Trust Indenture

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This Trust Indenture is between a company who issues bonds and a trustee who will represent the company's interests (usually a financial institution).

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This Trust Indenture is an agreement between a company who issues bonds and a trustee, usually a banking institution that will represent the company's interests. Because the rules governing the management of the bonds can be very complicated, this agreement includes provisions regarding outstanding, treasury and temporary debentures, payment of interest and covenants of both parties. The debenture also includes numerous provisions regarding defaults and remedies, as well as duties of the trustee.

This Trust Indenture includes the following provisions:
  • Parties: Sets forth the identities of the company who will represent the company's interests and act as a trustee;
  • Definitions: Comprehensive list of definitions are included for ease of reference;
  • Debentures: Provisions regarding form and dating, execution and authentication and debenture are included;
  • Legend: Language to be included in each debenture is contained within this agreement;
  • Covenants: Covenants regarding payment of principal and interest, reports and compliance are part of this agreement;
  • Defaults: Events of default are clearly defined;
  • Trustee: Trustee's duties, disclaimer and notice of default are clearly set forth in this agreement;
  • Discharge of Indenture: Sets out provisions regarding termination of company obligations, application of trust money and repayment to company;
  • Signatures: This agreement must be signed by the company, its secretary, and an officer and secretary of the trustee.

Protect yourself and your rights by using our attorney-prepared forms.

This attorney-prepared packet contains:
  1. General Information
  2. Instructions and Checklist
  3. Trust Indenture
State Law Compliance: This form complies with the laws of all states
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
 
 
Trust Indenture

 

 
Dated _______________
 
$[Amount]
 
___% Exchangeable Debentures Due [Year]
 
INDENTURE dated as of __________ between [company], a [state] corporation (the “Company”), and [trustee], a national banking association, as Trustee (the “Trustee”).
The Company and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the holders of the ____% Exchangeable Debentures due [date] (collectively, the “Debentures”):
 
ARTICLE 1. DEFINITIONS
 
Section 1.1. Definitions
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by agreement or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
 
“Agent” means any Registrar, Coregistrar, Paying Agent or Exchange Agent.
 
“Board of Directors” means the Board of Directors of the Company, or any authorized committee of the Board of Directors.
 
“Board Resolution” means a resolution of the Board of Directors.
 
“Business Day” means each Monday, Tuesday, Wednesday, Thursday, and Friday that is not a day on which banking institutions in [city], [state], are authorized or obligated by law or executive order to close.
 
“Capitalized Lease Obligation” means, with respect to any Person for any period, an obligation of such Person to pay rent or other amounts under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP and the amount of such obligation shall be the capitalized amount determined in accordance with such principles.
 
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of corporate stock or partnership interests, including each class of common stock and preferred stock and each class of partnership interests of such Person and any warrants, options or other rights to acquire such stock or interests.
 
“Collateral” means, the Property described in, or from time to time subject to, the Lien of the Pledge Agreement, and any additional Property at any time and from time to time receivable or distributable in respect of, in exchange for, or in substitution of, any and all of the aforementioned Property, together with any proceeds.
 
“Company” means, [company], a [state], corporation, until a successor replaces it pursuant to this Indenture and executes a supplemental indenture as provided here, and after that, means such successor.
 
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.1, or such other address as the Trustee may designate by notice to the Company.
 
“Current Market Price” means, when used with respect to any security as of any date, the last sale price, regular way, or, in case no such sale takes place on such date, the average of the closing bid and asked prices, regular way, in either case as reported for consolidated transactions on the New York Stock Exchange or, if the security is not listed or admitted to trading on the New York Stock Exchange, as reported for consolidated transactions with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading or, if the security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotations System or such other system then in use or, if the security is not quoted by any such organization, the average of the closing bid and asked prices furnished by a professional market maker making a market in the security as selected by the Exchange Agent or, if no such market making activities exist, as determined in such manner as shall be satisfactory to the Exchange Agent, which shall be entitled to rely for such purposes on the advice of any firm of investment bankers or security dealers having familiarity with such security. “Current Market Price” means, when used with respect to any Property other than a security as of any date, the market value of such Property on such date determined in such manner as shall be satisfactory to the Exchange Agent, which shall be entitled to rely for such purposes on the advice of any firm of investment bankers or appraisers having familiarity with such Property.
 
“Debentures” means the ___% Exchangeable Debentures due [date] issued under this Indenture.
 
“Debentures Custodian” means [trustee], as custodian with respect to the Global Debentures, or any successor entity.
 
“Debenture Owner” means the Person who owns a beneficial interest in any Global Debenture.
 
“Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.
 
“Depositary” means, with respect to the Debentures issuable or issued in whole or in part in global form, the Person specified in Section 2.3 of this Indenture as the Depositary with respect to the Debentures, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and, after that, “Depositary” shall mean or include such successor.
 
“Depositary Participant” means a broker, dealer, bank, other financial institution or other Person for whom, from time to time, a Depositary effects, directly or indirectly, book entry transfers and pledges of securities deposited with the Depositary.
 
“Event of Default” shall have the meaning provided in Section 5.1.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
“Exchange Agent” means [trustee] under the Exchange Agent Agreement, until a successor Exchange Agent shall have become such pursuant to the provisions of Section 15 of the Exchange Agent Agreement, and after that “Exchange Agent” shall mean such successor Exchange Agent and, from time to time, any subsequent successor to such provisions.
“Exchange Agent Agreement” means the Exchange Agent Agreement in the form of Exhibit ___ to this Indenture, as amended or supplemented from time to time in accordance with this Indenture and that agreement.
 
“Exchange Property” means initially the aggregate of ___ shares of [company] Common Stock delivered to the Exchange Agent by the Company simultaneously with the execution and delivery of this Indenture, and after that, means the securities, cash and other Property, if any, which at the time are deliverable upon surrender of the Debentures for exchange in accordance with ARTICLE 9 of this Indenture.
 
“GAAP” means generally accepted accounting principles as in effect in the United States of America as of any date of determination.
 
[company] Common Stock” means the common stock, par value $____ per share of [company], and any shares resulting from any reclassification or reclassifications.
 
“Global Debenture” means any Debenture delivered to the Depositary, and registered in the name of the Depositary or its nominee.
 
“Holder” means a Person in whose name a Debenture is registered in the Debenture Register.
 
“Indebtedness” means, with respect to any Person, without duplication, (i) any indebtedness of such Person for money borrowed or for the deferred purchase price of Property or services (other than such balance that represents an account payable or any other monetary obligation to a trade creditor created, incurred, assumed or guaranteed by such Person in the ordinary course of business of such Person in connection with obtaining goods, materials or services and due within 12 months (or such longer period for payment as is customarily extended by such trade creditor) of the incurrence, which account is not overdue by more than 120 days, according to the original terms of sale, unless such account payable is being contested in good faith or has otherwise been extended), (ii) all Capitalized Lease Obligations, (iii) any indebtedness or obligation of the type described in the foregoing clauses (i) and (ii) of others which is secured by a Lien on the assets of such Person and (iv) any indebtedness or obligation of the type described in the foregoing clauses (i) and (ii) of others which such Person has directly or indirectly guaranteed, endorsed with recourse (otherwise than for collection, deposit or other similar transactions in the ordinary course of business), agreed to purchase or repurchase or in respect of which such Person has agreed contingently to supply or advance funds.
 
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Interest Payment Date” means June 1 and December 1 in each year.
 
“Lien” means, with respect to any Person, any mortgage, deed of trust, pledge, lien, encumbrance, easement, restriction, covenant, right-of-way, charge or adverse claim affecting title or resulting in an encumbrance against real or personal Property of such Person, or a security interest of any kind whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement or any lease in the nature thereof, any option, right of first refusal or other similar agreement to sell, in each case securing obligations of such Person, and any filing of or agreement to give any financing statement under the [Uniform Commercial Code/[citation of statute]] of any jurisdiction).
 
“Memorandum” means the Offering Memorandum, dated [date of memorandum], of the Company relating to the Debentures, together with any amendment or supplement to it.
 
“Net Worth” means, with respect to the Company,  the stockholders equity of the Company as determined on a consolidated basis and in accordance with GAAP.
 
“Officers” means the Chairperson of the Board, the President, any Vice President, the Treasurer, the Controller, the Secretary or any Assistant Treasurer or Assistant Secretary of the Company.
 
“Officers Certificate” means a certificate signed by two Officers, one of whom must be the principal executive officer, principal financial officer or principal accounting officer of the Company.
 
“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.
 
“Person” means any individual, corporation, limited-liability company, partnership, joint venture, trust, estate, unincorporated organization or other entity or any government or any agency or political subdivision.
 
“Pledge” means a pledge and delivery by the Company to the Trustee, for the equal and ratable benefit of the Holders pursuant to the Pledge Agreement of the ___ shares of [company] Common Stock owned by the Company on the date of this Indenture and all Exchange Property subsequently issued in connection with it.
 
“Pledge Agreement” means the Pledge Agreement in the form of Exhibit ___ to this Indenture, as amended or supplemented from time to time in accordance with it and this Indenture.
“Property” means with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including, without limitation, Capital Stock in any other Person.
 
“Record Date” for the interest payable on any Interest Payment Date, means May 15 and November 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
 
“Responsible Officer” means, when used with respect to the Trustee, any officer within the Corporate Trust Office (or any successor office of the Trustee) including any President, Vice President, Assistant Vice President, Secretary, Assistant Secretary or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
 
“SEC” means the United States Securities and Exchange Commission.
 
“Securities Act” means the Securities Act of 1933, as amended.
 
“Security Interest” means the Lien on the Collateral created by the Pledge Agreement in favor of the Trustee for the benefit of the Holders.
 
“Subsidiary” means any corporation, partnership or other entity of which securities or other ownership interests having ___% or more of the ordinary voting power or equity interest of such corporation, partnership or other entity shall, at the time as of which any determination is being made, be owned by the Company either directly or through Subsidiaries.
 
“Trading Day” means a day on which the New York Stock Exchange and National Association of Securities Dealers Automated Quotation System are open for the transaction of business.
 
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
 
“Trustee” means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and after that, means the successor serving under this Indenture.
 
“United States Government Obligations” means direct obligations of the United States of America, or any agency or instrumentality of it, for the payment of which the full faith and credit of the United States of America is pledged, including, but not limited to, mutual funds investing exclusively in such obligations.
 
Section 1.2. Other Definitions.
Term
Defined in Section
 
 
“Bankruptcy Law
5.1
“Commission
3.17
“Custodian
5.1
“Defaulted Interest
2.12
“Debenture Register
2.3
“Exchange Event
9A.1
“Exchange Rate
9.1
“Highest Lawful Rate
13.17
“Paying Agent
2.3
“Registrar
2.3
“Registration Statement
3.17
“Representative
11.2
“Senior Indebtedness
11.2
 
Section 1.3. Rules of Construction.
Unless the context otherwise requires:
 
(1) a term has the meaning assigned to it;
 
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
 
(3) “or” is not exclusive; and
 
(4) words in the singular include the plural, and in the plural include the singular.
 
For all purposes of this Indenture, the principal of the Debentures shall consist of the Exchange Property, and the interest on the Debentures shall be the payment equal to ___% of the face amount of the Debentures per year contemplated by this Indenture, subject to adjustment as provided here, regardless of the characterization of principal and interest of the Debentures for purposes of United States federal income-tax laws, rules and regulations.
 
ARTICLE 2. THE DEBENTURES
 
Section 2.1. Form and Dating; Debentures in Global Form.
The Debentures and the Trustees certificates of authentication shall be substantially in the form which is attached hereto, made a part hereof, and incorporated herein as Exhibit ___ to this Indenture, and shall be in a principal amount of no greater than $___ upon the execution of this Indenture or from time to time after that. The Debentures may have notations, legends or endorsements as required by law, stock exchange rule, agreements to which the Company is subject or usage. Each Debenture shall be dated the date of its authentication. The Debentures shall be issued initially in denominations of $___ and integral multiples of it.
 
The terms and provisions contained in the Debentures shall constitute, and are expressly made, a part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound by them.
 
The Debentures will initially be issued as one Global Debenture. After that, Global Debentures shall represent such of the outstanding Debentures as shall be specified. The aggregate amount of Debentures represented may, from time to time, be reduced or increased, as appropriate, to reflect exchanges in accordance with the procedures of the Depositary. Any increase or decrease in the amount of outstanding Debentures represented by the Global Debenture shall be made by the Trustee or the Debentures Custodian at the direction of the Trustee in accordance with instructions given by the Holder. A Debenture Owner may exchange such Debenture Owners interest in any Global Debenture for Debentures registered in such Debenture Owners name, as provided in Section 2.7 of this Indenture.
 
Section 2.2. Execution and Authentication.
The Chairperson of the Board, the President or a Vice President of the Company shall sign and attest the Debentures on behalf of the Company by manual or fax signature. The Companys seal shall be reproduced on the Debentures.
 
If an Officer whose signature is on a Debenture no longer holds that office at the time the Debenture is authenticated, the Debenture shall still be valid.
 
A Debenture shall not be valid until authenticated by the manual signature of the Trustee. The signature of the Trustee shall be conclusive evidence that the Debenture has been authenticated under this Indenture.
 
Upon receipt of an Officers Certificate directing it to do so, the Trustee, shall authenticate the Debentures for original issue up to an aggregate principal amount stated in Section 2.1 of this Indenture. The aggregate principal amount of Debentures outstanding at any time may not exceed such amount, except as provided in Section 2.8 of this Indenture.
 
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate the Debentures. Unless limited by the terms of such appointment, an authenticating agent may authenticate the Debentures whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate.
 
Section 2.3. Registrar, Paying Agent, Exchange Agent, Depositary and Debentures Custodian.
The Company shall maintain (i) an Exchange Agent with an office in [city], [state], where the Debentures may be presented for exchange or payment at maturity, (ii) an office or agency where the Debentures may be presented for registration of transfer or for exchange into other denominations (the “Registrar”) and (iii) an office or agency in [city], [state], where the Company shall provide for the payment of, and Holders shall receive, interest payments (the “Paying Agent”). The Registrar shall keep a register of the Debentures and of their transfer and exchange (the “Debenture Register”). The Company may appoint one or more co-Registrars, and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent, Registrar, or co-Registrar without notice to any Holder. The Company may change the Exchange Agent only if the Trustee is changed, and the Company shall notify the Trustee, and the Trustee shall notify the Holders of any successor Exchange Agent. The Company shall notify the Trustee, and the Trustee shall notify the Holders of the name and address of any Agent not a party to this Indenture. The Company or any of the Subsidiaries may act as Paying Agent, Registrar, or Coregistrar, but not as Exchange Agent. The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. Such agreement shall implement the provisions of this Indenture that relate to such Agent. If the Company fails to maintain a Registrar, Paying Agent, or Exchange Agent, or fails to give the foregoing notice, the Trustee shall act as such, and shall be entitled to appropriate compensation in accordance with Section 6.7 of this Indenture.
 
The Company initially appoints the Trustee as Registrar, Paying Agent, Exchange Agent, and agent for service of notices and demands in connection with the Debentures at the office of the Corporate Trust Office of the Trustee.
 
The Company initially appoints The Depositary Trust Company to act as Depositary with respect to the Global Debentures.
 
Section 2.4. Paying Agent to Hold Money and Other Property in Trust.
The Company shall require each Paying Agent, other than the Trustee, to agree in writing to hold in trust for the benefit of Holders or the Trustee all money and other Property held by the Paying Agent for the payment of interest on the Debentures, and will notify the Trustee of any Default by the Company in making any such payment. While any such Default continues, the Trustee may require a Paying Agent to pay all money and other Property held by it to the Trustee. At any time, the Company may require a Paying Agent to pay all money and other Property held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent, if other than the Company, shall have no further liability for the money and other Property delivered to the Trustee. If the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money and other Property held by it as Paying Agent.
 
Section 2.5. Holder Lists.
The Trustee shall preserve, in as current a form as is reasonably practicable, the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date, and at such other time as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders, including the aggregate principal amount of Debentures held by them, and the Company shall otherwise comply with Section 312(a) of the Trust Indenture Act, as if such Section were set forth as a covenant of the Company in this Indenture.
 
Section 2.6. Book Entry and Definitive Debentures.
 
(a) One or more of the Debentures may be Global Debentures, to be delivered to the Depositary by the Company. In such case, the Global Debentures shall initially be registered on the Debenture Register in the name of [nominee], the nominee of the Depositary. No Debenture Owner will receive a definitive Debenture representing such Debenture Owners interest in the Debentures, except as provided in Section 2.7 of this Indenture, unless and until definitive Debentures shall have been issued in lieu of all Global Debentures pursuant to Section 2.7:
 
(i) the Company, the Paying Agent, the Exchange Agent, the Registrar, and the Trustee may deal with the Depositary for all purposes (including the making of distributions on the Debentures) as the authorized representative of the Debenture Owners;
 
(ii) to the extent that the provisions of this Section 2.6 conflict with any other provisions of this Indenture, the provisions of this Section 2.6 shall control;
 
(iii) the rights of Debenture Owners shall be exercised only through the Depositary, and shall be limited to those established by law and agreements between such Debenture Owners and the Depositary Participants; and until definitive Debentures are issued in lieu of all Global Debentures pursuant to Section 2.7 of this Indenture, the Depositary shall make book-entry transfers among the Depositary Participants, and shall receive and transmit distributions of principal and interest on the Debentures to such Depositary Participants; and
 
(iv) whenever this Indenture requires or permits any action to be taken based upon instructions or directions of Holders evidencing a specified percentage of the aggregate principal amount of the Debentures, the Depositary shall be deemed to represent such percentage of the Global Debentures with respect to which it has received instructions to such effect from Debenture Owners and/or Depositary Participants owning or representing, respectively, such percentage of the beneficial interests in the Global Debentures and has delivered such instructions to the Trustee. The Trustee shall have no obligation to determine whether the Depositary has, in fact, received any such instructions.
 
(b) On the Record Date prior to each applicable Interest Payment Date and at such other appropriate times, the Trustee shall request from the Depositary a securities position listing, setting forth the names of all Depositary Participants reflected in the Depositarys books as holding interests in the Debentures on such Record Date. In accordance with and subject to the time requirements of Sections 3.3, 6.6, 12.2 and 12.3 of this Indenture, the Trustee shall mail to each Depositary Participant the statements described in Sections 3.3, 6.6 and 12.2 of this Indenture, as applicable.
 
Section 2.7. Transfer and Exchange.
 
(a) Transfer and Exchange of Definitive Debentures. When Debentures are presented to the Registrar or co-Registrar with a request:
 
(i) to register the transfer of the Debentures; or
 
(ii) to exchange such Debentures for an equal principal amount of Debentures of other authorized denominations,
 
the Registrar or co-Registrar shall register the transfer or make the exchanges as requested if its requirements for such transactions are met; provided, however, that the Debentures presented or surrendered for registration of transfer or exchange:
 
(i) shall be endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar or co-Registrar, executed by the Holder or by such Holders attorney, authorized in writing; and
 
(ii) shall be accompanied by the following additional information and documents, as applicable:
 
(A) if such Debentures are being delivered to the Registrar or co-Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in substantially the form of Exhibit ___); or
 
(B) if such Debentures are being transferred pursuant to an effective registration statement under the Securities Act, a certification to that effect (in substantially the form of Exhibit ___); or
 
(C) if such Debentures are being transferred in reliance on another exemption from the registration requirements of the Securities Act, including, without limitation, pursuant to Rule 144, 144A or 145 or Regulation S under the Securities Act, a certification to that effect (in substantially the form of Exhibit ___) and an Opinion of Counsel reasonably acceptable to the Company and to the Registrar or co-Registrar to the effect that such transfer is in compliance with the Securities Act.
 
(b) Restrictions on Transfer of a Definitive Debenture for a Beneficial Interest in a Global Debenture. A Debenture may not be exchanged for a beneficial interest in a Global Debenture except upon satisfaction of the requirements set forth below. Upon receipt by the Registrar or Co-Registrar of a Debenture, endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Registrar or Co-Registrar, together with:
 
(i) a certification, substantially in the form of Exhibit ___, that such Debenture is being transferred to a qualified institutional buyer (as defined in Rule 144A under the Securities Act) in accordance with Rule 144A under the Securities Act; and
 
(ii) written instructions directing the Trustee or directing the Debentures Custodian, with confirmation from the Depositary agreeing, to increase the aggregate principal amount of the Debentures represented by the Global Debenture. Then, the Trustee shall cancel such Debenture and cause, or direct the Debentures Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Debentures Custodian, the aggregate principal amount of Debentures represented by the Global Debenture to be increased accordingly. If no Global Debenture is then outstanding, the Company shall issue and the Trustee shall authenticate a new Global Debenture in the appropriate principal amount.
 
(c) Transfer and Exchange of Global Debentures. The transfer and exchange of the Global Debenture or beneficial interests in it shall be affected by or through the Depositary, in accordance with this Indenture (including the restrictions on transfer set forth here) and the procedures of the Depositary.
 
(d) Transfer of a Beneficial Interest in a Global Debenture for a Definitive Debenture. Any Debenture Owner shall be entitled to receive at any time a definitive Debenture in exchange for such Debenture Owners interest in any Global Debenture. The transfer of any such definitive Debenture received upon such exchange shall be limited as set forth in Section 2.7(a) of this Indenture.
 
(e) Restrictions on Transfer and Exchange of Global Debentures. Notwithstanding any other provisions of this Indenture (other than the provisions set forth in Section 2.7(d) and 2.7(f) of this Indenture), a Global Debenture may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
 
(f) Authentication of Definitive Securities in Absence of Depositary. If at any time:
 
(i) the Depositary notifies the Company that the Depositary is unwilling or unable to continue as Depositary for the Global Debenture, and a successor Depositary for the Global Debentures is not appointed by the Company within 90 days after delivery of such notice; or
 
(ii) the Company, at its sole discretion, notifies the Trustee in writing that it elects to cause the cancellation of Global Debentures under this Indenture; or
 
(iii) after the occurrence of an Event of Default, the Debenture Owners with interests aggregating not less than a majority of the Global Debenture notify the Trustee, the Company and the Depositary in writing that they elect to cause the issuance of definitive Debentures under this Indenture; then the Company will execute, and the Trustee, upon receipt of an Officers Certificate requesting the authentication and delivery of definitive Debentures in lieu of the Global Debenture, will authenticate and deliver definitive Debentures, in an aggregate principal amount equal to the principal amount of the Global Debenture, in exchange for such Global Debenture.
 
(g) Legends. Each Debenture, unless resold pursuant to the Registration Statement, shall bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). BY PURCHASING THIS SECURITY, THE HOLDER AGREES FOR THE BENEFIT OF ABC IMPORTS, INC. (THE “COMPANY”) THAT THIS SECURITY MAY BE RESOLD OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY, (2) IF THIS SECURITY IS EVIDENCED BY A GLOBAL DEBENTURE, PURSUANT TO RULE 144A, (3) IN RELIANCE ON ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE RECEIPT BY THE REGISTRAR OR CO-REGISTRAR OF A CERTIFICATION OF THE TRANSFEROR AND AN OPINION (SATISFACTORY TO THE COMPANY) OF COUNSEL (SATISFACTORY TO THE COMPANY AND THE REGISTRAR OR CO-REGISTRAR) TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
 
(h) All Debentures issued upon any registration of transfer or exchange of Debentures shall be the valid obligations of the Company, evidencing the same debt, and shall be entitled to the same benefits under this Indenture, as the Debentures surrendered upon such registration of transfer or exchange.
 
(i) No service charge shall be made for any registration of transfer or exchange of Debentures, except as provided in Section 2.8 of this Indenture. 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 Debentures other than exchanges pursuant to Section 2.7(d) or 2.11 or ARTICLE 9 or 9A of this Indenture not involving any transfer.
 
Section 2.8. Mutilated, Destroyed, Lost and Stolen Debentures.
If any mutilated Debenture is surrendered to the Trustee, the Company shall issue and the Trustee shall authenticate and deliver in exchange for it a new Debenture of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss, or theft of any Debenture and (b) such indemnity bond or other 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 Debenture has been acquired by a bona fide purchaser, the Company shall issue and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost, or stolen Debenture, a new Debenture of like tenor and principal amount and bearing a number not contemporaneously outstanding. If, after delivery of such new Debenture, a bona fide purchaser of the original Debenture in lieu of which such new Debenture was issued presents for payment such original Debenture, the Company and the Trustee shall be entitled to recover such new Debenture from the Person to whom it was delivered or any transferee, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided for to the extent of any loss, damage, cost or expense incurred by the Company or the Trustee in connection with it.
 
In case any such mutilated, destroyed, lost, or stolen Debenture has or is about to become due and payable, the Company may, in its discretion pay such Debenture rather than issue a new Debenture.
 
Upon the issuance of any new Debenture under this Section 2.8, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation to it and any other expenses (including the fees and expenses of the Trustee) connected with it.
 
Except as provided above, every new Debenture issued pursuant to this Section 2.8 in lieu of any destroyed, lost or stolen Debenture shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debenture 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 Debentures issued under this Indenture.
The provisions of this Section 2.8 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 Debentures.
 
Section 2.9. Outstanding Debentures.
The Debentures outstanding at any time are all the Debentures authenticated by the Trustee, except for those cancelled by it, those delivered to it for cancellation, those reductions in the interests in Global Debentures effected by the Trustee under this Indenture, and those described in this Section 2.9 as not outstanding.
 
If a Debenture is replaced pursuant to Section 2.8 of this Indenture, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Debenture is held by a bona fide purchaser.
If the principal amount of any Debenture is considered paid under Section 3.1 of this Indenture, it ceases to be outstanding, and interest on it ceases to accrue as of the date of such payment. If the principal amount of a Debenture is exchanged for Exchange Property pursuant to ARTICLES 9 or 9A of this Indenture, such principal amount ceases to be outstanding and interest on it ceases to accrue as of the date of such exchange, unless the Company defaults upon its obligation to deliver Exchange Property upon such exchange as provided in ARTICLES 9 and 9A of this Indenture.
 
Except as set forth in Section 2.10 of this Indenture, a Debenture does not cease to be outstanding because the Company or an Affiliate of the Company holds the Debenture.
 
Section 2.10. Treasury Debentures.
In determining whether the Holders of the required principal amount of Debentures have concurred in any direction, waiver, consent, or giving of any notice, Debentures owned by the Company or any Affiliate of the Company (whether directly or by or through the Depositary) shall be considered as though not outstanding, except that for purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver, consent or notice, only Debentures that a responsible officer knows to be so owned shall be so considered.
 
Section 2.11. Temporary Debentures.
Until definitive Debentures are ready for delivery, the Company may prepare, and the Trustee shall authenticate, temporary Debentures. Temporary Debentures shall be substantially in the form of definitive Debentures, but may have variations that the Company and the Trustee consider appropriate for temporary Debentures. Without unreasonable delay, the Company shall prepare, and the Trustee, upon receipt of an Officers Certificate of the Company directing it to do so, shall authenticate, definitive Debentures in exchange for temporary Debentures surrendered in like principal amount. Until such exchange, temporary Debentures shall be entitled to the same rights, benefits and privileges as definitive Debentures.
 
 
Section 2.12. Payment of Interest; Interest Rights Preserved.
Interest on any Debenture which is payable, and is punctually paid or provided for, on any Interest Payment Date shall be paid to the Person in whose name that Debenture is registered at the close of business on the related Record Date.
Any interest on any Debenture which is payable, but is not punctually paid or provided for, on any Interest Payment Date (Defaulted Interest) shall immediately cease to be payable to the Holder on the related 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 (i) or (ii) below:
 
(i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Debentures are registered at the close of business on a record date for the 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 the Defaulted Interest proposed to be paid on each Debenture 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 provided in this clause (i). Thereupon the Company shall fix a special record date for the payment of such Defaulted Interest which shall be no 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 Company shall promptly notify the Trustee of such special record date and the Trustee, 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 to be mailed, first-class postage prepaid, to each Holder at his or her address as it appears in the Debenture Register, 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 having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Debentures are registered at the close of business on such special record date, and shall no longer be payable pursuant to the following clause (ii).
 
(ii) The Company may make payment of any Defaulted Interest on the Debentures in any other lawful manner if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (ii), such manner of payment shall be deemed practicable by the Trustee.
 
Subject to the foregoing provisions of this Section 2.12, each Debenture delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debenture shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debenture.
 
In the case of any Debenture which is exchanged pursuant to ARTICLE 9 of this Indenture after any Record Date and on or prior to the related Interest Payment Date, interest due on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such exchange, and such interest (whether or not punctually paid or provided for) shall be paid to the Person in whose name that Debenture was registered at the close of business on such Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Debenture which is exchanged, interest due after the date of exchange of such Debenture shall not be payable.
 
Section 2.13. Persons Deemed Owners.
Prior to the due presentment of a Debenture for registration of transfer, the Company, the Trustee and any Agent may treat the Holder as the owner of such Debenture for the purpose of receiving payment of principal of and (subject to Section 2.12 of this Indenture) interest on such Debenture and for all other purposes whatsoever, whether or not such Debenture is overdue, and neither the Company, the Trustee, nor any Agent shall be affected by notice to the contrary.
 
Section 2.14. Cancellation.
At any time, the Company may deliver Debentures to the Trustee for cancellation. The Registrar and Exchange Agent shall forward to the Trustee any Debentures surrendered to them for transfer, exchange, or payment. The Trustee, and no one else, shall cancel all Debentures surrendered for transfer, exchange, payment, replacement, or cancellation. The Trustee shall return all cancelled Debentures to the Company, subject to any applicable record retention requirement of the Exchange Act. The Company may not issue new Debentures to replace Debentures that have been exchanged, matured, or delivered by the Company to the Trustee for cancellation.
 
ARTICLE 3. COVENANTS
 
Section 3.1. Payment of Principal of and Interest on the Debentures.
The Company shall punctually pay, or, with respect to the principal of the Debentures, cause to be delivered by the Exchange Agent, at the office of the Exchange Agent or Paying Agent, as the case may be, in [city], [state], the principal of and interest on the Debentures on the dates and in the manner provided in the Debentures and this Indenture. At maturity, the principal amount of the Debentures shall be paid by delivery of Exchange Property by the Exchange Agent, as provided in the Exchange Agent Agreement. Principal shall be considered paid by the Company on the date due if the Exchange Agent holds, at least one Business Day before such date, all Exchange Property related to it and all documents, if any, required by the Company to effect such delivery and delivery by the Exchange Agent to the Holders. An installment of interest shall be considered paid by the Company on the date due if the Company shall have deposited in [city], [state], no later than [time period], [time zone] time on such date, with the Trustee or Paying Agent, if other than the Company or a Subsidiary, immediately available funds designated for and sufficient to pay all interest then due. The Exchange Agent or Paying Agent, as the case may be, shall return to the Company, no later than five (5) days following the date of payment, any Exchange Property, money, including accrued interest, or other Property that exceeds such amount of principal and interest paid on the Debentures.
The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to ___% per year in excess of the then-applicable interest rate on the Debentures to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
 
 
Section 3.2. Maintenance of Office or Agency.
The Company shall maintain an office or agency (which may be an office of the Trustee, Registrar or co-Registrar) where Debentures may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Company in respect of the Debentures and this Indenture may be served. The Company initially designates the Corporate Trust Office of the Trustee as such office or agency of the Company in accordance with Section 2.3 of this Indenture. The Company shall 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, such presentations, surrenders, notices, and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company appoints the Trustee as its agent to receive all such presentations, surrenders, notices, and demands.
From time to time, the Company may also designate one or more other offices or agencies where the Debentures may be presented or surrendered for any or all of such purposes and may from time to time rescind such designations. 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 3.3. Reports.
As long as any of the Debentures remain outstanding, the Company shall mail or transmit to the Trustee for mailing to the Holders, as their names and addresses appear on the Debenture Register, copies of the quarterly and annual financial information that the Company distributes to its stockholders generally. The financial information to be distributed to the Holders shall be mailed by the Trustee to the Holders at their addresses appearing in the Debenture Register within 15 days after receipt by the Trustee of such financial information. The Company shall deliver such financial information to the Trustee concurrently with delivery to the Companys stockholders, and the Trustees only obligation shall be to mail the financial information that it receives from the Company to the Holders and not obtain or review such information from the Company. The Company shall provide the Trustee with a sufficient number of copies of all reports and other documents and information that the Trustee may be required to deliver to the Holders under this Section 3.3.
 
Section 3.4. Compliance Certificate.
 
(a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company, an Officers Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers that, to the best of his or her knowledge (i) the Company has complied with the conditions and covenants contained in this Indenture or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect to them, and (ii) no event has occurred and remains in existence by reason of which payments on account of the principal of or interest on the Debentures are prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect to it.
 
(b) The Company shall, so long as any of the Debentures are outstanding, deliver to the Trustee, immediately upon any Officer becoming aware of any Default or Event of Default, an Officers Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect to it.
 
Section 3.5. Payment of Taxes.
The Company shall, and shall cause its Subsidiaries to, pay or discharge prior to delinquency all material taxes, assessments, and governmental levies, except as contested in good faith and by appropriate proceedings.
 
Section 3.6. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time subsequently in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted here to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
 
Section 3.7. Corporate Existence.
Subject to Section 3.8 and ARTICLE 4 of this Indenture, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (a) its corporate existence, and the corporate, partnership or other existence of its Subsidiaries, in accordance with its organizational documents (as the same may be amended from time to time) and in accordance with the organizational documents of and subject to the rights of other equity owners in each Subsidiary and (b) its (and its Subsidiaries) material rights (charter and statutory), licenses and franchises; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries if the Board of Directors shall determine that the preservation is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss is not adverse in any material respect to the Holders.
 
