DEBT SECURITIES INDENTURE

Exhibit 4.6 and 4.6(a)

EL PASO ELECTRIC COMPANY

 

 

DEBT SECURITIES

 

 

INDENTURE

 

Dated as of ______________, ____

JPMorgan Chase Bank, National Association, Trustee

TABLE OF CONTENTS

 

				PAGE
ARTICLE 1
DEFINITIONS
Section 1.01 .		Definitions		1
Section 1.02 .		Other Definitions		4
Section 1.03 .		Rules of Construction		4
ARTICLE 2
THE SECURITIES
Section 2.01 .		Issuable in Series		5
Section 2.02 .		Execution and Authentication		6
Section 2.03 .		Agents		7
Section 2.04 .		Bearer Securities		7
Section 2.05 .		Paying Agent to Hold Money in Trust		8
Section 2.06 .		Securityholder Lists		8
Section 2.07 .		Transfer and Exchange		8
Section 2.08 .		Replacement Securities		9
Section 2.09 .		“Outstanding” or “Outstanding Securities”		9
Section 2.10 .		Discounted Debt Securities		9
Section 2.11 .		Global Securities		10
Section 2.12 .		Temporary Securities		10
Section 2.13 .		Cancellation		10
Section 2.14 .		Defaulted Interest		10
ARTICLE 3
REDEMPTION
Section 3.01 .		Notices to Trustee		11
Section 3.02 .		Selection of Securities to Be Redeemed		11
Section 3.03 .		Notice of Redemption		11
Section 3.04 .		Effect of Notice of Redemption		12
Section 3.05 .		Payment of Redemption Price		12
Section 3.06 .		Securities Redeemed in Part		13
ARTICLE 4
COVENANTS
Section 4.01 .		Payment of Principal and Interest		13
Section 4.02 .		Overdue Interest		13
Section 4.03 .		No Lien Created, etc.		13
Section 4.04 .		Compliance Certificate		13
Section 4.05 .		Appointment to Fill a Vacancy in Office of Trustee		13

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Section 4.06 .		SEC Reports		13
ARTICLE 5
SUCCESSORS
Section 5.01 .		When Company May Merge, etc.		14
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 .		Events of Default		14
Section 6.02 .		Acceleration of Maturity on Default; Waiver of Default		15
Section 6.03 .		Other Remedies		17
Section 6.04 .		Waiver of Past Defaults		17
Section 6.05 .		Control by Majority		17
Section 6.06 .		Limitation on Suits		17
Section 6.07 .		Rights of Holders to Receive Payment		18
Section 6.08 .		Collection Suit by Trustee		18
Section 6.09 .		Priorities		18
Section 6.10 .		Trustee May File Proofs of Claim		18
Section 6.11 .		Undertaking for Costs		19
ARTICLE 7
TRUSTEE
Section 7.01 .		Duties and Responsibilities of the Trustee; During Default; Prior to Default		20
Section 7.02 .		Rights of Trustee		21
Section 7.03 .		Individual Rights of Trustee		21
Section 7.04 .		Trustee’s Disclaimer		22
Section 7.05 .		Notice of Defaults		22
Section 7.06 .		Reports by Trustee to Holders		22
Section 7.07 .		Compensation and Indemnity		22
Section 7.08 .		Qualifications of Trustee		23
Section 7.09 .		Conflicting Interests		23
Section 7.10 .		Replacement of Trustee		23
Section 7.11 .		Preferential Collection of Claims Against the Company		24
Section 7.12 .		Successor Trustee by Merger, etc.		24
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 .		Evidence of Action Taken by Securityholders		24
Section 8.02 .		Proof of Execution of Instruments and of Holding of Securities; Record Date		24
Section 8.03 .		Holders to Be Treated as Owners		25
Section 8.04 .		Securities Owned by Company Deemed Not Outstanding		25
Section 8.05 .		Right of Revocation of Action Taken		25

