company defaults in
making the payment due upon redemption), to convert the principal amount of this Security (or any
portion hereof which is $1,000 or an integral multiple thereof), into fully paid and non-assessable
shares (calculated as to each conversion to the nearest 1/100th of a share) of the Common Stock of
the Company, as said shares shall be constituted at the date of conversion, at the conversion price
of $                     principal amount of Securities for each share of Common Stock, or at the
adjusted conversion price in effect at the date of conversion determined as provided in the
Indenture, upon surrender of this Security, together with the conversion notice hereon duly
executed, to the Company at the designated office or agency of the Company in                     
, accompanied (if so required by the Company) by instruments of transfer, in form satisfactory
to the Company and to the Trustee, duly executed by the Holder or by its duly authorized attorney
in writing.



Such surrender shall, if made during any period beginning at the close of business on a
Regular Record Date and ending at the opening of business on the Interest Payment Date next
following such Regular Record Date (unless this Security or the portion being converted shall have
been called for redemption on a Redemption Date during the period beginning at the close of
business on a Regular Record Date and ending at the opening of business on the first Business Day
after the next succeeding Interest Payment Date, or if such Interest Payment Date is not a Business
Day, the second such Business Day), also be accompanied by payment in funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date on the principal
amount of this Security then being converted. Subject to the aforesaid requirement for payment and,
in the case of a conversion after the Regular Record Date next preceding any Interest Payment Date
and on or before such Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an installment of interest
(with certain exceptions provided in the Indenture), no adjustment is to be made on conversion for
interest accrued hereon or for dividends on shares of Common Stock issued






17









 








on conversion. The Company is not required to issue fractional shares upon any such conversion, but
shall make adjustment therefor in cash on the basis of the current market value of such fractional
interest as provided in the Indenture. The conversion price is subject to adjustment as provided in
the Indenture. In addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party or the sale of substantially all of the assets of the
Company, the Indenture shall be amended, without the consent of any Holders of Securities, so that
this Security, if then outstanding, will be convertible thereafter, during the period this Security
shall be convertible as specified above, only into the kind and amount of securities, cash and
other property receivable upon the consolidation, merger or sale by a holder of the number of
shares of Common Stock into which this Security might have been converted immediately prior to such
consolidation, merger or sale (assuming such holder of Common Stock failed to exercise any rights
of election and received per share the kind and amount received per share by a plurality of
non-electing shares). In the event of conversion of this Security in part only, a new Security or
Securities for the unconverted portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.]



[IF THE SECURITY IS CONVERTIBLE INTO OTHER SECURITIES OF THE COMPANY, SPECIFY THE CONVERSION
FEATURES.]



The indebtedness evidenced by this Security is, to the extent and in the manner provided in
the Indenture, subordinate and subject in right of payment to the prior payment in full of all
Senior Debt of the Company, and this Security is issued subject to such provisions of the Indenture
with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.



[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT—If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]



[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT — If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to — INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company’s obligations in respect
of the payment of the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]



The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of more than 50% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder





18









 








and upon all future Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.



As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than a majority in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein.



No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.



As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.



The Securities of this series are issuable only in registered form without coupons in
denominations of $                     and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.



No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.



Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.



All terms used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.






19









 








SECTION 2.4 FORM OF LEGEND FOR GLOBAL SECURITIES.




Unless otherwise specified as contemplated by Section 3.1 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:



THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



SECTION 2.5 FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION.




The Trustee’s certificates of authentication shall be in substantially the following form:



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



                                        ,




               as Trustee




By:




Authorized Officer




SECTION 2.6 FORM OF CONVERSION NOTICE.




Conversion notices shall be in substantially the following form:



To Borders
Group, Inc.:



The undersigned owner of this Security hereby irrevocably exercises the option to convert this
Security, or portion hereof (which is $1,000 or an integral multiple thereof) below designated,
into shares of Common Stock of the Company in accordance with the terms of the Indenture referred
to in this Security, and directs that the shares issuable and deliverable upon the conversion,
together with any check in payment for fractional shares and any Securities representing any
unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless
a different name has been indicated below. If this Notice is being delivered on a date after the
close of business on a Regular Record Date and prior to the opening of business on the related
Interest Payment Date (unless this Security or the portion thereof being converted has been called
for redemption on a Redemption Date during the period beginning at the close of business on a
Regular Record Date and ending at the opening of business on the first Business Day after the next
succeeding Interest Payment Date, or if such Interest Payment Date is not a Business Day, the
second such Business Day), this Notice is accompanied by payment, in funds acceptable to the
Company, of an amount equal to the interest payable on such Interest Payment Date of the principal
of this
Security to be converted. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect hereto. Any amount
required to be paid by the undersigned on account of interest accompanies this Security.






20









 








Principal Amount to be Converted (in an integral multiple of $1,000, if less than all)




U.S. $




Dated:



Signature(s) must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program) pursuant to
Securities and Exchange Commission Rule 17Ad-15.



Signature Guaranty



Fill in for registration of shares of Common Stock and Security if to be issued otherwise than
to the registered Holder.



	 	 	 	 	 
	Name
	 	Social Security or Other Taxpayer

Identification Number
	 	 
	 
	
Please print Name and Address

(including zip code)

	 	 	 	 






[The above conversion notice is to be modified, as appropriate, for conversion into other
securities or property of the Company.]



ARTICLE 3




THE SECURITIES




SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.




The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any series,



(1) the title of the Securities of the series (which shall distinguish the Securities of the
series from Securities of any other series);






21









 








(2) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered hereunder);



(3) the Person to whom any interest on a Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;



(4) the date or dates on which the principal of any Securities of the series is payable;




(5) the rate or rates (which may be fixed or variable) at which any Securities of the series
shall bear interest, if any, the date or dates from which any such interest shall accrue, the
Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date (or the method for determining the dates and
rates);



(6) the place or places where the principal of and any premium and interest on any Securities
of the series shall be payable;



(7) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or in part, at the
option of the Company and, if other than by a Board Resolution, the manner in which any election by
the Company to redeem the Securities shall be evidenced;



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



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



(10) if the amount of principal of or any premium or interest on any Securities of the series
may be determined with reference to an index or pursuant to a formula, the manner in which such
amounts shall be determined;



(11) if other than the currency of the United States of America, the currency, currencies or
currency units in which the principal of or any premium or interest on any Securities of the series
shall be payable and the manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition of “Outstanding” in
Section 1.1;






22









 








(12) if the principal of or any premium or interest on any Securities of the series is to be
payable, at the election of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods within which and the
terms and conditions upon which such election is to be made and the amount so payable (or the
manner in which such amount shall be determined);



(13) if other than the entire principal amount thereof, the portion of the principal amount of
any Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;



(14) if the principal amount payable at the Stated Maturity of any Securities of the series
will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be due and payable upon
any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);



(15) if applicable, that the Securities of the series, in whole or any specified part, shall
be defeasible pursuant to Section 13.2 or Section 13.3 or both such Sections, or any other
defeasance provisions applicable to any Securities of the series, and, if other than by a Board
Resolution, the manner in which any election by the Company to defease such Securities shall be
evidenced;



(16) if applicable, the terms of any right to convert or exchange Securities of the series
into shares of Common Stock of the Company or other securities or property;



(17) if applicable, that any Securities of the series shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 2.4 and any circumstances in
addition to or in lieu of those set forth in clause (2) of the last paragraph of Section 3.5 in
which any such Global Security may be exchanged in whole or in part for Securities registered, and
any transfer of such Global Security in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a nominee thereof;



(18) any addition to or change in the Events of Default which applies to any Securities of the
series and any change in the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section 5.2;



(19) any addition to or change in the covenants set forth in Article 10 which applies to
Securities of the series;






23









 








(20) any Authenticating Agents, Paying Agents, Security Registrars or such other agents necessary
in connection with the issuance of the Securities of such series, including, without limitation,
exchange rate agents and calculation agents;



(21) if applicable, the terms of any security that will be provided for a series of
Securities, including provisions regarding the circumstances under which collateral may be released
or substituted;



(22) if applicable, the terms of any guaranties for the Securities and any circumstances under
which there may be additional obligors on the Securities;



(23) any addition to or change in or modification to the subordinated provisions of this
Indenture relating to the Securities of that series (including the provisions of Article 15), or
different subordination provisions, including a different definition of “Senior Debt” or
“Designated Senior Debt,” will apply to Securities of the series; and



(24) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 9.1(5)).