Section 3.8. Liquidation.
The Board of Directors or the stockholders of the Company may not adopt a plan of liquidation that provides for, contemplates or the effectuation of which is preceded by (a) the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company otherwise than substantially as an entirety (Section 4.1 of this Indenture being the Section of this Indenture that governs any such sale, lease, conveyance or other disposition substantially as an entirety), and (b) the distribution of all or substantially all of the proceeds of such sale, lease, conveyance or other disposition and of the remaining assets of the Company to the holders of Capital Stock of the Company, unless the Company, prior to making any liquidating distributions pursuant to such plan, makes provision for the satisfaction of the Companys obligations under this Indenture and under the Debentures as to the payment of principal and interest. The Company shall be deemed to make provision for such payments only if (x) the Company delivers in trust to the Trustee, the Exchange Agent or the Paying Agent (other than the Company or its Subsidiaries) (A) all Exchange Property together with such documents of conveyance necessary and appropriate to effect the transfer of such Exchange Property to the Holders in accordance with this Indenture and (B) money or United States Government Obligations maturing as to principal and interest in such amounts and at such times as are sufficient without consideration of any reinvestment of such interest to pay the interest on the Debentures or (y) there is an express assumption and observance of all covenants and conditions to be performed by the Company under this Indenture by the execution and delivery of a supplemental indenture in form satisfactory to the Trustee by a Person that acquires or will acquire (otherwise than pursuant to a lease) a portion of the assets of the Company and which Person will have a net worth (defined for this purpose as the amount by which the assets of such Person on a consolidated basis exceed the sum of the total liabilities of such Person, as determined in accordance with GAAP and calculated immediately after the acquisition) exceeding $___ and which is organized and existing under the laws of the United States, any state or the District of Columbia; provided, however, that the Company shall not make any liquidating distribution until after the Company shall have certified to the Trustee pursuant to an Officers Certificate at least five (5) days prior to the making of any liquidating distribution that it has complied with the provisions of this Section 3.8 and that no Default or Event of Default then exists or would occur as a result of any such liquidating distribution.
 
Section 3.9. Rule 144 Information
For a period of three years from the date of this Indenture, the Company shall use its reasonable efforts to make available adequate “current public information” to the extent required by Rule 144 under the Securities Act (or any successor rule).
 
Section 3.10. Rule 144A Information Requirement.
If at any time the Company shall cease to be a reporting Company under the Exchange Act, the Company shall furnish to the Holders or beneficial holders of the Debentures and prospective purchasers of the Debentures upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
 
Section 3.11. Preservation of Information.
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 2.5 of this Indenture and the names and addresses of Holders received by the Trustee in its capacity as Debenture Registrar. The Trustee may destroy any list furnished to it as provided in Section 2.5 of this Indenture upon receipt of a new list so furnished.
 
Section 3.12. Exchange Property, Money and Property for Debenture Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, on or before each due date of interest on any of the Debentures, and if such payment of interest is then permitted under ARTICLE 11 of this Indenture, the Company will segregate and hold in trust for the benefit of the Persons entitled to it money sufficient to pay the interest so becoming due until such money shall be paid to such Persons or otherwise disposed of as provided here and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, on or prior to each due date of interest on any of the Debentures, and if such payment is then permitted under ARTICLE 11 of this Indenture, the Company will deposit with a Paying Agent money sufficient to pay the interest so becoming due, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
Any amounts held segregated by the Company or paid to a Paying Agent and held in trust pursuant to either of the previous two paragraphs shall be subject to the rights of the holders of Senior Indebtedness under the provisions of this Indenture to the extent, but only to the extent, the same relate to the payment of interest on the Debentures subordinated pursuant to Section 11 of this Indenture.
 
The Company will cause each Paying Agent 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 3.12, that such Paying Agent will: (a) hold all money and other Property held by it for the payment of interest on the Debentures in trust for the benefit of the Persons entitled to it until the same shall be paid to such Persons or otherwise disposed of as provided here; and (b) at any time during the continuance of any default by the Company (or any other obligor upon the Debentures) in the making of any payment in respect of the Debentures, upon the written request of the Trustee, immediately pay to the Trustee all money and other Property held in trust by such Paying Agent for payment in respect of the Debentures.
The Company will cause each Exchange Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Exchange Agent shall agree with the Trustee, subject to the provisions of this Section 3.12 and Section 9.14 of this Indenture, that such Exchange Agent will: (a) hold all Exchange Property held by it for the payment of principal on the Debentures in trust for the benefit of the Persons entitled to it until the same shall be paid to such Persons or otherwise disposed of as provided here; and (b) at any time during the continuance of any default by the Company (or any other obligor upon the Debentures) in the making of any payment in respect of the Debentures, upon the written request of the Trustee, immediately pay to the Trustee all Exchange Property held in trust by such Exchange Agent for payment in respect of the Debentures.
 
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 and Exchange Agent to pay, to the Trustee all Exchange Property, money and other Property held in trust by the Company or such Paying Agent or Exchange Agent, such Exchange Property, money and other Property to be held by the Trustee upon the same trusts as those upon which such Exchange Property, money and other Property was held by the Company or such Paying Agent or Exchange Agent; and, upon such payment by any Paying Agent or Exchange Agent to the Trustee, such Paying Agent or Exchange Agent shall be released from all further liability with respect to such Exchange Property, money and other Property.
Any Exchange Property deposited with any Exchange Agent or the Trustee in trust for the payment of the principal of any Debenture or any money or other Property deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of interest on any Debenture and remaining unclaimed for one year after such principal or interest, as the case may be, has become due and payable shall be paid to the Company upon the Companys request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Debenture shall after that, as an unsecured general creditor, look only to the Company for payment, and all liability of the Trustee or such Exchange Agent or Paying Agent with respect to such Exchange Property, money or other Property, and all liability of the Company as trustee, shall cease; provided, however, that the Trustee or such Exchange Agent or Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be mailed, to the address of the Holder of such Debenture according to the Debenture Register, notice that such Exchange Property, money or other Property remains unclaimed and that, after a date specified, which shall not be less than 30 days from the date of such mailing, any unclaimed balance of such Exchange Property, money or other Property then remaining will be repaid to the Company.
 
Section 3.13. Maintenance of Properties.
The Company shall cause all properties used or useful in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements, all as in the judgment of the Company may be necessary, so that the business carried on in connection with it may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 3.13 shall prevent the Company from discontinuing the operation or maintenance of any of such properties, if such discontinuance is, in the judgment of the Company, desirable in the conduct of the business of the Company and not disadvantageous in any material respect to the Holders.
 
Section 3.14. Notice of Acceleration.
In the event that any Indebtedness for money borrowed of the Company is declared due and payable before its maturity because of the occurrence of any default (or any event which, with notice or the lapse of time, or both, shall constitute such default) under such Indebtedness, the Company shall promptly give written notice to the Trustee and the Exchange Agent of such declaration.
 
Section 3.15. No Liens on Collateral.
Except for the Lien created by the Pledge Agreement, the Company shall not, directly or indirectly, create, incur, assume, or permit to exist any Lien on or with respect to any Collateral or any income or profits from it.
 
Section 3.16. Recording of Pledge Agreement.
On or before the date the Pledge is made by the Company, the Company shall cause the Pledge Agreement, and all necessary financing statements, notifications of secured transactions and other instruments, to be promptly recorded, registered and filed and to be kept, recorded, registered and filed in such manner and in such places as may be required by law, and take all such other action as may be required in order to make effective the Security Interest intended to be created in connection with this Indenture and with the priorities contemplated by it. The Company shall furnish to the Trustee promptly after the execution and delivery of this Indenture, one or more Opinions of Counsel stating that in the opinion of such counsel the Indenture and the Pledge Agreement have been properly recorded and filed so as to make effective the Security Interest intended to be created by this Indenture, and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to make such Security Interest effective. In the event the Exchange Property shall consist of other than solely [company] Common Stock or cash on any anniversary of the date of execution and delivery of this Indenture, the Company shall furnish to the Trustee on such anniversary one or more Opinions of Counsel (1) stating that such action has been taken with respect to the recording, registering, filing, rerecording, reregistering and refiling of the Indenture and the Pledge Agreement and all necessary financing statements, notifications of secured transactions and other instruments as may be necessary to make effective and maintain the Security Interest contemplated by it and reciting the details of such action (including the jurisdictions in which such actions were taken) or stating that no such action is required, and (2) stating what, if any, action of the foregoing character may reasonably be expected to become necessary during the next year to so maintain the Security Interest contemplated by this Indenture and the Pledge Agreement.
 
Section 3.17. Registration of Debentures.
 
(a) The Company shall use its reasonable efforts to register the Debentures under the Securities Act as promptly as practicable after the date of this Indenture. In connection with such registration, the Company will:
 
(i) As soon as practicable after the date of this Indenture, prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) on a form available for the transfer of the Debentures by the Holders;
 
(ii) use its reasonable efforts to cause the Registration Statement to become effective within 60 days after filing with the Commission, which obligation shall be subject to compliance by the Holders with the provisions of Section 3.17(c) of this Indenture (to whom a prompt request for compliance with such provision shall have been given);
 
(iii) prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus constituting a part of it, and file such reports and other documents required by the Exchange Act and the rules and regulations under it, as may be necessary to keep the Registration Statement effective for a period of not less than six months, and to prevent such prospectus from containing an untrue statement of a material fact or omitting to state a material fact required to be stated in it or necessary to make the statements in it not misleading;
 
(iv) furnish to each Holder such number of copies of the prospectus, and any amendments and supplements to it, and documents incorporated by reference in the Registration Statement as reasonably requested by such Holder to facilitate the transfer of the Debentures and to satisfy the requirements of the Securities Act, provided that the Company receives reasonable assurances from such requesting Holder that it will comply with the applicable provisions of the Securities Act and such other securities or “blue sky” laws as may be applicable in connection with the use of such prospectus;
 
(v) notify each Holder of any stop order issued, or to the Companys knowledge, threatened by the Commission that is applicable to the Registration Statement, and take all reasonable actions required to prevent the entry of such stop order or to remove it as promptly as practicable if entered;
(vi) use reasonable efforts to register or qualify the Debentures under the blue sky or securities laws of each state or other jurisdiction of the United States as any Holder reasonably requests in writing and to take such other action as may be necessary or advisable to enable the transfer of the Debentures in a jurisdiction applicable to such transfer, provided that the Company will not be required to qualify generally to do business or subject itself to taxation in any jurisdiction where it is not then so qualified or subject to taxation or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
 
(vii) notify each Holder of any suspension of qualification for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
 
(viii) use reasonable efforts to take all other steps necessary to effect the registration of the Debentures; and
 
(ix) bear all expenses in connection with the registration of the Debentures and the procedures set forth in paragraphs (i) through (viii) of this Section 3.17, other than any underwriting discounts and selling commissions, if any, and expenses of counsel or other advisers to the Holders.
 
(b) The Company understands that the Holders disclaim being underwriters with respect to the transfer of the Debentures, but the Holders otherwise being deemed an underwriter shall not relieve the Company of any of its obligations under this Indenture. The Company shall indemnify the Holders with respect to any untrue statement of a material fact or any omission to state a material fact required to be stated in it or necessary to make the statements in it not misleading contained in any such prospectus, or any amendment or supplement to it, except for statements or omissions included in it in reliance upon written information provided by the Holders for inclusion in it.
 
(c) It shall be a condition to the inclusion of any Holders Debentures in the Registration Statement that such Holder provide all necessary information with respect to such Holders Debentures and the proposed distribution of it and an undertaking to promptly notify the Company in writing of any inaccuracy or change in the information previously furnished to the Company and to indemnify the Company and the other Holders from any liability resulting from a misstatement of any material fact contained in such information or omission to state a material fact required to be stated in it or necessary to make the statements in it not misleading. Holders shall not be required to provide any representations, warranties, or undertakings with respect to the Registration Statement other than as contemplated in Section 3.17(a)(ii) of this Indenture.
 
(d) From time to time, the Company may suspend the use of the prospectus comprising a part of the Registration Statement because of the Companys awareness of the existence of material nonpublic information regarding the Company. Each Holder including Debentures in the Registration Statement covenants that it will not sell any Debenture pursuant to the Registration Statement during the period commencing at the time at which the Company gives written notice to such Holder of the suspension of sales pursuant to such prospectus and the Registration Statement and ending at the time that the Company gives notice that such Holder may thereafter effect sales pursuant to it. The Company will use its best efforts to limit the time of such suspension to less than 90 days, and the Company covenants to extend the period that it has agreed to keep the Registration Statement effective by the length of time of any such suspension.
 
ARTICLE 4. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
 
Section 4.1. When the Company May Merge, etc.
The Company will not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey, or otherwise dispose, of all or substantially all of its and its Subsidiaries properties or assets (determined on a consolidated basis for the Company and its Subsidiaries taken as a whole), substantially as an entirety in one or more related transactions, to another Person (other than a merger between the Company and any wholly owned Subsidiary of the Company) unless:
 
(a) in case of a merger in which the Company is the surviving corporation or, in the case of any other such merger, sale, assignment, consolidation, transfer, lease, conveyance, or other disposition, the Person formed by such consolidation or into which the Company is merged or the Person which acquires or leases the properties and assets of the Company substantially as an entirety shall have a net worth (defined for this purpose as the amount by which the assets of such Person on a consolidated basis exceed the sum of the total liabilities of such Person, as determined in accordance with GAAP and calculated immediately after such merger, sale, assignment, consolidation, transfer, lease, conveyance, or other disposition) of at least $___ and, if applicable, the Person formed by such consolidation or merger or which acquires or leases the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of the United States of America, any state or the District of Columbia, and shall expressly assume, by an indenture supplemental to this Indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the Debentures and the performance or observance of every covenant contained in this Indenture on the part of the Company to be performed or observed, and shall have provided for exchange rights in accordance with ARTICLE 9 of this Indenture; and
 
(b) immediately after giving effect to 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 occurred and be continuing.
 
Prior to the consummation of the proposed transaction, the Company shall deliver to the Trustee an Officers Certificate to the foregoing effect, and an Opinion of Counsel to the effect that such merger, sale, assignment, consolidation, transfer, lease, conveyance, or other disposition and, if applicable, such indenture supplemental to this Indenture, if any, comply with this Indenture, and that all conditions precedent to such merger, sale, assignment, consolidation, transfer, lease, conveyance or other disposition have been satisfied. The Trustee shall be entitled to conclusively rely upon such Officers Certificate and Opinion of Counsel.
 
Section 4.2. Successor substituted.
Upon any consolidation or merger, or any sale, lease, conveyance, or other disposition of all or substantially all of the Property of the Company in accordance with Section 4.1 of this Indenture, the successor Person formed by such consolidation, or into or with which the Company is merged or to which such sale, lease, conveyance, or other disposition 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 has been named as the Company; and thereafter, except in the case of a lease, the Company shall be released and discharged from all obligations and covenants under this Indenture and the Debentures.
 
ARTICLE 5. DEFAULTS AND REMEDIES
 
Section 5.1. Events of Default.
The following shall constitute an “Event of Default”:
 
(a) default in the payment of principal of any Debenture when due, whether at maturity or otherwise;
 
(b) default in the payment of any installment of interest on any Debenture when due and payable, whether or not such payment is prohibited by the provisions of ARTICLE 11 of this Indenture, and continuance of such default for a period of 30 days;
 
(c) default on any other Indebtedness of the Company or any Subsidiary for money borrowed if either (i) such default results from the failure to pay principal of, premium, if any, or interest on any such Indebtedness when due, after expiration of any applicable grace period with respect thereto, or (ii) as a result of such default, the maturity of such Indebtedness has been accelerated, without such Indebtedness having been discharged, or such default and acceleration having been rescinded or annulled, within a period of 10 days after written notice thereof (stating that such notice is notice of default under this Indenture, specifying such default and requiring it to be remedied) shall have been given to the Company by the Trustee or by the Holders of at least ___% or more in aggregate principal amount of the then-outstanding Debentures, and the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness for money borrowed in default, or the maturity of which has been so accelerated, aggregates $___ or more;
 
(d) default by the Company or any Subsidiary in the performance, or the breach, of any other covenant or warranty of the Company in this Indenture and the failure to remedy such default within a period of 90 days after written notice (stating that such notice is notice of default under this Indenture, specifying such default and requiring it to be remedied) to the Company from the Trustee or Holders of ___% or more of the aggregate principal amount of the outstanding Debentures;
 
(e) any act or acts by the Company pursuant to or within the meaning of any Bankruptcy Law (as defined below):
 
(i) commencing a voluntary case,
 
(ii) consenting to the entry of an order for relief against it in an involuntary case,
 
(iii) consenting to the appointment of a Custodian of it or for all or substantially all of its Property,
 
(iv) making a general assignment for the benefit of its creditors, or
 
(v) the admission in writing of the Companys inability to pay its debts generally as they become due;
 
(f) the entry of an order or decree by a court of competent jurisdiction under any Bankruptcy Law that:
 
(i) is for relief against the Company in an involuntary case,
 
(ii) appoints a Custodian of the Company or for all or substantially all of the Property of the Company, or
 
(iii) orders the liquidation of the Company, in each case, if such order or decree is not stayed, and remains in effect for 90 consecutive days; or
 
(g) an event of default under the Pledge Agreement occurs.
 
The term “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidation or similar official under any Bankruptcy Law.
 
Section 5.2. Acceleration.
If an Event of Default (other than an Event of Default specified in clauses (e) and (f) of Section 5.1 of this Indenture) occurs and is continuing, then and in every case the Trustee or the Holders of ___% or more of the aggregate principal amount of the then-outstanding Debentures by notice to the Company and the Trustee, may declare the unpaid principal of, and any accrued and unpaid interest on, all of the Debentures then outstanding to be due and payable immediately by a notice in writing to the Company (and to the Trustee, if given by the Holders). Upon any such declaration, the principal amount and accrued and unpaid interest through the date of such declaration shall be due and payable immediately notwithstanding anything contained in this Indenture or in the Debentures to the contrary. If an Event of Default specified in clause (e) or (f) of Section 5.1 of this Indenture occurs, all unpaid principal of and accrued and unpaid interest on the Debentures then outstanding will become and be immediately due and payable, without any declaration or other act on the part of the Trustee or any Holder. At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money or Exchange Property due has been obtained by the Trustee as subsequently provided in this ARTICLE 5, the Holders of a majority in principal amount of the then-outstanding Debentures by written notice to the Trustee and the Company may rescind such acceleration and its consequences if all existing Events of Default (except nonpayment of principal or interest that has become due solely because of the acceleration) have been cured or waived. No such rescission shall affect any subsequent Event of Default or impair any right consequent on it.
 
Section 5.3. Trustee May Enforce Claims Without Possession of Debentures.
All rights of action and claims under this Indenture or the Debentures may be prosecuted and enforced by the Trustee without the possession of any of the Debentures or the production in any proceeding relating to it, 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, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, as provided here shall be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
 
Section 5.4. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost, or stolen Debentures in Section 2.8 of this Indenture, no right or remedy conferred here 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 under this Indenture or now or subsequently existing at law or in equity or otherwise. The assertion or employment of any right or remedy under this Indenture, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
 
Section 5.5. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder 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 acquiescence. Every right and remedy given by this ARTICLE 5 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 or by the Holders, as the case may be.
 
Section 5.6. Waiver of Past Defaults.
Holders of a majority in aggregate principal amount of the then-outstanding Debentures by notice to the Trustee may waive on behalf of the Holders of all Debentures an existing Default or Event of Default and its consequences, except a continuing Default or Event of Default in the payment of the principal of or interest on any Debenture held by a non-consenting Holder or in respect of a covenant or provision of this Indenture which under ARTICLE 8 of this Indenture cannot be modified or amended without the consent of each Holder affected by it. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising from it 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 on it.
 
Section 5.7. Control by Majority.
The Holders of a majority in aggregate principal amount of the then-outstanding Debentures may 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, provided that (a) such direction is not in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action it deems proper that is not inconsistent with such direction, and (c) such Holders have provided to the Trustee indemnity as provided in Sections 5.8(iii) and 6.1(e) of this Indenture, as the case may be.
 
Section 5.8. Limitation on Suits.
No Holder 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 under this Indenture, unless:
 
(i) such Holder has previously given the Trustee notice of a continuing Event of Default;
 
(ii) the Holders of not less than ___% in aggregate principal amount of the then-outstanding Debentures make a written request to the Trustee to institute proceedings with regard to such Event of Default in its own name, as Trustee under this Indenture;
 
(iii) such Holder or Holders offer and, if requested, provide to the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses, and liabilities to be incurred in compliance with such request;
 
(iv) the Trustee fails to institute any such proceedings within 60 days after receipt of such notice, request and offer and, if requested, provision of indemnity; and
 
(v) 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 aggregate principal amount of the then-outstanding Debentures.
 
A Holder may not use this Indenture to prejudice the rights of another Holder, or to obtain a preference or priority over another Holder.
 
Section 5.9. Rights of Holders to Receive Payment and to Exchange.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest on a Debenture on or after the respective due dates expressed in such Debenture, or to exchange such Debenture in accordance with ARTICLE 9 of this Indenture, or to bring suit for the enforcement of any such payment and right to exchange, shall not be impaired or affected without the consent of such Holder.
 
Section 5.10. Collection Suit by Trustee.
If an Event of Default specified in Section 5.1(a) or (b) of this Indenture occurs and is continuing, the Trustee may recover judgment in its own name, and as trustee of an express trust against the Company or any other obligor on the Debentures for the whole amount of principal and accrued interest remaining unpaid on the Debentures and interest on overdue principal and, to the extent lawful, interest on overdue interest at the rate per year borne by the Debentures and such further amount as shall be sufficient to cover the reasonable 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 occurs and is continuing, the Trustee may, in its discretion, proceed to protect and enforce its rights and the rights of the Holders by appropriate judicial proceedings or such other action 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 here or to enforce any other proper remedy.
 
Section 5.11. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursement and advances of the Trustee, its agents and counsel), and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Debentures), its creditors or its Property and shall be entitled and empowered to collect, receive and distribute any Exchange Property, money or other Property payable or deliverable on any such claims, and any custodian in any such judicial proceeding is 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 to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7 of this Indenture. To the extent that the payment of any such compensation, expenses, disbursements, and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7 of this Indenture, out of the estate in any such proceeding shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities, Exchange Property, and other Property that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing contained herein 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 Debentures or the rights of any Holder, 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 may be a member of the creditors committee in connection with it.
 
Section 5.12. Priorities.
If the Trustee collects any Exchange Property, money, or other Property pursuant to this ARTICLE 5, it shall pay out such Exchange Property, money, or other Property in the following order:
 
First, to the Trustee, its agents and attorneys for amounts due under Section 6.7 of this Indenture, including payment of all compensation, expense, and liabilities incurred, and all advances made, by the Trustee and the reasonable costs and expenses of collection; second, to the Holders for principal amounts and interest that is not subordinated pursuant to ARTICLE 11 of this Indenture due and unpaid on the Debentures, ratably, without preference or priority of any kind, according to the amounts due and payable on the Debentures for such principal and interest, but not interest subordinated pursuant to ARTICLE 11 of this Indenture; third, to the payment of Senior Indebtedness, if any, as required by ARTICLE 11 of this Indenture; fourth, to Holders for remaining interest amounts due and unpaid on the Debentures, ratably, without preference or priority of any kind, according to the amounts due and payable on the Debentures for interest; and fifth, the balance, if any, to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders.
 
Section 5.13. 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 or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees, against any party litigant in the suit, having due regard for the merits and good faith of the claims or defenses made by the party litigant. This Section shall not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 5.8 of this Indenture, a suit by Holders of more than ___% in aggregate principal amount of the then-outstanding Debentures or to any suit for the enforcement of the right to exchange any Debenture in accordance with ARTICLE 9 or 9A of this Indenture.
 
Section 5.14. 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 under this Indenture and after that, all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
 
ARTICLE 6. TRUSTEE
 
Section 6.1. Duties of Trustee.
 
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
 
(b) Except during the continuance of an Event of Default:
 
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee.
 
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
 
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
 
(i) this paragraph does not limit the effect of paragraph (b) of this Section 6.1;
 
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
 
(iii) the Trustee shall not be liable with respect to any action it takes, or omits to take, in good faith in accordance with a direction received by it pursuant to Section 5.7 of this Indenture.
 
(d) Whether or not expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to the provisions of this Section 6.1.
 
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
 
(f) The Trustee shall not be liable for interest on any Exchange Property, money, or other Property received by it, except as the Trustee may agree in writing with the Company. Exchange Property, money, or other Property held in trust by the Trustee need not be segregated from other funds, except to the extent required by law or the Pledge Agreement.
 
(g) The Trustee shall have no responsibility for making any calculations under this Indenture, including, without limitation, the amount of interest owing on the Debentures. The Company shall deliver to the Trustee an Officers Certificate specifying any additional interest due pursuant to terms of the Debentures on or before the 15th day prior to an Interest Payment Date.
 
Section 6.2. Rights of Trustee.
 
(a) Subject to Section 6.1(b)(ii) of this Indenture, the Trustee may rely upon, and shall be fully protected in relying upon, any opinion, consent, resolution, certification, or other document believed by it to be genuine, and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in any such document.
 
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes, or omits to take, in good faith in reliance on such Officers Certificate or Opinion of Counsel. 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 from liability in respect of any action taken, suffered or omitted by it under this Indenture in good faith and in reliance on it.
 
(c) The Trustee may act through agents, and shall not be responsible for the misconduct or negligence of any agent appointed and monitored with due care.
 
(d) The Trustee shall not be liable for any action it takes, or omits to take, in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
 
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction, or notice from the Company shall be sufficient if signed by an Officer.
 
Section 6.3. Individual Rights of Trustee.
Subject to the provisions of Sections 6.10 and 6.11 of this agreement, the Trustee in its individual or any other capacity may become the owner or pledgee of Debentures, and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
 
Section 6.4. Trustees Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Debentures or the Memorandum or any other documents relating to the Debentures. It shall not be accountable for the Companys use of the proceeds from the Debentures or any money paid to the Company or upon the Companys direction under any provision of this Indenture. It shall not be responsible for the use or application of any Exchange Property, money or other Property received by any Paying Agent or Exchange Agent other than the Trustee and it shall not be responsible for any statement or recital here or any statement in the Debentures or any other document in connection with the sale of the Debentures or pursuant to this Indenture, other than its certificate of authentication.
 
Section 6.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing, and if it is known to the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within ninety (90) days after it occurs. A Default or an Event of Default shall not be considered known to the Trustee unless it is a Default or Event of Default under Section 5.1(a) or (b) of this Indenture or the Trustee shall have received notice, in accordance with this Indenture, from the Company or from the Holders of a majority in principal amount of the outstanding Debentures. In the absence of such notice, the Trustee may conclusively assume there is no Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal or interest on any Debenture, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders.
 
Section 6.6. Reports by Trustee to Holders.
Within sixty (60) days after each June 1, commencing [date], the Trustee shall mail to Holders a brief report dated as of such reporting date that complies with the requirements of Section 313(a) of the Trust Indenture Act as if such section applied to it, but if no event described in Section 313(a) of the Trust Indenture Act has occurred within the twelve (12) months preceding the reporting date, no report need be transmitted. The Trustee also shall comply with the requirements of Section 313(b) of the Trust Indenture Act as if such section applied to it. The Trustee shall also transmit by mail all reports as required by Section 313(c) of the Trust Indenture Act.
 
Section 6.7. Compensation and Indemnity.
From time to time, the Company shall pay to the Trustee reasonable compensation for its reasonable and necessary services rendered under this Indenture which are not specifically covered by a written agreement between them. Such payments shall not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse the Trustee upon request for all reasonable disbursements, advances and expenses incurred or made by it in accordance with the provisions of this Indenture, including the reasonable compensation, disbursements, and expenses of the Trustees agents and counsel, except any such disbursements, expenses, and advances as may be attributable to the Trustees negligence, willful misconduct, or bad faith.
 
The Company shall indemnify the Trustee against any and all losses, liabilities or expenses incurred by it without negligence, willful misconduct or bad faith arising out of or in connection with the acceptance or administration of its duties under this Indenture, the Exchange Agent Agreement, the Pledge Agreement, and any other agreement pursuant to which the Trustee performed duties, including the reasonable costs and expenses of defending itself against any claim or liability growing out of such matters. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim, and the Trustee shall cooperate in the defense. The Trustee may engage separate counsel at its own expense. The Company shall have no obligation to pay for any settlement made without its written consent, which consent shall not be unreasonably withheld.
 
The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee through its own negligent action, negligent failure to act, willful misconduct, or bad faith.
 
To secure the Companys payment obligations in this Section 6.7, the Trustee shall have a Lien prior to the Debentures on all money or other Property, but not Exchange Property, held or collected by the Trustee. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.1(e) or (f) of this Indenture occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
 
Section 6.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustees acceptance of appointment as provided in this Section 6.8.
 
The Trustee may resign at any time by so notifying the Company. The Holders of a majority in aggregate principal amount of the then-outstanding Debentures may remove the Trustee by so notifying the Trustee and the Company. The Company may remove the Trustee if:
 
(i) the Trustee fails to comply with Section 6.10 of this Indenture, and shall fail to resign after written request by the Company or any Holder;
 
(ii) the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
 
(iii) a Custodian or public officer takes charge of the Trustee or its Property; or
 
(iv) the Trustee becomes incapable of acting.
 
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.
 
If a successor Trustee fails to take office within thirty (30) days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least ___% in aggregate principal amount of the then-outstanding Debentures may petition any court of competent jurisdiction for the appointment of a successor Trustee.
 
If the Trustee after written request by any Holder who has been a Holder for at least six (6) months fails to comply with Section 6.10 of this Indenture, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
 
A successor Trustee appointed under this Indenture shall execute and deliver an instrument of acceptance of its appointment to the retiring Trustee and to the Company, and the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall succeed to all the rights, powers, and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. Upon written request of the Company or the successor Trustee, the retiring Trustee shall execute and deliver an instrument transferring to the successor Trustee all rights, powers and trusts of such retiring Trustee. Upon request of any successor Trustee, the Company shall execute and deliver such reasonable instruments to more fully and certainly confirm to such successor Trustee its succession to the rights and obligations of the Trustee under this Indenture. The retiring Trustee shall promptly transfer all Property held by it as Trustee to the successor Trustee, and any Trustee ceasing to act shall retain a Lien as provided in Section 6.7 of this Indenture to secure amounts due to it. Notwithstanding replacement of the Trustee pursuant to this Section 6.8, the Companys obligation under Section 6.7 shall continue for the benefit of the retiring Trustee.
 
Section 6.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee; provided that such successor Trustee shall be eligible under Section 6.10 of this Indenture.
 
Section 6.10. Eligibility; Disqualification.
At all times, there shall be a Trustee under this Indenture that shall be a corporation organized and doing business under the laws of the United States of America or of any state authorized under such laws to exercise corporate trustee power, shall be subject to supervision or examination by federal or state authority, and shall have a combined capital and surplus of at least $___ as set forth in its most recent published annual report of condition.
The Trustee shall comply with the provisions of Section 310(b) of the Trust Indenture Act, as if such provisions were set forth here as a covenant of the Trustee, including the optional provision permitted by the second sentence of Section 310(b)(9) of the Trust Indenture Act.
 
Section 6.11. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by and subject to the provisions of this Indenture.
 
ARTICLE 7. DISCHARGE OF INDENTURE
 
Section 7.1. Termination of Companys Obligation.
This Indenture and the Pledge Agreement shall cease to be of further effect (except that the Companys obligations under Sections 6.7 and 7.4 of this Indenture and the Companys, Trustees and Paying Agents obligations under Section 7.3 of this Indenture shall survive) when all outstanding Debentures previously authenticated and issued have been delivered (other than destroyed, lost, or stolen Debentures that have been replaced or paid) to the Trustee for cancellation, and the Company has paid all sums payable by the Company under this Indenture. In addition, when all Debentures not previously delivered to the Trustee for cancellation have become due and payable, or will become due and payable at their stated maturity within one year, and
 
(a) the Company has irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust agreement in form and substance reasonably satisfactory to the Trustee, (A) the Exchange Property for payment of the principal amount of the Debentures as provided in Sections 3.1 and 3.12 of this Indenture, and (B) money and/or U.S. Government Obligations maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges or assessments in respect payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification (in form and substance reasonably satisfactory to the Trustee) delivered to the Trustee, to pay the interest on the Debentures on the dates on which any such payments are due and payable in accordance with the terms of this Indenture;
 
(b) no Default or Event of Default has occurred and is continuing on the date of such deposit or shall occur as a result of such deposit and such deposit shall not result in a breach or violation of, or constitute a default under, any other instrument to which the Company is a party to or by which it is bound, as evidenced to the Trustee in an Officers Certificate delivered to the Trustee concurrently with such deposit;
 
(c) the deposit shall not result in the Company, the Trustee, or the trust becoming or being deemed to be an “investment company” under the Investment Company Act;
 
(d) the Holders shall have a perfected security interest under applicable law in the Exchange Property, money or U.S. Government Obligations deposited pursuant to Section 7.1(a) above;
 
(e) the Company has delivered to the Trustee an Officers Certificate of the Company and an Opinion of Counsel, each stating that all conditions precedent specified here relating to the defeasance contemplated by this Section 7.1 have been complied with; and
 
(f) the Company has paid or provided for payment of all amounts then due or to become due to the Trustee pursuant to Section 6.7 of this Indenture
 
Then this Indenture shall cease to be of further effect (except as provided in this paragraph), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging confirmation of and discharge under this Indenture and the Debentures. However, the Companys obligations in Sections 2.3, 2.4, 2.8, 3.6, 3.15, 3.16, 6.7, 6.8, 7.3 and 7.4 of this Indenture and ARTICLES 9, 9A and 10 of this Indenture and the Trustees and Paying Agents obligations in Section 7.3 of this Indenture shall survive until the Debentures are no longer outstanding. After that, only the Companys obligations under Sections 6.7 and 7.4 of this Indenture and the Companys, Trustees and Paying Agents obligations under Section 7.3 of this Indenture shall survive.
 
After such irrevocable deposit made pursuant to this Section 7.1 and satisfaction of the other conditions set forth here, upon request, the Trustee shall acknowledge in writing the discharge of the Companys obligations under this Indenture, except for those surviving obligations specified above.
 
In order to have money available on a payment date to pay principal of, if applicable, or interest on the Debentures, the United States Government Obligations shall be payable as to principal or interest at least one Business Day before such payment date in such amounts as will provide the necessary money. United States Government Obligations shall not be callable at the issuers option.
 
Section 7.2. Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust Exchange Property, money and United States Government Obligations deposited with it pursuant to Section 7.1 of this Indenture. It shall apply the deposited Exchange Property and money and the money from United States Government Obligations through the Paying Agent, and in accordance with this Indenture to the payment of principal of and interest on the Debentures for whose payment such Exchange Property, money and United States Government Obligations have been deposited with the Trustee.
 
Section 7.3. Repayment to Company.
To the extent permitted by applicable law, the Trustee and the Paying Agent shall promptly pay to the Company, upon written request, any excess Exchange Property, money, or other Property held by them at any time in excess of amounts required to pay principal of or interest due and payable on the Debentures. Notwithstanding the foregoing, the Company shall not be entitled to receive any Exchange Property, money, or other Property deposited in trust pursuant to Section 7.1 of this Indenture until after the maturity date of the Debentures or the date of mandatory exchange of the Debentures pursuant to ARTICLE 9A of this Indenture, as the case may be.
Upon written request, the Trustee and the Paying Agent shall pay to the Company any Exchange Property, money or other Property held by them for the payment of principal or interest that remains unclaimed for one year after the date upon which such payment shall have become due; provided, however, that the Company shall have caused notice of such payment to be mailed to each Holder entitled to it no less than thirty (30) days prior to such repayment. After payment to the Company, Holders entitled to the Exchange Property, money or other Property must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such Exchange Property, money or other Property shall cease.
 