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ARTICLE 9
DISCHARGE OF INDENTURE
Section 9.01 .		Defeasance		26
Section 9.02 .		Conditions to Defeasance		26
Section 9.03 .		Application of Trust Money		27
Section 9.04 .		Repayment to Company		27
ARTICLE 10
CONVERSION
Section 10.01 .		Conversion Privilege		27
Section 10.02 .		Conversion Procedure		28
Section 10.03 .		Taxes on Conversion		29
Section 10.04 .		Company Determination Final		29
Section 10.05 .		Trustee’s and Conversion Agent’s Disclaimer		29
Section 10.06 .		Company to Provide Conversion Securities		29
Section 10.07 .		Cash Settlement Option		29
Section 10.08 .		Adjustment in Conversion Rate for Change in Capital Stock		30
Section 10.09 .		Adjustment in Conversion Rate for Common Stock Issued Below Market Price		31
Section 10.10 .		Adjustment for Other Distributions		33
Section 10.11 .		Voluntary Adjustment		34
Section 10.12 .		When Adjustment May Be Deferred		34
Section 10.13 .		When No Adjustment Required		34
Section 10.14 .		Notice of Adjustment		34
Section 10.15 .		Notice of Certain Transactions		34
Section 10.16 .		Reorganization of the Company		35
ARTICLE 11
AMENDMENTS
Section 11.01 .		Without Consent of Holders		35
Section 11.02 .		With Consent of Holders		36
Section 11.03 .		Compliance with Trust Indenture Act		36
Section 11.04 .		Effect of Consents		36
Section 11.05 .		Notation on or Exchange of Securities		37
Section 11.06 .		Trustee Protected		37
ARTICLE 12
MISCELLANEOUS
Section 12.01 .		Trust Indenture Act		37
Section 12.02 .		Notices		37
Section 12.03 .		Communication by Holders with Other Holders		38
Section 12.04 .		Certificate and Opinion as to Conditions Precedent		38
Section 12.05 .		Statements Required in Certificate or Opinion		38

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Section 12.06 .		Rules by Company and Agents		39
Section 12.07 .		Legal Holidays		39
Section 12.08 .		No Recourse Against Others		39
Section 12.09 .		Execution in Counterpart		39
Section 12.10 .		Duplicate Originals		39
Section 12.11 .		Successors and Assigns		40
Section 12.12 .		Governing Law		40
EXHIBITS
Exhibit A		Form of Registered Security		A-1
Exhibit B		Form of Bearer Security		B-1
Exhibit C		Form of Secretary’s Certificate and Securities Resolution		C-1

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This Cross Reference Sheet, showing the location in the Indenture of the provisions inserted pursuant to Sections 310-318(a), inclusive, of the Trust Indenture Act of 1939, is not to be considered a part of the Indenture.

TRUST INDENTURE ACT CROSS REFERENCE SHEET

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      INDENTURE dated as of __________, ____ between EL PASO ELECTRIC COMPANY, a corporation organized and existing under the laws of the State of Texas, (hereinafter called the “ Company ”), and JPMorgan Chase Bank, National Association (“ Trustee ”).

      Each party agrees as follows for the benefit of the Holders of the Company’s debt securities issued under this Indenture:

W I T N E S S E T H:

      WHEREAS, the Company has duly authorized the issue, in one or more series as in this Indenture provided, from time to time of its debentures, notes, bonds and other evidences of indebtedness (herein called the “ Securities ”) and, to provide the general terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and

      WHEREAS, the Trustee has power to enter into this Indenture and to accept and execute the trusts herein created; and

      WHEREAS, the Company represents that all acts and things necessary have been done and performed so that this Indenture is valid in accordance to its terms; and that the execution and delivery of the Securities of any series will, at the time of such execution and delivery, have been duly authorized by the Company and that any such Securities, when so executed, issued and delivered by the Company and when authenticated and delivered by the Trustee, will be legal, valid and binding obligations of the Company; and

      WHEREAS, the Company, in the exercise of each and every legal right and power in it vested, executes this Indenture and proposes to make, execute, issue and deliver Securities from time to time as herein provided;

      NOW, THEREFORE, the parties hereto, intending to be legally bound, agree that, in consideration of the acceptance and purchase of the Securities by the Holders thereof, the Company covenants and agrees with the Trustee, for the equal benefit of all the Holders from time to time of the Securities, without preference, priority or distinction of any thereof over any other thereof by reason of priority in time of issuance or negotiation, or otherwise, as follows:

ARTICLE 1
DEFINITIONS

      Section 1.01 . Definitions.

      “ Affiliate ” means any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.

      “ Agent ” means any Registrar, Transfer Agent or Paying Agent.

      “ Authorized Newspaper ” means a newspaper that is:

 

 

      (a) printed in the English language or in an official language of the country of publication;

      (b) customarily published on each business day in the place of publication; and

      (c) of general circulation in the relevant place or in the financial community of such place.

      Whenever successive publications in an Authorized Newspaper are required, they may be made on the same or different business days and in the same or different Authorized Newspapers.

      “ Bearer Security ” means a Security payable to bearer.

      “ Board ” means the Board of Directors of the Company or any authorized committee of the Board.

      “ Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of any person and all warrants or options to acquire such capital stock.

      “ Common Stock ” means the common stock, no par value per share, of the Company.

      “ Company ” means the party named as such above until a successor replaces it and thereafter means the successor.

      “ Conversion Rate ” means such number or amount of shares of Common Stock or other equity or debt securities for which $1,000 aggregate principal amount of Securities of any series is convertible, initially as stated in the Securities Resolution authorizing the series and as adjusted pursuant to the terms of this Indenture and the Securities Resolution.