All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto.



If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series.



The Securities shall be subordinated in right of payment to Senior Debt as provided in Article
15.



SECTION 3.2 DENOMINATIONS.




The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 3.1. In the absence of
any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral multiple thereof.



SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.




The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its Chief Executive Officer, its principal financial officer, its
President or one of its Vice Presidents, attested by its Treasurer, its Secretary or one of its
Assistant Treasurers or Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.



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






24









 








At any time and from time to time after the execution and delivery of this Indenture, the Company
may deliver Securities of any series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, 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 6.1) shall be fully protected in
relying upon, a copy of such Board Resolution, the Officers’ Certificate setting forth the terms of
the series and an Opinion of Counsel, with such Opinion of Counsel stating,



(1) if the form of such Securities has been established by or pursuant to Board Resolution as
permitted by Section 2.1, that such form has been established in conformity with the provisions of
this Indenture;



(2) if the terms of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 3.1, that such terms have been established in conformity with the
provisions of this Indenture; and



(3) that such Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.



If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.



Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.



Each Security shall be dated the date of its authentication.



No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.9, for
all purposes of this Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this Indenture.






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Neither the Company nor the Trustee shall have any responsibility for any defect in the CUSIP
number that appears on any Security, check, advice of payment or redemption notice, and any such
document may contain a statement to the effect that CUSIP numbers have been assigned by an
independent service for convenience of reference and that neither the Company nor the Trustee shall
be liable for any inaccuracy in such numbers.



SECTION 3.4 TEMPORARY SECURITIES.




Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.



If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive Securities of such
series and tenor.



SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.




The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided.



Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.



At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled to receive.



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






26









 








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



No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.



If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Company shall not be required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 11.3 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.



The provisions of clauses (1), (2), (3) and (4) below shall apply only to Global Securities:



(1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.



(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless



(A) such Depositary (i) has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act,



(B) there shall have occurred and be continuing an Event of Default with respect to such
Global Security or



(C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing
as have been specified for this purpose as contemplated by Section 3.1.



(3) Subject to clause (2) above, any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.



(4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section, Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be authenticated






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and delivered in the form of, and shall be, a Global Security, unless such Security is registered
in the name of a Person other than the Depositary for such Global Security or a nominee thereof.



SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.




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



If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.



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



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



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



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



SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.




Except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.



Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:



(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the






28









 








payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest, which shall be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of
such series in the manner set forth in Section 1.6, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).



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



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



Subject to the provisions of Section 14.2, in the case of any Security (or any part thereof)
which is converted after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Security the principal of (or premium, if any, on) which shall become
due and payable, whether at Stated Maturity or by declaration of acceleration or otherwise prior to
such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall
be payable on such Interest Payment Date notwithstanding such conversion and such interest (whether
or not punctually paid or duly provided for) shall be paid to the Person in whose name that
Security (or any one or more Predecessor Securities) is registered at the close of business on such
Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence
or in Section 14.2, in the case of any Security (or any part thereof) which is converted, interest
whose Stated Maturity is after the date of conversion of such Security (or such part thereof) shall
not be payable.



SECTION 3.8 PERSONS DEEMED OWNERS.




Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 3.7) any interest on such Security and for all other purposes
whatsoever, whether or






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not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.



SECTION 3.9 CANCELLATION.




All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of in
accordance with its customary procedures.



SECTION 3.10 COMPUTATION OF INTEREST.




Except as otherwise specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360–day year of
twelve 30–day months.



ARTICLE 4




SATISFACTION AND DISCHARGE




SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.




This Indenture shall upon Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when



(1) either




(A) all Securities theretofore authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6
and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Trustee or the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3) have been delivered to the Trustee for cancellation;
or



(B) all such Securities not theretofore delivered to the Trustee for cancellation (i) have
become due and payable, or (ii) will become due and payable at their Stated Maturity within one
year, or (iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, and the Company, in the case of (i),






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(ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as the case may be;



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



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



Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.7, the obligations of the Trustee to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 10.3 shall survive.



SECTION 4.2 APPLICATION OF TRUST MONEY.




Subject to the provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been deposited with the Trustee.



ARTICLE 5




REMEDIES




SECTION 5.1 EVENTS OF DEFAULT.




“Event of Default,” wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article 15 or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless in the Board Resolution,
supplemental indenture or Officers’ Certificate establishing such series, it is provided that such
series shall not have the benefit of said Event of Default:



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



(2) default in the payment of the principal of or any premium on any Security of that series
at its Maturity; or






31









 








(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security
of that series; or



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



(5) the entry by a court having jurisdiction in the premises of




(A) a decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or



(B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or order unstayed and
in effect for a period of 90 consecutive days; or



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



(7) any other Event of Default provided with respect to Securities of that series in the Board
Resolution, supplemental indenture or Officers’ Certificate establishing that series.






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SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.




Unless the Board Resolution, supplemental indenture or Officers’ Certificate establishing such
series provides otherwise, if an Event of Default (other than an Event of Default specified in
Section 5.1(5) or 5.1(6)) with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare the principal amount of
all the Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof), and premium, if any, together with accrued and unpaid interest, if any, thereon, to
be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal amount (or specified amount), and
premium, if any, together with accrued and unpaid interest, if any, thereon, shall become
immediately due and payable. If an Event of Default specified in Section 5.1(5) or 5.1(6) with
respect to Securities of any series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof), and premium, if any, together with accrued and unpaid interest, if any, thereon,
shall automatically, and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable. Any payments by the Company on the Securities following
any such acceleration will be subject to the subordination provisions of Article 15 to the extent
provided therein.



At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if



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




(A)all overdue interest on all Securities of that series,




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



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



(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; and



(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series that have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 5.13.






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



SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.




The Company covenants that if




(1) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or



(2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.



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



SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.




In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7. No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.



SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.




All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any






34









 








proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.



SECTION 5.6 APPLICATION OF MONEY COLLECTED.




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



FIRST: To the payment of all amounts due the Trustee under Section 6.7;




SECOND: Subject to Article 15, to the payment of the amounts then due and unpaid for principal
of and any premium, if any, and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal and any premium, if any,
and interest, respectively; and



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



SECTION 5.7 LIMITATION ON SUITS.




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



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



(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;



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



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



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



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






35









 








SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST AND TO
CONVERT.



Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 3.7) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date), to convert such
Securities in accordance with Article 14 to the extent that such right to convert is applicable to
such Security, and to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.



SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.




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



SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.




Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.



SECTION 5.11 DELAY OR OMISSION NOT WAIVER.