Section 7.4. Reinstatement.
If the Trustee or Paying Agent is unable to apply any Exchange Property, money or United States Government Obligations in accordance with Section 7.2 of this Indenture by reason of any legal proceeding or by reason of any order or judgment of any court or government authority enjoining, restraining or otherwise prohibiting such application, the Companys obligations under this Indenture and the Debentures shall be revived and reinstated as though no deposit had occurred pursuant to Section 7.1 of this Indenture until such time as the Trustee or Paying Agent is permitted to apply all such Exchange Property, money or United States Government Obligations in accordance with Section 7.2 of this Indenture; provided, however, that if the Company has made any payment of interest on or principal of any Debentures because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Debentures to receive such payment from the Exchange Property, money or United States Government Obligations held by the Trustee or Paying Agent.
 
ARTICLE 8. AMENDMENTS
 
Section 8.1. Without Consent of Holders.
Without notice to or the consent of any Holder, the Company and the Trustee may amend or supplement this Indenture or the Debentures for any of the following purposes:
 
(a) to cure any ambiguity, to correct or supplement any provision here which may be defective or inconsistent with any of the provisions here, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture; provided, however, that such action pursuant to this clause (a) shall not adversely affect the interests of the Holders in any material respect; or
 
(b) to add to the covenants of the Company for the benefit of the Holders, to add an additional Event of Default, or to surrender any right or power conferred here upon the Company; or
 
(c) to further secure the Debentures; or
 
(d) to make provision with respect to the exchange rights of Holders pursuant to the requirements of ARTICLE 9 or 9A of this Indenture; provided, however, that such action pursuant to this clause (d) shall not adversely affect the interests of the Holders in any material respect; or
 
(e) to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee with respect to the Debentures; or
 
(f) to provide for the assumption of each of the Companys covenants and obligations under this Indenture by any Person formed by consolidation of the Company or into whom the Company is merged or who acquires or leases the properties and assets of the Company substantially as a whole, as provided in Section 4.1(a) of this Indenture.
 
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of any such amendment or supplement and upon receipt by the Trustee of the documents described in Section 8.5 of this Indenture, the Trustee shall join with the Company in the execution of any amendment or supplement authorized or permitted by the terms of this Indenture, and to make any further appropriate agreements and stipulations which may be contained in it, but the Trustee shall not be obligated to enter into such amendment or supplement which affects its own rights, duties or immunities under this Indenture or otherwise.
 
Section 8.2. With Consent of Holders.
Except as otherwise provided in this Section 8.2, the Company and the Trustee may amend or supplement this Indenture or the Debentures with the written consent of the Holders of at least a majority in aggregate principal amount of the then-outstanding Debentures. Subject to Sections 5.6 and 5.9 of this Indenture, the Holders of a majority in aggregate principal amount of the Debentures then outstanding may, or the Trustee with the written consent of the Holders of at least a majority in aggregate principal amount of the then-outstanding Debentures may, waive compliance in a particular instance by the Company with any provision of this Indenture or the Debentures. However, without the consent of each Holder affected, an amendment, supplement or waiver under this Section 8.2 may not (with respect to any Debentures held by a non-consenting Holder):
 
(a) reduce the aggregate principal amount of Debentures the Holders of which must consent to an amendment to or waiver of a provision of this Indenture;
 
(b) reduce the rate of or extend the time for payment of interest, including Defaulted Interest, on any Debenture;
 
(c) reduce the principal of any Debenture or change the fixed maturity of any Debenture;
 
(d) make any Debenture payable in Exchange Property or money other than that stated in the Debenture or at any location different than that stated in this Indenture;
 
(e) make any change in Section 5.6 or 5.9 of this Indenture or in this sentence of this Section 8.2; or
 
(f) waive a Default in the payment of principal of or interest on any Debenture.
 
Upon the request of the Company, accompanied by a Board Resolution authorizing the execution of any such amendment or supplement, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as stated above, and upon receipt by the Trustee of the documents described in Section 8.5 of this Indenture, the Trustee shall join with the Company in the execution of such amendment or supplement unless such amendment or supplement affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amendment or supplement.
 
It shall not be necessary under this Section 8.2 for the Holders to consent to the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance of it.
 
After an amendment, supplement, or waiver under this Section 8.2 becomes effective, the Company shall mail to the Holders of each Debenture affected by it a notice briefly describing the amendment, supplement, or waiver. Any failure of the Company to mail such notice, or any defect in it, shall not, however, in any way impair or affect the validity of any such amendment, supplement, or waiver.
 
Section 8.3. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of that Debenture or portion of that Debenture that evidences the same debt as the consenting Holders Debenture, even if notation of the consent is not made on any Debenture. However, any such Holder or subsequent Holder may revoke the consent as to such Holders Debenture or portion of a Debenture if the Trustee receives written notice of revocation before the date the waiver, supplement, or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and subsequently binds every Holder.
 
Section 8.4. Notation on or Exchange of Debentures.
The Trustee may, but shall not be required to, place an appropriate notation regarding an amendment, supplement or waiver on any Debenture subsequently authenticated. The Company may, at its option, in exchange for all Debentures issue, and the Trustee shall authenticate new Debentures of the same series that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Debenture shall not affect the validity and effect of such amendment, supplement, or waiver.
 
Section 8.5. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement, or waiver authorized pursuant to this ARTICLE 8 if the amendment, supplement, or waiver does not adversely affect the rights, duties, liabilities, or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment, supplement, or waiver, the Trustee shall be entitled to receive, and, subject to Section 6.1 of this Indenture, shall be fully protected in relying upon, an Officers Certificate and an Opinion of Counsel as conclusive evidence that such amendment, supplement, or waiver is authorized or permitted by this Indenture, that it is not inconsistent with it, and that it will be valid and binding upon the Company in accordance with its terms.
 
ARTICLE 9. OPTIONAL EXCHANGE
 
Section 9.1. Right to Exchange.
Subject to compliance with the provisions of this Indenture, each Holder shall have the right, at such Holders option, at any time prior to the close of business on [date], or, if earlier mandatorily exchanged pursuant to ARTICLE 9A of this Indenture, the close of business on the Business Day preceding the date of such mandatory exchange, to exchange any of such Holders Debentures, in whole or in part (in denominations of $___ or multiples of it), at ___% of the principal amount of any such Debenture so exchanged, into that number of shares of [company] Common Stock and/or such other Exchange Property as shall be added to such [company] Common Stock or as such [company] Common Stock shall have been changed into pursuant to this ARTICLE 9, at the Exchange Rate (as defined below). A Holder is not entitled to any rights of a holder of [company] Common Stock or other Exchange Property until such Holders exchange of such Holders Debentures for Exchange Property has become effective as provided in this ARTICLE 9 or ARTICLE 9A of this Indenture. The Company shall not be liable in any manner to any Holder as a result of the exercise or failure to exercise any voting rights with respect to Exchange Property prior to such Holders exchange of Debentures for Exchange Property.
 
The rate at which shares of [company] Common Stock shall be deliverable upon exchange (“Exchange Rate”) shall be initially ___ shares of [company] Common Stock for each $___ principal amount of Debentures exchanged. The Exchange Rate shall be subject to adjustment as provided in Sections 9.4, 9.5, 9.11 and 9.14 of this Indenture.
 
Section 9.2. Exercise of Exchange Privilege.
To exchange a Debenture pursuant to this ARTICLE 9, a Holder must (1) complete and sign the Form of Election to Exchange on the back of the Debenture, (2) surrender such Debenture to the Exchange Agent at an office or agency maintained by the Company pursuant to Section 2.3 of this Indenture, (3) furnish appropriate endorsements and transfer documents, if required by the Registrar, and (4) pay any transfer or similar tax, if required by Section 9.8 of this Indenture. The Companys delivery to the Holder of a fixed number of shares of [company] Common Stock (and any cash in lieu of fractional shares of [company] Common Stock) and/or other Exchange Property into which such Debenture is exchangeable shall be deemed to satisfy the Companys obligation to pay the principal amount of such Debenture and, unless such Debenture is exchanged after a Record Date, but on or prior to the related Interest Payment Date, all accrued interest that has not previously been paid. If such Debenture is exchanged after a Record Date, but on or prior to the related Interest Payment Date, the interest installment on such Debenture scheduled to be paid on such Interest Payment Date shall be payable on such Interest Payment Date to the Holder of record at the close of business on such Record Date (whether or not punctually paid or provided for), but only with respect to interest on it accrued from the preceding Interest Payment Date through the date of such exchange. Debentures surrendered for exchange during the period from the close of business on any regular Record Date to the close of business on the related Interest Payment Date shall (except in the case of Debentures exchanged after an Exchange Event, as defined in ARTICLE 9A of this Indenture) be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of Debentures being surrendered for exchange.
 
As promptly as practicable after the surrender of such Debenture in compliance with this Section 9.2, the Exchange Agent shall deliver at such office or agency to such Holder, or on such Holders written order, a certificate or certificates free of the Security Interest created by the Pledge Agreement for the number of full shares of [company] Common Stock and/or whole interests of other Exchange Property deliverable upon the exchange of such Debenture or portion of it in accordance with the provisions of this ARTICLE 9 together with a check or cash in respect of any fractional interest in respect of a share of [company] Common Stock or other Exchange Property due upon such exchange, as provided in Section 9.3 of this Indenture. In case any Debenture of a denomination greater than $___ shall be surrendered for partial conversion, subject to ARTICLE 2 of this Indenture, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of the Debenture so surrendered, without charge to such Holder, a new Debenture or Debentures in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered Debenture.
 
Each exchange pursuant to this ARTICLE 9 shall become effective immediately prior to the close of business on the date on which such Debenture shall have been surrendered in compliance with this Section 9.2, which shall be the date on which such Debenture and any such required payment and assignment shall be received by the Exchange Agent, and at such time the rights of the Holder of such Debenture as a Debenture holder shall cease with respect to it and the Person in whose name any certificate or certificates for shares of [company] Common Stock and/or other Exchange Property shall be deliverable upon such exchange shall, as between such Person and the Company, be deemed to have become on the date the holder of record of the shares or other property represented by it.
 
Delivery of such certificate or certificates and/or of any check or other evidence of Exchange Property may be delayed for a reasonable period of time at the request of the Company in order to effectuate the calculations of the adjustments pursuant to this ARTICLE 9, to obtain any certificate representing securities to be delivered, to complete any reapportionment of the shares of [company] Common Stock or the Exchange Property apportioned to it which is required by this ARTICLE 9, or to comply with any applicable law. If, between the date an exchange under this Section 9.2 is deemed effective and the date of delivery of the applicable security or securities, such security or securities shall cease to have any or certain rights, or a record date or effective date of a transaction to which Section 9.4, 9.5 or 9.11 of this Indenture applies shall occur, the Person entitled to receive such security or securities shall be entitled only to receive such security or securities as so modified. Any dividends or proceeds received on them on or after the date such exchange shall be deemed effected, and none of the Company, the Trustee, and the Exchange Agent shall be otherwise liable with respect to the modification of such security or securities, from the date such exchange is deemed effected and the date of such delivery.
 
Section 9.3. Cash Payments in Lieu of Fractional Shares.
No fractional shares of [company] Common Stock (or any form of fractional interest in any other security or property which is part of the Exchange Property) shall be delivered upon exchange of Debentures. If more than one Debenture shall be surrendered for exchange at one time by the same Holder, the number of full shares (or other integral units of such other securities or property) which shall be delivered upon exchange shall be computed on the basis of the aggregate principal amount of the Debentures (or specified portions of it to the extent permitted here) so surrendered. Instead of any fractional share (or other fractional unit) which would otherwise be deliverable upon exchange of any Debenture or Debentures (or specified portions of them), the Exchange Agent on behalf of the Company shall pay, on the date the exchange is deemed to be effected, a cash adjustment in respect of such fractional interest in an amount equal to the same fraction of the Current Market Price per share of the [company] Common Stock (or per unit of such other security or property) on the Business Day next preceding the date the exchange is deemed to be effected. The Exchange Agent is authorized to obtain the funds necessary or anticipated by the Exchange Agent to be necessary for payment of such fractional interests by the sale of shares of [company] Common Stock (or other securities or Property which are part of the Exchange Property) held by the Exchange Agent, provided that after such sale the number of shares of [company] Common Stock (and of such other securities or Property) held by the Exchange Agent shall be sufficient to permit the exchange of all outstanding Debentures for [company] Common Stock (and any other Exchange Property), on the basis of the Exchange Rate then in effect, in accordance with the provisions of this ARTICLE 9. The Company agrees to furnish, or cause to the furnished, to the Exchange Agent any additional funds required to permit such cash payments with respect to fractional interests.
 
Section 9.4. Adjustment of Exchange Rate.
 
(a) In the event that [company] shall (i) pay a dividend on [company] Common Stock in shares of [company] Common Stock, (ii) subdivide the outstanding shares of [company] Common Stock into a greater number of shares of [company] Common Stock, (iii) combine outstanding shares of [company] Common Stock into a smaller number of shares of [company] Common Stock, or (iv) issue, by reclassification of shares, shares of [company] Common Stock (which in any such case shall apply to the shares of [company] Common Stock constituting Exchange Property), the Exchange Rate in effect immediately prior shall be proportionately adjusted so that the Holder of any Debenture subsequently surrendered for exchange shall be entitled to receive the number and kind of shares of [company] Common Stock and other Exchange Property that such Holder would have owned or have been entitled to receive after the record date (or if there is no record date, the effective date) of any of the events described above had such Debenture been exchanged immediately prior to the happening of such event. Such adjustments shall be made whenever any of the events listed above shall occur and shall become effective as of immediately after the close of business on the record date in the case of a stock dividend and shall become effective as of immediately after the close of business on the effective date in the case of a subdivision or combination or reclassification. Any Holder surrendering any Debentures for exchange after such record date or effective date, as the case may be, shall be entitled to receive shares of [company] Common Stock at the Exchange Rate as so adjusted pursuant to this Section 9.4(a) and any other Exchange Property apportioned to it.
 
(b) Notwithstanding anything contained herein to the contrary, no adjustment in the Exchange Rate shall be required unless such adjustment would require an increase or decrease of at least ___% in the Exchange Rate then in effect; provided, however, that any adjustments which by reason of this Section 9.4(b) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this ARTICLE 9 shall be made by the Company and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be.
 
(c) If the [company] Common Stock constituting Exchange Property is exchanged for Exchange Property other than [company] Common Stock, whether by operation of law or otherwise, the Company shall subsequently establish the Exchange Rate in such manner as will provide each Holder, upon exchange, that portion of each type of the Exchange Property held by the Exchange Agent at the time of such exchange equal to the aggregate amount of such Exchange Property multiplied by the fraction whose numerator is the principal amount of Debentures being exchanged by such Holder and whose denominator is the aggregate principal amount of Debentures outstanding immediately prior to such exchange.
 
(d) Whenever the Exchange Rate is adjusted as provided here, the Company shall determine the adjusted Exchange Rate in accordance with this Section 9.4, and shall prepare an Officers Certificate setting forth such adjusted Exchange Rate and any cash or other Property apportioned to the [company] Common Stock and showing in detail the facts upon which such adjustment is based. Such certificate shall be conclusive evidence of the accuracy of such adjustment. Such certificate shall immediately be filed with the Exchange Agent and the Trustee, who may rely on such Officers Certificate as conclusive evidence of the correctness of the adjustment. A notice stating that the Exchange Rate has been adjusted and setting forth the adjusted Exchange Rate and any cash or other Property apportioned to the [company] Common Stock shall, as soon as practicable, be mailed by or on behalf of the Company to the Holders at their last addresses as they shall appear upon the Debenture Register.
 
Section 9.5. Exchange Agent Agreement
 
(a) Simultaneously with the execution and delivery of this Indenture, the Company is entering into the Exchange Agent Agreement with [trustee], as Exchange Agent, pursuant to which the Company is depositing with the Exchange Agent, as agent for the Trustee and subject to the Pledge Agreement, ___ shares of [company] Common Stock, which shall initially constitute the Exchange Property. The Exchange Agent shall be the exchange agent for the exchange of Debentures for [company] Common Stock and other Exchange Property, if any, under this Indenture. From time to time, the Company shall deposit with the Exchange Agent such additional Exchange Property not already held by the Exchange Agent as the Holders of all Debentures shall, from time to time, be entitled to receive from the Exchange Agent pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture upon exchange of it.
 
(b) In case there shall be, at any time while any Debentures are outstanding, any dividend or other distribution of cash, securities or other Property on Exchange Property or in case there shall be granted with respect to any Exchange Property any subscription rights, options, warrants or other similar transferable rights, the Company shall, as soon as reasonably practicable after its receipt, notify the Exchange Agent of such receipt and promptly, and in any event within five (5) Business Days after the receipt, deposit with the Exchange Agent pursuant to the Exchange Agent Agreement all such securities and other Property, including, without limitation, any transferable rights. Subject to the provisions of the next paragraph of this Section 9.5(b), such cash, securities, or other Property shall be apportioned equally among the Exchange Property for which outstanding Debentures are exchangeable as of immediately after the close of business on the record date for the distribution or grant to which this Section 9.5(b) applies, or, if there is no such record date, the effective date of such distribution or grant. Any Holder surrendering any Debentures after such record date, or such effective date, as the case may be, shall be entitled to receive, in addition to the Exchange Property for which such Debentures were exchangeable immediately prior to the close of business on such record date or effective date, the amount of cash, securities or other Property so apportioned to such Exchange Property as of the close of business on such record date or effective date.
 
Notwithstanding the foregoing, in the event of any such distribution of transferable subscription rights, options, warrants, or other similar Property which expire before the scheduled maturity of the Debentures, the Exchange Agent shall sell all such Property for cash, and the proceeds of each such sale (after the payment of any expenses or taxes incurred by the Company or the Exchange Agent in connection with such sale) shall become Exchange Property, and shall be apportioned equally among the Exchange Property for which outstanding Debentures are exchangeable as of the close of business on the day such sale is concluded. Any Holder surrendering any Debentures after such apportionment shall be entitled to receive, in addition to the Exchange Property for which such Debentures were exchangeable immediately prior to the close of business on the day such sale was concluded, the amount of cash, securities, or other Property so apportioned to such Exchange Property as of the close of business on such day.
 
In the event that a distribution or grant of cash, securities or other Property on Exchange Property shall be effected as contemplated by the two (2) immediately preceding paragraphs, a notice stating that such distribution or grant has occurred and setting forth the additional cash, securities, or other Property shall be provided to the Holders of Debentures at their last address as they appear upon the Debenture Register.
 
In case there shall be, at any time while any Debentures are outstanding, any distribution or grant to holders of Exchange Property of any nontransferable subscription rights, options, warrants, or other Property that shall, by the terms, not be transferable to the Holders upon the exchange of Debentures, then the Company shall, in good faith, cooperate in such reasonable manner as any Holder may request to provide the economic benefits of such Property, if any, to the Holders, pursuant to a supplemental indenture or otherwise, without expense to the Company. The Companys obligation to cooperate with any such request shall be subject to receipt by the Company of assurances, acceptable to the Company in its sole discretion, against expense to the Company or liability to any Person. Any cash, securities, or other Property so obtained by the Company with respect to any such nontransferable subscription rights, options, warrants, or other Property shall be applied first to the Companys expenses in obtaining such cash, securities, or other Property, and the remainder shall be deposited with the Exchange Agent, and shall be apportioned equally among the Exchange Property for which outstanding Debentures are exchangeable as of the close of business on the day such deposit is made. Any Holder surrendering any Debentures after such apportionment shall be entitled to receive, in addition to the Exchange Property for which such Debentures were exchangeable immediately prior to the close of business on the day such deposit is made, the amount of cash, securities or other Property so apportioned to such Exchange Property as of the close of business on such day.
 
(c) The Trustee shall invest in United States Government Obligations with maturities of no more than ninety (90) days all cash received by the Exchange Agent pursuant to Section 9.5(b). Any loss or gain on such investments shall be for the account of the Holders. The net income or net loss from such investments, if any, shall be apportioned equally among the Exchange Property for which outstanding Debentures are exchangeable as of immediately after the close of business on the date of actual receipt by the Exchange Agent. Any Holder surrendering any Debentures after such date shall be entitled to receive, in addition to the Exchange Property for which such Debentures are exchangeable and any cash, securities or other Property previously apportioned under this agreement, the amount of such net gain or net loss so apportioned to such Exchange Property.
 
(d) In the event of any reduction of the principal of Debentures outstanding (other than as a result of surrender for exchange for Exchange Property pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture, as evidenced by the delivery to the Trustee by the Company of Debentures for cancellation), the Company shall be entitled to the kind and amount of Exchange Property as shall at the time be in excess of the kind and amount of Exchange Property which would be required for the exchange of all Debentures then outstanding for the Exchange Property on the basis of the then-applicable Exchange Rate and the other terms and provisions of this ARTICLE 9, ARTICLE 9A of this Indenture and the Exchange Agent Agreement. Upon expiration of the right to surrender Debentures for exchange pursuant to this ARTICLE 9, and when all other obligations of the Company shall have been satisfied under this ARTICLE 9 and ARTICLE 9A of this Indenture and the Exchange Agent Agreement, the Companys obligation to exchange Debentures for Exchange Property shall be terminated.
 
(e) Prior to the exchange of the Debentures pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture, the Company shall have the full and unqualified right and power to exercise any rights to vote, or to give consents or take any other action in respect of, the [company] Common Stock or any other securities included in the Exchange Property at any time held by the Exchange Agent and the Exchange Agent shall have no duty to exercise any such rights. The Company shall not be liable to any Holder as a result of any vote, or failure to vote, consent or failure to consent, or any other act or failure to act taken by the Company in respect of the [company] Common Stock or any other securities included in the Exchange Property.
 
(f) The obligations, covenants, and agreements contained in the Exchange Agent Agreement shall not constitute obligations, covenants, or agreements contained in this Indenture or any of the Debentures, and neither the failure by the Company to observe any obligation, covenant or agreement contained in the Exchange Agent Agreement (unless such obligation, covenant or agreement shall also be contained in this Indenture) nor the failure of the Exchange Agent to fulfill any obligations, agreements or covenants set forth in it shall constitute (with or without the giving of notice, the passage of time or both) an Event of Default; provided, however, that nothing in this Section 9.5(f) shall impair the right of a Holder to receive the Exchange Property apportioned to such Holders Debentures in exchange for such Debentures in accordance with the terms and conditions of this ARTICLE 9, and nothing in this Section 9.5(f) shall impair the rights and remedies of the Trustee and the Holders under ARTICLE 3 of the Indenture with respect to a failure by the Company to observe its express agreements and covenants to cause the exchange of Debentures actually surrendered for exchange pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture for Exchange Property apportioned to it in accordance with the terms and conditions of this ARTICLE 9 or ARTICLE 9A of this Indenture, as appropriate.
 
Section 9.6. Notice to Holders Prior to Certain Actions.
In the event that [company] or other issuer of Exchange Property shall declare a dividend (or any other distribution) on [company] Common Stock or other Exchange Property or authorize the granting to the holders of such securities of subscription rights, options, warrants, or similar rights, or reclassify such securities (other than a subdivision or combination of outstanding securities) or consolidate or merge for which approval of any security holders of such issuer is required, or sell or transfer all or substantially all of its assets, or there shall occur the voluntary or involuntary dissolution, liquidation, or winding-up of such issuer, then the Company shall cause to be filed with the Trustee and to be mailed to each Holder at such Holders address appearing on the Debenture Register, as promptly as practicable, a notice prepared by the Company stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or grant of rights, or, if a record is not to be taken, the date as of which the holders of [company] Common Stock or other Exchange Property of record to be entitled to such dividend, distribution or grant of rights are to be determined, or (y) the date, if known by the Company, on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up is expected to become effective or occurring and the date as of which it is expected that holders of such securities of record shall be entitled to exchange such securities for other securities or other Property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up. Failure to give such notice, or any defect in it, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up.
 
Section 9.7. Covenants by the Company.
As long as any Debentures shall be outstanding and exchangeable for [company] Common Stock or other Exchange Property pursuant to this ARTICLE 9, the Company shall (i) preserve unimpaired the right of each Holder of Debentures, upon exchange, to receive shares of [company] Common Stock and/or other Exchange Property as such Holder shall from time to time be entitled to receive in accordance with the provisions of this ARTICLE 9, and (ii) not pledge, mortgage, hypothecate or grant a security interest in, or permit any mortgage, pledge, security interest or other lien upon, the Exchange Property.
 
Section 9.8. Transfer Taxes.
The Company will pay any and all taxes that may be payable solely in respect of the transfer and delivery of shares of [company] Common Stock (or other securities included in the Exchange Property) pursuant to this Indenture, specifically excluding income, capital gains, and similar taxes imposed on any Holder by reason of exchange of Debentures for Exchange Property; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the delivery, upon an exchange of Debentures, of shares of [company] Common Stock (or other securities included in the Exchange Property) in a name other than that in which the Debentures so exchanged were registered, and no such transfer shall be made unless and until the Person requesting such transfer has paid to the Company or the Exchange Agent the amount of any such tax, or has established to the satisfaction of the Company and the Exchange Agent that such tax has been paid.
 
 
 
Section 9.9. Fully Paid Shares.
The Company warrants and covenants that all shares of [company] Common Stock delivered upon the exchange of Debentures will be fully paid and non-assessable and that each Holder of Debentures who receives shares of [company] Common Stock or other Exchange Property in exchange for his or her Debentures pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture will receive valid and marketable title to such Exchange Property, free and clear of all claims, liens and encumbrances (other than those that may be created or suffered to exist by such Holder). Except as provided in Section 9.8 of this Indenture, the Company will pay all taxes, liens, and charges with respect to the delivery of Exchange Property in exchange for Debentures under this ARTICLE 9 or ARTICLE 9A of this Indenture.
 
Section 9.10. Cancellation of Debentures.
All Debentures delivered for exchange shall be delivered by the Exchange Agent to the Trustee, and shall be cancelled by the Trustee, and the Trustee shall dispose of the same as provided in Section 2.14 of this Indenture.
 
Section 9.11. Merger of Issuer of Exchange Property.
In case of any consolidation or merger of [company] or other issuer of Exchange Property with or into any other Person that results in shares of [company] Common Stock or such other Exchange Property, as constituted prior to the consummation of such transaction, being converted into other securities and/or Property (including cash), or in case or any sale or transfer of all or substantially all of the assets of [company] or such other issuer (if in connection with such sale or transfer holders of [company] Common Stock or other Exchange Property receive other securities and/or Property including cash, in exchange for their shares of [company] Common Stock or other Exchange Property), or of any voluntary or involuntary dissolution, liquidation or winding-up of [company] or such other issuer, the Holder of each Debenture then outstanding shall have the right after that (subject to Section 9.14 of this Indenture) to exchange such Debenture (i) for the kind and amount of securities and other property receivable upon such consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up by a holder of the number of shares of [company] Common Stock or other Exchange Property for which such Debenture was exchangeable immediately prior to such consolidation, merger, sale, transfer, dissolution, liquidation or winding-up, and (ii) any other Exchange Property for which such Debenture was exchangeable immediately prior to such consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up. The above provisions of this Section 9.11 shall similarly apply to any successive consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up.
 
Notice of such consolidation, merger, sale, transfer, dissolution, liquidation, or winding up shall as soon as practicable be filed with the Exchange Agent, and shall be mailed by or on behalf of the Company to Holders at their last addresses as they shall appear on the Debenture Register.
The Trustee shall not be under any responsibility to determine the correctness of any calculation relating either to the kind or amount of shares of stock or securities or Property or cash receivable by the Holders upon the exchange of their Debentures as provided here after any such consolidation, merger, sale, transfer, dissolution, liquidation or winding up or to any adjustment to be made with respect to them.
 
Section 9.12. Certain Tender or Exchange Offers for Exchange Property; Certain Votes.
 
(a) In the event of a tender offer or exchange offer for any class of securities included within the Exchange Property, as promptly as possible the Company shall cause to be filed with the Trustee a notice of such offer and to be mailed to each Holder, at such Holders address appearing on the Debenture Register, any solicitation material related to such offer and a request that instructions be provided to the Trustee by the Holders (evidenced by voting the then-outstanding principal amount of Debentures owned by each Holder in favor of or against such tender or exchange) as to whether to tender Exchange Property in connection with such offer. On the second to last Business Day of such tender offer or exchange offer, the Trustee shall notify the Exchange Agent of the instructions received from Holders as of the close of business on the third to last Business Day of such tender offer or exchange offer, and the Exchange Agent shall deliver that number securities subject to such offer equal to all such securities constituting Exchange Property subject to such offer multiplied by the fraction (x) whose numerator is the aggregate principal amount of Debentures then outstanding, with respect to which the Trustee has received instructions to tender, and (y) whose denominator is the aggregate principal amount of Debentures then outstanding. The cash, securities, or other Property received in consideration for any Exchange Property so tendered in any such tender or exchange offer shall become Exchange Property, and shall be held by the Exchange Agent for the benefit of Holders as provided in this Indenture.
 
(b) In the event that in connection with any matter submitted to the vote of the holders of [company] Common Stock or other securities included among the Exchange Property, the Company elects not to vote such [company] Common Stock or other securities, as promptly as practicable after such election, the Company shall cause to be filed with the Trustee a notice of such vote and to be mailed to each Holder, at such Holders address appearing on the Debenture Register, a copy of any proxy or other solicitation material received by the Company with respect to such vote together with a request that instructions as to such vote be provided to the Trustee by the Holders (evidenced by voting the then-outstanding principal amount of Debentures owned by each Holder in favor of or against the matter subjected to such vote). On the second to last Business Day preceding such vote, the Trustee shall notify the Company of the voting instructions received from Holders as of the close of business on the third to last Business Day preceding such vote, and the Company shall vote in favor of the matter subjected to such vote such [company] Common Stock or other securities included among the Exchange Property as equals the aggregate amount of such [company] Common Stock or other securities included among the Exchange Property multiplied by the fraction whose numerator is the aggregate principal amount of Debentures with respect to which the Trustee has received instructions to vote in favor of such matter and whose denominator is the aggregate principal amount of Debentures with respect to which the Trustee has received instructions to vote with respect to such matter. All other [company] Common Stock or other securities included among the Exchange Property shall be voted by the Company against the matter subjected to such vote.
 
Section 9.13. Responsibility of Trustee Requirements.
Subject to Section 6.1 of this Indenture, neither the Trustee nor the Exchange Agent shall at any time be under any duty or responsibility to any Holder to determine whether any fact exists which may require any adjustment of the Exchange Rate or other adjustment, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or here or in any supplemental indenture provided to be employed, in making the same. Neither the Trustee nor the Exchange Agent shall be accountable with respect to the validity or value (or the kind or amount) of any Exchange Property which may, at any time, be issued or delivered upon the exchange of any Debenture or the market conditions existing at the time of sale of any Exchange Property; and neither the Trustee nor the Exchange Agent makes any representations with respect to them. Neither the Trustee nor the Exchange Agent shall be responsible for any failure of the Company to transfer or deliver any Exchange Property or certificates or other evidences of it to the Exchange Agent as provided here, or subject to the provisions of Section 6.1 of this Indenture and the obligations of the Exchange Agent under the Exchange Agent Agreement, to comply with any of the covenants of the Company contained in this ARTICLE 9.
 
Section 9.14. Tax Adjustments in Exchange Rate.
If an event shall occur which causes the Company, the Trustee or the Exchange Agent to be taxed with respect to the receipt of any dividends or distributions constituting Exchange Property or the delivery to the Exchange Agent or as a result of a merger, consolidation or sale or transfer of assets or of any voluntary or involuntary dissolution, liquidation, or winding-up of [company] or other issuer of Exchange Property, and if, within ten (10) days after the effective date of such transaction, the Company shall furnish the Exchange Agent with an Opinion of Counsel to the effect that such transaction is taxable to the Company, the Trustee, or the Exchange Agent, and an Officers Certificate as to the amount of federal, state, or local tax payable by the Company, the Trustee or the Exchange Agent as a result of such transaction (computed by the Company at the marginal tax rate applicable to such transaction), the Exchange Agent shall pay to, or to the order of, the Company, in the case of taxes payable by the Company, or itself or the Trustee, in the case of taxes payable by it or the Trustee, the cash held by it and apportioned or to be apportioned to the Exchange Property for which outstanding Debentures are exchangeable, up to the amount of such taxes. In the event that the cash held by the Exchange Agent is so apportioned or to be apportioned is insufficient to pay to the Company, the Trustee or the Exchange Agent the amount of such taxes, the Exchange Agent shall, as soon as reasonably practicable and to the extent legally permissible, sell in accordance with written instructions received by the Company, or if no such instructions are received, as determined by the Exchange Agent, such Exchange Property (including any securities or other Property included in it) as may be necessary to pay, from the proceeds after payment of any taxes by the Company, the Trustee or the Exchange Agent on such sale, the amount of any such deficiency. Any remaining proceeds of any such sale shall be apportioned among the Exchange Property. The Exchange Agent shall notify the Company and the Trustee of any such sale and the Exchange Property sold, and shall sell all Exchange Property other than [company] Common Stock prior to selling any shares of [company] Common Stock. Following payment of all necessary amounts to the Company, the Trustee or the Exchange Agent, such Exchange Property held by the Exchange Agent and any cash apportioned to it shall be proportionately adjusted so as to be apportioned equally to the Debentures outstanding as of immediately after the close of business on the record date of the effective date of the transaction to which this Section 9.14 applies (as shall be specified in Section 9.4 or 9.11 of this Indenture, whichever is applicable). Any Holder surrendering Debentures after such record date, or such effective date, as the case may be, shall be entitled to receive the Exchange Property and any cash apportioned to it as so adjusted pursuant to this paragraph. If this Section 9.14 shall apply to a transaction, and the sale by the Company of the consideration receivable shall not be legally permissible, and the amount of cash apportioned to the Exchange Property shall not be sufficient to pay all taxes payable by the Company, the Trustee or the Exchange Agent which arise from such transaction, the Company may direct the Exchange Agent to segregate for the benefit of the Company, the Trustee or the Exchange Agent (as the case may be) or deliver to the Company, the Trustee or the Exchange Agent (as the case may be) an amount of Exchange Property previously held by the Exchange Agent for exchange of Debentures having a Current Market Price equal to the unsatisfied portion of the tax payable by the Company, the Trustee or the Exchange Agent (as the case may be) with respect to such transaction including any tax payable upon the delivery or sale in order to satisfy the aforementioned tax, and such Exchange Property shall subsequently be solely for the account of the Company, the Trustee or the Exchange Agent (as the case may be) and holders of Debentures shall have no rights to them.
 