      “ coupon ” means an interest coupon for a Bearer Security.

      “ Default ” means any event which is, or after notice or passage of time would be, an Event of Default (as defined in Section 6.01) .

      “ Discounted Debt Security ” means a Security where the amount of principal due upon acceleration or redemption is less than the stated principal amount.

      “ Holder ” or “ Securityholder ” means the person in whose name a Registered Security is registered and the bearer of a Bearer Security or coupon.

      “ Indenture ” means this Indenture and any Securities Resolution as amended from time to time.

      “ Lien ” means a mortgage, pledge, security interest or other lien.

      “ Officer ” means the Chairman, any Vice-Chairman, the President, any Executive or Senior Vice President, any Vice-President, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.

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      “ Officers’ Certificate ” means a certificate signed by two Officers of the Company and delivered to the Trustee.

      “ Opinion of Counsel ” means a written opinion from legal counsel who is acceptable to the Trustee, and delivered to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.

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

      “ principal ” of a Security means the principal of the Security plus the premium, if and when applicable, on the Security.

      “ Registered Security ” means a Security registered as to principal and interest by the Registrar.

      “ SEC ” means the Securities and Exchange Commission.

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

      “ Securities Resolution ” means a resolution adopted by the Board or by a committee of Officers or an Officer pursuant to Board delegation authorizing a series and certified by the Secretary of the Company which may be in the form of Exhibit C.

      “ series ” means a series of Securities or the Securities of the series.

      “ Subsidiary ” of any person means (i) a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such person or by one or more other Subsidiaries of such person or by such person and one or more Subsidiaries thereof or (ii) any other person (other than a corporation) in which such person, or one or more Subsidiaries of such person or such person and one or more Subsidiaries thereof, directly or indirectly, has at least a majority ownership and power to direct the policy, management and affairs thereof.

      “ TIA ” means the Trust Indenture Act of 1939 in force as of the date on which this instrument was executed.

      “ Trading Day ” means each day on which the securities exchange or quotation system which is used to determine the Market Price is open for trading or quotation.

      “ Trustee ” means the party named as such above until a successor replaces it and thereafter means the successor.

      “ Trust Officer ” means the Chairman of the Board, the President or any other officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters.

      “ United States ” means the United States of America, its territories and possessions and other areas subject to its jurisdiction.

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      Section 1.02 . Other Definitions.

      (a) a term has the meaning assigned to it;

      (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles in the United States;

      (c) generally accepted accounting principles are those applicable from time to time;

      (d) all terms used in this Indenture that are defined by the TIA, defined by TIA in reference to another statute, or defined by SEC rule under the TIA shall have the meanings assigned to them by such definitions;

      (e) “or” is not exclusive; and

      (f) words in the singular include the plural, and in the plural include the singular.

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ARTICLE 2
THE SECURITIES

      Section 2.01 . Issuable in Series. The aggregate principal amount of Securities that may be issued under this Indenture is unlimited. The Securities may be issued from time to time in one or more series. Each series shall be created by a Securities Resolution that establishes the terms of the series, which may include the following:

      (a) the title of the series;

      (b) the aggregate principal amount of the series;

      (c) the interest rate, if any, or method of calculating the interest rate;

      (d) the date from which interest will accrue;

      (e) the record dates for interest payable on Registered Securities;

      (f) the dates when principal and interest are payable;

      (g) the manner of paying principal and interest;

      (h) the places where principal and interest are payable;

      (i) the Registrar, Transfer Agent and Paying Agent;      

      (j) the terms of any mandatory or optional redemption by the Company or any third party including any sinking fund;

      (k) the terms of any redemption at the option of Holders or put by the Holders;

      (l) the denominations in which Securities are issuable;      

      (m) whether Securities will be issuable as Registered Securities, Bearer Securities or uncertificated Securities;     

      (n) whether and upon what terms Registered Securities, Bearer Securities and uncertificated Securities may be exchanged;

      (o) whether any Securities will be represented by a Security in global form;

      (p) the terms of any global Security;

      (q) the terms of any tax indemnity;

      (r) the currencies (including any composite currency) in which principal or interest may be paid;

      (s) if payments of principal or interest may be made in a currency other than that in which Securities are denominated, the manner for determining such payments;

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      (t) if amounts of principal or interest may be determined by reference to an index, formula or other method, the manner for determining such amounts;

      (u) provisions for electronic issuance of Securities or for Securities in uncertificated form;

      (v) the portion of principal payable upon acceleration or redemption of a Discounted Debt Security;

      (w) whether any Events of Default or covenants in addition to, or in lieu of, those set forth in this Indenture have been added;

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

      (y) the forms of the Securities or any coupon, which may be in the form of Exhibit A or Exhibit B;

      (z) any terms that may be required by or advisable under U.S. laws;

    (aa) whether and upon what terms the Securities will be convertible into or exchangeable for Common Stock of the Company or other equity or debt securities, which may include the terms provided in Article 10; and

    (bb) any other terms not inconsistent with this Indenture.