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



SECTION 5.12 CONTROL BY HOLDERS.




The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that



(1) such direction shall not be in conflict with any rule of law or with this Indenture and
the Trustee shall not have determined that the
action so directed would be unjustly prejudicial to Holders of Securities of that series, or any
other series, not taking part in such direction; and






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(2) the Trustee may take any other action deemed proper by the trustee that is not inconsistent
with such direction or this Indenture.



SECTION 5.13 WAIVER OF PAST DEFAULTS.




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



(1) a default in the payment of the principal of or any premium or interest on any Security of
such series as and when the same shall become due and payable by the terms thereof, otherwise than
by acceleration (unless such default has been cured and a sum sufficient to pay all matured
installments of interest, principal and premium, if any, has been deposited with the Trustee), or



(2) to the extent such right is applicable to such Security, a failure by the Company on
request to convert any Security into Common Stock; or



(3) in respect of a covenant or provision hereof which under Article 9 cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such series affected.



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



SECTION 5.14 UNDERTAKING FOR COSTS.




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, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment in any suit
instituted by the Company or in any suit for the enforcement of the right to convert any Security
in accordance with Article 14.



SECTION 5.15 WAIVER OF USURY, STAY OR EXTENSION LAWS.




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






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ARTICLE 6




THE TRUSTEE




SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.




The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section.



SECTION 6.2 NOTICE OF DEFAULTS.




If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the extent provided by
the Trust Indenture Act; provided, however, that except in the case of a default in the payment of
principal of (or premium, if any) or interest on any Securities of such series or in the payment of
any sinking fund installment or any conversion right applicable to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the holders of Securities of such series; provided, further,
however, that in the case of any default of the character specified in Section 5.1(4) with respect
to Securities of such series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term “default” means any event that
is, or after notice or lapse of time or both would become, an Event of Default with respect to
Securities of such series.



Except with respect to Section 10.1, the Trustee shall have no duty to inquire as to the
performance of the Company with respect to the covenants contained in Article 10. In addition, the
Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or
Event of Default occurring pursuant to Sections 5.1(1), 5.1(2) and 5.1(3) (defaults in payments on
the Securities) or (ii) any Default or Event of Default of which the Trustee shall have received
written notification or obtained actual knowledge.



Delivery of reports, information and documents to the Trustee under Section 7.4 is for
informational purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely conclusively on Officers’ Certificates).



SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.




Subject to the provisions of Section 6.1:



(1) in the absence of bad faith on the part of the Trustee, the Trustee may rely and shall be
protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document






38









 








believed by it to be genuine and to have been signed or presented by the proper party or parties;




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



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



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



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



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



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



SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.




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






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SECTION 6.5 MAY HOLD SECURITIES AND ACT AS TRUSTEE UNDER OTHER INDENTURES.




The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.



Subject to the limitations imposed by the Trust Indenture Act, nothing in this Indenture shall
prohibit the Trustee from becoming and acting as trustee under other indentures under which other
securities, or certificates of interest of participation in other securities, of the Company are
outstanding in the same manner as if it were not Trustee hereunder.



SECTION 6.6 MONEY HELD IN TRUST.




Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.



SECTION 6.7 COMPENSATION AND REIMBURSEMENT.




The Company agrees:



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



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



(3) to indemnify the 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 the trust or trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.



When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 5.1(5) or Section 5.1(6) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency, reorganization or similar law.








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SECTION 6.8 CONFLICTING INTERESTS.




If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act and there is an Event of Default under the Securities of that series, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted
by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by
virtue of being a trustee under this Indenture with respect to Securities of more than one series.



SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.




There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has (or if the Trustee is a member of a bank holding company system, then its bank
holding company has) a combined capital and surplus of at least $50,000,000. If any such Person or
bank holding company publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person
or bank holding company shall be deemed to be its combined capital and surplus asset forth in its
most recent report of condition so published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect hereinafter specified in
this Article.



SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.




No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11. The Trustee may resign at any time
with respect to the Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not
have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.



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



If at any time:



(1) the Trustee shall fail to comply with Section 6.8 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or



(2) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after
written request therefor by the Company or by any such Holder, or



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






41









 








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,



(A) the Company by a Board Resolution may remove the Trustee with respect to all Securities,
or



(B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.



If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, then a
successor Trustee with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 6.11, the retiring Trustee may petition, or
any Holder who has been a bona fide Holder of a Security of such series for at least six months may
petition, on behalf of himself and all others similarly situated, any court of competent
jurisdiction for the appointment of such successor Trustee with respect to the Securities of such
series.



The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 1.6. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.



SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.




In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder.






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



(1) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates,



(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and



(3) shall add to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.



Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.



No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.



SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.




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






43









 








Trustee had itself authenticated such Securities. In the event that any Securities shall not have
been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Securities in either its own name or that of a predecessor Trustee, with the full
force and effect which this Indenture provides for the certificate of authentication of the
Trustee.



SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.




If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).



SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.




The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having (or if the Authenticating Agent is a member of a bank
holding company system, its bank holding company has) a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.



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



An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.6 to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor






44









 








hereunder, with like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.



The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 6.7.



If an appointment with respect to one or more series is made pursuant to this Section 6.12,
the Securities of such series may have endorsed thereon, in lieu of the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:



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



                                                            ,




                as Trustee




By:




as Authenticating Agent



By:




Authorized Officer



ARTICLE 7




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.




The Company will furnish or cause to be furnished to the Trustee




(1) semi–annually, not later than 15 days after the Regular Record Date for each respective
series of Securities, a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series as of such Regular Record Date, as the case
may be, or if there is no Regular Record Date for such series of Securities, semi–annually, and



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



provided that no such list need be furnished by the Company to the Trustee so long as the
Trustee is acting as Security Registrar.






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SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.




The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1
upon receipt of a new list so furnished.



The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act. 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 either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust Indenture Act.



SECTION 7.3 REPORTS BY TRUSTEE.




The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.



Reports so required to be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than July 15 in each calendar year, commencing with the first July 15 after
the first issuance of Securities pursuant to this Indenture.



A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed on any stock
exchange.



SECTION 7.4 REPORTS BY COMPANY.




The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture
Act; provided that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is so required to be filed with the Commission.



ARTICLE 8




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.



The Company shall not consolidate with or merge into any other Person (in a transaction in
which the Company is not the surviving corporation) or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless:



(1) in case the Company shall consolidate with or merge into another Person (in a transaction
in which the Company is not the surviving corporation) or convey,






46









 








transfer or lease its properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, limited liability company, partnership or trust, shall be
organized and validly existing under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, 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 Company to be performed or
observed and the conversion rights shall be provided for in accordance with Article 14, if
applicable, or as otherwise specified pursuant to Section 3.1, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person (if other
than the Company) formed by such consolidation or into which the Company shall have been merged or
by the Person which shall have acquired the Company’s assets;



(2) immediately after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result of such transaction as having
been incurred by the Company 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



(3) the Company has delivered to the Trustee an Officers’ 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 supplemental indenture
comply with this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.



SECTION 8.2 SUCCESSOR SUBSTITUTED.




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



ARTICLE 9




SUPPLEMENTAL INDENTURES




SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.