In the event that an Opinion of Counsel given pursuant to this Indenture concludes that whether taxes are payable by the Company, the Trustee or the Exchange Agent is uncertain under the then state of the law or facts or both, the Company shall have the option of requesting the Exchange Agent to segregate the amount of funds that would be payable (or securities or other property in lieu of), if such taxes were deemed payable, together with the amount estimated in good faith to be the reasonable costs and expenses (including attorneys fees) of obtaining a determination as set forth below. The Holders shall have no right to such funds or securities or other property which shall be held by the Exchange Agent for the Company (or itself or the Trustee, as the case may be), the Exchange Property and any cash apportioned to it deliverable upon exchange of Debentures pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture shall be reapportioned as though such segregated amounts had been paid to the Company, the Trustee or the Exchange Agent for such taxes, and any Holders surrendering any Debenture after the record or effective date of the applicable transaction giving rise to an adjustment pursuant to this Section 9.14 shall be entitled to receive only such Exchange Property and any cash apportioned to it upon exchange of Debentures pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture as so reapportioned. The Company shall, in good faith, seek an appropriate determination from the appropriate agencies and, if judged necessary by the Company, in good faith, from appropriate courts, as to whether taxes are so payable. If an appropriate determination is made that such taxes are so payable, then the Exchange Agent shall immediately pay the funds or deliver the securities or other property so segregated to the Company (or, if taxes are payable by the Exchange Agent or the Trustee, retain such funds or securities or other property for itself or the Trustee), and if an appropriate determination is made that such taxes are not payable or an amount of tax is payable which is less than the amount of funds or property so segregated, then the Exchange Agent, after paying to the Company (or itself or the Trustee, as the case may be) out of such funds or securities or other property the reasonable expenses and costs (including attorneys fees) of obtaining such determination (and any taxes so payable), shall apportion such remaining funds or securities or other property which had been so segregated among the Exchange Property and cash apportioned to it as of immediately after the close of business on the record date or the effective date of such transaction giving rise to an adjustment pursuant to Section 9.4 or 9.11 of this Indenture, whichever is applicable. If any Debenture has been exchanged on or after such record date or such effective date, as the case may be, and before a determination is made that no taxes are payable or an amount of tax is payable which is less than the amount of funds or securities or other property so segregated, the Company to the extent not previously delivered, shall deliver such Exchange Property and any cash apportioned thereto as reapportioned following such determination, to the Person to which and in the manner in which the other proceeds of the exchange of such Debentures were delivered.
 
ARTICLE 9A. MANDATORY EXCHANGE
 
Section 9A.1. Exchange Event.
If at any time after [date], the Current Market Price of the [company] Common Stock shall have exceeded $___ for the prior twenty (20) consecutive trading days (the “Exchange Event”), the Debentures will become subject to mandatory exchange at the close of business on such 20th trading day at ___% of the principal amount for Exchange Property at the Exchange Rate (as determined in accordance with ARTICLE 9 of this Indenture) on the date such exchange is effective. Such mandatory exchange shall be effective at the close of business on the 30th day after such Exchange Event, or, if such day is not a Business Day, on the next following Business Day, and only in accordance with the provisions of this ARTICLE 9A.
 
Section 9A.2. Notice of Exchange Event.
Upon the occurrence of an Exchange Event, as promptly as practicable, the Company shall file with the Trustee, and cause to be mailed to each Holder at such Holders address appearing on the Debenture Register a notice of such Exchange Event to each Holder stating:
 
(a) the date upon which such exchange shall be made;
 
(b) the name and address in [city], [state] of the Exchange Agent to whom the Debentures are to be surrendered for exchange;
 
(c) that the Debentures called for exchange must be surrendered to the Exchange Agent to receive the Exchange Property into which such Debentures are exchanged; and
 
(d) that interest on the Debentures ceases to accrue on and after the date such exchange is effective and after that, the only remaining right of the Holders shall be to receive Exchange Property and unpaid interest accrued through such date upon surrender of the Debentures to the Exchange Agent.
 
Section 9A.3. Effect of Notice of Exchange Event.
Once a notice of an Exchange Event is mailed in accordance with Section 9A.2 of this Indenture, the exchange of Debentures for Exchange Property pursuant to this ARTICLE 9A shall become effective as specified in Section 9A.1 of this Indenture, regardless of whether such Debenture shall then have been surrendered for exchange, and at such time, except as provided in the last sentence of this Section 9A.3, the rights of the Holder of such Debenture as a Holder shall cease with respect to it and the Person in whose name any certificate or certificates for shares of [company] Common Stock and/or other Exchange Property shall be deliverable upon such exchange shall, as between such Person and the Company, be deemed to have become on the date the holder of record of the shares or other Property represented by it. Accrued, but unpaid interest with respect to the Debentures through the date of such exchange shall be paid to the Holders of record on the date of such exchange or, if such date occurs after a Record Date, but on or prior to the related Interest Payment Date, to the Holders of record on such Record Date. Such interest shall be paid in the same manner as if the date of such exchange were a regular Interest Payment Date. On and after such date of exchange, unless the Company defaults in the payment of the principal amount of the Debentures by delivery of Exchange Property or the payment of interest accrued through such date of exchange, interest shall cease to accrue on the Debentures, and all rights of Holders of such Debentures shall terminate except for the right to receive Exchange Property and such interest payment.
 
Section 9A.4. Delivery of Exchange Property.
As promptly as practicable after the surrender of such Debenture in compliance with this Section 9A.4, the Exchange Agent shall deliver at such office or agency to such Holder, or on such Holders written order, a certificate or certificates free of the Security Interest created by the Pledge Agreement for the number of full shares of [company] Common Stock and/or whole interests of other Exchange Property deliverable upon the exchange of such Debenture or portion of it in accordance with the provisions of ARTICLE 9 of this Indenture, and this ARTICLE 9A, together with a check or cash in respect of any fractional interest in respect of a share of [company] Common Stock or other Exchange Property due upon such exchange, as provided in Section 9.3 of this Indenture. In addition, as promptly as practicable after such date of exchange, the Paying Agent shall pay to the Holders as of the close of business on such date unpaid interest accrued on the Debentures through such date.
 
Delivery of any certificate or certificates and/or of any check or other evidence of Exchange Property (but not of interest payable on the Debentures) may be delayed for a reasonable period of time at the request of the Company in order to effectuate the calculations of the adjustments pursuant to ARTICLE 9 of this Indenture, to obtain any certificate representing securities to be delivered, to complete any reapportionment of the shares of [company] Common Stock or the Exchange Property apportioned thereto which is required by ARTICLE 9 of this Indenture or to comply with any applicable law. If, between the date an exchange under this ARTICLE 9A is deemed effective, and the date of delivery of the Exchange Property, such Exchange Property shall cease to have any or certain rights, or a record date or effective date of a transaction to which Section 9.4, 9.5 or 9.11 of this Indenture applies shall occur, the Person entitled to receive such Exchange Property shall be entitled only to receive such Exchange Property as so modified, and any dividends or proceeds received on it on or after the date such exchange shall be deemed effected, and none of the Company, the Trustee and the Exchange Agent shall be otherwise liable with respect to the modification of such security or securities, from the date such exchange is deemed effected, and the date of such delivery.
 
The Companys delivery to the Holder of a fixed number of shares of [company] Common Stock (and any cash in lieu of fractional shares of [company] Common Stock) and/or other Exchange Property into which such Debenture is exchangeable shall be deemed to satisfy the Companys obligation to pay the principal amount of such Debenture.
 
ARTICLE 10. SECURITY INTEREST
 
Section 10.1. Pledge and Security Interest.
Prior to the issuance of the Debentures, the Company and the Trustee shall execute and deliver the Pledge Agreement, pursuant to which the Company shall grant the Security Interest in favor of the Trustee, for the benefit of the Holders. By accepting a Debenture, each Holder agrees to all of the terms and provisions of the Pledge Agreement.
 
As now or subsequently in effect, the Security Interest shall be held to secure the payment of principal of and interest on the Debentures for the equal and ratable benefit and security of the Holders, without preference, priority, or distinction of any one over another by reason of difference in time of issuance of a Debenture, sale or otherwise, and for the enforcement of the payment of principal of the Debentures, in accordance with their terms.
 
Pursuant to the Pledge Agreement, the Company shall deliver to the Exchange Agent, prior to the issuance of the Debentures, Collateral consisting of the ___ shares of [company] Common Stock held by it, and will execute and deliver, file and record, all instruments and documents necessary to subject the Collateral to the Security Interest. The Exchange Agent shall maintain possession of the Collateral as agent for the Trustee.
 
Upon the granting of the Security Interest in the Collateral to the Trustee, and subsequently as may be required, the Company shall provide to the Trustee such Opinions of Counsel, compliance certificates, and other reports as the Trustee shall reasonably request.
 
The Company shall cause the Collateral to be free and clear of any Lien or claim of any other Person, and shall not dispose of any Collateral except in accordance with this Indenture or the Pledge Agreement.
 
In accordance with the Pledge Agreement, all Exchange Property paid or distributed to the Company or any Subsidiary will be promptly delivered to the Exchange Agent by the Company for application in accordance with this Section 10.1 and, to the extent applicable, Section 9.4 of this Indenture.
 
Section 10.2. Reliance on Opinion of Counsel.
The Trustee and the Exchange Agent shall, before taking any action under this ARTICLE 10 or the Pledge Agreement, respectively, be entitled to receive an Opinion of Counsel, stating (a) the legal effect of such action, (b) the steps necessary to consummate the same and perfect the Trustees security interest with respect to the Collateral, (c) that such action will not be in contravention of the provisions of this Indenture, and (d) that such opinion shall be full protection to the Trustee or the Exchange Agent, as the case may be, for any action taken or not taken in reliance on it.
 
Section 10.3. Purchaser May Rely.
A purchaser in good faith of any Collateral or interest in it which is transferred or granted by the Trustee or the Exchange Agent as provided in this ARTICLE 10 or the Pledge Agreement may rely on the authority of the Trustee or the Exchange Agent, as the case may be, to execute a transfer, grant or release, and shall not be bound to ascertain or inquire as to the satisfaction of any conditions precedent to the exercise of such authority, or to see the application of the purchase price for it.
Section 10.4. Payment of Expenses.
Upon demand of the Trustee or the Exchange Agent, the Company shall immediately pay, or satisfactorily provide for, all reasonable expenditures incurred by the Trustee or the Exchange Agent under this ARTICLE 10 and the Pledge Agreement.
 
Section 10.5. Suits to Protect the Collateral.
To the extent permitted under this Indenture and under the Pledge Agreement, the Trustee and the Exchange Agent each shall have power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of the Pledge Agreement or this Indenture, including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may reasonably be believed to be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security under this Indenture or be prejudicial to the interests of the Holders, the Trustee or the Exchange Agent.
 
Section 10.6. Duties of Trustee and Exchange Agent.
The powers conferred upon the Trustee and the Exchange Agent by this ARTICLE 10 and the Pledge Agreement are solely to protect their respective interests and the interest of the Holders in the Collateral. They shall not impose any duty upon either of them to exercise any such powers, except as expressly provided in this Indenture and the Pledge Agreement. Neither the Trustee nor the Exchange Agent shall be under any duty whatsoever to the Company to make or give any presentment, demand for performance, notice of nonperformance, protest, notice of protest, notice of dishonor, or other notice or demand in connection with any Collateral, or to take any steps necessary to preserve any rights against prior parties except as expressly provided in this Indenture and the Pledge Agreement, as applicable. Neither the Trustee nor the Exchange Agent shall be liable to the Company for failure to collect or realize upon any or all of the Collateral, or for any delay in so doing, nor shall the Trustee or the Exchange Agent be under any duty to the Company to take any action whatsoever with regard to it. Neither the Trustee nor the Exchange Agent shall have any duty to the Company to comply with any recording, filing, or other legal requirements necessary to establish or maintain the validity, priority, or enforceability of, or the respective rights of the Trustee and the Exchange Agent in or to, any of the Collateral, except with regard to the safekeeping of any Collateral perfected by the Exchange Agents possession of it as agent of the Trustee. With regard to such safekeeping, the Exchange Agent shall be liable only for any damages that result from negligence, willful misconduct, or bad faith.
 
ARTICLE 11. SUBORDINATION OF INTEREST PAYMENTS
 
Section 11.1. Agreement to Subordinate.
The Company agrees, and the Trustee and each Holder by accepting a Debenture agrees, that all Debentures shall be issued subject to the provisions of this ARTICLE 11; and each Person holding any Debenture, whether upon original issue or upon transfer, assignment or exchange of it, accepts and agrees that all payments of interest on the Debentures by the Company shall, to the extent and in the manner set forth in this ARTICLE 11, be subordinated and junior in right of payment to the prior payment in full of all amounts payable under Senior Indebtedness, and that the subordination is for the benefit of the holders of Senior Indebtedness. The subordination provided by this ARTICLE 11 shall not apply to the payment of principal on the Debentures. Furthermore, the subordination shall not apply to the payment of interest on the Debentures after an Event of Default if a court of competent jurisdiction has enjoined or terminated the Companys obligation to pay the principal amount of the Debentures by delivery of Exchange Property.
 
Section 11.2. Certain Definitions.
“Senior Indebtedness” means the principal of, premium, if any, and unpaid interest (whether accruing before or after filing of any petition in bankruptcy or any similar proceedings by or against the Company, and whether or not allowed as a claim in bankruptcy or any similar proceeding) on the following, whether previously or subsequently created, incurred, assumed or guaranteed: (i) all indebtedness for borrowed money, created, incurred, assumed or guaranteed by the Company (other than the ___% Subordinated Debentures due [date] of the Company and the ___% Convertible Subordinated Notes due [date] of the Company and any indebtedness incurred with respect to the refinancing of it) and any other indebtedness of the Company evidenced by a note or written instrument given in connection with the acquisition of any business, properties, or assets of any kind; (ii) obligations of the Company under any agreement to lease, or lease of, any real or personal Property, which obligations are required to be capitalized on the books of the Company, in accordance with GAAP, and leases of property or assets made as part of any sale and lease-back transaction to which the Company is a party; and (iii) any and all deferrals, modifications, renewals, or extensions of any indebtedness or other obligation described in clause (a) of this Section 11.2, unless, in any case, in the instrument creating or evidencing any such indebtedness or obligation or pursuant to which the same is outstanding, it is provided that such indebtedness or obligation is not superior in right of payment to the Debentures.
 
Notwithstanding the foregoing, Senior Indebtedness shall not include indebtedness of the Company to a Subsidiary or of a Subsidiary to the Company. Moreover, it shall not include indebtedness or amounts owed (except to banks or other financial institutions) for compensation to employees, or for goods or materials purchased, or services utilized, in the ordinary course of business of the Company or of any other Person from whom such indebtedness or amount was assumed.
 
The right of Holders to the payment of interest on the Debentures is senior in right of payment to the obligations evidenced by the ___% Subordinated Debentures of the Company due [date] and the ___% Convertible Subordinated Notes due [date] of the Company, and shall be senior in right of payment to any indebtedness incurred with respect to the refinancing of it. In this regard, the Company covenants that it will not incur any indebtedness with respect to the refinancing of such debentures or notes unless such indebtedness is expressly subordinated in right of payment to the payment of interest on the Debentures.
 
“Representative” means the indenture trustee or other trustee, agent, or representative for an issue of Senior Indebtedness.
 
 
 
Section 11.3. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation, dissolution, or winding up of the Company or in a bankruptcy, reorganization, insolvency, receivership, or similar proceeding relating to the Company or its Property:
 
(a) holders of Senior Indebtedness shall be entitled to receive payment in full, in cash, or in a manner satisfactory to the holders of such Senior Indebtedness, of all Senior Indebtedness before Holders shall be entitled to receive any payments of subordinated interest on Debentures; and
 
(b) until the Senior Indebtedness is paid in full in cash, or in a manner satisfactory to the holders of such Senior Indebtedness, any distribution of subordinated interest on the Debentures to which Holders would be entitled but for this ARTICLE 11 shall be made to holders of Senior Indebtedness as their interests may appear, except that Holders may receive securities that are subordinated to Senior Indebtedness to at least the same extent as the Debentures.
 
A distribution may consist of cash, securities or other Property.
 
Section 11.4. Company Not to Make Payments with Respect to Debentures in Certain Circumstances.
 
(a) Upon the maturity of any Senior Indebtedness by lapse of time, acceleration or otherwise, all principal, premium, if any, and interest on it and any other amounts owing in respect of it shall first be paid in full, or such payment provided for in cash or in a manner satisfactory to the holders of such Senior Indebtedness, before any payment is made on account of the subordinated interest on the Debentures.
 
(b) Upon the happening and continuation of an Event of Default (or if any event of default would result upon any payment of interest with respect to the Debentures) with respect to any Senior Indebtedness as such event of default is defined in it or in the instrument under which it is outstanding, permitting holders to accelerate the maturity of it, and, if the default is other than default in payment of the principal of, premium, if any, or interest on or any other amount owing in respect of such Senior Indebtedness, upon written notice given to the Company and the Trustee by holders of Senior Indebtedness or their Representative, then, unless such an event of default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Company with respect to the subordinated interest on the Debentures.
 
Section 11.5. Acceleration of Debentures.
If payment of the Debentures is accelerated because of an Event of Default, the Company shall promptly notify holders of Senior Indebtedness of the acceleration.
 
Section 11.6. When Distribution Must Be Paid Over.
If a distribution is made to Holders that, because of this ARTICLE 11, should not have been made to them, the Holders who receive the distribution shall hold it in trust for holders of Senior Indebtedness, and shall pay it over to them as their interests may appear.
 
 
Section 11.7. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent of any facts known to the Company that would cause a payment of interest on the Debentures to violate this ARTICLE 11.
 
Section 11.8. Subrogation.
After all Senior Indebtedness is paid in full and until the interest on the Debentures is paid in full, Holders shall be subrogated to the rights of holders of Senior Indebtedness to receive distributions applicable to Senior Indebtedness to the extent that distributions otherwise payable to the Holders have been applied to the payment of Senior Indebtedness. A distribution made under this ARTICLE 11 to holders of Senior Indebtedness which otherwise would have been made to Holders is not, as between the Company and Holders, a payment by the Company on Senior Indebtedness.
 
Section 11.9. Relative Rights.
This ARTICLE 11 defines the relative rights of Holders and holders of Senior Indebtedness. Nothing in this Indenture shall:
 
(a) impair, as between the Company and Holders, the obligation of the Company, which is absolute and unconditional, to pay interest on the Debentures in accordance with their terms;
 
(b) affect the relative rights of Holders and creditors of the Company, other than holders of Senior Indebtedness; or
 
(c) prevent the Trustee or any Holder from exercising its available remedies upon a Default, subject to the rights of holders of Senior Indebtedness to receive distributions otherwise payable to Holders.
 
If the Company fails because of this ARTICLE 11 to pay interest on a Debenture on the due date, such failure shall nevertheless be deemed an Event of Default.
 
Section 11.10. Subordination May Not Be Impaired by Company.
No right of any present or future holder of Senior Indebtedness to enforce the subordination of the interest payments on the Debentures shall at any time or in any way be prejudiced or impaired by any act or failure to act by the Company, or by any act, or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms of this Indenture regardless of any knowledge, which any such holder may have or otherwise be charged with.
 
Section 11.11. Distribution of Notice to Representative.
Whenever a distribution is to be made, or a notice given to holders of Senior Indebtedness, the distribution may be made, and the notice shall be given to their Representative.
 
Section 11.12. Rights of Trustee and Paying Agent.
Notwithstanding any provisions of this Indenture to the contrary, the Trustee and any Paying Agent may continue to make interest payments on the Debentures, and shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of such payments until it receives written notice (received by a Responsible Officer, in the case of the Trustee) that such payments may not be made under this ARTICLE 11. Prior to the receipt of any such notice, the Trustee, subject to the provisions of ARTICLE 6 of this Indenture, and any Agent, shall be entitled to assume conclusively that no such facts exist. The Company, an Agent, a Representative, or a holder of Senior Indebtedness may give the notice. If an issue of Senior Indebtedness has a Representative, only the Representative (or any Representative, if more than one) may give the notice with respect to such Senior Indebtedness.
 
The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself or herself to be a holder of Senior Indebtedness (or a Representative) to establish that such notice has been given by a holder of Senior Indebtedness (or a Representative), and shall be entitled to rely on any written notice by a Person representing himself or herself to be a holder of Senior Indebtedness to the effect that such issue of Senior Indebtedness has no Representative.
 
The Trustee shall not be deemed to owe any fiduciary duty to holders of Senior Indebtedness by virtue of the provisions of this ARTICLE 11. The Trustees responsibilities to the holders of Senior Indebtedness are limited to those set forth in this ARTICLE 11, and no implied covenants or obligations shall be read into this Indenture. The Trustee shall not become liable to the holders of Senior Indebtedness if it makes a payment prohibited by this ARTICLE 11 in good faith.
The Trustee, in its individual or any other capacity, may hold Senior Indebtedness with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
 
Section 11.13. Effectuation of Subordination by Trustee.
Each Holder, by acceptance of a Debenture, authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this ARTICLE 11, and appoints the Trustee as his or her attorney-in-fact for any and all such purposes.
 
ARTICLE 12. MEETINGS OF HOLDERS
 
Section 12.1. Purposes for Which Meetings May Be Called.
A meeting of Holders may be called at any time and, from time to time, pursuant to the provisions of this ARTICLE 12 for any of the following purposes:
 
(a) to give any notice to the Company, or the Trustee, or to give any directions to the Trustee, or to waive or to consent to the waiving of any Default under this Indenture and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of ARTICLE 5 of this Indenture;
 
(b) to remove the Trustee or to appoint a successor Trustee pursuant to the provisions of ARTICLE 6 of this Indenture; and
 
(c) to take any other action (i) authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Debentures under any other provision of this Indenture, or authorized or permitted by law, or (ii) which the Trustee deems necessary or appropriate in connection with the administration of this Indenture.
 
Section 12.2. Manner of Calling Meetings.
At any time, the Trustee may call a meeting of Holders to take any action specified in Section 12.1 of this Indenture, to be held at such time and at such place in [city], [state], or such other place as the Trustee shall determine. Notice of every meeting of Holders, setting forth the time and place of such meeting and in general terms, the action proposed to be taken at such meeting, shall be mailed by the Trustee, first-class postage prepaid, to the Company, and to the Holders at their addresses appearing on the Debenture Register, not less than ten (10), nor more than sixty (60) days prior to the date fixed for a meeting.
 
Any meeting of Holders shall be valid without notice if the Holders of all Debentures then outstanding are present in person or by proxy, or if notice is waived before or after the meeting by the Holders of all Debentures outstanding, and if the Company and the Trustee are either present by authorized representatives or have, before or after the meeting, waived notice.
 
Section 12.3. Call of Meetings by the Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or the Holders of not less than ___% in aggregate principal amount of the Debentures then outstanding, shall have requested the Trustee to call a meeting of Holders to take any action specified in Section 12.1 of this Indenture, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within twenty (20) days after receipt of such request, then the Company or the Holders of Debentures in the amount specified above may determine the time and place in [city], [state], for such meeting, and may call such meeting for the purpose of taking such action, by mailing or causing to be mailed notice as provided in Section 12.2 of this Indenture or this Section 12.3, or by causing notice to be published at least once in each of two (2) successive weeks in The Wall Street Journal (each regional edition), the first such publication to be not less than ten (10), nor more than sixty (60) days prior to the date fixed for the meeting.
 
Section 12.4. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Holders, a Person shall (a) be a registered Holder of one or more Debentures, or (b) be a Person appointed by an instrument in writing as proxy for the registered Holder or Holders of Debentures. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, and any representatives of the Trustee and its counsel, and any representatives of the Company and its counsel.
 
Section 12.5. Regulations May be Made By Trustee; Conduct of the Meeting; Voting Rights; Adjournment.
Notwithstanding any other provision of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Debentures and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, and submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think appropriate. Such regulations may fix a record date and time for determining the Holders of record of Debentures entitled to vote at such meeting, in which case those and only those Persons who are Holders of Debentures at the record date and time so fixed, or their proxies, shall be entitled to vote at such meeting whether or not they shall be such Holders at the time of the meeting.
 
The Trustee shall, by a written instrument, appoint a temporary chairperson of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 12.3 of this Indenture. In such case, the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairperson. A permanent chairperson and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
 
At any meeting such Holder or proxy shall be entitled to one vote for each $___ principal amount of Debentures held or represented by such Holder. However, no vote shall be cast or counted at any meeting in respect of any Debentures challenged as not outstanding, and ruled by the chairperson of the meeting to be not outstanding. The chairperson of the meeting shall have no right to vote other than by virtue of Debentures held by him or her or instruments in writing, as stated above, designating him or her as the proxy to vote on behalf of other Holders. At any meeting of Holders, the presence of Persons holding or representing Debentures in an aggregate principal amount sufficient to take action upon the business for which the meeting is called shall be necessary for a quorum. If less than a quorum is present, however, the Holders of a majority of the aggregate principal amount of Debentures represented at such meeting may adjourn such meeting with the same effect as though a quorum had been present. From time to time, any meeting of Holders called pursuant to the provisions of Section 12.2 or 12.3 of this Indenture may be adjourned by vote of the Holders of a majority in aggregate principal amount of the Debentures represented at the meeting and entitled to vote, and the meeting may be held as so adjourned without further notice.
 
Section 12.6. Voting at the Meeting and Record to Be Kept.
The vote upon any resolution submitted to any meeting of Holders shall be by written ballots on which shall be subscribed the signatures of the Holders of Debentures or of their representatives by proxy and the principal amount of the Debentures voted by the ballot. The permanent chairperson of the meeting shall appoint two (2) inspectors of votes, who shall count all votes cast at the meeting for or against any resolution, and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting. There shall be attached to such record the original reports of the inspectors of votes on any vote by ballot taken there, and affidavits by one or more Persons having knowledge of the facts, setting forth a copy of the notice of the meeting and showing that such notice was mailed as provided in Sections 12.2 or 12.3 of this Indenture or published as provided in Section 12.3 of this Indenture. The record shall be signed and verified by the affidavits of the permanent chairperson and the secretary of the meeting. One of the duplicates shall be delivered to the Company, and the other duplicate shall be delivered to the Trustee to be preserved by the Trustee, the latter to have attached the ballots voted at the meeting.
 
Any record so signed and verified shall be conclusive evidence of the matters stated in it.
 
Section 12.7. Exercise of Rights of Trustee or Holders May Not Be Hindered or Delayed by Call of Meeting.
Nothing contained in this ARTICLE 12 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred under this Indenture to make such call, any interference or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Securities.
 
ARTICLE 13. MISCELLANEOUS
 
Section 13.1. Notices.
Any notice or communication by the Company or the Trustee to the other is given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), fax machine, or overnight air courier guaranteeing next day delivery, to the others address:
 
If to the Company: [address of company]
Attention: General Counsel
Fax machine No.: [fax number of company]
 
If to the Trustee: [address of trustee]
Attention: [counsel]
Fax machine No.: [fax number of trustee]
 
By notice to the other, the Company or the Trustee may designate additional or different addresses for subsequent notices or communications.
 
All notices and communications (other than those sent to Holders) shall be deemed to have been given as follows: at the time delivered by hand, if personally delivered; five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
 
Any notice or communication to a Holder shall be mailed by first-class mail to his or her address shown on the Debenture Register. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
 
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee at the same time.
 
Section 13.2. Communication by Holders with Other Holders.
Within five (5) Business Days after the receipt by the Trustee of a written application by any three (3) or more Holders, stating that such Holders desire to communicate with other Holders with respect to their rights under this Indenture or under the Debentures, and accompanied by a copy of the form of proxy or other communication which such Holders propose to transmit, and by reasonable proof that each such Holder has owned a Debenture for a period of at least three (3) months preceding the date of such application, the Trustee shall, at its election, either:
 
(a) afford to such Holders access to all information so furnished to or received by the Trustee related to the addresses of the other Holders; or
 
(b) inform such Holders as to the approximate number of Holders, according to the most recent information so furnished to or received by such Trustee, and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
 
If the Trustee shall elect not to afford to such Holders access to such information, the Trustee shall, upon the written request of such Holders, mail to all such Holders copies of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed, and of payment, or provision for the payment, of the reasonable expenses of such mailing. The Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under this Section 13.2.
 
Section 13.3. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall, upon request, furnish to the Trustee an Officers Certificate and/or an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.4 of this Indenture) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with.
 
Section 13.4. Statements Required in Certificate.
With respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 314(a)(4) of the Trust Indenture Act), each certificate shall include:
 
(a) a statement that the Person providing such certificate has read such covenant or condition;
 
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements contained in such certificate are based;
 
(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not there has been compliance with such covenant or condition; and
 
(d) a statement as to whether or not, in the opinion of such Person, there has been compliance with such condition or covenant.
 
 
 
Section 13.5. Rules by Agents.
The Registrar, Paying Agent, or Exchange Agent each may make reasonable rules and set reasonable requirements for its functions.
 
Section 13.6. No Recourse Against Others.
No past, present, or future director, officer, employee, agent, manager, stockholder, or other Affiliate of the Company shall have any liability for any obligations of the Company under the Debentures, this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Debenture, each Holder waives and releases all such liability.
 
Section 13.7. Governing Law.
This Indenture and the Debentures shall be governed by, and construed in accordance with, the laws of [state], without regard to the conflict of law rules.
 
Section 13.8. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan, or debt agreement of the Company or its Subsidiaries. Any such indenture, loan, or debt agreement may not be used to interpret this Indenture.
 
Section 13.9. Successors.
All agreements of the Company in this Indenture and the Debentures shall bind its successors and assigns. All agreements of the Trustee in this Indenture shall bind its successors and assigns.
 
Section 13.10. Severability.
In case any provision in this Indenture or in the Debentures shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired by it.
 
Section 13.11. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
 
Section 13.12. Table of Contents, Headings, etc.
The Table of Contents and Headings of the ARTICLES and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of it, and shall in no way modify or restrict any of the terms or provisions of it.
 
Section 13.13. 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. However, 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 Person may certify to give an opinion as to such matters in one or several documents.
Insofar as it relates to legal matters, any certificate or opinion of an Officer may be based upon a certification 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. Insofar as it relates to factual matters, any such certificate or Opinion of Counsel may be based upon a certificate of public officials, or upon a certificate or opinion of, or representations by, an Officer or Officers unless such counsel knows that with respect to such matters, the certificate or opinion or representations are erroneous.
 
Where any Person is required to make, give, or execute two (2) 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 13.14. Acts of Holders; Record Dates.
 
(a) Any request, demand, authorization, direction, notice, consent, waiver, or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor, signed by such Holders in person or by agents appointed in writing. Except as otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is expressly required, to the Company. Such instrument or instruments (and the action embodied in them and evidenced by them) are sometimes referred to here 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 of this Indenture) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 13.14.
 
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
 
(c) The Company may fix any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver, or other action, or to vote on any action, authorized, or permitted to be given or taken by the Holders. If not set by the Company within ten (10) days after written request to the Company to set such a record date and specifying in such request in general terms the reason for the meeting, then the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 2.5 of this Indenture) prior to such first solicitation or vote, as the case may be. With regard to any record date, only the Holders on such date (or their designated proxies) shall be entitled to give or take, or vote on, the relevant action. Notwithstanding the foregoing, the Company shall not set a record date for, and the provisions of this Section 13.14 shall not apply with respect to, any Act by the Holders pursuant to Section 5.2, 5.6 or 9.12 of this Indenture.
 
(d) The ownership of Debentures shall be proved by the Debenture Register.
 
(e) Any act of a Holder shall bind every future Holder of the same Debenture and the Holder of every Debenture issued upon the registration of transfer of, or in exchange for, or in lieu of, in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance on it, whether or not notation of such action is made upon such Debenture.
 
(f) Without limiting the foregoing, a Holder entitled under this Indenture to give or take any action here with regard to any particular Debenture may do so with regard to all or any part of the principal amount of such Debenture or by one or more appointed agents, each of which may do so pursuant to such appointment with regard to all or any different part of such principal amount.
 
Section 13.15. Benefits of Indenture.
Nothing in this Indenture or in the Debentures, express or implied, shall give to any Person, other than the parties herein and their successors, the holders of Senior Indebtedness and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
 
Section 13.16. Interest Limitations.
Anything in this Indenture or any Debenture to the contrary notwithstanding, the Company shall never be required to pay unearned interest on any Debenture, and shall never be required to pay interest on such Debenture at a rate in excess of the Highest Lawful Rate, as defined below. If effective rate of interest which would otherwise be payable under this Indenture and such Debenture would exceed the Highest Lawful Rate, or if the Holder of such Debenture shall receive any unearned interest or shall receive monies or other consideration that are deemed to constitute interest which would increase the effective rate of interest payable by the Company under this Indenture and such Debenture to a rate in excess of the Highest Lawful Rate, then (i) the amount of interest which would otherwise be payable by the Company under this Indenture and such Debenture shall be reduced to the amount allowed under applicable law, and (ii) any unearned interest paid by the Company or any interest paid by the Company in excess of the Highest Lawful Rate shall, at the option of the Holder of such Debenture, be refunded to the Company. It is further agreed that, without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received by any Holder under the Debenture held by it, or under this Indenture, shall be made, to the extent permitted by applicable usury laws (now or subsequently enacted), by amortizing, prorating, and spreading in equal parts during the period of the full stated term of the Debentures all interest (and other consideration deemed to constitute interest) at any time contracted for, charged or received by such Holder in connection with it.
 
If at any time and from time to time, (i) the amount of interest payable to any Holder on any date shall be computed at the Highest Lawful Rate pursuant to this Section 13.16, and (ii) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Holder would be less than the amount of interest payable to such Holder computed at the Highest Lawful Rate, then the amount of interest payable to such Holder in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate until the total amount of interest payable to such Holder shall equal the total amount of interest which would have been payable to such Holder if the total amount of interest had been computed without giving effect to this Section 13.16.
 