      All Securities of one series need not be issued at the same time and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series without the consent of Holders of Securities of such series. Additional Securities of such series will be consolidated with, and form a single series with, Outstanding Securities of such series.

      Section 2.02 . Execution and Authentication. Two Officers shall sign the Securities by manual or facsimile signature. The Company’s seal may be in the form of a facsimile thereof and may be impressed, affixed, imprinted, or otherwise reproduced on the Securities. An Officer shall sign any coupons by facsimile signature.

      If an Officer whose signature is on a Security or its coupons no longer holds that office at the time the Security is authenticated or delivered, the Security and coupons shall nevertheless be valid.

      A Security and its coupons shall not be valid until the Security is authenticated by the manual or facsimile signature of the Registrar. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

      Each Registered Security shall be dated the date of its authentication. Each Bearer Security shall be dated the date of its original issuance or as provided in the Securities Resolution.

      Securities may have notations, legends or endorsements required by law, stock exchange rule, agreement or usage.

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      In the event Securities are issued in electronic or other uncertificated form, such Securities may be validly issued without the signatures or seal contemplated by this Section 2.02.

      Section 2.03 . Agents. The Company shall maintain an office or agency where Securities may be authenticated (“ Registrar ”), where Securities may be presented for registration of transfer or for exchange (“ Transfer Agent ”), where Securities may be presented for payment (“ Paying Agent ”) and where Securities may be presented for conversion (“ Conversion Agent ”). Whenever the Company must issue or deliver Securities pursuant to this Indenture, the Registrar shall authenticate the Securities at the Company’s request. The Transfer Agent shall keep a register of the Securities and of their transfer and exchange.

      The Company may appoint more than one Registrar, Transfer Agent, Paying Agent or Conversion Agent for a series. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Company does not appoint or maintain a Registrar, Transfer Agent, Paying Agent or Conversion Agent for a series, the Trustee shall act as such.

      Section 2.04 . Bearer Securities. U.S. laws and Treasury Regulations restrict sales or exchanges of and payments on Bearer Securities. Therefore, except as provided below:

      (a) Bearer Securities will be offered, sold or delivered only outside the United States and will be delivered in connection with its original issuance only upon presentation of a certificate in a form prescribed by the Company to comply with U.S. laws and regulations.

      (b) Bearer Securities will not be issued in exchange for Registered Securities.

      (c) All payments of principal and interest (including original issue discount) on Bearer Securities will be made outside the United States by a Paying Agent located outside the United States unless the Company determines that:

      (i) such payments may not be made by such Paying Agent because the payments are illegal or prevented by exchange controls as described in Treasury Regulation Sections 1.163 -5(c)(2)(v); and

      (ii) making the payments in the United States would not have an adverse tax effect on the Company.

      If there is a change in the relevant provisions of U.S. laws or Treasury Regulations or the judicial or administrative interpretation thereof, a restriction set forth in paragraph (a), (b) or (c) above will not apply to a series if the Company determines that the relevant provisions no longer apply to the series or that failure to comply with the relevant provisions would not have an adverse tax effect on the Company or on Securityholders or cause the series to be treated as “registration-required” obligations under U.S. law.

      The Company shall notify the Trustee in writing of any determinations by the Company under this Section.

      “ Treasury Regulations ” means regulations of the U.S. Treasury Department under the Internal Revenue Code of 1986, as amended.

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      Section 2.05 . Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent for a series other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of the persons entitled thereto all money held by the Paying Agent for the payment of principal of or interest on the series, and that the Paying Agent will notify the Trustee in writing 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 so held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no further liability for the money.

      If the Company or an Affiliate acts as Paying Agent for a series, it shall segregate and hold as a separate trust fund all money held by it as Paying Agent for the series.

      Section 2.06 . Securityholder 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 Securityholders. If the Trustee is not the Transfer Agent, the Company shall furnish to the Trustee semiannually and at such other times as the Trustee may request a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders of Registered Securities and Holders of Bearer Securities whose names are on the list referred to below.

      The Transfer Agent shall keep a list of the names and addresses of Holders of Bearer Securities who file a request to be included on such list. A request will remain in effect for two years, and successive requests may be made.

      Whenever the Company or the Trustee is required to mail a notice to all Holders of Registered Securities of a series, it also shall mail the notice to Holders of Bearer Securities of the series whose names are on the list. Whenever the Company is required to publish a notice to all Holders of Bearer Securities of a series, it also shall mail the notice to such of them whose names are on the list.