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



(1) to evidence the succession of another Person to the Company, or successive successions,
and the assumption by any such successor of the covenants of the Company herein and in the
Securities in compliance with Article 8; or






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(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company; or



(3) to add any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events of Default are expressly being
included solely for the benefit of such series); or



(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or



(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities, provided that any such addition, change or elimination



(A) shall neither (i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or



(B) shall become effective only when there is no such Security Outstanding; or




(6) to secure the Securities, including provisions regarding the circumstances under which
collateral may be released or substituted; or



(7) to add or provide for a guaranty of the Securities or additional obligors on the
Securities; or



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



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



(10) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,






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provided that such action pursuant to this clause (10) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect; or



(11) to supplement any of the provisions of the Indenture to such extent as shall be necessary
to permit or facilitate the defeasance and discharge of any series of Securities pursuant to
Articles 4 and 13, provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series or any other series of Securities in any material respect.



SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.




With the consent of the Holders of a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,



(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or change the coin or
currency in which, any Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this
Indenture with respect to the subordination of such series of Securities in a manner adverse to the
Holders of Securities of such series, or, in the case of Securities of any series that are
convertible into Securities or other securities of the Company, adversely affect the right of
Holders to convert any of the Securities of such series other than as provided in or pursuant to
this Indenture, or



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



(3) modify any of the provisions of this Section, Section 5.13 or Section 10.8, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to “the Trustee” and concomitant changes in this
Section and Section 10.8, or the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 9.1(8), or



(4) if applicable, make any change that adversely affects the right to convert any security as
provided in Article 14 or pursuant to Section 3.1 (except as permitted by






49









 








Section 9.1(9)) or decrease the conversion rate or increase the conversion price of any such
security.



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 the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.



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



SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.




In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Sections 6.1 and 6.3) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.



SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.




Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.



SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.




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



SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.




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



SECTION 9.7 SUBORDINATION UNIMPAIRED.



No provision in any supplemental indenture that affects the superior position of the holders
of Senior Debt shall be effective against holders of Senior Debt.






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ARTICLE 10




COVENANTS




SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.




The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.



SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.




The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange, where
Securities of that series may be surrendered for conversion and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. Unless otherwise provided in a supplemental
indenture or pursuant to Section 3.1 hereof, the Place of Payment for any series of Securities
shall be the Corporate Trust Office of the Trustee.



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



SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.




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



Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, on or prior to each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.



The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (1) comply with the provisions of the






51









 








Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any
default by the Company (or any other obligor upon the Securities of that series) in the making of
any payment in respect of the Securities of that series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of
the Securities of that series.



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



Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for a period ending on the earlier of the date that is ten Business Days
prior to the date such money would escheat to the State or two years after such principal, premium
or interest has become due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money then remaining will
be repaid to the Company.



SECTION 10.4 STATEMENT BY OFFICERS AS TO DEFAULT.




The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may have knowledge.
The fiscal year of the Company currently ends on the Saturday closest
to the last day of January; and the Company will give the Trustee
prompt written notice of any change of its fiscal year.



SECTION 10.5 EXISTENCE.




Subject to Article 8, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence.



SECTION 10.6 MAINTENANCE OF PROPERTIES.




The Company will cause all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, and to the extent, in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the Company from
discontinuing the






52









 








operation or maintenance of any of such properties if such discontinuance is, in the judgment of
the Company, desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.



SECTION 10.7 PAYMENT OF TAXES AND OTHER CLAIMS.




The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the
Company or upon the income, profits or property of the Company, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the
Company; provided, however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim (i) whose amount, applicability or
validity is being contested in good faith by appropriate proceedings or (ii) if the failure to pay
or discharge would not have a material adverse effect on the assets, business, operations,
properties or condition (financial or otherwise) of the Company and its subsidiaries, taken as a
whole.



SECTION 10.8 WAIVER OF CERTAIN COVENANTS.




Except as otherwise specified as contemplated by Section 3.1 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided pursuant to Section
3.1(19), 9.1(2), 9.1(7), 10.6 or 10.7 for the benefit of the Holders of such series if before the
time for such compliance the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.



ARTICLE 11




REDEMPTION OF SECURITIES




SECTION 11.1 APPLICABILITY OF ARTICLE.




Securities of any series that are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1
for such Securities) in accordance with this Article.



SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.




The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 3.1 for such Securities. In case of any
redemption at the election of the Company of less than all the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, at least 45 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate evidencing compliance with such restriction.






53









 








SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.




If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by lot, or in the Trustee’s discretion, on a pro-rata basis,
provided that the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized denomination) for such
Security. If less than all the Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and specified tenor not previously called for redemption
in accordance with the preceding sentence.



If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for redemption.
Securities that have been converted during a selection of Securities to be redeemed shall be
treated by the Trustee as Outstanding for the purpose of such selection.



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



The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In
the case of any such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.



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



SECTION 11.4 NOTICE OF REDEMPTION.




Notice of redemption shall be given by first-class mail, postage prepaid, mailed not fewer
than 30 nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in
the Securities to be redeemed, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.



All notices of redemption shall state:




	 	(1)	 	the Redemption Date,
	 
	 	(2)	 	the Redemption Price (including accrued interest, if any),
	 
	 	(3)	 	if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular
Securities to




54









 






	 	 	 	be redeemed and, if less than all the Outstanding Securities of
any series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be redeemed,






	 	(4)	 	in case any Security is to be redeemed in part only, that on and
after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
	 
	 	(5)	 	that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date,
	 
	 	(6)	 	the place or places where each such Security is to be surrendered for payment of the Redemption Price,
	 
	 	(7)	 	if applicable, the conversion price, the date on which the right
to convert the principal of the Securities or the portions
thereof to be redeemed will terminate, and the place or places
where such Securities may be surrendered for conversion,
	 
	 	(8)	 	that the redemption is for a sinking fund, if such is the case, and
	 
	 	(9)	 	the CUSIP number or numbers and/or common codes of the Security being redeemed.





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



SECTION 11.5 DEPOSIT OF REDEMPTION PRICE.




On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.



If any Security called for redemption is converted, any money deposited with the Trustee or
with a Paying Agent or so segregated and held in trust for the redemption of such Security shall
(subject to the right of any Holder of such Security to receive interest as provided in the last
paragraph of Section 3.7) be paid to the Company on Company Request, or if then held by the
Company, shall be discharged from such trust.






55









 








SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE.




Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section 3.1, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 3.7.



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



SECTION 11.7 SECURITIES REDEEMED IN PART.




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



ARTICLE 12




SINKING FUNDS




SECTION 12.1 APPLICABILITY OF ARTICLE.




The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by Section 3.1 for such
Securities.



The minimum amount of any sinking fund payment provided for by the terms of any Securities 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 such Securities is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of such Securities.



SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.



The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series






56









 








required to be made pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed,
for redemption through operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.



SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.




Not fewer than 60 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 12.2 and will also
deliver to the Trustee any Securities to be so delivered. Not fewer than 30 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 11.4. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.6 and 11.7.



ARTICLE 13




DEFEASANCE AND COVENANT DEFEASANCE




SECTION 13.1 COMPANY’S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.




The Company may elect, at its option at any time, to have Section 13.2 or Section 13.3 applied
to any Securities or any series of Securities, as the case may be, designated pursuant to Section
3.1 as being defeasible pursuant to such Section 13.2 or 13.3, in accordance with any applicable
requirements provided pursuant to Section 3.1 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced by a Board Resolution or in another
manner specified as contemplated by Section 3.1 for such Securities.



SECTION 13.2 DEFEASANCE AND DISCHARGE.




Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations, and the provisions of Article 15 shall cease to be effective,
with respect to such Securities as provided in this Section on and after the date the conditions
set forth in Section 13.4 are satisfied (hereinafter called “Defeasance”). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged hereunder:



(1) the rights of Holders of such Securities to receive, solely from the trust fund described
in Section 13.4 and as more fully set forth in such Section, payments in respect of the principal
of and any premium and interest on such Securities when payments are due,






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(2) the Company’s obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2
and 10.3, and, if applicable, Article 14,



(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and




(4) this Article.



Subject to compliance with this Article, the Company may exercise its option (if any) to have
this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to
have Section 13.3 applied to such Securities.



SECTION 13.3 COVENANT DEFEASANCE.




Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be,



(1) the Company shall be released from its obligations under Sections 10.6 and 10.7 and any
covenants provided pursuant to Sections 3.1(19), 9.1(2) or 9.1(7) for the benefit of the Holders of
such Securities,



(2) the occurrence of any event specified in Section 5.1(4) (with respect to any of Sections
10.6 and 10.7 and any such covenants provided pursuant to Section 3.1(19), 9.1(2) or 9.1(7)) and
the occurrence of any Event of Default specified pursuant to Section 3.1 shall be deemed not to be
or result in an Event of Default, and



(3) the provisions of Article 15 shall cease to be effective,




in each case with respect to such Securities or any series of Securities as provided in this
Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter
called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect
to such Securities, the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to the extent so
specified in the case of Section 5.1(4) and the occurrence of any Event of Default specified
pursuant to Section 3.1) or Article 15, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in any such Section
or Article to any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.



SECTION 13.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.




The following shall be the conditions to the application of Section 13.2 or Section 13.3 to
any Securities or any series of Securities, as the case may be:



(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements contemplated by Section 6.9 and agrees to
comply with the provisions of this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities,



(A) in the case of Securities of a series denominated in currency of the United States of
America, (i) cash in currency of the United States of America in an amount, or (ii) U.S. Government
Obligations which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due date of any
payment, an amount in cash, or (iii) a combination thereof, or





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(B) in the case of Securities of a series denominated in currency other than that of the United
States of America, (i) cash in the currency in which such series of Securities is denominated in an
amount, or (ii) Foreign Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, an amount in cash, or (iii) a combination thereof,



in each case sufficient, to pay and discharge, and which shall be applied by the Trustee (or
any such other qualifying trustee) to pay and discharge, the principal of and any premium and
interest on such Securities on the respective Stated Maturities, in accordance with the terms of
this Indenture and such Securities.



(2) For Securities denominated in United States dollars, in the event of an election to have
Section 13.2 apply to any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that



(A) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling or



(B) since the date of this instrument, there has been a change in the applicable Federal
income tax law,



in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge were not to occur.



(3) For Securities denominated in United States dollars, in the event of an election to have
Section 13.3 apply to any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a result of the
deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject
to Federal income tax on the same amount, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.



(4) The Company shall have delivered to the Trustee an Officers’ Certificate to the effect
that neither such Securities nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.






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(5) No event which is, or after notice or lapse of time or both would become, an Event of Default
with respect to such Securities or any other Securities shall have occurred and be continuing at
the time of such deposit or, with regard to any such event specified in Sections 5.1(5) and (6), at
any time on or prior to the 90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).



(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).



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



(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act unless
such trust shall be registered under such Act or exempt from registration thereunder.



(9) At the time of such deposit,




(A) no default in the payment of any principal of or premium or interest on any Senior Debt
shall have occurred and be continuing,



(B) no event of default with respect to any Senior Debt shall have resulted in such Senior
Debt becoming, and continuing to be, due and payable prior to the date on which it would otherwise
have become due and payable (unless payment of such Senior Debt has been made or duly provided
for), and



(C) no other event of default with respect to any Senior Debt shall have occurred and be
continuing permitting (after notice or lapse of time or both) the holders of such Senior Debt (or a
trustee on behalf of such holders) to declare such Senior Debt due and payable prior to the date on
which it would otherwise have become due and payable.



(10) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.



SECTION 13.5 DEPOSITED MONEY, U.S. GOVERNMENT OBLIGATIONS AND FOREIGN GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS



Subject to the provisions of the last paragraph of Section 10.3, all money, U.S. Government
Obligations and Foreign Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.6, the
Trustee and








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any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 13.4 in
respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due thereon in respect
of principal and any premium and interest, but money so held in trust need not be segregated from
other funds except to the extent required by law. Money, U.S. Government Obligations and Foreign
Government Obligations so held in trust shall not be subject to the provisions of Article 15.



The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations or Foreign Government Obligations deposited
pursuant to Section 13.4 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of Outstanding
Securities.



Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money, U.S. Government Obligations or
Foreign Government Obligations held by it as provided in Section 13.4 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.



SECTION 13.6 REINSTATEMENT.




If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.2 or 13.3 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.5 with respect
to such Securities in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in trust.



ARTICLE 14




CONVERSION OF SECURITIES




SECTION 14.1 APPLICABILITY OF ARTICLE.




The provisions of this Article shall be applicable to the Securities of any series which are
convertible into shares of Common Stock of the Company, and the issuance of such shares of Common
Stock upon the conversion of such Securities, except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series.






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SECTION 14.2 EXERCISE OF CONVERSION PRIVILEGE.




In order to exercise a conversion privilege, the Holder of a Security of a series with such a
privilege shall surrender such Security to the Company at the office or agency maintained for that
purpose pursuant to Section 10.2, accompanied by a duly executed conversion notice to the Company
substantially in the form set forth in Section 2.6 stating that the Holder elects to convert such
Security or a specified portion thereof. Such notice shall also state, if different from the name
and address of such Holder, the name or names (with address) in which the certificate or
certificates for shares of Common Stock, which shall be issuable on such conversion, shall be
issued. Securities surrendered for conversion shall (if so required by the Company or the Trustee)
be duly endorsed by or accompanied by instruments of transfer in forms satisfactory to the Company
and the Trustee duly executed by the Holder or its attorney duly authorized in writing; and
Securities so surrendered for conversion (in whole or in part) during the period from the close of
business on any Regular Record Date to the opening of business on the next succeeding Interest
Payment Date (excluding Securities or portions thereof called for redemption during the period
beginning at the close of business on a Regular Record Date and ending at the opening of business
on the first Business Day after the next succeeding Interest Payment Date, or if such Interest
Payment Date is not a Business Day, the second such Business Day) shall also be accompanied by
payment in funds acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security then being converted, and such
interest shall be payable to such Holder notwithstanding the conversion of such Security, subject
to the provisions of Section 3.7 relating to the payment of Defaulted Interest by the Company. As
promptly as practicable after the receipt of such notice and of any payment required pursuant to a
Board Resolution and, subject to Section 3.3, set forth, or determined in the manner provided, in
an Officers’ Certificate, or established in one or more indentures supplemental hereto setting
forth the terms of such series of Security, and the surrender of such Security in accordance with
such reasonable regulations as the Company may prescribe, the Company shall issue and shall
deliver, at the office or agency at which such Security is surrendered, to such Holder or on its
written order, a certificate or certificates for the number of full shares of Common Stock issuable
upon the conversion of such Security (or specified portion thereof), in accordance with the
provisions of such Board Resolution, Officers’ Certificate or supplemental indenture, and cash as
provided therein in respect of any fractional share of such Common Stock otherwise issuable upon
such conversion. Such conversion shall be deemed to have been effected immediately prior to the
close of business on the date on which such notice and such payment, if required, shall have been
received in proper order for conversion by the Company and such Security shall have been
surrendered as aforesaid (unless such Holder shall have so surrendered such Security and shall have
instructed the Company to effect the conversion on a particular date following such surrender and
such Holder shall be entitled to convert such Security on such date, in which case such conversion
shall be deemed to be effected immediately prior to the close of business on such date) and at such
time the rights of the Holder of such Security as such Security Holder shall cease and the person
or persons in whose name or names any certificate or certificates for shares of Common Stock of the
Company shall be issuable upon such conversion shall be deemed to have become the Holder or Holders
of record of the shares represented thereby. Except as set forth above and subject to the final
paragraph of Section 3.7, no payment or adjustment shall be made upon any conversion on account of
any interest accrued on the Securities (or any part thereof) surrendered for conversion or on
account of any dividends on the Common Stock of the Company issued upon such conversion.