Section 13.17. Highest Lawful Rate.
“Highest Lawful Rate” means the maximum non-usurious rate of interest permitted by applicable law, which the parties intend shall be the laws of [state]. The Trustee shall have no duty to monitor, calculate or determine the Highest Lawful Rate.
 
IN WITNESS, the parties have executed this Indenture as of the day and year first above-written.
 
[company]
By:
___________________
[authorized representative]
[title]
Attest:
___________________
[secretary]
Secretary
 
[Corporate seal]
 
[trustee]
Trustee
By:
___________________
[officer]
[title]
Attest:
___________________
[secretary]
Secretary
 
[Corporate seal]
 
 
 
 
 
 
 
 
Number of Pages69
DimensionsDesigned for Letter Size (8.5" x 11")
EditableYes (.doc, .wpd and .rtf)
UsageUnlimited number of prints
Product number#43690
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
 
 
Trust Indenture

 

 
Dated _______________
 
$[Amount]
 
___% Exchangeable Debentures Due [Year]
 
INDENTURE dated as of __________ between [company], a [state] corporation (the “Company”), and [trustee], a national banking association, as Trustee (the “Trustee”).
The Company and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the holders of the ____% Exchangeable Debentures due [date] (collectively, the “Debentures”):
 
ARTICLE 1. DEFINITIONS
 
Section 1.1. Definitions
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by agreement or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
 
“Agent” means any Registrar, Coregistrar, Paying Agent or Exchange Agent.
 
“Board of Directors” means the Board of Directors of the Company, or any authorized committee of the Board of Directors.
 
“Board Resolution” means a resolution of the Board of Directors.
 
“Business Day” means each Monday, Tuesday, Wednesday, Thursday, and Friday that is not a day on which banking institutions in [city], [state], are authorized or obligated by law or executive order to close.
 
“Capitalized Lease Obligation” means, with respect to any Person for any period, an obligation of such Person to pay rent or other amounts under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP and the amount of such obligation shall be the capitalized amount determined in accordance with such principles.
 
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of corporate stock or partnership interests, including each class of common stock and preferred stock and each class of partnership interests of such Person and any warrants, options or other rights to acquire such stock or interests.
 
“Collateral” means, the Property described in, or from time to time subject to, the Lien of the Pledge Agreement, and any additional Property at any time and from time to time receivable or distributable in respect of, in exchange for, or in substitution of, any and all of the aforementioned Property, together with any proceeds.
 
“Company” means, [company], a [state], corporation, until a successor replaces it pursuant to this Indenture and executes a supplemental indenture as provided here, and after that, means such successor.
 
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.1, or such other address as the Trustee may designate by notice to the Company.
 
“Current Market Price” means, when used with respect to any security as of any date, the last sale price, regular way, or, in case no such sale takes place on such date, the average of the closing bid and asked prices, regular way, in either case as reported for consolidated transactions on the New York Stock Exchange or, if the security is not listed or admitted to trading on the New York Stock Exchange, as reported for consolidated transactions with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading or, if the security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotations System or such other system then in use or, if the security is not quoted by any such organization, the average of the closing bid and asked prices furnished by a professional market maker making a market in the security as selected by the Exchange Agent or, if no such market making activities exist, as determined in such manner as shall be satisfactory to the Exchange Agent, which shall be entitled to rely for such purposes on the advice of any firm of investment bankers or security dealers having familiarity with such security. “Current Market Price” means, when used with respect to any Property other than a security as of any date, the market value of such Property on such date determined in such manner as shall be satisfactory to the Exchange Agent, which shall be entitled to rely for such purposes on the advice of any firm of investment bankers or appraisers having familiarity with such Property.
 
“Debentures” means the ___% Exchangeable Debentures due [date] issued under this Indenture.
 
“Debentures Custodian” means [trustee], as custodian with respect to the Global Debentures, or any successor entity.
 
“Debenture Owner” means the Person who owns a beneficial interest in any Global Debenture.
 
“Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.
 
“Depositary” means, with respect to the Debentures issuable or issued in whole or in part in global form, the Person specified in Section 2.3 of this Indenture as the Depositary with respect to the Debentures, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and, after that, “Depositary” shall mean or include such successor.
 
“Depositary Participant” means a broker, dealer, bank, other financial institution or other Person for whom, from time to time, a Depositary effects, directly or indirectly, book entry transfers and pledges of securities deposited with the Depositary.
 
“Event of Default” shall have the meaning provided in Section 5.1.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
“Exchange Agent” means [trustee] under the Exchange Agent Agreement, until a successor Exchange Agent shall have become such pursuant to the provisions of Section 15 of the Exchange Agent Agreement, and after that “Exchange Agent” shall mean such successor Exchange Agent and, from time to time, any subsequent successor to such provisions.
“Exchange Agent Agreement” means the Exchange Agent Agreement in the form of Exhibit ___ to this Indenture, as amended or supplemented from time to time in accordance with this Indenture and that agreement.
 
“Exchange Property” means initially the aggregate of ___ shares of [company] Common Stock delivered to the Exchange Agent by the Company simultaneously with the execution and delivery of this Indenture, and after that, means the securities, cash and other Property, if any, which at the time are deliverable upon surrender of the Debentures for exchange in accordance with ARTICLE 9 of this Indenture.
 
“GAAP” means generally accepted accounting principles as in effect in the United States of America as of any date of determination.
 
[company] Common Stock” means the common stock, par value $____ per share of [company], and any shares resulting from any reclassification or reclassifications.
 
“Global Debenture” means any Debenture delivered to the Depositary, and registered in the name of the Depositary or its nominee.
 
“Holder” means a Person in whose name a Debenture is registered in the Debenture Register.
 
“Indebtedness” means, with respect to any Person, without duplication, (i) any indebtedness of such Person for money borrowed or for the deferred purchase price of Property or services (other than such balance that represents an account payable or any other monetary obligation to a trade creditor created, incurred, assumed or guaranteed by such Person in the ordinary course of business of such Person in connection with obtaining goods, materials or services and due within 12 months (or such longer period for payment as is customarily extended by such trade creditor) of the incurrence, which account is not overdue by more than 120 days, according to the original terms of sale, unless such account payable is being contested in good faith or has otherwise been extended), (ii) all Capitalized Lease Obligations, (iii) any indebtedness or obligation of the type described in the foregoing clauses (i) and (ii) of others which is secured by a Lien on the assets of such Person and (iv) any indebtedness or obligation of the type described in the foregoing clauses (i) and (ii) of others which such Person has directly or indirectly guaranteed, endorsed with recourse (otherwise than for collection, deposit or other similar transactions in the ordinary course of business), agreed to purchase or repurchase or in respect of which such Person has agreed contingently to supply or advance funds.
 
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Interest Payment Date” means June 1 and December 1 in each year.
 
“Lien” means, with respect to any Person, any mortgage, deed of trust, pledge, lien, encumbrance, easement, restriction, covenant, right-of-way, charge or adverse claim affecting title or resulting in an encumbrance against real or personal Property of such Person, or a security interest of any kind whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement or any lease in the nature thereof, any option, right of first refusal or other similar agreement to sell, in each case securing obligations of such Person, and any filing of or agreement to give any financing statement under the [Uniform Commercial Code/[citation of statute]] of any jurisdiction).
 
“Memorandum” means the Offering Memorandum, dated [date of memorandum], of the Company relating to the Debentures, together with any amendment or supplement to it.
 
“Net Worth” means, with respect to the Company,  the stockholders equity of the Company as determined on a consolidated basis and in accordance with GAAP.
 
“Officers” means the Chairperson of the Board, the President, any Vice President, the Treasurer, the Controller, the Secretary or any Assistant Treasurer or Assistant Secretary of the Company.
 
“Officers Certificate” means a certificate signed by two Officers, one of whom must be the principal executive officer, principal financial officer or principal accounting officer of the Company.
 
“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.
 
“Person” means any individual, corporation, limited-liability company, partnership, joint venture, trust, estate, unincorporated organization or other entity or any government or any agency or political subdivision.
 
“Pledge” means a pledge and delivery by the Company to the Trustee, for the equal and ratable benefit of the Holders pursuant to the Pledge Agreement of the ___ shares of [company] Common Stock owned by the Company on the date of this Indenture and all Exchange Property subsequently issued in connection with it.
 
“Pledge Agreement” means the Pledge Agreement in the form of Exhibit ___ to this Indenture, as amended or supplemented from time to time in accordance with it and this Indenture.
“Property” means with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including, without limitation, Capital Stock in any other Person.
 
“Record Date” for the interest payable on any Interest Payment Date, means May 15 and November 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
 
“Responsible Officer” means, when used with respect to the Trustee, any officer within the Corporate Trust Office (or any successor office of the Trustee) including any President, Vice President, Assistant Vice President, Secretary, Assistant Secretary or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
 
“SEC” means the United States Securities and Exchange Commission.
 
“Securities Act” means the Securities Act of 1933, as amended.
 
“Security Interest” means the Lien on the Collateral created by the Pledge Agreement in favor of the Trustee for the benefit of the Holders.
 
“Subsidiary” means any corporation, partnership or other entity of which securities or other ownership interests having ___% or more of the ordinary voting power or equity interest of such corporation, partnership or other entity shall, at the time as of which any determination is being made, be owned by the Company either directly or through Subsidiaries.
 
“Trading Day” means a day on which the New York Stock Exchange and National Association of Securities Dealers Automated Quotation System are open for the transaction of business.
 
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
 
“Trustee” means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and after that, means the successor serving under this Indenture.
 
“United States Government Obligations” means direct obligations of the United States of America, or any agency or instrumentality of it, for the payment of which the full faith and credit of the United States of America is pledged, including, but not limited to, mutual funds investing exclusively in such obligations.
 
Section 1.2. Other Definitions.
Term
Defined in Section
 
 
“Bankruptcy Law
5.1
“Commission
3.17
“Custodian
5.1
“Defaulted Interest
2.12
“Debenture Register
2.3
“Exchange Event
9A.1
“Exchange Rate
9.1
“Highest Lawful Rate
13.17
“Paying Agent
2.3
“Registrar
2.3
“Registration Statement
3.17
“Representative
11.2
“Senior Indebtedness
11.2
 
Section 1.3. Rules of Construction.
Unless the context otherwise requires:
 
(1) a term has the meaning assigned to it;
 
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
 
(3) “or” is not exclusive; and
 
(4) words in the singular include the plural, and in the plural include the singular.
 
For all purposes of this Indenture, the principal of the Debentures shall consist of the Exchange Property, and the interest on the Debentures shall be the payment equal to ___% of the face amount of the Debentures per year contemplated by this Indenture, subject to adjustment as provided here, regardless of the characterization of principal and interest of the Debentures for purposes of United States federal income-tax laws, rules and regulations.
 
ARTICLE 2. THE DEBENTURES
 
Section 2.1. Form and Dating; Debentures in Global Form.
The Debentures and the Trustees certificates of authentication shall be substantially in the form which is attached hereto, made a part hereof, and incorporated herein as Exhibit ___ to this Indenture, and shall be in a principal amount of no greater than $___ upon the execution of this Indenture or from time to time after that. The Debentures may have notations, legends or endorsements as required by law, stock exchange rule, agreements to which the Company is subject or usage. Each Debenture shall be dated the date of its authentication. The Debentures shall be issued initially in denominations of $___ and integral multiples of it.
 
The terms and provisions contained in the Debentures shall constitute, and are expressly made, a part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound by them.
 
The Debentures will initially be issued as one Global Debenture. After that, Global Debentures shall represent such of the outstanding Debentures as shall be specified. The aggregate amount of Debentures represented may, from time to time, be reduced or increased, as appropriate, to reflect exchanges in accordance with the procedures of the Depositary. Any increase or decrease in the amount of outstanding Debentures represented by the Global Debenture shall be made by the Trustee or the Debentures Custodian at the direction of the Trustee in accordance with instructions given by the Holder. A Debenture Owner may exchange such Debenture Owners interest in any Global Debenture for Debentures registered in such Debenture Owners name, as provided in Section 2.7 of this Indenture.
 
Section 2.2. Execution and Authentication.
The Chairperson of the Board, the President or a Vice President of the Company shall sign and attest the Debentures on behalf of the Company by manual or fax signature. The Companys seal shall be reproduced on the Debentures.
 
If an Officer whose signature is on a Debenture no longer holds that office at the time the Debenture is authenticated, the Debenture shall still be valid.
 
A Debenture shall not be valid until authenticated by the manual signature of the Trustee. The signature of the Trustee shall be conclusive evidence that the Debenture has been authenticated under this Indenture.
 
Upon receipt of an Officers Certificate directing it to do so, the Trustee, shall authenticate the Debentures for original issue up to an aggregate principal amount stated in Section 2.1 of this Indenture. The aggregate principal amount of Debentures outstanding at any time may not exceed such amount, except as provided in Section 2.8 of this Indenture.
 
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate the Debentures. Unless limited by the terms of such appointment, an authenticating agent may authenticate the Debentures whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate.
 
Section 2.3. Registrar, Paying Agent, Exchange Agent, Depositary and Debentures Custodian.
The Company shall maintain (i) an Exchange Agent with an office in [city], [state], where the Debentures may be presented for exchange or payment at maturity, (ii) an office or agency where the Debentures may be presented for registration of transfer or for exchange into other denominations (the “Registrar”) and (iii) an office or agency in [city], [state], where the Company shall provide for the payment of, and Holders shall receive, interest payments (the “Paying Agent”). The Registrar shall keep a register of the Debentures and of their transfer and exchange (the “Debenture Register”). The Company may appoint one or more co-Registrars, and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent, Registrar, or co-Registrar without notice to any Holder. The Company may change the Exchange Agent only if the Trustee is changed, and the Company shall notify the Trustee, and the Trustee shall notify the Holders of any successor Exchange Agent. The Company shall notify the Trustee, and the Trustee shall notify the Holders of the name and address of any Agent not a party to this Indenture. The Company or any of the Subsidiaries may act as Paying Agent, Registrar, or Coregistrar, but not as Exchange Agent. The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. Such agreement shall implement the provisions of this Indenture that relate to such Agent. If the Company fails to maintain a Registrar, Paying Agent, or Exchange Agent, or fails to give the foregoing notice, the Trustee shall act as such, and shall be entitled to appropriate compensation in accordance with Section 6.7 of this Indenture.
 
The Company initially appoints the Trustee as Registrar, Paying Agent, Exchange Agent, and agent for service of notices and demands in connection with the Debentures at the office of the Corporate Trust Office of the Trustee.
 
The Company initially appoints The Depositary Trust Company to act as Depositary with respect to the Global Debentures.
 
Section 2.4. Paying Agent to Hold Money and Other Property in Trust.
The Company shall require each Paying Agent, other than the Trustee, to agree in writing to hold in trust for the benefit of Holders or the Trustee all money and other Property held by the Paying Agent for the payment of interest on the Debentures, and will notify the Trustee of any Default by the Company in making any such payment. While any such Default continues, the Trustee may require a Paying Agent to pay all money and other Property held by it to the Trustee. At any time, the Company may require a Paying Agent to pay all money and other Property held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent, if other than the Company, shall have no further liability for the money and other Property delivered to the Trustee. If the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money and other Property held by it as Paying Agent.
 
Section 2.5. Holder Lists.
The Trustee shall preserve, in as current a form as is reasonably practicable, the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date, and at such other time as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders, including the aggregate principal amount of Debentures held by them, and the Company shall otherwise comply with Section 312(a) of the Trust Indenture Act, as if such Section were set forth as a covenant of the Company in this Indenture.
 
Section 2.6. Book Entry and Definitive Debentures.
 
(a) One or more of the Debentures may be Global Debentures, to be delivered to the Depositary by the Company. In such case, the Global Debentures shall initially be registered on the Debenture Register in the name of [nominee], the nominee of the Depositary. No Debenture Owner will receive a definitive Debenture representing such Debenture Owners interest in the Debentures, except as provided in Section 2.7 of this Indenture, unless and until definitive Debentures shall have been issued in lieu of all Global Debentures pursuant to Section 2.7:
 
(i) the Company, the Paying Agent, the Exchange Agent, the Registrar, and the Trustee may deal with the Depositary for all purposes (including the making of distributions on the Debentures) as the authorized representative of the Debenture Owners;
 
(ii) to the extent that the provisions of this Section 2.6 conflict with any other provisions of this Indenture, the provisions of this Section 2.6 shall control;
 
(iii) the rights of Debenture Owners shall be exercised only through the Depositary, and shall be limited to those established by law and agreements between such Debenture Owners and the Depositary Participants; and until definitive Debentures are issued in lieu of all Global Debentures pursuant to Section 2.7 of this Indenture, the Depositary shall make book-entry transfers among the Depositary Participants, and shall receive and transmit distributions of principal and interest on the Debentures to such Depositary Participants; and
 
(iv) whenever this Indenture requires or permits any action to be taken based upon instructions or directions of Holders evidencing a specified percentage of the aggregate principal amount of the Debentures, the Depositary shall be deemed to represent such percentage of the Global Debentures with respect to which it has received instructions to such effect from Debenture Owners and/or Depositary Participants owning or representing, respectively, such percentage of the beneficial interests in the Global Debentures and has delivered such instructions to the Trustee. The Trustee shall have no obligation to determine whether the Depositary has, in fact, received any such instructions.
 
(b) On the Record Date prior to each applicable Interest Payment Date and at such other appropriate times, the Trustee shall request from the Depositary a securities position listing, setting forth the names of all Depositary Participants reflected in the Depositarys books as holding interests in the Debentures on such Record Date. In accordance with and subject to the time requirements of Sections 3.3, 6.6, 12.2 and 12.3 of this Indenture, the Trustee shall mail to each Depositary Participant the statements described in Sections 3.3, 6.6 and 12.2 of this Indenture, as applicable.
 
Section 2.7. Transfer and Exchange.
 
(a) Transfer and Exchange of Definitive Debentures. When Debentures are presented to the Registrar or co-Registrar with a request:
 
(i) to register the transfer of the Debentures; or
 
(ii) to exchange such Debentures for an equal principal amount of Debentures of other authorized denominations,
 
the Registrar or co-Registrar shall register the transfer or make the exchanges as requested if its requirements for such transactions are met; provided, however, that the Debentures presented or surrendered for registration of transfer or exchange:
 
(i) shall be endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar or co-Registrar, executed by the Holder or by such Holders attorney, authorized in writing; and
 
(ii) shall be accompanied by the following additional information and documents, as applicable:
 
(A) if such Debentures are being delivered to the Registrar or co-Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in substantially the form of Exhibit ___); or
 
(B) if such Debentures are being transferred pursuant to an effective registration statement under the Securities Act, a certification to that effect (in substantially the form of Exhibit ___); or
 
(C) if such Debentures are being transferred in reliance on another exemption from the registration requirements of the Securities Act, including, without limitation, pursuant to Rule 144, 144A or 145 or Regulation S under the Securities Act, a certification to that effect (in substantially the form of Exhibit ___) and an Opinion of Counsel reasonably acceptable to the Company and to the Registrar or co-Registrar to the effect that such transfer is in compliance with the Securities Act.
 
(b) Restrictions on Transfer of a Definitive Debenture for a Beneficial Interest in a Global Debenture. A Debenture may not be exchanged for a beneficial interest in a Global Debenture except upon satisfaction of the requirements set forth below. Upon receipt by the Registrar or Co-Registrar of a Debenture, endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Registrar or Co-Registrar, together with:
 
(i) a certification, substantially in the form of Exhibit ___, that such Debenture is being transferred to a qualified institutional buyer (as defined in Rule 144A under the Securities Act) in accordance with Rule 144A under the Securities Act; and
 
(ii) written instructions directing the Trustee or directing the Debentures Custodian, with confirmation from the Depositary agreeing, to increase the aggregate principal amount of the Debentures represented by the Global Debenture. Then, the Trustee shall cancel such Debenture and cause, or direct the Debentures Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Debentures Custodian, the aggregate principal amount of Debentures represented by the Global Debenture to be increased accordingly. If no Global Debenture is then outstanding, the Company shall issue and the Trustee shall authenticate a new Global Debenture in the appropriate principal amount.
 
(c) Transfer and Exchange of Global Debentures. The transfer and exchange of the Global Debenture or beneficial interests in it shall be affected by or through the Depositary, in accordance with this Indenture (including the restrictions on transfer set forth here) and the procedures of the Depositary.
 
(d) Transfer of a Beneficial Interest in a Global Debenture for a Definitive Debenture. Any Debenture Owner shall be entitled to receive at any time a definitive Debenture in exchange for such Debenture Owners interest in any Global Debenture. The transfer of any such definitive Debenture received upon such exchange shall be limited as set forth in Section 2.7(a) of this Indenture.
 
(e) Restrictions on Transfer and Exchange of Global Debentures. Notwithstanding any other provisions of this Indenture (other than the provisions set forth in Section 2.7(d) and 2.7(f) of this Indenture), a Global Debenture may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
 
(f) Authentication of Definitive Securities in Absence of Depositary. If at any time:
 
(i) the Depositary notifies the Company that the Depositary is unwilling or unable to continue as Depositary for the Global Debenture, and a successor Depositary for the Global Debentures is not appointed by the Company within 90 days after delivery of such notice; or
 
(ii) the Company, at its sole discretion, notifies the Trustee in writing that it elects to cause the cancellation of Global Debentures under this Indenture; or
 
(iii) after the occurrence of an Event of Default, the Debenture Owners with interests aggregating not less than a majority of the Global Debenture notify the Trustee, the Company and the Depositary in writing that they elect to cause the issuance of definitive Debentures under this Indenture; then the Company will execute, and the Trustee, upon receipt of an Officers Certificate requesting the authentication and delivery of definitive Debentures in lieu of the Global Debenture, will authenticate and deliver definitive Debentures, in an aggregate principal amount equal to the principal amount of the Global Debenture, in exchange for such Global Debenture.
 
(g) Legends. Each Debenture, unless resold pursuant to the Registration Statement, shall bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). BY PURCHASING THIS SECURITY, THE HOLDER AGREES FOR THE BENEFIT OF ABC IMPORTS, INC. (THE “COMPANY”) THAT THIS SECURITY MAY BE RESOLD OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY, (2) IF THIS SECURITY IS EVIDENCED BY A GLOBAL DEBENTURE, PURSUANT TO RULE 144A, (3) IN RELIANCE ON ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE RECEIPT BY THE REGISTRAR OR CO-REGISTRAR OF A CERTIFICATION OF THE TRANSFEROR AND AN OPINION (SATISFACTORY TO THE COMPANY) OF COUNSEL (SATISFACTORY TO THE COMPANY AND THE REGISTRAR OR CO-REGISTRAR) TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
 
(h) All Debentures issued upon any registration of transfer or exchange of Debentures shall be the valid obligations of the Company, evidencing the same debt, and shall be entitled to the same benefits under this Indenture, as the Debentures surrendered upon such registration of transfer or exchange.
 
(i) No service charge shall be made for any registration of transfer or exchange of Debentures, except as provided in Section 2.8 of this Indenture. 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 Debentures other than exchanges pursuant to Section 2.7(d) or 2.11 or ARTICLE 9 or 9A of this Indenture not involving any transfer.
 
Section 2.8. Mutilated, Destroyed, Lost and Stolen Debentures.
If any mutilated Debenture is surrendered to the Trustee, the Company shall issue and the Trustee shall authenticate and deliver in exchange for it a new Debenture of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss, or theft of any Debenture and (b) such indemnity bond or other 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 Debenture has been acquired by a bona fide purchaser, the Company shall issue and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost, or stolen Debenture, a new Debenture of like tenor and principal amount and bearing a number not contemporaneously outstanding. If, after delivery of such new Debenture, a bona fide purchaser of the original Debenture in lieu of which such new Debenture was issued presents for payment such original Debenture, the Company and the Trustee shall be entitled to recover such new Debenture from the Person to whom it was delivered or any transferee, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided for to the extent of any loss, damage, cost or expense incurred by the Company or the Trustee in connection with it.
 
In case any such mutilated, destroyed, lost, or stolen Debenture has or is about to become due and payable, the Company may, in its discretion pay such Debenture rather than issue a new Debenture.
 
Upon the issuance of any new Debenture under this Section 2.8, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation to it and any other expenses (including the fees and expenses of the Trustee) connected with it.
 
Except as provided above, every new Debenture issued pursuant to this Section 2.8 in lieu of any destroyed, lost or stolen Debenture shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debenture 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 Debentures issued under this Indenture.
The provisions of this Section 2.8 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 Debentures.
 
Section 2.9. Outstanding Debentures.
The Debentures outstanding at any time are all the Debentures authenticated by the Trustee, except for those cancelled by it, those delivered to it for cancellation, those reductions in the interests in Global Debentures effected by the Trustee under this Indenture, and those described in this Section 2.9 as not outstanding.
 
If a Debenture is replaced pursuant to Section 2.8 of this Indenture, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Debenture is held by a bona fide purchaser.
If the principal amount of any Debenture is considered paid under Section 3.1 of this Indenture, it ceases to be outstanding, and interest on it ceases to accrue as of the date of such payment. If the principal amount of a Debenture is exchanged for Exchange Property pursuant to ARTICLES 9 or 9A of this Indenture, such principal amount ceases to be outstanding and interest on it ceases to accrue as of the date of such exchange, unless the Company defaults upon its obligation to deliver Exchange Property upon such exchange as provided in ARTICLES 9 and 9A of this Indenture.
 
Except as set forth in Section 2.10 of this Indenture, a Debenture does not cease to be outstanding because the Company or an Affiliate of the Company holds the Debenture.
 
Section 2.10. Treasury Debentures.
In determining whether the Holders of the required principal amount of Debentures have concurred in any direction, waiver, consent, or giving of any notice, Debentures owned by the Company or any Affiliate of the Company (whether directly or by or through the Depositary) shall be considered as though not outstanding, except that for purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver, consent or notice, only Debentures that a responsible officer knows to be so owned shall be so considered.
 
Section 2.11. Temporary Debentures.
Until definitive Debentures are ready for delivery, the Company may prepare, and the Trustee shall authenticate, temporary Debentures. Temporary Debentures shall be substantially in the form of definitive Debentures, but may have variations that the Company and the Trustee consider appropriate for temporary Debentures. Without unreasonable delay, the Company shall prepare, and the Trustee, upon receipt of an Officers Certificate of the Company directing it to do so, shall authenticate, definitive Debentures in exchange for temporary Debentures surrendered in like principal amount. Until such exchange, temporary Debentures shall be entitled to the same rights, benefits and privileges as definitive Debentures.
 
 
Section 2.12. Payment of Interest; Interest Rights Preserved.
Interest on any Debenture which is payable, and is punctually paid or provided for, on any Interest Payment Date shall be paid to the Person in whose name that Debenture is registered at the close of business on the related Record Date.
Any interest on any Debenture which is payable, but is not punctually paid or provided for, on any Interest Payment Date (Defaulted Interest) shall immediately cease to be payable to the Holder on the related 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 (i) or (ii) below:
 
(i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Debentures are registered at the close of business on a record date for the 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 the Defaulted Interest proposed to be paid on each Debenture 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 provided in this clause (i). Thereupon the Company shall fix a special record date for the payment of such Defaulted Interest which shall be no 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 Company shall promptly notify the Trustee of such special record date and the Trustee, 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 to be mailed, first-class postage prepaid, to each Holder at his or her address as it appears in the Debenture Register, 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 having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Debentures are registered at the close of business on such special record date, and shall no longer be payable pursuant to the following clause (ii).
 
(ii) The Company may make payment of any Defaulted Interest on the Debentures in any other lawful manner if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (ii), such manner of payment shall be deemed practicable by the Trustee.
 
Subject to the foregoing provisions of this Section 2.12, each Debenture delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debenture shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debenture.
 
In the case of any Debenture which is exchanged pursuant to ARTICLE 9 of this Indenture after any Record Date and on or prior to the related Interest Payment Date, interest due on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such exchange, and such interest (whether or not punctually paid or provided for) shall be paid to the Person in whose name that Debenture was registered at the close of business on such Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Debenture which is exchanged, interest due after the date of exchange of such Debenture shall not be payable.
 
Section 2.13. Persons Deemed Owners.
Prior to the due presentment of a Debenture for registration of transfer, the Company, the Trustee and any Agent may treat the Holder as the owner of such Debenture for the purpose of receiving payment of principal of and (subject to Section 2.12 of this Indenture) interest on such Debenture and for all other purposes whatsoever, whether or not such Debenture is overdue, and neither the Company, the Trustee, nor any Agent shall be affected by notice to the contrary.
 
Section 2.14. Cancellation.
At any time, the Company may deliver Debentures to the Trustee for cancellation. The Registrar and Exchange Agent shall forward to the Trustee any Debentures surrendered to them for transfer, exchange, or payment. The Trustee, and no one else, shall cancel all Debentures surrendered for transfer, exchange, payment, replacement, or cancellation. The Trustee shall return all cancelled Debentures to the Company, subject to any applicable record retention requirement of the Exchange Act. The Company may not issue new Debentures to replace Debentures that have been exchanged, matured, or delivered by the Company to the Trustee for cancellation.
 
ARTICLE 3. COVENANTS
 
Section 3.1. Payment of Principal of and Interest on the Debentures.
The Company shall punctually pay, or, with respect to the principal of the Debentures, cause to be delivered by the Exchange Agent, at the office of the Exchange Agent or Paying Agent, as the case may be, in [city], [state], the principal of and interest on the Debentures on the dates and in the manner provided in the Debentures and this Indenture. At maturity, the principal amount of the Debentures shall be paid by delivery of Exchange Property by the Exchange Agent, as provided in the Exchange Agent Agreement. Principal shall be considered paid by the Company on the date due if the Exchange Agent holds, at least one Business Day before such date, all Exchange Property related to it and all documents, if any, required by the Company to effect such delivery and delivery by the Exchange Agent to the Holders. An installment of interest shall be considered paid by the Company on the date due if the Company shall have deposited in [city], [state], no later than [time period], [time zone] time on such date, with the Trustee or Paying Agent, if other than the Company or a Subsidiary, immediately available funds designated for and sufficient to pay all interest then due. The Exchange Agent or Paying Agent, as the case may be, shall return to the Company, no later than five (5) days following the date of payment, any Exchange Property, money, including accrued interest, or other Property that exceeds such amount of principal and interest paid on the Debentures.
The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to ___% per year in excess of the then-applicable interest rate on the Debentures to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
 
 
Section 3.2. Maintenance of Office or Agency.
The Company shall maintain an office or agency (which may be an office of the Trustee, Registrar or co-Registrar) where Debentures may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Company in respect of the Debentures and this Indenture may be served. The Company initially designates the Corporate Trust Office of the Trustee as such office or agency of the Company in accordance with Section 2.3 of this Indenture. The Company shall 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, such presentations, surrenders, notices, and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company appoints the Trustee as its agent to receive all such presentations, surrenders, notices, and demands.
From time to time, the Company may also designate one or more other offices or agencies where the Debentures may be presented or surrendered for any or all of such purposes and may from time to time rescind such designations. 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 3.3. Reports.
As long as any of the Debentures remain outstanding, the Company shall mail or transmit to the Trustee for mailing to the Holders, as their names and addresses appear on the Debenture Register, copies of the quarterly and annual financial information that the Company distributes to its stockholders generally. The financial information to be distributed to the Holders shall be mailed by the Trustee to the Holders at their addresses appearing in the Debenture Register within 15 days after receipt by the Trustee of such financial information. The Company shall deliver such financial information to the Trustee concurrently with delivery to the Companys stockholders, and the Trustees only obligation shall be to mail the financial information that it receives from the Company to the Holders and not obtain or review such information from the Company. The Company shall provide the Trustee with a sufficient number of copies of all reports and other documents and information that the Trustee may be required to deliver to the Holders under this Section 3.3.
 
Section 3.4. Compliance Certificate.
 
(a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company, an Officers Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers that, to the best of his or her knowledge (i) the Company has complied with the conditions and covenants contained in this Indenture or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect to them, and (ii) no event has occurred and remains in existence by reason of which payments on account of the principal of or interest on the Debentures are prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect to it.
 
(b) The Company shall, so long as any of the Debentures are outstanding, deliver to the Trustee, immediately upon any Officer becoming aware of any Default or Event of Default, an Officers Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect to it.
 
Section 3.5. Payment of Taxes.
The Company shall, and shall cause its Subsidiaries to, pay or discharge prior to delinquency all material taxes, assessments, and governmental levies, except as contested in good faith and by appropriate proceedings.
 
Section 3.6. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time subsequently in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted here to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
 
Section 3.7. Corporate Existence.
Subject to Section 3.8 and ARTICLE 4 of this Indenture, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (a) its corporate existence, and the corporate, partnership or other existence of its Subsidiaries, in accordance with its organizational documents (as the same may be amended from time to time) and in accordance with the organizational documents of and subject to the rights of other equity owners in each Subsidiary and (b) its (and its Subsidiaries) material rights (charter and statutory), licenses and franchises; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries if the Board of Directors shall determine that the preservation is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss is not adverse in any material respect to the Holders.
 
Section 3.8. Liquidation.
The Board of Directors or the stockholders of the Company may not adopt a plan of liquidation that provides for, contemplates or the effectuation of which is preceded by (a) the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company otherwise than substantially as an entirety (Section 4.1 of this Indenture being the Section of this Indenture that governs any such sale, lease, conveyance or other disposition substantially as an entirety), and (b) the distribution of all or substantially all of the proceeds of such sale, lease, conveyance or other disposition and of the remaining assets of the Company to the holders of Capital Stock of the Company, unless the Company, prior to making any liquidating distributions pursuant to such plan, makes provision for the satisfaction of the Companys obligations under this Indenture and under the Debentures as to the payment of principal and interest. The Company shall be deemed to make provision for such payments only if (x) the Company delivers in trust to the Trustee, the Exchange Agent or the Paying Agent (other than the Company or its Subsidiaries) (A) all Exchange Property together with such documents of conveyance necessary and appropriate to effect the transfer of such Exchange Property to the Holders in accordance with this Indenture and (B) money or United States Government Obligations maturing as to principal and interest in such amounts and at such times as are sufficient without consideration of any reinvestment of such interest to pay the interest on the Debentures or (y) there is an express assumption and observance of all covenants and conditions to be performed by the Company under this Indenture by the execution and delivery of a supplemental indenture in form satisfactory to the Trustee by a Person that acquires or will acquire (otherwise than pursuant to a lease) a portion of the assets of the Company and which Person will have a net worth (defined for this purpose as the amount by which the assets of such Person on a consolidated basis exceed the sum of the total liabilities of such Person, as determined in accordance with GAAP and calculated immediately after the acquisition) exceeding $___ and which is organized and existing under the laws of the United States, any state or the District of Columbia; provided, however, that the Company shall not make any liquidating distribution until after the Company shall have certified to the Trustee pursuant to an Officers Certificate at least five (5) days prior to the making of any liquidating distribution that it has complied with the provisions of this Section 3.8 and that no Default or Event of Default then exists or would occur as a result of any such liquidating distribution.
 