      Section 2.07 . Transfer and Exchange. Where Registered Securities of a series are presented to the Transfer Agent with a request to register a transfer or to exchange them for an equal principal amount of Registered Securities of other denominations of the same series, the Transfer Agent shall register the transfer or make the exchange if its requirements for such transactions are met. The Transfer Agent may require a Holder to pay a sum sufficient to cover any taxes imposed on a transfer or exchange. The Company may elect not to exchange or register the transfer of any Security for a period of 15 days before a selection of Securities to be redeemed.

      If a series provides for Registered and Bearer Securities and for their exchange and, if the requirements of the Transfer Agent for such transactions are met, Bearer Securities may be exchanged for Registered Securities and Registered Securities may be exchanged for Bearer Securities as provided in the Securities or the Securities Resolution, and in the case of the exchange of Registered Securities for Bearer Securities if Section 2.04 permits the exchange.

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

      Section 2.08 . Replacement Securities. If the Holder of a Security or coupon claims that it has been lost, destroyed or wrongfully taken, then, in the absence of notice to the Company or the Trustee that the Security or coupon has been acquired by a bona fide purchaser, the Company shall issue a replacement Security or coupon if the Company and the Trustee receive:

      (a) evidence satisfactory to them of the loss, destruction or taking;

      (b) an indemnity bond satisfactory to them; and

      (c) payment of a sum sufficient to cover their expenses and any taxes for replacing the Security or coupon.

      A replacement Security shall have coupons attached corresponding to those, if any, on the replaced Security. Every replacement Security or coupon is an additional obligation of the Company.

      All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

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

      Section 2.09 . “Outstanding” or “Outstanding Securities.” Subject to Section 8.04, the Securities outstanding at any time are all the Securities authenticated by the Registrar except for those cancelled by it, those delivered to it for cancellation, and those described in this Section as not outstanding.

      If a Security is replaced pursuant to Section 2.08, it ceases to be Outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a bona fide purchaser.

      If Securities are considered paid under Section 4.01, they cease to be Outstanding and interest on them ceases to accrue.

      Section 2.10 . Discounted Debt Securities. In determining whether the Holders of the required principal amount of Securities have concurred in any direction, waiver or consent, the principal amount of a Discounted Debt Security shall be the amount of principal that would be due as of the date of such determination if payment of the Security were accelerated on that date.

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     Section 2.11 . Global Securities. If the Securities Resolution so provides, the Company may issue some or all of the Securities of a series in temporary or permanent global form. A global Security may be in registered form, in bearer form with or without coupons or in uncertificated form. A global Security shall represent that amount of Securities of a series as specified in the global Security or as endorsed thereon from time to time. At the Company’s request, the Registrar shall endorse a global Security to reflect the amount of any increase or decrease in the Securities represented thereby.

      The Company may issue a global Security only to a depository designated by the Company. A depository may transfer a global Security only as a whole to its nominee or to a successor depository.

      The Securities Resolution may establish, among other things, the manner of paying principal and interest on a global Security and whether and upon what terms a beneficial owner of an interest in a global Security may exchange such interest for definitive Securities.

      The Company, an Affiliate, the Trustee and any Agent shall not be responsible for any acts or omissions of a depository, for any depository records of beneficial ownership interests or for any transactions between the depository and beneficial owners.

      Section 2.12 . Temporary Securities. Until definitive Securities of a series are ready for delivery, the Company may use temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Temporary Securities may be in global form. Temporary Bearer Securities may have one or more coupons or no coupons. Without unreasonable delay, the Company shall deliver definitive Securities in exchange for temporary Securities.

      Section 2.13 . Cancellation. The Company at any time may deliver Securities to the Registrar for cancellation. The Transfer Agent and the Paying Agent shall forward to the Registrar any Securities and coupons surrendered to them for payment, exchange or registration of transfer. The Registrar shall cancel all Securities or coupons surrendered for payment, registration of transfer, exchange or cancellation. The Registrar also will cancel all Bearer Securities and unmatured coupons unless the Company requests the Registrar to hold the same for redelivery. Any Bearer Securities so held shall be considered delivered for cancellation under Section 2.09. The Registrar shall destroy cancelled Securities and coupons unless the Company otherwise directs.

      Acquisition by the Company of any Security shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same is delivered to the Trustee or the Registrar for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted in this Indenture.

      Section 2.14 . Defaulted Interest. If the Company defaults in a payment of interest on Registered Securities, it need not pay the defaulted interest to Holders on the regular record date. The Company may fix a special record date for determining Holders entitled to receive defaulted interest, or the Company may pay defaulted interest in any other lawful manner.