In the case of any Security which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unconverted portion of such
Security.






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SECTION 14.3 NO FRACTIONAL SHARES.




No fractional share of Common Stock of the Company shall be issued upon conversions of
Securities of any series. If more than one Security shall be surrendered for conversion at one time
by the same Holder, the number of full shares which shall be issuable upon conversion shall be
computed on the basis of the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. If, except for the provisions of this
Section 14.3, any Holder of a Security or Securities would be entitled to a fractional share of
Common Stock of the Company upon the conversion of such Security or Securities, or specified
portions thereof, the Company shall pay to such Holder an amount in cash equal to the current
market value of such fractional share computed, (i) if such Common Stock is listed or admitted to
unlisted trading privileges on a national securities exchange or market, on the basis of the last
reported sale price regular way on such exchange or market on the last trading day prior to the
date of conversion upon which such a sale shall have been effected, or (ii) if such Common Stock is
not at the time so listed or admitted to unlisted trading privileges on a national securities
exchange or market, on the basis of the average of the bid and asked prices of such Common Stock in
the over-the-counter market, on the last trading day prior to the date of conversion, as reported
by the National Quotation Bureau, Incorporated or similar organization if the National Quotation
Bureau, Incorporated is no longer reporting such information, or if not so available, the fair
market price as determined by the Board of Directors. For purposes of this Section, “trading day”
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday other than any day on which the
Common Stock is not traded on the Nasdaq National Market, or if the Common Stock is not traded on
the Nasdaq National Market, on the principal exchange or market on which the Common Stock is traded
or quoted.



SECTION 14.4 ADJUSTMENT OF CONVERSION PRICE.




The conversion price of Securities of any series that is convertible into Common Stock of the
Company shall be adjusted for any stock dividends, stock splits, reclassifications, combinations or
similar transactions in accordance with the terms of the supplemental indenture or Board
Resolutions setting forth the terms of the Securities of such series.



Whenever the conversion price is adjusted, the Company shall compute the adjusted conversion
price in accordance with terms of the applicable Board Resolution or supplemental indenture and
shall prepare an Officers’ Certificate setting forth the adjusted conversion price and showing in
reasonable detail the facts upon which such adjustment is based, and such certificate shall
forthwith be filed at each office or agency maintained for the purpose of conversion of Securities
pursuant to Section 10.2 and, if different, with the Trustee. The Company shall forthwith cause a
notice setting forth the adjusted conversion price to be mailed, first class postage prepaid, to
each Holder of Securities of such series at its address appearing on the Security Register and to
any conversion agent other than the Trustee.



SECTION 14.5 NOTICE OF CERTAIN CORPORATE ACTIONS.




In case:



(1) the Company shall declare a dividend (or any other distribution) on its Common Stock
payable otherwise than in cash out of its retained earnings (other than a dividend for which
approval of any shareholders of the Company is required) that would require an adjustment pursuant
to Section 14.4; or



(2) the Company shall authorize the granting to all or substantially all of the holders of its
Common Stock of rights, options or warrants to subscribe for or purchase






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any shares of capital stock of any class or of any other rights (other than any such grant for
which approval of any shareholders of the Company is required); or



(3) of any reclassification of the Common Stock of the Company (other than a subdivision or
combination of its outstanding shares of Common Stock, or of any consolidation, merger or share
exchange to which the Company is a party and for which approval of any shareholders of the Company
is required), or of the sale of all or substantially all of the assets of the Company; or



(4) of the voluntary or involuntary dissolution, liquidation or winding up of the Company;




then the Company shall cause to be filed with the Trustee, and shall cause to be mailed to all
Holders at their last addresses as they shall appear in the Security Register, at least 20 days (or
10 days in any case specified in clause (1) or (2) above) prior to the applicable record date
hereinafter specified, a notice stating (i) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights, options or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (ii) the date on which such
reclassification, Consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or
other property deliverable upon such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up. If at any time the Trustee shall not be the conversion
agent, a copy of such notice shall also forthwith be filed by the Company with the Trustee.



SECTION 14.6 RESERVATION OF SHARES OF COMMON STOCK.




The Company shall at all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock of the Company then issuable upon the
conversion of all outstanding Securities of any series that has conversion rights.



SECTION 14.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION.




Except as provided in the next sentence, the Company will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of its Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery of shares of its Common Stock
in a name other than that of the Holder of the Security or Securities to be converted, and no such
issue or delivery shall be made unless and until the person requesting such issue has paid to the
Company the amount of any such tax, or has established, to the satisfaction of the Company, that
such tax has been paid.



SECTION 14.8 NONASSESSABILITY.




The Company covenants that all shares of its Common Stock that may be issued upon conversion
of Securities will upon issue in accordance with the terms hereof be duly and validly issued and
fully paid and nonassessable.






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SECTION 14.9 PROVISION IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS.




In case of any consolidation or merger of the Company with or into any other Person, any
merger of another Person with or into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the
Company) or any conveyance, sale, transfer or lease of all or substantially all of the assets of
the Company, the Person formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security of a series then Outstanding that is
convertible into Common Stock of the Company shall have the right thereafter (which right shall be
the exclusive conversion right thereafter available to said Holder), during the period such
Security shall be convertible, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger, conveyance, sale,
transfer or lease by a holder of the number of shares of Common Stock of the Company into which
such Security might have been converted immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not
a Person with which the Company consolidated or merged with or into or which merged into or with
the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a
“Constituent Person”), or an Affiliate of a Constituent Person and (ii) failed to exercise his
rights of election, if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if
the kind or amount of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer, or lease is not the same for each share of Common Stock of the
Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease
by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of
election shall not have been exercised (“Non-electing Share”), then for the purpose of this Section
14.9 the kind and amount of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease by the holders of each Non-electing Share shall be
deemed to be the kind and amount so receivable per share by a plurality of the Non-electing
Shares). Such supplemental indenture shall provide for adjustments which, for events subsequent to
the effective date of such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article or in accordance with the terms of the
supplemental indenture or Board Resolutions setting forth the terms of such adjustments. The above
provisions of this Section 14.9 shall similarly apply to successive consolidations, mergers,
conveyances, sales, transfers or leases. Notice of the execution of such a supplemental indenture
shall be given by the Company to the Holder of each Security of a series that is convertible into
Common Stock of the Company as provided in Section 1.6 promptly upon such execution.



Neither the Trustee nor any conversion agent, if any, shall be under any responsibility to
determine the correctness of any provisions contained in any such supplemental indenture relating
either to the kind or amount of shares of stock or other securities or property or cash receivable
by Holders of Securities of a series convertible into Common Stock of the Company upon the
conversion of their Securities after any such consolidation, merger, conveyance, transfer, sale or
lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect
thereto, which the Company shall cause to be furnished to the Trustee upon request.