Section 3.9. Rule 144 Information
For a period of three years from the date of this Indenture, the Company shall use its reasonable efforts to make available adequate “current public information” to the extent required by Rule 144 under the Securities Act (or any successor rule).
 
Section 3.10. Rule 144A Information Requirement.
If at any time the Company shall cease to be a reporting Company under the Exchange Act, the Company shall furnish to the Holders or beneficial holders of the Debentures and prospective purchasers of the Debentures upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
 
Section 3.11. Preservation of Information.
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 2.5 of this Indenture and the names and addresses of Holders received by the Trustee in its capacity as Debenture Registrar. The Trustee may destroy any list furnished to it as provided in Section 2.5 of this Indenture upon receipt of a new list so furnished.
 
Section 3.12. Exchange Property, Money and Property for Debenture Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, on or before each due date of interest on any of the Debentures, and if such payment of interest is then permitted under ARTICLE 11 of this Indenture, the Company will segregate and hold in trust for the benefit of the Persons entitled to it money sufficient to pay the interest so becoming due until such money shall be paid to such Persons or otherwise disposed of as provided here and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, on or prior to each due date of interest on any of the Debentures, and if such payment is then permitted under ARTICLE 11 of this Indenture, the Company will deposit with a Paying Agent money sufficient to pay the interest so becoming due, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
Any amounts held segregated by the Company or paid to a Paying Agent and held in trust pursuant to either of the previous two paragraphs shall be subject to the rights of the holders of Senior Indebtedness under the provisions of this Indenture to the extent, but only to the extent, the same relate to the payment of interest on the Debentures subordinated pursuant to Section 11 of this Indenture.
 
The Company will cause each Paying Agent 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 3.12, that such Paying Agent will: (a) hold all money and other Property held by it for the payment of interest on the Debentures in trust for the benefit of the Persons entitled to it until the same shall be paid to such Persons or otherwise disposed of as provided here; and (b) at any time during the continuance of any default by the Company (or any other obligor upon the Debentures) in the making of any payment in respect of the Debentures, upon the written request of the Trustee, immediately pay to the Trustee all money and other Property held in trust by such Paying Agent for payment in respect of the Debentures.
The Company will cause each Exchange Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Exchange Agent shall agree with the Trustee, subject to the provisions of this Section 3.12 and Section 9.14 of this Indenture, that such Exchange Agent will: (a) hold all Exchange Property held by it for the payment of principal on the Debentures in trust for the benefit of the Persons entitled to it until the same shall be paid to such Persons or otherwise disposed of as provided here; and (b) at any time during the continuance of any default by the Company (or any other obligor upon the Debentures) in the making of any payment in respect of the Debentures, upon the written request of the Trustee, immediately pay to the Trustee all Exchange Property held in trust by such Exchange Agent for payment in respect of the Debentures.
 
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 and Exchange Agent to pay, to the Trustee all Exchange Property, money and other Property held in trust by the Company or such Paying Agent or Exchange Agent, such Exchange Property, money and other Property to be held by the Trustee upon the same trusts as those upon which such Exchange Property, money and other Property was held by the Company or such Paying Agent or Exchange Agent; and, upon such payment by any Paying Agent or Exchange Agent to the Trustee, such Paying Agent or Exchange Agent shall be released from all further liability with respect to such Exchange Property, money and other Property.
Any Exchange Property deposited with any Exchange Agent or the Trustee in trust for the payment of the principal of any Debenture or any money or other Property deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of interest on any Debenture and remaining unclaimed for one year after such principal or interest, as the case may be, has become due and payable shall be paid to the Company upon the Companys request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Debenture shall after that, as an unsecured general creditor, look only to the Company for payment, and all liability of the Trustee or such Exchange Agent or Paying Agent with respect to such Exchange Property, money or other Property, and all liability of the Company as trustee, shall cease; provided, however, that the Trustee or such Exchange Agent or Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be mailed, to the address of the Holder of such Debenture according to the Debenture Register, notice that such Exchange Property, money or other Property remains unclaimed and that, after a date specified, which shall not be less than 30 days from the date of such mailing, any unclaimed balance of such Exchange Property, money or other Property then remaining will be repaid to the Company.
 
Section 3.13. Maintenance of Properties.
The Company shall cause all properties used or useful in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements, all as in the judgment of the Company may be necessary, so that the business carried on in connection with it may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 3.13 shall prevent the Company from discontinuing the operation or maintenance of any of such properties, if such discontinuance is, in the judgment of the Company, desirable in the conduct of the business of the Company and not disadvantageous in any material respect to the Holders.
 
Section 3.14. Notice of Acceleration.
In the event that any Indebtedness for money borrowed of the Company is declared due and payable before its maturity because of the occurrence of any default (or any event which, with notice or the lapse of time, or both, shall constitute such default) under such Indebtedness, the Company shall promptly give written notice to the Trustee and the Exchange Agent of such declaration.
 
Section 3.15. No Liens on Collateral.
Except for the Lien created by the Pledge Agreement, the Company shall not, directly or indirectly, create, incur, assume, or permit to exist any Lien on or with respect to any Collateral or any income or profits from it.
 
Section 3.16. Recording of Pledge Agreement.
On or before the date the Pledge is made by the Company, the Company shall cause the Pledge Agreement, and all necessary financing statements, notifications of secured transactions and other instruments, to be promptly recorded, registered and filed and to be kept, recorded, registered and filed in such manner and in such places as may be required by law, and take all such other action as may be required in order to make effective the Security Interest intended to be created in connection with this Indenture and with the priorities contemplated by it. The Company shall furnish to the Trustee promptly after the execution and delivery of this Indenture, one or more Opinions of Counsel stating that in the opinion of such counsel the Indenture and the Pledge Agreement have been properly recorded and filed so as to make effective the Security Interest intended to be created by this Indenture, and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to make such Security Interest effective. In the event the Exchange Property shall consist of other than solely [company] Common Stock or cash on any anniversary of the date of execution and delivery of this Indenture, the Company shall furnish to the Trustee on such anniversary one or more Opinions of Counsel (1) stating that such action has been taken with respect to the recording, registering, filing, rerecording, reregistering and refiling of the Indenture and the Pledge Agreement and all necessary financing statements, notifications of secured transactions and other instruments as may be necessary to make effective and maintain the Security Interest contemplated by it and reciting the details of such action (including the jurisdictions in which such actions were taken) or stating that no such action is required, and (2) stating what, if any, action of the foregoing character may reasonably be expected to become necessary during the next year to so maintain the Security Interest contemplated by this Indenture and the Pledge Agreement.
 
Section 3.17. Registration of Debentures.
 
(a) The Company shall use its reasonable efforts to register the Debentures under the Securities Act as promptly as practicable after the date of this Indenture. In connection with such registration, the Company will:
 
(i) As soon as practicable after the date of this Indenture, prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) on a form available for the transfer of the Debentures by the Holders;
 
(ii) use its reasonable efforts to cause the Registration Statement to become effective within 60 days after filing with the Commission, which obligation shall be subject to compliance by the Holders with the provisions of Section 3.17(c) of this Indenture (to whom a prompt request for compliance with such provision shall have been given);
 
(iii) prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus constituting a part of it, and file such reports and other documents required by the Exchange Act and the rules and regulations under it, as may be necessary to keep the Registration Statement effective for a period of not less than six months, and to prevent such prospectus from containing an untrue statement of a material fact or omitting to state a material fact required to be stated in it or necessary to make the statements in it not misleading;
 
(iv) furnish to each Holder such number of copies of the prospectus, and any amendments and supplements to it, and documents incorporated by reference in the Registration Statement as reasonably requested by such Holder to facilitate the transfer of the Debentures and to satisfy the requirements of the Securities Act, provided that the Company receives reasonable assurances from such requesting Holder that it will comply with the applicable provisions of the Securities Act and such other securities or “blue sky” laws as may be applicable in connection with the use of such prospectus;
 
(v) notify each Holder of any stop order issued, or to the Companys knowledge, threatened by the Commission that is applicable to the Registration Statement, and take all reasonable actions required to prevent the entry of such stop order or to remove it as promptly as practicable if entered;
(vi) use reasonable efforts to register or qualify the Debentures under the blue sky or securities laws of each state or other jurisdiction of the United States as any Holder reasonably requests in writing and to take such other action as may be necessary or advisable to enable the transfer of the Debentures in a jurisdiction applicable to such transfer, provided that the Company will not be required to qualify generally to do business or subject itself to taxation in any jurisdiction where it is not then so qualified or subject to taxation or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
 
(vii) notify each Holder of any suspension of qualification for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
 
(viii) use reasonable efforts to take all other steps necessary to effect the registration of the Debentures; and
 
(ix) bear all expenses in connection with the registration of the Debentures and the procedures set forth in paragraphs (i) through (viii) of this Section 3.17, other than any underwriting discounts and selling commissions, if any, and expenses of counsel or other advisers to the Holders.
 
(b) The Company understands that the Holders disclaim being underwriters with respect to the transfer of the Debentures, but the Holders otherwise being deemed an underwriter shall not relieve the Company of any of its obligations under this Indenture. The Company shall indemnify the Holders with respect to any untrue statement of a material fact or any omission to state a material fact required to be stated in it or necessary to make the statements in it not misleading contained in any such prospectus, or any amendment or supplement to it, except for statements or omissions included in it in reliance upon written information provided by the Holders for inclusion in it.
 
(c) It shall be a condition to the inclusion of any Holders Debentures in the Registration Statement that such Holder provide all necessary information with respect to such Holders Debentures and the proposed distribution of it and an undertaking to promptly notify the Company in writing of any inaccuracy or change in the information previously furnished to the Company and to indemnify the Company and the other Holders from any liability resulting from a misstatement of any material fact contained in such information or omission to state a material fact required to be stated in it or necessary to make the statements in it not misleading. Holders shall not be required to provide any representations, warranties, or undertakings with respect to the Registration Statement other than as contemplated in Section 3.17(a)(ii) of this Indenture.
 
(d) From time to time, the Company may suspend the use of the prospectus comprising a part of the Registration Statement because of the Companys awareness of the existence of material nonpublic information regarding the Company. Each Holder including Debentures in the Registration Statement covenants that it will not sell any Debenture pursuant to the Registration Statement during the period commencing at the time at which the Company gives written notice to such Holder of the suspension of sales pursuant to such prospectus and the Registration Statement and ending at the time that the Company gives notice that such Holder may thereafter effect sales pursuant to it. The Company will use its best efforts to limit the time of such suspension to less than 90 days, and the Company covenants to extend the period that it has agreed to keep the Registration Statement effective by the length of time of any such suspension.
 
ARTICLE 4. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
 
Section 4.1. When the Company May Merge, etc.
The Company will not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey, or otherwise dispose, of all or substantially all of its and its Subsidiaries properties or assets (determined on a consolidated basis for the Company and its Subsidiaries taken as a whole), substantially as an entirety in one or more related transactions, to another Person (other than a merger between the Company and any wholly owned Subsidiary of the Company) unless:
 
(a) in case of a merger in which the Company is the surviving corporation or, in the case of any other such merger, sale, assignment, consolidation, transfer, lease, conveyance, or other disposition, the Person formed by such consolidation or into which the Company is merged or the Person which acquires or leases the properties and assets of the Company substantially as an entirety shall have a net worth (defined for this purpose as the amount by which the assets of such Person on a consolidated basis exceed the sum of the total liabilities of such Person, as determined in accordance with GAAP and calculated immediately after such merger, sale, assignment, consolidation, transfer, lease, conveyance, or other disposition) of at least $___ and, if applicable, the Person formed by such consolidation or merger or which acquires or leases the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of the United States of America, any state or the District of Columbia, and shall expressly assume, by an indenture supplemental to this Indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the Debentures and the performance or observance of every covenant contained in this Indenture on the part of the Company to be performed or observed, and shall have provided for exchange rights in accordance with ARTICLE 9 of this Indenture; and
 
(b) immediately after giving effect to 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 occurred and be continuing.
 
Prior to the consummation of the proposed transaction, the Company shall deliver to the Trustee an Officers Certificate to the foregoing effect, and an Opinion of Counsel to the effect that such merger, sale, assignment, consolidation, transfer, lease, conveyance, or other disposition and, if applicable, such indenture supplemental to this Indenture, if any, comply with this Indenture, and that all conditions precedent to such merger, sale, assignment, consolidation, transfer, lease, conveyance or other disposition have been satisfied. The Trustee shall be entitled to conclusively rely upon such Officers Certificate and Opinion of Counsel.
 
Section 4.2. Successor substituted.
Upon any consolidation or merger, or any sale, lease, conveyance, or other disposition of all or substantially all of the Property of the Company in accordance with Section 4.1 of this Indenture, the successor Person formed by such consolidation, or into or with which the Company is merged or to which such sale, lease, conveyance, or other disposition 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 has been named as the Company; and thereafter, except in the case of a lease, the Company shall be released and discharged from all obligations and covenants under this Indenture and the Debentures.
 
ARTICLE 5. DEFAULTS AND REMEDIES
 
Section 5.1. Events of Default.
The following shall constitute an “Event of Default”:
 
(a) default in the payment of principal of any Debenture when due, whether at maturity or otherwise;
 
(b) default in the payment of any installment of interest on any Debenture when due and payable, whether or not such payment is prohibited by the provisions of ARTICLE 11 of this Indenture, and continuance of such default for a period of 30 days;
 
(c) default on any other Indebtedness of the Company or any Subsidiary for money borrowed if either (i) such default results from the failure to pay principal of, premium, if any, or interest on any such Indebtedness when due, after expiration of any applicable grace period with respect thereto, or (ii) as a result of such default, the maturity of such Indebtedness has been accelerated, without such Indebtedness having been discharged, or such default and acceleration having been rescinded or annulled, within a period of 10 days after written notice thereof (stating that such notice is notice of default under this Indenture, specifying such default and requiring it to be remedied) shall have been given to the Company by the Trustee or by the Holders of at least ___% or more in aggregate principal amount of the then-outstanding Debentures, and the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness for money borrowed in default, or the maturity of which has been so accelerated, aggregates $___ or more;
 
(d) default by the Company or any Subsidiary in the performance, or the breach, of any other covenant or warranty of the Company in this Indenture and the failure to remedy such default within a period of 90 days after written notice (stating that such notice is notice of default under this Indenture, specifying such default and requiring it to be remedied) to the Company from the Trustee or Holders of ___% or more of the aggregate principal amount of the outstanding Debentures;
 
(e) any act or acts by the Company pursuant to or within the meaning of any Bankruptcy Law (as defined below):
 
(i) commencing a voluntary case,
 
(ii) consenting to the entry of an order for relief against it in an involuntary case,
 
(iii) consenting to the appointment of a Custodian of it or for all or substantially all of its Property,
 
(iv) making a general assignment for the benefit of its creditors, or
 
(v) the admission in writing of the Companys inability to pay its debts generally as they become due;
 
(f) the entry of an order or decree by a court of competent jurisdiction under any Bankruptcy Law that:
 
(i) is for relief against the Company in an involuntary case,
 
(ii) appoints a Custodian of the Company or for all or substantially all of the Property of the Company, or
 
(iii) orders the liquidation of the Company, in each case, if such order or decree is not stayed, and remains in effect for 90 consecutive days; or
 
(g) an event of default under the Pledge Agreement occurs.
 
The term “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidation or similar official under any Bankruptcy Law.
 
Section 5.2. Acceleration.
If an Event of Default (other than an Event of Default specified in clauses (e) and (f) of Section 5.1 of this Indenture) occurs and is continuing, then and in every case the Trustee or the Holders of ___% or more of the aggregate principal amount of the then-outstanding Debentures by notice to the Company and the Trustee, may declare the unpaid principal of, and any accrued and unpaid interest on, all of the Debentures then outstanding to be due and payable immediately by a notice in writing to the Company (and to the Trustee, if given by the Holders). Upon any such declaration, the principal amount and accrued and unpaid interest through the date of such declaration shall be due and payable immediately notwithstanding anything contained in this Indenture or in the Debentures to the contrary. If an Event of Default specified in clause (e) or (f) of Section 5.1 of this Indenture occurs, all unpaid principal of and accrued and unpaid interest on the Debentures then outstanding will become and be immediately due and payable, without any declaration or other act on the part of the Trustee or any Holder. At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money or Exchange Property due has been obtained by the Trustee as subsequently provided in this ARTICLE 5, the Holders of a majority in principal amount of the then-outstanding Debentures by written notice to the Trustee and the Company may rescind such acceleration and its consequences if all existing Events of Default (except nonpayment of principal or interest that has become due solely because of the acceleration) have been cured or waived. No such rescission shall affect any subsequent Event of Default or impair any right consequent on it.
 
Section 5.3. Trustee May Enforce Claims Without Possession of Debentures.
All rights of action and claims under this Indenture or the Debentures may be prosecuted and enforced by the Trustee without the possession of any of the Debentures or the production in any proceeding relating to it, 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, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, as provided here shall be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
 
Section 5.4. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost, or stolen Debentures in Section 2.8 of this Indenture, no right or remedy conferred here 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 under this Indenture or now or subsequently existing at law or in equity or otherwise. The assertion or employment of any right or remedy under this Indenture, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
 
Section 5.5. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder 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 acquiescence. Every right and remedy given by this ARTICLE 5 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 or by the Holders, as the case may be.
 
Section 5.6. Waiver of Past Defaults.
Holders of a majority in aggregate principal amount of the then-outstanding Debentures by notice to the Trustee may waive on behalf of the Holders of all Debentures an existing Default or Event of Default and its consequences, except a continuing Default or Event of Default in the payment of the principal of or interest on any Debenture held by a non-consenting Holder or in respect of a covenant or provision of this Indenture which under ARTICLE 8 of this Indenture cannot be modified or amended without the consent of each Holder affected by it. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising from it 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 on it.
 
Section 5.7. Control by Majority.
The Holders of a majority in aggregate principal amount of the then-outstanding Debentures may 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, provided that (a) such direction is not in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action it deems proper that is not inconsistent with such direction, and (c) such Holders have provided to the Trustee indemnity as provided in Sections 5.8(iii) and 6.1(e) of this Indenture, as the case may be.
 
Section 5.8. Limitation on Suits.
No Holder 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 under this Indenture, unless:
 
(i) such Holder has previously given the Trustee notice of a continuing Event of Default;
 
(ii) the Holders of not less than ___% in aggregate principal amount of the then-outstanding Debentures make a written request to the Trustee to institute proceedings with regard to such Event of Default in its own name, as Trustee under this Indenture;
 
(iii) such Holder or Holders offer and, if requested, provide to the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses, and liabilities to be incurred in compliance with such request;
 
(iv) the Trustee fails to institute any such proceedings within 60 days after receipt of such notice, request and offer and, if requested, provision of indemnity; and
 
(v) 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 aggregate principal amount of the then-outstanding Debentures.
 
A Holder may not use this Indenture to prejudice the rights of another Holder, or to obtain a preference or priority over another Holder.
 
Section 5.9. Rights of Holders to Receive Payment and to Exchange.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest on a Debenture on or after the respective due dates expressed in such Debenture, or to exchange such Debenture in accordance with ARTICLE 9 of this Indenture, or to bring suit for the enforcement of any such payment and right to exchange, shall not be impaired or affected without the consent of such Holder.
 
Section 5.10. Collection Suit by Trustee.
If an Event of Default specified in Section 5.1(a) or (b) of this Indenture occurs and is continuing, the Trustee may recover judgment in its own name, and as trustee of an express trust against the Company or any other obligor on the Debentures for the whole amount of principal and accrued interest remaining unpaid on the Debentures and interest on overdue principal and, to the extent lawful, interest on overdue interest at the rate per year borne by the Debentures and such further amount as shall be sufficient to cover the reasonable 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 occurs and is continuing, the Trustee may, in its discretion, proceed to protect and enforce its rights and the rights of the Holders by appropriate judicial proceedings or such other action 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 here or to enforce any other proper remedy.
 
Section 5.11. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursement and advances of the Trustee, its agents and counsel), and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Debentures), its creditors or its Property and shall be entitled and empowered to collect, receive and distribute any Exchange Property, money or other Property payable or deliverable on any such claims, and any custodian in any such judicial proceeding is 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 to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7 of this Indenture. To the extent that the payment of any such compensation, expenses, disbursements, and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7 of this Indenture, out of the estate in any such proceeding shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities, Exchange Property, and other Property that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing contained herein 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 Debentures or the rights of any Holder, 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 may be a member of the creditors committee in connection with it.
 
Section 5.12. Priorities.
If the Trustee collects any Exchange Property, money, or other Property pursuant to this ARTICLE 5, it shall pay out such Exchange Property, money, or other Property in the following order:
 
First, to the Trustee, its agents and attorneys for amounts due under Section 6.7 of this Indenture, including payment of all compensation, expense, and liabilities incurred, and all advances made, by the Trustee and the reasonable costs and expenses of collection; second, to the Holders for principal amounts and interest that is not subordinated pursuant to ARTICLE 11 of this Indenture due and unpaid on the Debentures, ratably, without preference or priority of any kind, according to the amounts due and payable on the Debentures for such principal and interest, but not interest subordinated pursuant to ARTICLE 11 of this Indenture; third, to the payment of Senior Indebtedness, if any, as required by ARTICLE 11 of this Indenture; fourth, to Holders for remaining interest amounts due and unpaid on the Debentures, ratably, without preference or priority of any kind, according to the amounts due and payable on the Debentures for interest; and fifth, the balance, if any, to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders.
 
Section 5.13. 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 or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees, against any party litigant in the suit, having due regard for the merits and good faith of the claims or defenses made by the party litigant. This Section shall not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 5.8 of this Indenture, a suit by Holders of more than ___% in aggregate principal amount of the then-outstanding Debentures or to any suit for the enforcement of the right to exchange any Debenture in accordance with ARTICLE 9 or 9A of this Indenture.
 
Section 5.14. 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 under this Indenture and after that, all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
 
ARTICLE 6. TRUSTEE
 
Section 6.1. Duties of Trustee.
 
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
 
(b) Except during the continuance of an Event of Default:
 
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee.
 
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
 
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
 
(i) this paragraph does not limit the effect of paragraph (b) of this Section 6.1;
 
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
 
(iii) the Trustee shall not be liable with respect to any action it takes, or omits to take, in good faith in accordance with a direction received by it pursuant to Section 5.7 of this Indenture.
 
(d) Whether or not expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to the provisions of this Section 6.1.
 
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
 
(f) The Trustee shall not be liable for interest on any Exchange Property, money, or other Property received by it, except as the Trustee may agree in writing with the Company. Exchange Property, money, or other Property held in trust by the Trustee need not be segregated from other funds, except to the extent required by law or the Pledge Agreement.
 
(g) The Trustee shall have no responsibility for making any calculations under this Indenture, including, without limitation, the amount of interest owing on the Debentures. The Company shall deliver to the Trustee an Officers Certificate specifying any additional interest due pursuant to terms of the Debentures on or before the 15th day prior to an Interest Payment Date.
 
Section 6.2. Rights of Trustee.
 
(a) Subject to Section 6.1(b)(ii) of this Indenture, the Trustee may rely upon, and shall be fully protected in relying upon, any opinion, consent, resolution, certification, or other document believed by it to be genuine, and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in any such document.
 
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes, or omits to take, in good faith in reliance on such Officers Certificate or Opinion of Counsel. 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 from liability in respect of any action taken, suffered or omitted by it under this Indenture in good faith and in reliance on it.
 
(c) The Trustee may act through agents, and shall not be responsible for the misconduct or negligence of any agent appointed and monitored with due care.
 
(d) The Trustee shall not be liable for any action it takes, or omits to take, in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
 
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction, or notice from the Company shall be sufficient if signed by an Officer.
 
Section 6.3. Individual Rights of Trustee.
Subject to the provisions of Sections 6.10 and 6.11 of this agreement, the Trustee in its individual or any other capacity may become the owner or pledgee of Debentures, and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
 
Section 6.4. Trustees Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Debentures or the Memorandum or any other documents relating to the Debentures. It shall not be accountable for the Companys use of the proceeds from the Debentures or any money paid to the Company or upon the Companys direction under any provision of this Indenture. It shall not be responsible for the use or application of any Exchange Property, money or other Property received by any Paying Agent or Exchange Agent other than the Trustee and it shall not be responsible for any statement or recital here or any statement in the Debentures or any other document in connection with the sale of the Debentures or pursuant to this Indenture, other than its certificate of authentication.
 
Section 6.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing, and if it is known to the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within ninety (90) days after it occurs. A Default or an Event of Default shall not be considered known to the Trustee unless it is a Default or Event of Default under Section 5.1(a) or (b) of this Indenture or the Trustee shall have received notice, in accordance with this Indenture, from the Company or from the Holders of a majority in principal amount of the outstanding Debentures. In the absence of such notice, the Trustee may conclusively assume there is no Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal or interest on any Debenture, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders.
 
Section 6.6. Reports by Trustee to Holders.
Within sixty (60) days after each June 1, commencing [date], the Trustee shall mail to Holders a brief report dated as of such reporting date that complies with the requirements of Section 313(a) of the Trust Indenture Act as if such section applied to it, but if no event described in Section 313(a) of the Trust Indenture Act has occurred within the twelve (12) months preceding the reporting date, no report need be transmitted. The Trustee also shall comply with the requirements of Section 313(b) of the Trust Indenture Act as if such section applied to it. The Trustee shall also transmit by mail all reports as required by Section 313(c) of the Trust Indenture Act.
 
Section 6.7. Compensation and Indemnity.
From time to time, the Company shall pay to the Trustee reasonable compensation for its reasonable and necessary services rendered under this Indenture which are not specifically covered by a written agreement between them. Such payments shall not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse the Trustee upon request for all reasonable disbursements, advances and expenses incurred or made by it in accordance with the provisions of this Indenture, including the reasonable compensation, disbursements, and expenses of the Trustees agents and counsel, except any such disbursements, expenses, and advances as may be attributable to the Trustees negligence, willful misconduct, or bad faith.
 
The Company shall indemnify the Trustee against any and all losses, liabilities or expenses incurred by it without negligence, willful misconduct or bad faith arising out of or in connection with the acceptance or administration of its duties under this Indenture, the Exchange Agent Agreement, the Pledge Agreement, and any other agreement pursuant to which the Trustee performed duties, including the reasonable costs and expenses of defending itself against any claim or liability growing out of such matters. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim, and the Trustee shall cooperate in the defense. The Trustee may engage separate counsel at its own expense. The Company shall have no obligation to pay for any settlement made without its written consent, which consent shall not be unreasonably withheld.
 
The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee through its own negligent action, negligent failure to act, willful misconduct, or bad faith.
 
To secure the Companys payment obligations in this Section 6.7, the Trustee shall have a Lien prior to the Debentures on all money or other Property, but not Exchange Property, held or collected by the Trustee. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.1(e) or (f) of this Indenture occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
 
Section 6.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustees acceptance of appointment as provided in this Section 6.8.
 
The Trustee may resign at any time by so notifying the Company. The Holders of a majority in aggregate principal amount of the then-outstanding Debentures may remove the Trustee by so notifying the Trustee and the Company. The Company may remove the Trustee if:
 
(i) the Trustee fails to comply with Section 6.10 of this Indenture, and shall fail to resign after written request by the Company or any Holder;
 
(ii) the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
 
(iii) a Custodian or public officer takes charge of the Trustee or its Property; or
 
(iv) the Trustee becomes incapable of acting.
 
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.
 
If a successor Trustee fails to take office within thirty (30) days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least ___% in aggregate principal amount of the then-outstanding Debentures may petition any court of competent jurisdiction for the appointment of a successor Trustee.
 
If the Trustee after written request by any Holder who has been a Holder for at least six (6) months fails to comply with Section 6.10 of this Indenture, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
 
A successor Trustee appointed under this Indenture shall execute and deliver an instrument of acceptance of its appointment to the retiring Trustee and to the Company, and the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall succeed to all the rights, powers, and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. Upon written request of the Company or the successor Trustee, the retiring Trustee shall execute and deliver an instrument transferring to the successor Trustee all rights, powers and trusts of such retiring Trustee. Upon request of any successor Trustee, the Company shall execute and deliver such reasonable instruments to more fully and certainly confirm to such successor Trustee its succession to the rights and obligations of the Trustee under this Indenture. The retiring Trustee shall promptly transfer all Property held by it as Trustee to the successor Trustee, and any Trustee ceasing to act shall retain a Lien as provided in Section 6.7 of this Indenture to secure amounts due to it. Notwithstanding replacement of the Trustee pursuant to this Section 6.8, the Companys obligation under Section 6.7 shall continue for the benefit of the retiring Trustee.
 
Section 6.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee; provided that such successor Trustee shall be eligible under Section 6.10 of this Indenture.
 
Section 6.10. Eligibility; Disqualification.
At all times, there shall be a Trustee under this Indenture that shall be a corporation organized and doing business under the laws of the United States of America or of any state authorized under such laws to exercise corporate trustee power, shall be subject to supervision or examination by federal or state authority, and shall have a combined capital and surplus of at least $___ as set forth in its most recent published annual report of condition.
The Trustee shall comply with the provisions of Section 310(b) of the Trust Indenture Act, as if such provisions were set forth here as a covenant of the Trustee, including the optional provision permitted by the second sentence of Section 310(b)(9) of the Trust Indenture Act.
 
Section 6.11. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by and subject to the provisions of this Indenture.
 
ARTICLE 7. DISCHARGE OF INDENTURE
 
Section 7.1. Termination of Companys Obligation.
This Indenture and the Pledge Agreement shall cease to be of further effect (except that the Companys obligations under Sections 6.7 and 7.4 of this Indenture and the Companys, Trustees and Paying Agents obligations under Section 7.3 of this Indenture shall survive) when all outstanding Debentures previously authenticated and issued have been delivered (other than destroyed, lost, or stolen Debentures that have been replaced or paid) to the Trustee for cancellation, and the Company has paid all sums payable by the Company under this Indenture. In addition, when all Debentures not previously delivered to the Trustee for cancellation have become due and payable, or will become due and payable at their stated maturity within one year, and
 
(a) the Company has irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust agreement in form and substance reasonably satisfactory to the Trustee, (A) the Exchange Property for payment of the principal amount of the Debentures as provided in Sections 3.1 and 3.12 of this Indenture, and (B) money and/or U.S. Government Obligations maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges or assessments in respect payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification (in form and substance reasonably satisfactory to the Trustee) delivered to the Trustee, to pay the interest on the Debentures on the dates on which any such payments are due and payable in accordance with the terms of this Indenture;
 
(b) no Default or Event of Default has occurred and is continuing on the date of such deposit or shall occur as a result of such deposit and such deposit shall not result in a breach or violation of, or constitute a default under, any other instrument to which the Company is a party to or by which it is bound, as evidenced to the Trustee in an Officers Certificate delivered to the Trustee concurrently with such deposit;
 
(c) the deposit shall not result in the Company, the Trustee, or the trust becoming or being deemed to be an “investment company” under the Investment Company Act;
 
(d) the Holders shall have a perfected security interest under applicable law in the Exchange Property, money or U.S. Government Obligations deposited pursuant to Section 7.1(a) above;
 
(e) the Company has delivered to the Trustee an Officers Certificate of the Company and an Opinion of Counsel, each stating that all conditions precedent specified here relating to the defeasance contemplated by this Section 7.1 have been complied with; and
 
(f) the Company has paid or provided for payment of all amounts then due or to become due to the Trustee pursuant to Section 6.7 of this Indenture
 
Then this Indenture shall cease to be of further effect (except as provided in this paragraph), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging confirmation of and discharge under this Indenture and the Debentures. However, the Companys obligations in Sections 2.3, 2.4, 2.8, 3.6, 3.15, 3.16, 6.7, 6.8, 7.3 and 7.4 of this Indenture and ARTICLES 9, 9A and 10 of this Indenture and the Trustees and Paying Agents obligations in Section 7.3 of this Indenture shall survive until the Debentures are no longer outstanding. After that, only the Companys obligations under Sections 6.7 and 7.4 of this Indenture and the Companys, Trustees and Paying Agents obligations under Section 7.3 of this Indenture shall survive.
 
After such irrevocable deposit made pursuant to this Section 7.1 and satisfaction of the other conditions set forth here, upon request, the Trustee shall acknowledge in writing the discharge of the Companys obligations under this Indenture, except for those surviving obligations specified above.
 
In order to have money available on a payment date to pay principal of, if applicable, or interest on the Debentures, the United States Government Obligations shall be payable as to principal or interest at least one Business Day before such payment date in such amounts as will provide the necessary money. United States Government Obligations shall not be callable at the issuers option.
 
Section 7.2. Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust Exchange Property, money and United States Government Obligations deposited with it pursuant to Section 7.1 of this Indenture. It shall apply the deposited Exchange Property and money and the money from United States Government Obligations through the Paying Agent, and in accordance with this Indenture to the payment of principal of and interest on the Debentures for whose payment such Exchange Property, money and United States Government Obligations have been deposited with the Trustee.
 
Section 7.3. Repayment to Company.
To the extent permitted by applicable law, the Trustee and the Paying Agent shall promptly pay to the Company, upon written request, any excess Exchange Property, money, or other Property held by them at any time in excess of amounts required to pay principal of or interest due and payable on the Debentures. Notwithstanding the foregoing, the Company shall not be entitled to receive any Exchange Property, money, or other Property deposited in trust pursuant to Section 7.1 of this Indenture until after the maturity date of the Debentures or the date of mandatory exchange of the Debentures pursuant to ARTICLE 9A of this Indenture, as the case may be.
Upon written request, the Trustee and the Paying Agent shall pay to the Company any Exchange Property, money or other Property held by them for the payment of principal or interest that remains unclaimed for one year after the date upon which such payment shall have become due; provided, however, that the Company shall have caused notice of such payment to be mailed to each Holder entitled to it no less than thirty (30) days prior to such repayment. After payment to the Company, Holders entitled to the Exchange Property, money or other Property must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such Exchange Property, money or other Property shall cease.
 