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ARTICLE 3
REDEMPTION

      Section 3.01 . Notices to Trustee. Securities of a series that are redeemable before maturity shall be redeemable in accordance with their terms and, unless the Securities Resolution otherwise provides, in accordance with this Article 3.

      In the case of a redemption by the Company, the Company shall notify the Trustee in writing of the redemption date and the principal amount of Securities to be redeemed. The Company shall notify the Trustee at least 40 days before the redemption date unless a shorter notice is satisfactory to the Trustee.

      If the Company is required to redeem Securities, it may reduce the principal amount of Securities required to be redeemed to the extent that it is permitted a credit against such redemption requirement by the terms of the Securities Resolution and notifies the Trustee in writing of the amount of such credit and the basis for it. If the reduction is based on a credit for acquired or redeemed Securities that the Company has not previously delivered to the Registrar for cancellation, the Company shall deliver the Securities at the same time as the notice.

      Section 3.02 . Selection of Securities to Be Redeemed. If less than all the Securities of a series are to be redeemed, the Trustee shall select the Securities to be redeemed by a method the Trustee considers fair and appropriate. The Trustee shall make the selection from Securities of the series Outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities having denominations larger than the minimum denomination for the series. Securities and portions thereof selected for redemption shall be in amounts equal to the minimum denomination for the series or an integral multiple thereof. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption.

      Section 3.03 . Notice of Redemption. At least 30, but not more than 60, days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder of Registered Securities whose Securities are to be redeemed.

      If Bearer Securities are to be redeemed, the Company shall publish a notice of redemption in an Authorized Newspaper as provided in the Securities.

      A notice shall identify the Securities of the series to be redeemed and shall state:

      (a) the redemption date;

      (b) the redemption price;

      (c) the name and address of the Paying Agent;

      (d) that Securities called for redemption, together with all coupons, if any, maturing after the redemption date, must be surrendered to the Paying Agent to collect the redemption price;

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      (e) that interest on Securities called for redemption ceases to accrue on and after the redemption date;

      (f) whether the redemption by the Company is mandatory or optional; and

      (g) whether the redemption is conditional as provided in Section 3.04, and if so, the terms of the conditions, and that, if the conditions are not satisfied or is not waived by the Company, the Securities will not be redeemed and such a failure to redeem will not constitute an Event of Default.

      A redemption notice given by publication need not identify Registered Securities to be redeemed.

      At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense.

      Section 3.04 . Effect of Notice of Redemption. Except as provided below, once notice of redemption is given, Securities called for redemption become due and payable on the redemption date at the redemption price stated in the notice.

      A notice of redemption may provide that it is subject to the occurrence of any event before the date fixed for such redemption as described in such notice (“ Conditional Redemption ”), and such notice of Conditional Redemption shall be of no effect unless all such conditions to the redemption have occurred on or before such date or have been waived by the Company in its sole discretion.

      Section 3.05 . Payment of Redemption Price. On (and, if on such redemption date, prior to 11:00 a.m. New York City time) or before the redemption date subject to Section 3.04, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest on all Securities to be redeemed on that date.

      When the Holder of a Security surrenders it for redemption in accordance with the redemption notice, the Company shall pay to the Holder on the redemption date the redemption price and accrued interest to such date, except that:

      (a) the Company will pay any such interest (except defaulted interest) to Holders on the record date of Registered Securities if the redemption date occurs on an interest payment date; and

      (b) the Company will pay any such interest to Holders of coupons that mature on or before the redemption date upon surrender of such coupons to the Paying Agent.

      Coupons maturing after the redemption date on a called Security are void absent a payment default on that date. Nevertheless, if a Holder surrenders for redemption a Bearer Security missing any such coupons, the Company may deduct the face amount of such coupons from the redemption price. If thereafter the Holder surrenders to the Paying Agent the missing coupons, the Company will return the amount so deducted. The Company may waive surrender of the missing coupons if it receives an indemnity bond satisfactory to the Company.

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      Section 3.06 . Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall deliver to the Holder, and the Trustee shall authenticate, a new Security of the same series equal in principal amount to the unredeemed portion of the Security surrendered.

ARTICLE 4
COVENANTS

      Section 4.01 . Payment of Principal and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series at the place or places, at the respective times and in the manner provided in such Securities. Each installment of interest on the Securities of any series may be paid by mailing checks for such interest payable to or upon the written order of the Holders of Securities entitled thereto as they shall appear on the registry books of the Company.

      Section 4.02 . Overdue Interest. Unless the Securities Resolution otherwise provides, the Company shall pay interest on overdue principal of a Security of a series at the rate (or yield to maturity in the case of a Discounted Debt Security) borne by the series; the Company shall pay interest on overdue installments of interest at the same rate or yield to maturity to the extent lawful.

      Section 4.03 . No Lien Created, etc. This Indenture and the Securities do not create a Lien, charge or encumbrance on any property of the Company or any Subsidiary.