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SECTION 14.10 DUTIES OF TRUSTEE REGARDING CONVERSION.




Neither the Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any Holder of Securities of any series that is convertible into Common Stock of
the Company to determine whether any facts exist which may require any adjustment of the conversion
price, or with respect to the nature or extent of any such adjustment when made, or with respect to
the method employed, whether herein or in any supplemental indenture, any resolutions of the Board
of Directors or written instrument executed by one or more officers of the Company provided to be
employed in making the same. Neither the Trustee nor any conversion agent shall be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common Stock of the
Company, or of any securities or property, which may at any time be issued or delivered upon the
conversion of any Securities and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Subject to the provisions of Section 6.1, neither the Trustee
nor any conversion agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of its Common Stock or stock certificates or other securities or property upon
the surrender of any Security for the purpose of conversion or to comply with any of the covenants
of the Company contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one or more duly authorized
officers of the Company.



SECTION 14.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.




Any funds which at any time shall have been deposited by the Company or on its behalf with the
Trustee or any other paying agent for the purpose of paying the principal of, and premium, if any,
and interest, if any, on any of the Securities (including, but not limited to, funds deposited for
the sinking fund referred to in Article 12 hereof and funds deposited pursuant to Article 13
hereof) and which shall not be required for such purposes because of the conversion of such
Securities as provided in this Article 14 shall after such conversion be repaid to the Company by
the Trustee upon the Company’s written request.



ARTICLE 15




SUBORDINATION OF SECURITIES




SECTION 15.1 AGREEMENT OF SUBORDINATION.




Except as otherwise provided in a supplemental indenture or pursuant to Section 3.1, the
Company covenants and agrees, and each Holder of Securities issued hereunder by its acceptance
thereof likewise covenants and agrees, that all Securities shall be issued subject to the
provisions of this Article 15; and each Person holding any Security, whether upon original issue or
upon transfer, assignment or exchange thereof, accepts and agrees to be bound by such provisions.



The payment of the principal of, premium, if any, and interest on all Securities (including,
but not limited to, the redemption price with respect to the Securities called for redemption in
accordance with Article 11 as provided in the Indenture) issued hereunder shall, to the extent and
in the manner hereinafter set forth, be subordinated and subject in right of payment to the prior
payment in full of all Senior Debt, whether outstanding at the date of this Indenture or thereafter
incurred.



No provision of this Article 15 shall prevent the occurrence of any default or Event of
Default hereunder.






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SECTION 15.2 PAYMENTS TO HOLDERS.




No payment shall be made with respect to the principal of, or premium, if any, or interest on
the Securities (including, but not limited to, the redemption price with respect to the Securities
to be called for redemption in accordance with Article 11 as provided in the Indenture), except
payments and distributions made by the Trustee as permitted by the first or second paragraph of
Section 15.5, if:



(i) a default in the payment of principal, premium, if any, interest, rent or other
obligations due on any Senior Debt occurs and is continuing (or, in the case of Senior Debt for
which there is a period of grace, in the event of such a default that continues beyond the period
of grace, if any, specified in the instrument or lease evidencing such Senior Debt) (a “Payment
Default”), unless and until such default shall have been cured or waived or shall have ceased to
exist; or



(ii) a default, other than a Payment Default, on any Designated Senior Debt occurs and is
continuing that then permits holders of such Designated Senior Debt to accelerate its maturity and
the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of
Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non–Payment
Default”).



If the Trustee receives any Payment Blockage Notice pursuant to clause (ii) above, no
subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and until
at least 365 days shall have elapsed since the initial effectiveness of the immediately prior
Payment Blockage Notice. No Non-Payment Default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice.



The Company may and shall resume payments on and distributions in respect of the Securities
upon the earlier of:



(1) in the case of any Payment Default, the date upon which the Payment Default is cured or
waived or ceases to exist, or



(2) in the case of a Non–Payment Default, the earlier of (a) the date upon which such
Non-Payment Default is cured, waived or ceases to exist or (b) 179 days after the date on which the
applicable Payment Blockage Notice is received by the Trustee,



unless this Article 15 otherwise prohibits the payment or distribution at such time.



Upon any payment or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
reorganization, liquidation, receivership or other proceedings, or upon an assignment for the
benefit of creditors or any marshalling of the assets and liabilities of the Company, or otherwise,
all amounts due or to become due upon all Senior Debt shall first be paid in full in cash or other
payment satisfactory to the holders of such Senior Debt, or payment thereof in accordance with its
terms provided for in cash or other payment satisfactory to the holders of such Senior Debt, before
any payment is made on account of the principal of, premium, if any, or interest on the Securities
(except payments made pursuant to Article 4 from monies deposited with the Trustee pursuant thereto
prior to commencement of proceedings for such dissolution, winding-up, liquidation, reorganization,
assignment for the benefit of creditors or the marshalling of assets and liabilities of the
Company); and upon any such dissolution, winding-up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company or bankruptcy,
insolvency, receivership or other proceeding, any payment by the Company, or distribution of assets
of the Company of any kind or character, whether in cash, property or






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securities, to which the Holders of the Securities or the Trustee would be entitled, except for the
provision of this Article 15, shall (except as aforesaid) be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Debt (pro rata to such holders on the
basis of the respective amounts of Senior Debt held by such holders, or as otherwise required by
law or a court order) or their Representative or Representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any Senior Debt may have been
issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt in
full, in cash or other payment satisfactory to the holders of such Senior Debt, after giving effect
to any concurrent payment or distribution to or for the holders of Senior Debt, before any payment
or distribution or provision therefor is made to the Holders of the Securities or to the Trustee.



For purposes of this Article 15, the words, “cash, property or securities” shall not be deemed
to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article 15 with respect to
the Securities to the payment of all Senior Debt which may at the time be outstanding; provided
that (i) the Senior Debt is assumed by the new corporation, if any, resulting from any
reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than
leases which are not assumed by the Company or the new corporation, as the case may be) are not,
without the consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer of its property as
an entirety, or substantially as an entirety, to another corporation upon the terms and conditions
provided for in Article 8 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.2 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 8.



In the event of the acceleration of the Securities because of an Event of Default, no payment
or distribution shall be made to the Trustee or any Holder of Securities in respect of the
principal of, premium, if any, or interest on the Securities (including, but not limited to, the
redemption price with respect to the Securities called for redemption in accordance with Article 11
as provided in the Indenture), except payments and distributions made by the Trustee as permitted
by the first or second paragraph of Section 15.5, until all Senior Debt has been paid in full in
cash or other payment satisfactory to the holders of Senior Debt or such acceleration is rescinded
in accordance with the terms of this Indenture. If payment of the Securities is accelerated because
of an Event of Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.



In the event that, notwithstanding the foregoing provisions, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or securities (including,
without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received
by the Trustee or the Holders of the Securities before all Senior Debt is paid in full in cash or
other payment satisfactory to the holders of such Senior Debt, or provision is made for such
payment thereof in accordance with its terms in cash or other payment satisfactory to the holders
of such Senior Debt, such payment or distribution shall be held in trust for the benefit of and
shall be paid over or delivered to the holders of Senior Debt or their Representative or
Representatives, or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Debt may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of all Senior Debt remaining
unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory
to the holders of such Senior Debt, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Debt.






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Nothing in this Section 15.2 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.7. This Section 15.2 shall be subject to the further provisions of Section
15.5.



SECTION 15.3 SUBROGATION OF SECURITIES.