Section 7.4. Reinstatement.
If the Trustee or Paying Agent is unable to apply any Exchange Property, money or United States Government Obligations in accordance with Section 7.2 of this Indenture by reason of any legal proceeding or by reason of any order or judgment of any court or government authority enjoining, restraining or otherwise prohibiting such application, the Companys obligations under this Indenture and the Debentures shall be revived and reinstated as though no deposit had occurred pursuant to Section 7.1 of this Indenture until such time as the Trustee or Paying Agent is permitted to apply all such Exchange Property, money or United States Government Obligations in accordance with Section 7.2 of this Indenture; provided, however, that if the Company has made any payment of interest on or principal of any Debentures because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Debentures to receive such payment from the Exchange Property, money or United States Government Obligations held by the Trustee or Paying Agent.
 
ARTICLE 8. AMENDMENTS
 
Section 8.1. Without Consent of Holders.
Without notice to or the consent of any Holder, the Company and the Trustee may amend or supplement this Indenture or the Debentures for any of the following purposes:
 
(a) to cure any ambiguity, to correct or supplement any provision here which may be defective or inconsistent with any of the provisions here, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture; provided, however, that such action pursuant to this clause (a) shall not adversely affect the interests of the Holders in any material respect; or
 
(b) to add to the covenants of the Company for the benefit of the Holders, to add an additional Event of Default, or to surrender any right or power conferred here upon the Company; or
 
(c) to further secure the Debentures; or
 
(d) to make provision with respect to the exchange rights of Holders pursuant to the requirements of ARTICLE 9 or 9A of this Indenture; provided, however, that such action pursuant to this clause (d) shall not adversely affect the interests of the Holders in any material respect; or
 
(e) to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee with respect to the Debentures; or
 
(f) to provide for the assumption of each of the Companys covenants and obligations under this Indenture by any Person formed by consolidation of the Company or into whom the Company is merged or who acquires or leases the properties and assets of the Company substantially as a whole, as provided in Section 4.1(a) of this Indenture.
 
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of any such amendment or supplement and upon receipt by the Trustee of the documents described in Section 8.5 of this Indenture, the Trustee shall join with the Company in the execution of any amendment or supplement authorized or permitted by the terms of this Indenture, and to make any further appropriate agreements and stipulations which may be contained in it, but the Trustee shall not be obligated to enter into such amendment or supplement which affects its own rights, duties or immunities under this Indenture or otherwise.
 
Section 8.2. With Consent of Holders.
Except as otherwise provided in this Section 8.2, the Company and the Trustee may amend or supplement this Indenture or the Debentures with the written consent of the Holders of at least a majority in aggregate principal amount of the then-outstanding Debentures. Subject to Sections 5.6 and 5.9 of this Indenture, the Holders of a majority in aggregate principal amount of the Debentures then outstanding may, or the Trustee with the written consent of the Holders of at least a majority in aggregate principal amount of the then-outstanding Debentures may, waive compliance in a particular instance by the Company with any provision of this Indenture or the Debentures. However, without the consent of each Holder affected, an amendment, supplement or waiver under this Section 8.2 may not (with respect to any Debentures held by a non-consenting Holder):
 
(a) reduce the aggregate principal amount of Debentures the Holders of which must consent to an amendment to or waiver of a provision of this Indenture;
 
(b) reduce the rate of or extend the time for payment of interest, including Defaulted Interest, on any Debenture;
 
(c) reduce the principal of any Debenture or change the fixed maturity of any Debenture;
 
(d) make any Debenture payable in Exchange Property or money other than that stated in the Debenture or at any location different than that stated in this Indenture;
 
(e) make any change in Section 5.6 or 5.9 of this Indenture or in this sentence of this Section 8.2; or
 
(f) waive a Default in the payment of principal of or interest on any Debenture.
 
Upon the request of the Company, accompanied by a Board Resolution authorizing the execution of any such amendment or supplement, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as stated above, and upon receipt by the Trustee of the documents described in Section 8.5 of this Indenture, the Trustee shall join with the Company in the execution of such amendment or supplement unless such amendment or supplement affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amendment or supplement.
 
It shall not be necessary under this Section 8.2 for the Holders to consent to the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance of it.
 
After an amendment, supplement, or waiver under this Section 8.2 becomes effective, the Company shall mail to the Holders of each Debenture affected by it a notice briefly describing the amendment, supplement, or waiver. Any failure of the Company to mail such notice, or any defect in it, shall not, however, in any way impair or affect the validity of any such amendment, supplement, or waiver.
 
Section 8.3. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of that Debenture or portion of that Debenture that evidences the same debt as the consenting Holders Debenture, even if notation of the consent is not made on any Debenture. However, any such Holder or subsequent Holder may revoke the consent as to such Holders Debenture or portion of a Debenture if the Trustee receives written notice of revocation before the date the waiver, supplement, or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and subsequently binds every Holder.
 
Section 8.4. Notation on or Exchange of Debentures.
The Trustee may, but shall not be required to, place an appropriate notation regarding an amendment, supplement or waiver on any Debenture subsequently authenticated. The Company may, at its option, in exchange for all Debentures issue, and the Trustee shall authenticate new Debentures of the same series that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Debenture shall not affect the validity and effect of such amendment, supplement, or waiver.
 
Section 8.5. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement, or waiver authorized pursuant to this ARTICLE 8 if the amendment, supplement, or waiver does not adversely affect the rights, duties, liabilities, or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment, supplement, or waiver, the Trustee shall be entitled to receive, and, subject to Section 6.1 of this Indenture, shall be fully protected in relying upon, an Officers Certificate and an Opinion of Counsel as conclusive evidence that such amendment, supplement, or waiver is authorized or permitted by this Indenture, that it is not inconsistent with it, and that it will be valid and binding upon the Company in accordance with its terms.
 
ARTICLE 9. OPTIONAL EXCHANGE
 
Section 9.1. Right to Exchange.
Subject to compliance with the provisions of this Indenture, each Holder shall have the right, at such Holders option, at any time prior to the close of business on [date], or, if earlier mandatorily exchanged pursuant to ARTICLE 9A of this Indenture, the close of business on the Business Day preceding the date of such mandatory exchange, to exchange any of such Holders Debentures, in whole or in part (in denominations of $___ or multiples of it), at ___% of the principal amount of any such Debenture so exchanged, into that number of shares of [company] Common Stock and/or such other Exchange Property as shall be added to such [company] Common Stock or as such [company] Common Stock shall have been changed into pursuant to this ARTICLE 9, at the Exchange Rate (as defined below). A Holder is not entitled to any rights of a holder of [company] Common Stock or other Exchange Property until such Holders exchange of such Holders Debentures for Exchange Property has become effective as provided in this ARTICLE 9 or ARTICLE 9A of this Indenture. The Company shall not be liable in any manner to any Holder as a result of the exercise or failure to exercise any voting rights with respect to Exchange Property prior to such Holders exchange of Debentures for Exchange Property.
 
The rate at which shares of [company] Common Stock shall be deliverable upon exchange (“Exchange Rate”) shall be initially ___ shares of [company] Common Stock for each $___ principal amount of Debentures exchanged. The Exchange Rate shall be subject to adjustment as provided in Sections 9.4, 9.5, 9.11 and 9.14 of this Indenture.
 
Section 9.2. Exercise of Exchange Privilege.
To exchange a Debenture pursuant to this ARTICLE 9, a Holder must (1) complete and sign the Form of Election to Exchange on the back of the Debenture, (2) surrender such Debenture to the Exchange Agent at an office or agency maintained by the Company pursuant to Section 2.3 of this Indenture, (3) furnish appropriate endorsements and transfer documents, if required by the Registrar, and (4) pay any transfer or similar tax, if required by Section 9.8 of this Indenture. The Companys delivery to the Holder of a fixed number of shares of [company] Common Stock (and any cash in lieu of fractional shares of [company] Common Stock) and/or other Exchange Property into which such Debenture is exchangeable shall be deemed to satisfy the Companys obligation to pay the principal amount of such Debenture and, unless such Debenture is exchanged after a Record Date, but on or prior to the related Interest Payment Date, all accrued interest that has not previously been paid. If such Debenture is exchanged after a Record Date, but on or prior to the related Interest Payment Date, the interest installment on such Debenture scheduled to be paid on such Interest Payment Date shall be payable on such Interest Payment Date to the Holder of record at the close of business on such Record Date (whether or not punctually paid or provided for), but only with respect to interest on it accrued from the preceding Interest Payment Date through the date of such exchange. Debentures surrendered for exchange during the period from the close of business on any regular Record Date to the close of business on the related Interest Payment Date shall (except in the case of Debentures exchanged after an Exchange Event, as defined in ARTICLE 9A of this Indenture) be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of Debentures being surrendered for exchange.
 
As promptly as practicable after the surrender of such Debenture in compliance with this Section 9.2, the Exchange Agent shall deliver at such office or agency to such Holder, or on such Holders written order, a certificate or certificates free of the Security Interest created by the Pledge Agreement for the number of full shares of [company] Common Stock and/or whole interests of other Exchange Property deliverable upon the exchange of such Debenture or portion of it in accordance with the provisions of this ARTICLE 9 together with a check or cash in respect of any fractional interest in respect of a share of [company] Common Stock or other Exchange Property due upon such exchange, as provided in Section 9.3 of this Indenture. In case any Debenture of a denomination greater than $___ shall be surrendered for partial conversion, subject to ARTICLE 2 of this Indenture, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of the Debenture so surrendered, without charge to such Holder, a new Debenture or Debentures in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered Debenture.
 
Each exchange pursuant to this ARTICLE 9 shall become effective immediately prior to the close of business on the date on which such Debenture shall have been surrendered in compliance with this Section 9.2, which shall be the date on which such Debenture and any such required payment and assignment shall be received by the Exchange Agent, and at such time the rights of the Holder of such Debenture as a Debenture holder shall cease with respect to it and the Person in whose name any certificate or certificates for shares of [company] Common Stock and/or other Exchange Property shall be deliverable upon such exchange shall, as between such Person and the Company, be deemed to have become on the date the holder of record of the shares or other property represented by it.
 
Delivery of such certificate or certificates and/or of any check or other evidence of Exchange Property may be delayed for a reasonable period of time at the request of the Company in order to effectuate the calculations of the adjustments pursuant to this ARTICLE 9, to obtain any certificate representing securities to be delivered, to complete any reapportionment of the shares of [company] Common Stock or the Exchange Property apportioned to it which is required by this ARTICLE 9, or to comply with any applicable law. If, between the date an exchange under this Section 9.2 is deemed effective and the date of delivery of the applicable security or securities, such security or securities shall cease to have any or certain rights, or a record date or effective date of a transaction to which Section 9.4, 9.5 or 9.11 of this Indenture applies shall occur, the Person entitled to receive such security or securities shall be entitled only to receive such security or securities as so modified. Any dividends or proceeds received on them on or after the date such exchange shall be deemed effected, and none of the Company, the Trustee, and the Exchange Agent shall be otherwise liable with respect to the modification of such security or securities, from the date such exchange is deemed effected and the date of such delivery.
 
Section 9.3. Cash Payments in Lieu of Fractional Shares.
No fractional shares of [company] Common Stock (or any form of fractional interest in any other security or property which is part of the Exchange Property) shall be delivered upon exchange of Debentures. If more than one Debenture shall be surrendered for exchange at one time by the same Holder, the number of full shares (or other integral units of such other securities or property) which shall be delivered upon exchange shall be computed on the basis of the aggregate principal amount of the Debentures (or specified portions of it to the extent permitted here) so surrendered. Instead of any fractional share (or other fractional unit) which would otherwise be deliverable upon exchange of any Debenture or Debentures (or specified portions of them), the Exchange Agent on behalf of the Company shall pay, on the date the exchange is deemed to be effected, a cash adjustment in respect of such fractional interest in an amount equal to the same fraction of the Current Market Price per share of the [company] Common Stock (or per unit of such other security or property) on the Business Day next preceding the date the exchange is deemed to be effected. The Exchange Agent is authorized to obtain the funds necessary or anticipated by the Exchange Agent to be necessary for payment of such fractional interests by the sale of shares of [company] Common Stock (or other securities or Property which are part of the Exchange Property) held by the Exchange Agent, provided that after such sale the number of shares of [company] Common Stock (and of such other securities or Property) held by the Exchange Agent shall be sufficient to permit the exchange of all outstanding Debentures for [company] Common Stock (and any other Exchange Property), on the basis of the Exchange Rate then in effect, in accordance with the provisions of this ARTICLE 9. The Company agrees to furnish, or cause to the furnished, to the Exchange Agent any additional funds required to permit such cash payments with respect to fractional interests.
 
Section 9.4. Adjustment of Exchange Rate.
 
(a) In the event that [company] shall (i) pay a dividend on [company] Common Stock in shares of [company] Common Stock, (ii) subdivide the outstanding shares of [company] Common Stock into a greater number of shares of [company] Common Stock, (iii) combine outstanding shares of [company] Common Stock into a smaller number of shares of [company] Common Stock, or (iv) issue, by reclassification of shares, shares of [company] Common Stock (which in any such case shall apply to the shares of [company] Common Stock constituting Exchange Property), the Exchange Rate in effect immediately prior shall be proportionately adjusted so that the Holder of any Debenture subsequently surrendered for exchange shall be entitled to receive the number and kind of shares of [company] Common Stock and other Exchange Property that such Holder would have owned or have been entitled to receive after the record date (or if there is no record date, the effective date) of any of the events described above had such Debenture been exchanged immediately prior to the happening of such event. Such adjustments shall be made whenever any of the events listed above shall occur and shall become effective as of immediately after the close of business on the record date in the case of a stock dividend and shall become effective as of immediately after the close of business on the effective date in the case of a subdivision or combination or reclassification. Any Holder surrendering any Debentures for exchange after such record date or effective date, as the case may be, shall be entitled to receive shares of [company] Common Stock at the Exchange Rate as so adjusted pursuant to this Section 9.4(a) and any other Exchange Property apportioned to it.
 
(b) Notwithstanding anything contained herein to the contrary, no adjustment in the Exchange Rate shall be required unless such adjustment would require an increase or decrease of at least ___% in the Exchange Rate then in effect; provided, however, that any adjustments which by reason of this Section 9.4(b) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this ARTICLE 9 shall be made by the Company and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be.
 
(c) If the [company] Common Stock constituting Exchange Property is exchanged for Exchange Property other than [company] Common Stock, whether by operation of law or otherwise, the Company shall subsequently establish the Exchange Rate in such manner as will provide each Holder, upon exchange, that portion of each type of the Exchange Property held by the Exchange Agent at the time of such exchange equal to the aggregate amount of such Exchange Property multiplied by the fraction whose numerator is the principal amount of Debentures being exchanged by such Holder and whose denominator is the aggregate principal amount of Debentures outstanding immediately prior to such exchange.
 
(d) Whenever the Exchange Rate is adjusted as provided here, the Company shall determine the adjusted Exchange Rate in accordance with this Section 9.4, and shall prepare an Officers Certificate setting forth such adjusted Exchange Rate and any cash or other Property apportioned to the [company] Common Stock and showing in detail the facts upon which such adjustment is based. Such certificate shall be conclusive evidence of the accuracy of such adjustment. Such certificate shall immediately be filed with the Exchange Agent and the Trustee, who may rely on such Officers Certificate as conclusive evidence of the correctness of the adjustment. A notice stating that the Exchange Rate has been adjusted and setting forth the adjusted Exchange Rate and any cash or other Property apportioned to the [company] Common Stock shall, as soon as practicable, be mailed by or on behalf of the Company to the Holders at their last addresses as they shall appear upon the Debenture Register.
 
Section 9.5. Exchange Agent Agreement
 
(a) Simultaneously with the execution and delivery of this Indenture, the Company is entering into the Exchange Agent Agreement with [trustee], as Exchange Agent, pursuant to which the Company is depositing with the Exchange Agent, as agent for the Trustee and subject to the Pledge Agreement, ___ shares of [company] Common Stock, which shall initially constitute the Exchange Property. The Exchange Agent shall be the exchange agent for the exchange of Debentures for [company] Common Stock and other Exchange Property, if any, under this Indenture. From time to time, the Company shall deposit with the Exchange Agent such additional Exchange Property not already held by the Exchange Agent as the Holders of all Debentures shall, from time to time, be entitled to receive from the Exchange Agent pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture upon exchange of it.
 
(b) In case there shall be, at any time while any Debentures are outstanding, any dividend or other distribution of cash, securities or other Property on Exchange Property or in case there shall be granted with respect to any Exchange Property any subscription rights, options, warrants or other similar transferable rights, the Company shall, as soon as reasonably practicable after its receipt, notify the Exchange Agent of such receipt and promptly, and in any event within five (5) Business Days after the receipt, deposit with the Exchange Agent pursuant to the Exchange Agent Agreement all such securities and other Property, including, without limitation, any transferable rights. Subject to the provisions of the next paragraph of this Section 9.5(b), such cash, securities, or other Property shall be apportioned equally among the Exchange Property for which outstanding Debentures are exchangeable as of immediately after the close of business on the record date for the distribution or grant to which this Section 9.5(b) applies, or, if there is no such record date, the effective date of such distribution or grant. Any Holder surrendering any Debentures after such record date, or such effective date, as the case may be, shall be entitled to receive, in addition to the Exchange Property for which such Debentures were exchangeable immediately prior to the close of business on such record date or effective date, the amount of cash, securities or other Property so apportioned to such Exchange Property as of the close of business on such record date or effective date.
 
Notwithstanding the foregoing, in the event of any such distribution of transferable subscription rights, options, warrants, or other similar Property which expire before the scheduled maturity of the Debentures, the Exchange Agent shall sell all such Property for cash, and the proceeds of each such sale (after the payment of any expenses or taxes incurred by the Company or the Exchange Agent in connection with such sale) shall become Exchange Property, and shall be apportioned equally among the Exchange Property for which outstanding Debentures are exchangeable as of the close of business on the day such sale is concluded. Any Holder surrendering any Debentures after such apportionment shall be entitled to receive, in addition to the Exchange Property for which such Debentures were exchangeable immediately prior to the close of business on the day such sale was concluded, the amount of cash, securities, or other Property so apportioned to such Exchange Property as of the close of business on such day.
 
In the event that a distribution or grant of cash, securities or other Property on Exchange Property shall be effected as contemplated by the two (2) immediately preceding paragraphs, a notice stating that such distribution or grant has occurred and setting forth the additional cash, securities, or other Property shall be provided to the Holders of Debentures at their last address as they appear upon the Debenture Register.
 
In case there shall be, at any time while any Debentures are outstanding, any distribution or grant to holders of Exchange Property of any nontransferable subscription rights, options, warrants, or other Property that shall, by the terms, not be transferable to the Holders upon the exchange of Debentures, then the Company shall, in good faith, cooperate in such reasonable manner as any Holder may request to provide the economic benefits of such Property, if any, to the Holders, pursuant to a supplemental indenture or otherwise, without expense to the Company. The Companys obligation to cooperate with any such request shall be subject to receipt by the Company of assurances, acceptable to the Company in its sole discretion, against expense to the Company or liability to any Person. Any cash, securities, or other Property so obtained by the Company with respect to any such nontransferable subscription rights, options, warrants, or other Property shall be applied first to the Companys expenses in obtaining such cash, securities, or other Property, and the remainder shall be deposited with the Exchange Agent, and shall be apportioned equally among the Exchange Property for which outstanding Debentures are exchangeable as of the close of business on the day such deposit is made. Any Holder surrendering any Debentures after such apportionment shall be entitled to receive, in addition to the Exchange Property for which such Debentures were exchangeable immediately prior to the close of business on the day such deposit is made, the amount of cash, securities or other Property so apportioned to such Exchange Property as of the close of business on such day.
 
(c) The Trustee shall invest in United States Government Obligations with maturities of no more than ninety (90) days all cash received by the Exchange Agent pursuant to Section 9.5(b). Any loss or gain on such investments shall be for the account of the Holders. The net income or net loss from such investments, if any, shall be apportioned equally among the Exchange Property for which outstanding Debentures are exchangeable as of immediately after the close of business on the date of actual receipt by the Exchange Agent. Any Holder surrendering any Debentures after such date shall be entitled to receive, in addition to the Exchange Property for which such Debentures are exchangeable and any cash, securities or other Property previously apportioned under this agreement, the amount of such net gain or net loss so apportioned to such Exchange Property.
 
(d) In the event of any reduction of the principal of Debentures outstanding (other than as a result of surrender for exchange for Exchange Property pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture, as evidenced by the delivery to the Trustee by the Company of Debentures for cancellation), the Company shall be entitled to the kind and amount of Exchange Property as shall at the time be in excess of the kind and amount of Exchange Property which would be required for the exchange of all Debentures then outstanding for the Exchange Property on the basis of the then-applicable Exchange Rate and the other terms and provisions of this ARTICLE 9, ARTICLE 9A of this Indenture and the Exchange Agent Agreement. Upon expiration of the right to surrender Debentures for exchange pursuant to this ARTICLE 9, and when all other obligations of the Company shall have been satisfied under this ARTICLE 9 and ARTICLE 9A of this Indenture and the Exchange Agent Agreement, the Companys obligation to exchange Debentures for Exchange Property shall be terminated.
 
(e) Prior to the exchange of the Debentures pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture, the Company shall have the full and unqualified right and power to exercise any rights to vote, or to give consents or take any other action in respect of, the [company] Common Stock or any other securities included in the Exchange Property at any time held by the Exchange Agent and the Exchange Agent shall have no duty to exercise any such rights. The Company shall not be liable to any Holder as a result of any vote, or failure to vote, consent or failure to consent, or any other act or failure to act taken by the Company in respect of the [company] Common Stock or any other securities included in the Exchange Property.
 
(f) The obligations, covenants, and agreements contained in the Exchange Agent Agreement shall not constitute obligations, covenants, or agreements contained in this Indenture or any of the Debentures, and neither the failure by the Company to observe any obligation, covenant or agreement contained in the Exchange Agent Agreement (unless such obligation, covenant or agreement shall also be contained in this Indenture) nor the failure of the Exchange Agent to fulfill any obligations, agreements or covenants set forth in it shall constitute (with or without the giving of notice, the passage of time or both) an Event of Default; provided, however, that nothing in this Section 9.5(f) shall impair the right of a Holder to receive the Exchange Property apportioned to such Holders Debentures in exchange for such Debentures in accordance with the terms and conditions of this ARTICLE 9, and nothing in this Section 9.5(f) shall impair the rights and remedies of the Trustee and the Holders under ARTICLE 3 of the Indenture with respect to a failure by the Company to observe its express agreements and covenants to cause the exchange of Debentures actually surrendered for exchange pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture for Exchange Property apportioned to it in accordance with the terms and conditions of this ARTICLE 9 or ARTICLE 9A of this Indenture, as appropriate.
 
Section 9.6. Notice to Holders Prior to Certain Actions.
In the event that [company] or other issuer of Exchange Property shall declare a dividend (or any other distribution) on [company] Common Stock or other Exchange Property or authorize the granting to the holders of such securities of subscription rights, options, warrants, or similar rights, or reclassify such securities (other than a subdivision or combination of outstanding securities) or consolidate or merge for which approval of any security holders of such issuer is required, or sell or transfer all or substantially all of its assets, or there shall occur the voluntary or involuntary dissolution, liquidation, or winding-up of such issuer, then the Company shall cause to be filed with the Trustee and to be mailed to each Holder at such Holders address appearing on the Debenture Register, as promptly as practicable, a notice prepared by the Company stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or grant of rights, or, if a record is not to be taken, the date as of which the holders of [company] Common Stock or other Exchange Property of record to be entitled to such dividend, distribution or grant of rights are to be determined, or (y) the date, if known by the Company, on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up is expected to become effective or occurring and the date as of which it is expected that holders of such securities of record shall be entitled to exchange such securities for other securities or other Property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up. Failure to give such notice, or any defect in it, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up.
 
Section 9.7. Covenants by the Company.
As long as any Debentures shall be outstanding and exchangeable for [company] Common Stock or other Exchange Property pursuant to this ARTICLE 9, the Company shall (i) preserve unimpaired the right of each Holder of Debentures, upon exchange, to receive shares of [company] Common Stock and/or other Exchange Property as such Holder shall from time to time be entitled to receive in accordance with the provisions of this ARTICLE 9, and (ii) not pledge, mortgage, hypothecate or grant a security interest in, or permit any mortgage, pledge, security interest or other lien upon, the Exchange Property.
 
Section 9.8. Transfer Taxes.
The Company will pay any and all taxes that may be payable solely in respect of the transfer and delivery of shares of [company] Common Stock (or other securities included in the Exchange Property) pursuant to this Indenture, specifically excluding income, capital gains, and similar taxes imposed on any Holder by reason of exchange of Debentures for Exchange Property; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the delivery, upon an exchange of Debentures, of shares of [company] Common Stock (or other securities included in the Exchange Property) in a name other than that in which the Debentures so exchanged were registered, and no such transfer shall be made unless and until the Person requesting such transfer has paid to the Company or the Exchange Agent the amount of any such tax, or has established to the satisfaction of the Company and the Exchange Agent that such tax has been paid.
 
 
 
Section 9.9. Fully Paid Shares.
The Company warrants and covenants that all shares of [company] Common Stock delivered upon the exchange of Debentures will be fully paid and non-assessable and that each Holder of Debentures who receives shares of [company] Common Stock or other Exchange Property in exchange for his or her Debentures pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture will receive valid and marketable title to such Exchange Property, free and clear of all claims, liens and encumbrances (other than those that may be created or suffered to exist by such Holder). Except as provided in Section 9.8 of this Indenture, the Company will pay all taxes, liens, and charges with respect to the delivery of Exchange Property in exchange for Debentures under this ARTICLE 9 or ARTICLE 9A of this Indenture.
 
Section 9.10. Cancellation of Debentures.
All Debentures delivered for exchange shall be delivered by the Exchange Agent to the Trustee, and shall be cancelled by the Trustee, and the Trustee shall dispose of the same as provided in Section 2.14 of this Indenture.
 
Section 9.11. Merger of Issuer of Exchange Property.
In case of any consolidation or merger of [company] or other issuer of Exchange Property with or into any other Person that results in shares of [company] Common Stock or such other Exchange Property, as constituted prior to the consummation of such transaction, being converted into other securities and/or Property (including cash), or in case or any sale or transfer of all or substantially all of the assets of [company] or such other issuer (if in connection with such sale or transfer holders of [company] Common Stock or other Exchange Property receive other securities and/or Property including cash, in exchange for their shares of [company] Common Stock or other Exchange Property), or of any voluntary or involuntary dissolution, liquidation or winding-up of [company] or such other issuer, the Holder of each Debenture then outstanding shall have the right after that (subject to Section 9.14 of this Indenture) to exchange such Debenture (i) for the kind and amount of securities and other property receivable upon such consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up by a holder of the number of shares of [company] Common Stock or other Exchange Property for which such Debenture was exchangeable immediately prior to such consolidation, merger, sale, transfer, dissolution, liquidation or winding-up, and (ii) any other Exchange Property for which such Debenture was exchangeable immediately prior to such consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up. The above provisions of this Section 9.11 shall similarly apply to any successive consolidation, merger, sale, transfer, dissolution, liquidation, or winding-up.
 
Notice of such consolidation, merger, sale, transfer, dissolution, liquidation, or winding up shall as soon as practicable be filed with the Exchange Agent, and shall be mailed by or on behalf of the Company to Holders at their last addresses as they shall appear on the Debenture Register.
The Trustee shall not be under any responsibility to determine the correctness of any calculation relating either to the kind or amount of shares of stock or securities or Property or cash receivable by the Holders upon the exchange of their Debentures as provided here after any such consolidation, merger, sale, transfer, dissolution, liquidation or winding up or to any adjustment to be made with respect to them.
 
Section 9.12. Certain Tender or Exchange Offers for Exchange Property; Certain Votes.
 
(a) In the event of a tender offer or exchange offer for any class of securities included within the Exchange Property, as promptly as possible the Company shall cause to be filed with the Trustee a notice of such offer and to be mailed to each Holder, at such Holders address appearing on the Debenture Register, any solicitation material related to such offer and a request that instructions be provided to the Trustee by the Holders (evidenced by voting the then-outstanding principal amount of Debentures owned by each Holder in favor of or against such tender or exchange) as to whether to tender Exchange Property in connection with such offer. On the second to last Business Day of such tender offer or exchange offer, the Trustee shall notify the Exchange Agent of the instructions received from Holders as of the close of business on the third to last Business Day of such tender offer or exchange offer, and the Exchange Agent shall deliver that number securities subject to such offer equal to all such securities constituting Exchange Property subject to such offer multiplied by the fraction (x) whose numerator is the aggregate principal amount of Debentures then outstanding, with respect to which the Trustee has received instructions to tender, and (y) whose denominator is the aggregate principal amount of Debentures then outstanding. The cash, securities, or other Property received in consideration for any Exchange Property so tendered in any such tender or exchange offer shall become Exchange Property, and shall be held by the Exchange Agent for the benefit of Holders as provided in this Indenture.
 
(b) In the event that in connection with any matter submitted to the vote of the holders of [company] Common Stock or other securities included among the Exchange Property, the Company elects not to vote such [company] Common Stock or other securities, as promptly as practicable after such election, the Company shall cause to be filed with the Trustee a notice of such vote and to be mailed to each Holder, at such Holders address appearing on the Debenture Register, a copy of any proxy or other solicitation material received by the Company with respect to such vote together with a request that instructions as to such vote be provided to the Trustee by the Holders (evidenced by voting the then-outstanding principal amount of Debentures owned by each Holder in favor of or against the matter subjected to such vote). On the second to last Business Day preceding such vote, the Trustee shall notify the Company of the voting instructions received from Holders as of the close of business on the third to last Business Day preceding such vote, and the Company shall vote in favor of the matter subjected to such vote such [company] Common Stock or other securities included among the Exchange Property as equals the aggregate amount of such [company] Common Stock or other securities included among the Exchange Property multiplied by the fraction whose numerator is the aggregate principal amount of Debentures with respect to which the Trustee has received instructions to vote in favor of such matter and whose denominator is the aggregate principal amount of Debentures with respect to which the Trustee has received instructions to vote with respect to such matter. All other [company] Common Stock or other securities included among the Exchange Property shall be voted by the Company against the matter subjected to such vote.
 
Section 9.13. Responsibility of Trustee Requirements.
Subject to Section 6.1 of this Indenture, neither the Trustee nor the Exchange Agent shall at any time be under any duty or responsibility to any Holder to determine whether any fact exists which may require any adjustment of the Exchange Rate or other adjustment, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or here or in any supplemental indenture provided to be employed, in making the same. Neither the Trustee nor the Exchange Agent shall be accountable with respect to the validity or value (or the kind or amount) of any Exchange Property which may, at any time, be issued or delivered upon the exchange of any Debenture or the market conditions existing at the time of sale of any Exchange Property; and neither the Trustee nor the Exchange Agent makes any representations with respect to them. Neither the Trustee nor the Exchange Agent shall be responsible for any failure of the Company to transfer or deliver any Exchange Property or certificates or other evidences of it to the Exchange Agent as provided here, or subject to the provisions of Section 6.1 of this Indenture and the obligations of the Exchange Agent under the Exchange Agent Agreement, to comply with any of the covenants of the Company contained in this ARTICLE 9.
 
Section 9.14. Tax Adjustments in Exchange Rate.
If an event shall occur which causes the Company, the Trustee or the Exchange Agent to be taxed with respect to the receipt of any dividends or distributions constituting Exchange Property or the delivery to the Exchange Agent or as a result of a merger, consolidation or sale or transfer of assets or of any voluntary or involuntary dissolution, liquidation, or winding-up of [company] or other issuer of Exchange Property, and if, within ten (10) days after the effective date of such transaction, the Company shall furnish the Exchange Agent with an Opinion of Counsel to the effect that such transaction is taxable to the Company, the Trustee, or the Exchange Agent, and an Officers Certificate as to the amount of federal, state, or local tax payable by the Company, the Trustee or the Exchange Agent as a result of such transaction (computed by the Company at the marginal tax rate applicable to such transaction), the Exchange Agent shall pay to, or to the order of, the Company, in the case of taxes payable by the Company, or itself or the Trustee, in the case of taxes payable by it or the Trustee, the cash held by it and apportioned or to be apportioned to the Exchange Property for which outstanding Debentures are exchangeable, up to the amount of such taxes. In the event that the cash held by the Exchange Agent is so apportioned or to be apportioned is insufficient to pay to the Company, the Trustee or the Exchange Agent the amount of such taxes, the Exchange Agent shall, as soon as reasonably practicable and to the extent legally permissible, sell in accordance with written instructions received by the Company, or if no such instructions are received, as determined by the Exchange Agent, such Exchange Property (including any securities or other Property included in it) as may be necessary to pay, from the proceeds after payment of any taxes by the Company, the Trustee or the Exchange Agent on such sale, the amount of any such deficiency. Any remaining proceeds of any such sale shall be apportioned among the Exchange Property. The Exchange Agent shall notify the Company and the Trustee of any such sale and the Exchange Property sold, and shall sell all Exchange Property other than [company] Common Stock prior to selling any shares of [company] Common Stock. Following payment of all necessary amounts to the Company, the Trustee or the Exchange Agent, such Exchange Property held by the Exchange Agent and any cash apportioned to it shall be proportionately adjusted so as to be apportioned equally to the Debentures outstanding as of immediately after the close of business on the record date of the effective date of the transaction to which this Section 9.14 applies (as shall be specified in Section 9.4 or 9.11 of this Indenture, whichever is applicable). Any Holder surrendering Debentures after such record date, or such effective date, as the case may be, shall be entitled to receive the Exchange Property and any cash apportioned to it as so adjusted pursuant to this paragraph. If this Section 9.14 shall apply to a transaction, and the sale by the Company of the consideration receivable shall not be legally permissible, and the amount of cash apportioned to the Exchange Property shall not be sufficient to pay all taxes payable by the Company, the Trustee or the Exchange Agent which arise from such transaction, the Company may direct the Exchange Agent to segregate for the benefit of the Company, the Trustee or the Exchange Agent (as the case may be) or deliver to the Company, the Trustee or the Exchange Agent (as the case may be) an amount of Exchange Property previously held by the Exchange Agent for exchange of Debentures having a Current Market Price equal to the unsatisfied portion of the tax payable by the Company, the Trustee or the Exchange Agent (as the case may be) with respect to such transaction including any tax payable upon the delivery or sale in order to satisfy the aforementioned tax, and such Exchange Property shall subsequently be solely for the account of the Company, the Trustee or the Exchange Agent (as the case may be) and holders of Debentures shall have no rights to them.
 