      Section 4.04 . Compliance Certificate. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a brief certificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Company, as to the signer’s knowledge of the Company’s compliance with all conditions and covenants under this Indenture (determined without regard to any period of grace or requirement of notice provided herein).

      Any other obligor on the Securities shall also deliver to the Trustee such a certificate as to its compliance with this Indenture within 120 days after the end of each of its fiscal years.

      The certificates need not comply with Section 12.05.

      Section 4.05 . Appointment to Fill a Vacancy in Office of Trustee. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.

      Section 4.06 . SEC Reports. The Company shall file with the Trustee (and the SEC after this Indenture becomes qualified under the TIA), and transmit to Holders of Securities, such information, documents and other reports and such summaries thereof, as may be required pursuant to the TIA at the times and in the manner provided pursuant to the TIA, whether or not the Securities are governed by the TIA; provided, however , that any such information,

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documents or reports required to be filed with the SEC pursuant to Sections 13 or 15(d) of the Exchange Act shall be filed with the Trustee within fifteen (15) days after the same is so required to be filed with the SEC; provided, however , that delivery may be effected in accordance with the provisions of Section 314(a)(1) under the TIA if and during any time the Company is eligible thereunder; and provided further , that the Company shall not be required to deliver to the Trustee any material for which the Company has sought and received confidential treatment by the SEC. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

      Any other obligor on the Securities shall do likewise as to the above items which it is required to file with the SEC pursuant to those sections.

ARTICLE 5
SUCCESSORS

      Section 5.01 . When Company May Merge, etc. Unless the Securities Resolution establishing a series otherwise provides, the Company shall not consolidate with or merge into, or transfer all or substantially all of its assets to, any person in any transaction in which the Company is not the survivor unless:

      (a) the person is organized under the laws of the United States or a State thereof or is organized under the laws of a foreign jurisdiction and consents to the jurisdiction of the courts of the United States or a State thereof;

      (b) the person assumes by supplemental indenture all the obligations of the Company under this Indenture, the Securities and any coupons;

      (c) all required approvals of any regulatory body having jurisdiction over the transaction shall have been obtained; and

      (d) immediately after the transaction no Default exists.

      The successor shall be substituted for the Company, and thereafter all obligations of the Company under this Indenture, the Securities and any coupons shall terminate.

ARTICLE 6
DEFAULTS AND REMEDIES

      Section 6.01 . Events of Default. Unless the Securities Resolution otherwise provides, an “ Event of Default ” on a series occurs if:

      (a) the Company defaults in any payment of interest on any Securities of the series when the same becomes due and payable and the Default continues for a period of 30 days;

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      (b) the Company defaults in the payment of the principal of any Securities of the series when the same becomes due and payable at maturity or upon redemption, acceleration or otherwise;

      (c) the Company defaults in the payment or satisfaction of any sinking fund obligation with respect to any Securities of the series as required by the Securities Resolution establishing such series and the Default continues for a period of 30 days;

      (d) the Company defaults in the performance of any of its other agreements applicable to the series and the Default continues for 60 days after the notice specified below;

      (e) the Company pursuant to or within the meaning of any Bankruptcy Law:

      (i) commences a voluntary case,

      (ii) consents to the entry of an order for relief against it in an involuntary case,

      (iii) consents to the appointment of a Custodian for it or for all or substantially all of its property, or

      (iv) makes a general assignment for the benefit of its creditors;

      (f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

      (i) is for relief against the Company in an involuntary case,

      (ii) appoints a Custodian for the Company or for all or substantially all of its property, or

      (iii) orders the liquidation of the Company;

and the order or decree remains unstayed and in effect for 60 days; or

      (g) there occurs any other Event of Default provided for in the series.

      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, liquidator or a similar official under any Bankruptcy Law.

      A Default under clause (d) is not an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the series notify the Company of the Default and the Company does not cure the Default within the time specified after receipt of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a “ Notice of Default .” If Holders notify the Company of a Default, they shall notify the Trustee at the same time.

      Section 6.02 . Acceleration of Maturity on Default; Waiver of Default. If any one or more Events of Default shall happen with respect to Securities of any series at the time Outstanding, then, and in each and every such case, during the continuance of any such Event of