Subject to the payment in full of all Senior Debt, the rights of the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to the holders of such
Senior Debt pursuant to the provisions of this Article 15 (equally and ratably with the holders of
all indebtedness of the Company which by its express terms is subordinated to other indebtedness of
the Company to substantially the same extent as the Securities are subordinated and is entitled to
like rights of subrogation) to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company applicable to the Senior Debt until
the principal, premium, if any, and interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of any
cash, property or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article 15, and no payment over pursuant to the
provisions of this Article 15, to or for the benefit of the holders of Senior Debt by Holders of
the Securities or the Trustee, shall, as between the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment by the Company to or on
account of the Senior Debt; and no payments or distributions of cash, property or securities to or
for the benefit of the Holders of the Securities pursuant to the subrogation provisions of this
Article 15, which would otherwise have been paid to the holders of Senior Debt shall be deemed to
be a payment by the Company to or for the account of the Securities. It is understood that the
provisions of this Article 15 are and are intended solely for the purposes of defining the relative
rights of the Holders of the Securities, on the one hand, and the holders of the Senior Debt, on
the other hand.



Nothing contained in this Article 15 or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than the holders of Senior
Debt, and the Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of the Senior Debt, nor shall anything herein
or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the rights, if any, under
this Article 15 of the holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.



Upon any payment or distribution of assets of the Company referred to in this Article 15, the
Trustee, subject to the provisions of Section 6.1, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent jurisdiction in which such
bankruptcy, dissolution, winding–up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders of the Securities,
for the purpose of ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable
thereon and all other facts pertinent thereto or to this Article 15.



SECTION 15.4 AUTHORIZATION TO EFFECT SUBORDINATION.




Each Holder of a Security by the holder’s acceptance thereof authorizes and directs the
Trustee on the holder’s behalf to take such action as may be necessary or appropriate to effectuate
the subordination





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as provided in this Article 15 and appoints the Trustee to act as the holder’s attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim or proof of debt in
the form required in any proceeding referred to in Section 5.4 hereof at least 30 days before the
expiration of the time to file such claim, the holders of any Senior Debt or their representatives
are hereby authorized to file an appropriate claim for and on behalf of the Holders of the
Securities.



SECTION 15.5 NOTICE TO TRUSTEE.




The Company shall give prompt written notice in the form of an Officers’ Certificate to a
Responsible Officer of the Trustee and to any Paying Agent of any fact known to the Company which
would prohibit the making of any payment of monies to or by the Trustee or any Paying Agent in
respect of the Securities pursuant to the provisions of this Article 15. Notwithstanding the
provisions of this Article 15 or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the making of any payment
of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this
Article 15, unless and until a Responsible Officer of the Trustee shall have received written
notice thereof at the Corporate Trust Office from the Company (in the form of an Officers’
Certificate) or a Representative or a holder or holders of Senior Debt or from any trustee
therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions
of Section 6.1, shall be entitled in all respects to assume that no such facts exist; provided that
if on a date not fewer than two Business Days prior to the date upon which by the terms hereof any
such monies may become payable for any purpose (including, without limitation, the payment of the
principal of, or premium, if any, or interest on any Security) the Trustee shall not have received,
with respect to such monies, the notice provided for in this Section 15.5, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by it on or after such prior
date.



Notwithstanding anything in this Article 15 to the contrary, nothing shall prevent any payment
by the Trustee to the Holders of monies deposited with it pursuant to Section 4.1, and any such
payment shall not be subject to the provisions of Section 15.1 or 15.2.



The Trustee, subject to the provisions of Section 6.1, shall be entitled to rely on the
delivery to it of a written notice by a Representative or a person representing himself to be a
holder of Senior Debt (or a trustee on behalf of such holder) to establish that such notice has
been given by a Representative or a holder of Senior Debt or a trustee on behalf of any such holder
or holders. The Trustee shall not be required to make any payment or distribution to or on behalf
of a holder of Senior Debt pursuant to this Article 15 unless it has received satisfactory evidence
as to the amount of Senior Debt held by such person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts pertinent to the rights of such
person under this Article 15.



SECTION 15.6 TRUSTEE’S RELATION TO SENIOR DEBT.




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



With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in this Article 15, and no
implied covenants or obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and, subject to the provisions of Section 6.1, the Trustee shall not be
liable to any holder of Senior







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Debt (i) for any failure to make any payments or distributions to such holders or (ii) if it shall
pay over or deliver to Holders of Securities, the Company or any other Person money or assets to
which any holder of Senior Debt shall be entitled by virtue of this Article 15 or otherwise.



SECTION 15.7 NO IMPAIRMENT OF SUBORDINATION.




No right of any present or future holder of any Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company, the Trustee or any Holder of Securities with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with.



SECTION 15.8 CERTAIN CONVERSIONS/EXCHANGES DEEMED PAYMENT.




For the purposes of this Article 15 only, (1) the issuance and delivery of junior securities
upon conversion or exchange of Securities in accordance with Article 14 or otherwise (except upon
conversion of the Securities in accordance with their terms) shall not be deemed to constitute a
payment or distribution on account of the principal of (or premium, if any) or interest on
Securities or on account of the purchase or other acquisition of Securities, and (2) the payment,
issuance or delivery of cash (except in satisfaction of fractional shares pursuant to Section
14.3), property or securities (other than junior securities) upon conversion or exchange of a
Security shall be deemed to constitute payment on account of the principal of such Security. For
the purposes of this Section 15.8, the term “junior securities” means (a) shares of any stock of
any class of the Company, or (b) securities of the Company which are subordinated in right of
payment to all Senior Debt which may be outstanding at the time of issuance or delivery of such
securities to substantially the same extent as, or to a greater extent than, the Securities are so
subordinated as provided in this Article. Nothing contained in this Article 15 or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors
other than holders of Senior Debt and the Holders of Securities, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in accordance with Article
14.



SECTION 15.9 ARTICLE APPLICABLE TO PAYING AGENTS.




If at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall (unless the
context otherwise requires) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that the first paragraph of Section 15.5
shall not apply to the Company or any Affiliate of the Company if the Company or such Affiliate
acts as Paying Agent.



The Trustee shall not be responsible for the actions or inactions of any other Paying Agents
(including the Company if acting as its own Paying Agent) and shall have no control of any funds
held by such other Paying Agents.



SECTION 15.10 SENIOR DEBT ENTITLED TO RELY.




The holders of Senior Debt (including, without limitation, Designated Senior Debt) shall have
the right to rely upon this Article 15, and no amendment or modification of the provisions
contained herein shall diminish the rights of such holders unless such holders shall have agreed in
writing thereto.






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SECTION 15.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.




Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and liabilities of the Company or
bankruptcy, insolvency, receivership or other like proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other person making such payment or distribution, delivered to the Trustee or
to the Holders, for the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.



SECTION 15.12 TRUST MONIES NOT SUBORDINATED.




Notwithstanding anything contained herein to the contrary, payments from money, U.S.
Government Obligations and/or Foreign Government Obligations held in trust under Article 4 or
Article 13 by the Trustee for the payment of the principal of, premium, if any, and interest on the
Securities shall not be subordinated to the prior payment in full of any Senior Debt of the Company
or subject to the restrictions set forth in this Article 15, and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior Debt of the Company or
any other creditor of the Company.



[The remainder of this page is intentionally left blank.]







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



BORDERS
GROUP, INC.



By:




Title:




          as Trustee




By:




Title:





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