In the event that an Opinion of Counsel given pursuant to this Indenture concludes that whether taxes are payable by the Company, the Trustee or the Exchange Agent is uncertain under the then state of the law or facts or both, the Company shall have the option of requesting the Exchange Agent to segregate the amount of funds that would be payable (or securities or other property in lieu of), if such taxes were deemed payable, together with the amount estimated in good faith to be the reasonable costs and expenses (including attorneys fees) of obtaining a determination as set forth below. The Holders shall have no right to such funds or securities or other property which shall be held by the Exchange Agent for the Company (or itself or the Trustee, as the case may be), the Exchange Property and any cash apportioned to it deliverable upon exchange of Debentures pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture shall be reapportioned as though such segregated amounts had been paid to the Company, the Trustee or the Exchange Agent for such taxes, and any Holders surrendering any Debenture after the record or effective date of the applicable transaction giving rise to an adjustment pursuant to this Section 9.14 shall be entitled to receive only such Exchange Property and any cash apportioned to it upon exchange of Debentures pursuant to this ARTICLE 9 or ARTICLE 9A of this Indenture as so reapportioned. The Company shall, in good faith, seek an appropriate determination from the appropriate agencies and, if judged necessary by the Company, in good faith, from appropriate courts, as to whether taxes are so payable. If an appropriate determination is made that such taxes are so payable, then the Exchange Agent shall immediately pay the funds or deliver the securities or other property so segregated to the Company (or, if taxes are payable by the Exchange Agent or the Trustee, retain such funds or securities or other property for itself or the Trustee), and if an appropriate determination is made that such taxes are not payable or an amount of tax is payable which is less than the amount of funds or property so segregated, then the Exchange Agent, after paying to the Company (or itself or the Trustee, as the case may be) out of such funds or securities or other property the reasonable expenses and costs (including attorneys fees) of obtaining such determination (and any taxes so payable), shall apportion such remaining funds or securities or other property which had been so segregated among the Exchange Property and cash apportioned to it as of immediately after the close of business on the record date or the effective date of such transaction giving rise to an adjustment pursuant to Section 9.4 or 9.11 of this Indenture, whichever is applicable. If any Debenture has been exchanged on or after such record date or such effective date, as the case may be, and before a determination is made that no taxes are payable or an amount of tax is payable which is less than the amount of funds or securities or other property so segregated, the Company to the extent not previously delivered, shall deliver such Exchange Property and any cash apportioned thereto as reapportioned following such determination, to the Person to which and in the manner in which the other proceeds of the exchange of such Debentures were delivered.
 
ARTICLE 9A. MANDATORY EXCHANGE
 
Section 9A.1. Exchange Event.
If at any time after [date], the Current Market Price of the [company] Common Stock shall have exceeded $___ for the prior twenty (20) consecutive trading days (the “Exchange Event”), the Debentures will become subject to mandatory exchange at the close of business on such 20th trading day at ___% of the principal amount for Exchange Property at the Exchange Rate (as determined in accordance with ARTICLE 9 of this Indenture) on the date such exchange is effective. Such mandatory exchange shall be effective at the close of business on the 30th day after such Exchange Event, or, if such day is not a Business Day, on the next following Business Day, and only in accordance with the provisions of this ARTICLE 9A.
 
Section 9A.2. Notice of Exchange Event.
Upon the occurrence of an Exchange Event, as promptly as practicable, the Company shall file with the Trustee, and cause to be mailed to each Holder at such Holders address appearing on the Debenture Register a notice of such Exchange Event to each Holder stating:
 
(a) the date upon which such exchange shall be made;
 
(b) the name and address in [city], [state] of the Exchange Agent to whom the Debentures are to be surrendered for exchange;
 
(c) that the Debentures called for exchange must be surrendered to the Exchange Agent to receive the Exchange Property into which such Debentures are exchanged; and
 
(d) that interest on the Debentures ceases to accrue on and after the date such exchange is effective and after that, the only remaining right of the Holders shall be to receive Exchange Property and unpaid interest accrued through such date upon surrender of the Debentures to the Exchange Agent.
 
Section 9A.3. Effect of Notice of Exchange Event.
Once a notice of an Exchange Event is mailed in accordance with Section 9A.2 of this Indenture, the exchange of Debentures for Exchange Property pursuant to this ARTICLE 9A shall become effective as specified in Section 9A.1 of this Indenture, regardless of whether such Debenture shall then have been surrendered for exchange, and at such time, except as provided in the last sentence of this Section 9A.3, the rights of the Holder of such Debenture as a Holder shall cease with respect to it and the Person in whose name any certificate or certificates for shares of [company] Common Stock and/or other Exchange Property shall be deliverable upon such exchange shall, as between such Person and the Company, be deemed to have become on the date the holder of record of the shares or other Property represented by it. Accrued, but unpaid interest with respect to the Debentures through the date of such exchange shall be paid to the Holders of record on the date of such exchange or, if such date occurs after a Record Date, but on or prior to the related Interest Payment Date, to the Holders of record on such Record Date. Such interest shall be paid in the same manner as if the date of such exchange were a regular Interest Payment Date. On and after such date of exchange, unless the Company defaults in the payment of the principal amount of the Debentures by delivery of Exchange Property or the payment of interest accrued through such date of exchange, interest shall cease to accrue on the Debentures, and all rights of Holders of such Debentures shall terminate except for the right to receive Exchange Property and such interest payment.
 
Section 9A.4. Delivery of Exchange Property.
As promptly as practicable after the surrender of such Debenture in compliance with this Section 9A.4, the Exchange Agent shall deliver at such office or agency to such Holder, or on such Holders written order, a certificate or certificates free of the Security Interest created by the Pledge Agreement for the number of full shares of [company] Common Stock and/or whole interests of other Exchange Property deliverable upon the exchange of such Debenture or portion of it in accordance with the provisions of ARTICLE 9 of this Indenture, and this ARTICLE 9A, together with a check or cash in respect of any fractional interest in respect of a share of [company] Common Stock or other Exchange Property due upon such exchange, as provided in Section 9.3 of this Indenture. In addition, as promptly as practicable after such date of exchange, the Paying Agent shall pay to the Holders as of the close of business on such date unpaid interest accrued on the Debentures through such date.
 
Delivery of any certificate or certificates and/or of any check or other evidence of Exchange Property (but not of interest payable on the Debentures) may be delayed for a reasonable period of time at the request of the Company in order to effectuate the calculations of the adjustments pursuant to ARTICLE 9 of this Indenture, to obtain any certificate representing securities to be delivered, to complete any reapportionment of the shares of [company] Common Stock or the Exchange Property apportioned thereto which is required by ARTICLE 9 of this Indenture or to comply with any applicable law. If, between the date an exchange under this ARTICLE 9A is deemed effective, and the date of delivery of the Exchange Property, such Exchange Property shall cease to have any or certain rights, or a record date or effective date of a transaction to which Section 9.4, 9.5 or 9.11 of this Indenture applies shall occur, the Person entitled to receive such Exchange Property shall be entitled only to receive such Exchange Property as so modified, and any dividends or proceeds received on it on or after the date such exchange shall be deemed effected, and none of the Company, the Trustee and the Exchange Agent shall be otherwise liable with respect to the modification of such security or securities, from the date such exchange is deemed effected, and the date of such delivery.
 
The Companys delivery to the Holder of a fixed number of shares of [company] Common Stock (and any cash in lieu of fractional shares of [company] Common Stock) and/or other Exchange Property into which such Debenture is exchangeable shall be deemed to satisfy the Companys obligation to pay the principal amount of such Debenture.
 
ARTICLE 10. SECURITY INTEREST
 
Section 10.1. Pledge and Security Interest.
Prior to the issuance of the Debentures, the Company and the Trustee shall execute and deliver the Pledge Agreement, pursuant to which the Company shall grant the Security Interest in favor of the Trustee, for the benefit of the Holders. By accepting a Debenture, each Holder agrees to all of the terms and provisions of the Pledge Agreement.
 
As now or subsequently in effect, the Security Interest shall be held to secure the payment of principal of and interest on the Debentures for the equal and ratable benefit and security of the Holders, without preference, priority, or distinction of any one over another by reason of difference in time of issuance of a Debenture, sale or otherwise, and for the enforcement of the payment of principal of the Debentures, in accordance with their terms.
 
Pursuant to the Pledge Agreement, the Company shall deliver to the Exchange Agent, prior to the issuance of the Debentures, Collateral consisting of the ___ shares of [company] Common Stock held by it, and will execute and deliver, file and record, all instruments and documents necessary to subject the Collateral to the Security Interest. The Exchange Agent shall maintain possession of the Collateral as agent for the Trustee.
 
Upon the granting of the Security Interest in the Collateral to the Trustee, and subsequently as may be required, the Company shall provide to the Trustee such Opinions of Counsel, compliance certificates, and other reports as the Trustee shall reasonably request.
 
The Company shall cause the Collateral to be free and clear of any Lien or claim of any other Person, and shall not dispose of any Collateral except in accordance with this Indenture or the Pledge Agreement.
 
In accordance with the Pledge Agreement, all Exchange Property paid or distributed to the Company or any Subsidiary will be promptly delivered to the Exchange Agent by the Company for application in accordance with this Section 10.1 and, to the extent applicable, Section 9.4 of this Indenture.
 
Section 10.2. Reliance on Opinion of Counsel.
The Trustee and the Exchange Agent shall, before taking any action under this ARTICLE 10 or the Pledge Agreement, respectively, be entitled to receive an Opinion of Counsel, stating (a) the legal effect of such action, (b) the steps necessary to consummate the same and perfect the Trustees security interest with respect to the Collateral, (c) that such action will not be in contravention of the provisions of this Indenture, and (d) that such opinion shall be full protection to the Trustee or the Exchange Agent, as the case may be, for any action taken or not taken in reliance on it.
 
Section 10.3. Purchaser May Rely.
A purchaser in good faith of any Collateral or interest in it which is transferred or granted by the Trustee or the Exchange Agent as provided in this ARTICLE 10 or the Pledge Agreement may rely on the authority of the Trustee or the Exchange Agent, as the case may be, to execute a transfer, grant or release, and shall not be bound to ascertain or inquire as to the satisfaction of any conditions precedent to the exercise of such authority, or to see the application of the purchase price for it.
Section 10.4. Payment of Expenses.
Upon demand of the Trustee or the Exchange Agent, the Company shall immediately pay, or satisfactorily provide for, all reasonable expenditures incurred by the Trustee or the Exchange Agent under this ARTICLE 10 and the Pledge Agreement.
 
Section 10.5. Suits to Protect the Collateral.
To the extent permitted under this Indenture and under the Pledge Agreement, the Trustee and the Exchange Agent each shall have power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of the Pledge Agreement or this Indenture, including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may reasonably be believed to be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security under this Indenture or be prejudicial to the interests of the Holders, the Trustee or the Exchange Agent.
 
Section 10.6. Duties of Trustee and Exchange Agent.
The powers conferred upon the Trustee and the Exchange Agent by this ARTICLE 10 and the Pledge Agreement are solely to protect their respective interests and the interest of the Holders in the Collateral. They shall not impose any duty upon either of them to exercise any such powers, except as expressly provided in this Indenture and the Pledge Agreement. Neither the Trustee nor the Exchange Agent shall be under any duty whatsoever to the Company to make or give any presentment, demand for performance, notice of nonperformance, protest, notice of protest, notice of dishonor, or other notice or demand in connection with any Collateral, or to take any steps necessary to preserve any rights against prior parties except as expressly provided in this Indenture and the Pledge Agreement, as applicable. Neither the Trustee nor the Exchange Agent shall be liable to the Company for failure to collect or realize upon any or all of the Collateral, or for any delay in so doing, nor shall the Trustee or the Exchange Agent be under any duty to the Company to take any action whatsoever with regard to it. Neither the Trustee nor the Exchange Agent shall have any duty to the Company to comply with any recording, filing, or other legal requirements necessary to establish or maintain the validity, priority, or enforceability of, or the respective rights of the Trustee and the Exchange Agent in or to, any of the Collateral, except with regard to the safekeeping of any Collateral perfected by the Exchange Agents possession of it as agent of the Trustee. With regard to such safekeeping, the Exchange Agent shall be liable only for any damages that result from negligence, willful misconduct, or bad faith.
 
ARTICLE 11. SUBORDINATION OF INTEREST PAYMENTS
 
Section 11.1. Agreement to Subordinate.
The Company agrees, and the Trustee and each Holder by accepting a Debenture agrees, that all Debentures shall be issued subject to the provisions of this ARTICLE 11; and each Person holding any Debenture, whether upon original issue or upon transfer, assignment or exchange of it, accepts and agrees that all payments of interest on the Debentures by the Company shall, to the extent and in the manner set forth in this ARTICLE 11, be subordinated and junior in right of payment to the prior payment in full of all amounts payable under Senior Indebtedness, and that the subordination is for the benefit of the holders of Senior Indebtedness. The subordination provided by this ARTICLE 11 shall not apply to the payment of principal on the Debentures. Furthermore, the subordination shall not apply to the payment of interest on the Debentures after an Event of Default if a court of competent jurisdiction has enjoined or terminated the Companys obligation to pay the principal amount of the Debentures by delivery of Exchange Property.
 
Section 11.2. Certain Definitions.
“Senior Indebtedness” means the principal of, premium, if any, and unpaid interest (whether accruing before or after filing of any petition in bankruptcy or any similar proceedings by or against the Company, and whether or not allowed as a claim in bankruptcy or any similar proceeding) on the following, whether previously or subsequently created, incurred, assumed or guaranteed: (i) all indebtedness for borrowed money, created, incurred, assumed or guaranteed by the Company (other than the ___% Subordinated Debentures due [date] of the Company and the ___% Convertible Subordinated Notes due [date] of the Company and any indebtedness incurred with respect to the refinancing of it) and any other indebtedness of the Company evidenced by a note or written instrument given in connection with the acquisition of any business, properties, or assets of any kind; (ii) obligations of the Company under any agreement to lease, or lease of, any real or personal Property, which obligations are required to be capitalized on the books of the Company, in accordance with GAAP, and leases of property or assets made as part of any sale and lease-back transaction to which the Company is a party; and (iii) any and all deferrals, modifications, renewals, or extensions of any indebtedness or other obligation described in clause (a) of this Section 11.2, unless, in any case, in the instrument creating or evidencing any such indebtedness or obligation or pursuant to which the same is outstanding, it is provided that such indebtedness or obligation is not superior in right of payment to the Debentures.
 
Notwithstanding the foregoing, Senior Indebtedness shall not include indebtedness of the Company to a Subsidiary or of a Subsidiary to the Company. Moreover, it shall not include indebtedness or amounts owed (except to banks or other financial institutions) for compensation to employees, or for goods or materials purchased, or services utilized, in the ordinary course of business of the Company or of any other Person from whom such indebtedness or amount was assumed.
 
The right of Holders to the payment of interest on the Debentures is senior in right of payment to the obligations evidenced by the ___% Subordinated Debentures of the Company due [date] and the ___% Convertible Subordinated Notes due [date] of the Company, and shall be senior in right of payment to any indebtedness incurred with respect to the refinancing of it. In this regard, the Company covenants that it will not incur any indebtedness with respect to the refinancing of such debentures or notes unless such indebtedness is expressly subordinated in right of payment to the payment of interest on the Debentures.
 
“Representative” means the indenture trustee or other trustee, agent, or representative for an issue of Senior Indebtedness.
 
 
 
Section 11.3. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation, dissolution, or winding up of the Company or in a bankruptcy, reorganization, insolvency, receivership, or similar proceeding relating to the Company or its Property:
 
(a) holders of Senior Indebtedness shall be entitled to receive payment in full, in cash, or in a manner satisfactory to the holders of such Senior Indebtedness, of all Senior Indebtedness before Holders shall be entitled to receive any payments of subordinated interest on Debentures; and
 
(b) until the Senior Indebtedness is paid in full in cash, or in a manner satisfactory to the holders of such Senior Indebtedness, any distribution of subordinated interest on the Debentures to which Holders would be entitled but for this ARTICLE 11 shall be made to holders of Senior Indebtedness as their interests may appear, except that Holders may receive securities that are subordinated to Senior Indebtedness to at least the same extent as the Debentures.
 
A distribution may consist of cash, securities or other Property.
 
Section 11.4. Company Not to Make Payments with Respect to Debentures in Certain Circumstances.
 
(a) Upon the maturity of any Senior Indebtedness by lapse of time, acceleration or otherwise, all principal, premium, if any, and interest on it and any other amounts owing in respect of it shall first be paid in full, or such payment provided for in cash or in a manner satisfactory to the holders of such Senior Indebtedness, before any payment is made on account of the subordinated interest on the Debentures.
 
(b) Upon the happening and continuation of an Event of Default (or if any event of default would result upon any payment of interest with respect to the Debentures) with respect to any Senior Indebtedness as such event of default is defined in it or in the instrument under which it is outstanding, permitting holders to accelerate the maturity of it, and, if the default is other than default in payment of the principal of, premium, if any, or interest on or any other amount owing in respect of such Senior Indebtedness, upon written notice given to the Company and the Trustee by holders of Senior Indebtedness or their Representative, then, unless such an event of default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Company with respect to the subordinated interest on the Debentures.
 
Section 11.5. Acceleration of Debentures.
If payment of the Debentures is accelerated because of an Event of Default, the Company shall promptly notify holders of Senior Indebtedness of the acceleration.
 
Section 11.6. When Distribution Must Be Paid Over.
If a distribution is made to Holders that, because of this ARTICLE 11, should not have been made to them, the Holders who receive the distribution shall hold it in trust for holders of Senior Indebtedness, and shall pay it over to them as their interests may appear.
 
 
Section 11.7. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent of any facts known to the Company that would cause a payment of interest on the Debentures to violate this ARTICLE 11.
 
Section 11.8. Subrogation.
After all Senior Indebtedness is paid in full and until the interest on the Debentures is paid in full, Holders shall be subrogated to the rights of holders of Senior Indebtedness to receive distributions applicable to Senior Indebtedness to the extent that distributions otherwise payable to the Holders have been applied to the payment of Senior Indebtedness. A distribution made under this ARTICLE 11 to holders of Senior Indebtedness which otherwise would have been made to Holders is not, as between the Company and Holders, a payment by the Company on Senior Indebtedness.
 
Section 11.9. Relative Rights.
This ARTICLE 11 defines the relative rights of Holders and holders of Senior Indebtedness. Nothing in this Indenture shall:
 
(a) impair, as between the Company and Holders, the obligation of the Company, which is absolute and unconditional, to pay interest on the Debentures in accordance with their terms;
 
(b) affect the relative rights of Holders and creditors of the Company, other than holders of Senior Indebtedness; or
 
(c) prevent the Trustee or any Holder from exercising its available remedies upon a Default, subject to the rights of holders of Senior Indebtedness to receive distributions otherwise payable to Holders.
 
If the Company fails because of this ARTICLE 11 to pay interest on a Debenture on the due date, such failure shall nevertheless be deemed an Event of Default.
 
Section 11.10. Subordination May Not Be Impaired by Company.
No right of any present or future holder of Senior Indebtedness to enforce the subordination of the interest payments on the Debentures shall at any time or in any way be prejudiced or impaired by any act or failure to act by the Company, or by any act, or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms of this Indenture regardless of any knowledge, which any such holder may have or otherwise be charged with.
 
Section 11.11. Distribution of Notice to Representative.
Whenever a distribution is to be made, or a notice given to holders of Senior Indebtedness, the distribution may be made, and the notice shall be given to their Representative.
 
Section 11.12. Rights of Trustee and Paying Agent.
Notwithstanding any provisions of this Indenture to the contrary, the Trustee and any Paying Agent may continue to make interest payments on the Debentures, and shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of such payments until it receives written notice (received by a Responsible Officer, in the case of the Trustee) that such payments may not be made under this ARTICLE 11. Prior to the receipt of any such notice, the Trustee, subject to the provisions of ARTICLE 6 of this Indenture, and any Agent, shall be entitled to assume conclusively that no such facts exist. The Company, an Agent, a Representative, or a holder of Senior Indebtedness may give the notice. If an issue of Senior Indebtedness has a Representative, only the Representative (or any Representative, if more than one) may give the notice with respect to such Senior Indebtedness.
 
The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself or herself to be a holder of Senior Indebtedness (or a Representative) to establish that such notice has been given by a holder of Senior Indebtedness (or a Representative), and shall be entitled to rely on any written notice by a Person representing himself or herself to be a holder of Senior Indebtedness to the effect that such issue of Senior Indebtedness has no Representative.
 
The Trustee shall not be deemed to owe any fiduciary duty to holders of Senior Indebtedness by virtue of the provisions of this ARTICLE 11. The Trustees responsibilities to the holders of Senior Indebtedness are limited to those set forth in this ARTICLE 11, and no implied covenants or obligations shall be read into this Indenture. The Trustee shall not become liable to the holders of Senior Indebtedness if it makes a payment prohibited by this ARTICLE 11 in good faith.
The Trustee, in its individual or any other capacity, may hold Senior Indebtedness with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
 
Section 11.13. Effectuation of Subordination by Trustee.
Each Holder, by acceptance of a Debenture, authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this ARTICLE 11, and appoints the Trustee as his or her attorney-in-fact for any and all such purposes.
 
ARTICLE 12. MEETINGS OF HOLDERS
 
Section 12.1. Purposes for Which Meetings May Be Called.
A meeting of Holders may be called at any time and, from time to time, pursuant to the provisions of this ARTICLE 12 for any of the following purposes:
 
(a) to give any notice to the Company, or the Trustee, or to give any directions to the Trustee, or to waive or to consent to the waiving of any Default under this Indenture and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of ARTICLE 5 of this Indenture;
 
(b) to remove the Trustee or to appoint a successor Trustee pursuant to the provisions of ARTICLE 6 of this Indenture; and
 
(c) to take any other action (i) authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Debentures under any other provision of this Indenture, or authorized or permitted by law, or (ii) which the Trustee deems necessary or appropriate in connection with the administration of this Indenture.
 
Section 12.2. Manner of Calling Meetings.
At any time, the Trustee may call a meeting of Holders to take any action specified in Section 12.1 of this Indenture, to be held at such time and at such place in [city], [state], or such other place as the Trustee shall determine. Notice of every meeting of Holders, setting forth the time and place of such meeting and in general terms, the action proposed to be taken at such meeting, shall be mailed by the Trustee, first-class postage prepaid, to the Company, and to the Holders at their addresses appearing on the Debenture Register, not less than ten (10), nor more than sixty (60) days prior to the date fixed for a meeting.
 
Any meeting of Holders shall be valid without notice if the Holders of all Debentures then outstanding are present in person or by proxy, or if notice is waived before or after the meeting by the Holders of all Debentures outstanding, and if the Company and the Trustee are either present by authorized representatives or have, before or after the meeting, waived notice.
 
Section 12.3. Call of Meetings by the Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or the Holders of not less than ___% in aggregate principal amount of the Debentures then outstanding, shall have requested the Trustee to call a meeting of Holders to take any action specified in Section 12.1 of this Indenture, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within twenty (20) days after receipt of such request, then the Company or the Holders of Debentures in the amount specified above may determine the time and place in [city], [state], for such meeting, and may call such meeting for the purpose of taking such action, by mailing or causing to be mailed notice as provided in Section 12.2 of this Indenture or this Section 12.3, or by causing notice to be published at least once in each of two (2) successive weeks in The Wall Street Journal (each regional edition), the first such publication to be not less than ten (10), nor more than sixty (60) days prior to the date fixed for the meeting.
 
Section 12.4. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Holders, a Person shall (a) be a registered Holder of one or more Debentures, or (b) be a Person appointed by an instrument in writing as proxy for the registered Holder or Holders of Debentures. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, and any representatives of the Trustee and its counsel, and any representatives of the Company and its counsel.
 
Section 12.5. Regulations May be Made By Trustee; Conduct of the Meeting; Voting Rights; Adjournment.
Notwithstanding any other provision of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Debentures and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, and submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think appropriate. Such regulations may fix a record date and time for determining the Holders of record of Debentures entitled to vote at such meeting, in which case those and only those Persons who are Holders of Debentures at the record date and time so fixed, or their proxies, shall be entitled to vote at such meeting whether or not they shall be such Holders at the time of the meeting.
 
The Trustee shall, by a written instrument, appoint a temporary chairperson of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 12.3 of this Indenture. In such case, the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairperson. A permanent chairperson and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
 
At any meeting such Holder or proxy shall be entitled to one vote for each $___ principal amount of Debentures held or represented by such Holder. However, no vote shall be cast or counted at any meeting in respect of any Debentures challenged as not outstanding, and ruled by the chairperson of the meeting to be not outstanding. The chairperson of the meeting shall have no right to vote other than by virtue of Debentures held by him or her or instruments in writing, as stated above, designating him or her as the proxy to vote on behalf of other Holders. At any meeting of Holders, the presence of Persons holding or representing Debentures in an aggregate principal amount sufficient to take action upon the business for which the meeting is called shall be necessary for a quorum. If less than a quorum is present, however, the Holders of a majority of the aggregate principal amount of Debentures represented at such meeting may adjourn such meeting with the same effect as though a quorum had been present. From time to time, any meeting of Holders called pursuant to the provisions of Section 12.2 or 12.3 of this Indenture may be adjourned by vote of the Holders of a majority in aggregate principal amount of the Debentures represented at the meeting and entitled to vote, and the meeting may be held as so adjourned without further notice.
 
Section 12.6. Voting at the Meeting and Record to Be Kept.
The vote upon any resolution submitted to any meeting of Holders shall be by written ballots on which shall be subscribed the signatures of the Holders of Debentures or of their representatives by proxy and the principal amount of the Debentures voted by the ballot. The permanent chairperson of the meeting shall appoint two (2) inspectors of votes, who shall count all votes cast at the meeting for or against any resolution, and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting. There shall be attached to such record the original reports of the inspectors of votes on any vote by ballot taken there, and affidavits by one or more Persons having knowledge of the facts, setting forth a copy of the notice of the meeting and showing that such notice was mailed as provided in Sections 12.2 or 12.3 of this Indenture or published as provided in Section 12.3 of this Indenture. The record shall be signed and verified by the affidavits of the permanent chairperson and the secretary of the meeting. One of the duplicates shall be delivered to the Company, and the other duplicate shall be delivered to the Trustee to be preserved by the Trustee, the latter to have attached the ballots voted at the meeting.
 
Any record so signed and verified shall be conclusive evidence of the matters stated in it.
 
Section 12.7. Exercise of Rights of Trustee or Holders May Not Be Hindered or Delayed by Call of Meeting.
Nothing contained in this ARTICLE 12 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred under this Indenture to make such call, any interference or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Securities.
 
ARTICLE 13. MISCELLANEOUS
 
Section 13.1. Notices.
Any notice or communication by the Company or the Trustee to the other is given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), fax machine, or overnight air courier guaranteeing next day delivery, to the others address:
 
If to the Company: [address of company]
Attention: General Counsel
Fax machine No.: [fax number of company]
 
If to the Trustee: [address of trustee]
Attention: [counsel]
Fax machine No.: [fax number of trustee]
 
By notice to the other, the Company or the Trustee may designate additional or different addresses for subsequent notices or communications.
 
All notices and communications (other than those sent to Holders) shall be deemed to have been given as follows: at the time delivered by hand, if personally delivered; five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
 
Any notice or communication to a Holder shall be mailed by first-class mail to his or her address shown on the Debenture Register. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
 
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee at the same time.
 
Section 13.2. Communication by Holders with Other Holders.
Within five (5) Business Days after the receipt by the Trustee of a written application by any three (3) or more Holders, stating that such Holders desire to communicate with other Holders with respect to their rights under this Indenture or under the Debentures, and accompanied by a copy of the form of proxy or other communication which such Holders propose to transmit, and by reasonable proof that each such Holder has owned a Debenture for a period of at least three (3) months preceding the date of such application, the Trustee shall, at its election, either:
 
(a) afford to such Holders access to all information so furnished to or received by the Trustee related to the addresses of the other Holders; or
 
(b) inform such Holders as to the approximate number of Holders, according to the most recent information so furnished to or received by such Trustee, and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
 
If the Trustee shall elect not to afford to such Holders access to such information, the Trustee shall, upon the written request of such Holders, mail to all such Holders copies of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed, and of payment, or provision for the payment, of the reasonable expenses of such mailing. The Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under this Section 13.2.
 
Section 13.3. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall, upon request, furnish to the Trustee an Officers Certificate and/or an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.4 of this Indenture) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with.
 
Section 13.4. Statements Required in Certificate.
With respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 314(a)(4) of the Trust Indenture Act), each certificate shall include:
 
(a) a statement that the Person providing such certificate has read such covenant or condition;
 
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements contained in such certificate are based;
 
(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not there has been compliance with such covenant or condition; and
 
(d) a statement as to whether or not, in the opinion of such Person, there has been compliance with such condition or covenant.
 
 
 
Section 13.5. Rules by Agents.
The Registrar, Paying Agent, or Exchange Agent each may make reasonable rules and set reasonable requirements for its functions.
 
Section 13.6. No Recourse Against Others.
No past, present, or future director, officer, employee, agent, manager, stockholder, or other Affiliate of the Company shall have any liability for any obligations of the Company under the Debentures, this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Debenture, each Holder waives and releases all such liability.
 
Section 13.7. Governing Law.
This Indenture and the Debentures shall be governed by, and construed in accordance with, the laws of [state], without regard to the conflict of law rules.
 
Section 13.8. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan, or debt agreement of the Company or its Subsidiaries. Any such indenture, loan, or debt agreement may not be used to interpret this Indenture.
 
Section 13.9. Successors.
All agreements of the Company in this Indenture and the Debentures shall bind its successors and assigns. All agreements of the Trustee in this Indenture shall bind its successors and assigns.
 
Section 13.10. Severability.
In case any provision in this Indenture or in the Debentures shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired by it.
 
Section 13.11. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
 
Section 13.12. Table of Contents, Headings, etc.
The Table of Contents and Headings of the ARTICLES and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of it, and shall in no way modify or restrict any of the terms or provisions of it.
 
Section 13.13. 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. However, 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 Person may certify to give an opinion as to such matters in one or several documents.
Insofar as it relates to legal matters, any certificate or opinion of an Officer may be based upon a certification 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. Insofar as it relates to factual matters, any such certificate or Opinion of Counsel may be based upon a certificate of public officials, or upon a certificate or opinion of, or representations by, an Officer or Officers unless such counsel knows that with respect to such matters, the certificate or opinion or representations are erroneous.
 
Where any Person is required to make, give, or execute two (2) 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 13.14. Acts of Holders; Record Dates.
 
(a) Any request, demand, authorization, direction, notice, consent, waiver, or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor, signed by such Holders in person or by agents appointed in writing. Except as otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is expressly required, to the Company. Such instrument or instruments (and the action embodied in them and evidenced by them) are sometimes referred to here 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 of this Indenture) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 13.14.
 
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
 
(c) The Company may fix any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver, or other action, or to vote on any action, authorized, or permitted to be given or taken by the Holders. If not set by the Company within ten (10) days after written request to the Company to set such a record date and specifying in such request in general terms the reason for the meeting, then the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 2.5 of this Indenture) prior to such first solicitation or vote, as the case may be. With regard to any record date, only the Holders on such date (or their designated proxies) shall be entitled to give or take, or vote on, the relevant action. Notwithstanding the foregoing, the Company shall not set a record date for, and the provisions of this Section 13.14 shall not apply with respect to, any Act by the Holders pursuant to Section 5.2, 5.6 or 9.12 of this Indenture.
 
(d) The ownership of Debentures shall be proved by the Debenture Register.
 
(e) Any act of a Holder shall bind every future Holder of the same Debenture and the Holder of every Debenture issued upon the registration of transfer of, or in exchange for, or in lieu of, in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance on it, whether or not notation of such action is made upon such Debenture.
 
(f) Without limiting the foregoing, a Holder entitled under this Indenture to give or take any action here with regard to any particular Debenture may do so with regard to all or any part of the principal amount of such Debenture or by one or more appointed agents, each of which may do so pursuant to such appointment with regard to all or any different part of such principal amount.
 
Section 13.15. Benefits of Indenture.
Nothing in this Indenture or in the Debentures, express or implied, shall give to any Person, other than the parties herein and their successors, the holders of Senior Indebtedness and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
 
Section 13.16. Interest Limitations.
Anything in this Indenture or any Debenture to the contrary notwithstanding, the Company shall never be required to pay unearned interest on any Debenture, and shall never be required to pay interest on such Debenture at a rate in excess of the Highest Lawful Rate, as defined below. If effective rate of interest which would otherwise be payable under this Indenture and such Debenture would exceed the Highest Lawful Rate, or if the Holder of such Debenture shall receive any unearned interest or shall receive monies or other consideration that are deemed to constitute interest which would increase the effective rate of interest payable by the Company under this Indenture and such Debenture to a rate in excess of the Highest Lawful Rate, then (i) the amount of interest which would otherwise be payable by the Company under this Indenture and such Debenture shall be reduced to the amount allowed under applicable law, and (ii) any unearned interest paid by the Company or any interest paid by the Company in excess of the Highest Lawful Rate shall, at the option of the Holder of such Debenture, be refunded to the Company. It is further agreed that, without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received by any Holder under the Debenture held by it, or under this Indenture, shall be made, to the extent permitted by applicable usury laws (now or subsequently enacted), by amortizing, prorating, and spreading in equal parts during the period of the full stated term of the Debentures all interest (and other consideration deemed to constitute interest) at any time contracted for, charged or received by such Holder in connection with it.
 
If at any time and from time to time, (i) the amount of interest payable to any Holder on any date shall be computed at the Highest Lawful Rate pursuant to this Section 13.16, and (ii) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Holder would be less than the amount of interest payable to such Holder computed at the Highest Lawful Rate, then the amount of interest payable to such Holder in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate until the total amount of interest payable to such Holder shall equal the total amount of interest which would have been payable to such Holder if the total amount of interest had been computed without giving effect to this Section 13.16.
 
Section 13.17. Highest Lawful Rate.
“Highest Lawful Rate” means the maximum non-usurious rate of interest permitted by applicable law, which the parties intend shall be the laws of [state]. The Trustee shall have no duty to monitor, calculate or determine the Highest Lawful Rate.
 
IN WITNESS, the parties have executed this Indenture as of the day and year first above-written.
 
[company]
By:
___________________
[authorized representative]
[title]
Attest:
___________________
[secretary]
Secretary
 
[Corporate seal]
 
[trustee]
Trustee
By:
___________________
[officer]
[title]
Attest:
___________________
[secretary]
Secretary
 
[Corporate seal]
 
 
 
 
 
 
 
 

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