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Default, the Trustee or the Holders of 25% or more in aggregate principal amount of the Securities of such series then Outstanding may, and upon the written request of the Holders of a majority in aggregate principal amount of such Securities then Outstanding the Trustee shall, declare the principal amount (or, if the Securities of that series are Discounted Debt Securities, such portion of the principal amount as may be specified in the terms of that series) of and all accrued but unpaid interest (if any) on all the Securities of such series then Outstanding, if not then due and payable, to be due and payable, and upon any such declaration the same shall become and be immediately due and payable, anything contained in this Indenture or in the Securities of such series to the contrary notwithstanding; provided that no Event of Default with respect to Securities of a series, except with respect to an Event of Default under Subsections (e) and (f) of Section 6.01, shall constitute an Event of Default with respect to Securities of any other series. If any Event of Default described in Section 6.01(d) with respect to all series of Securities then Outstanding, or any Event of Default described in Sections 6.01(e) or 6.01(f), occurs and is continuing, then in each and every such case the Trustee or the Holders of 25% or more in aggregate principal amount of all the Outstanding Securities (voting as one class) may, and upon the written request of the Holders of a majority in aggregate principal amount of all the Outstanding Securities (voting as one class) the Trustee shall, declare the principal amount (or, if any Securities are Discounted Debt Securities, such portion of the principal amount as may be specified in the terms of such Securities) of and all accrued but unpaid interest (if any) on all the Securities then Outstanding to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable, anything contained in this Indenture or the Securities to the contrary notwithstanding.

      The foregoing provisions, however, are subject to the condition that, if at any time after the principal amount (or, if any Securities are Discounted Debt Securities, such portion of the principal amount as may be specified in the terms of such Securities) of and all accrued but unpaid interest, if any, on all the Securities of any series (or of all series of Securities then Outstanding, as the case may be) shall have been so declared to be due and payable, all arrears of interest, if any, upon all the Securities of such series (or of all series of Securities then Outstanding, as the case may be) (with interest, to the extent that interest thereon shall be legally enforceable, on any overdue installment of interest at the rate borne by the Securities of such series) and all amounts owed to the Trustee and any predecessor trustee hereunder under Section 7.07 and all other sums payable under this Indenture (except the principal of the Securities of such series (or of all series of Securities then Outstanding, as the case may be) which would not be due and payable were it not for such declaration), shall be paid by the Company, and every other Default and Event of Default under this Indenture shall have been cured to the reasonable satisfaction of the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding (or of the Holders of a majority in aggregate principal amount of all series of Securities then Outstanding, as the case may be), or provision deemed by such Holders to be adequate therefore shall have been made, then and in every such case the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding (or the Holders of a majority in aggregate principal amount of all series of Securities then Outstanding, as the case may be) may, on behalf of the Holders of all the Securities of such series (or of all series, as the case may be), waive the Event of Default by reason of which the principal of the Securities of such series (or of all series, as the case may be) shall have been so declared to be due and payable and may rescind and annul such declaration and its consequences; but no such waiver, rescission or annulment shall extend to or affect any subsequent Default or Event of Default or impair any right consequent thereon. Any declaration by the Trustee pursuant to this

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Section 6.02 shall be by written notice to the Company, and any declaration or waiver by the Holders of Debt Securities of any series pursuant to this Section 6.02 shall be by written notice to the Company and the Trustee.

      Section 6.03 . Other Remedies. If an Event of Default occurs and is continuing on a series, the Trustee may pursue any available remedy to collect principal or interest then due on the series, to enforce the performance of any provision applicable to the series, or otherwise to protect the rights of the Trustee and Holders of the series. The Trustee may maintain a proceeding even if it does not possess any of the Securities or coupons or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

      Section 6.04 . Waiver of Past Defaults. Prior to the acceleration of the maturity of the Securities of any series (or all series, as the case may be) as provided in Section 6.02 , unless the Securities Resolution otherwise provides, the Holders of a majority in aggregate principal amount of a series by notice to the Trustee may waive an existing Default on the series and its consequences, and the Holders of a majority in aggregate principal amount of all series of Securities then Outstanding (voting as one class) by notice to the Trustee may waive an existing Default, described in Section 6.01(d) which relates to all series of Securities then Outstanding or described in Sections 6.01(e) or 6.01(f), and its consequences; except:

      (a) a Default in the payment of the principal of or interest on the series (or all series, as the case may be), or

      (b) a Default in respect of a provision that under Section 11.02 cannot be amended without the consent of each Securityholder affected.

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

      Section 6.05 . Control by Majority. The Holders of a majority in aggregate principal amount of any series of Securities may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or of exercising any trust or power conferred on the Trustee, with respect to such series. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or if the Trustee in good faith shall determine that the action or direction might involve the Trustee in personal liability.

      Section 6.06 . Limitation on Suits. A Securityholder of a series may pursue a remedy with respect to the series only if:

      (a) the Holder gives to the Trustee notice of a continuing Event of Default on the series;

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      (b) the Holders of at least 25% in principal amount of the series make a request to the Trustee to pursue the remedy;

      (c) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense;

      (d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and

      (e) during such 60-day period the Holders of a majority in principal amount of the series do not give the Trustee a direction inconsistent with such request.

      A Securityholder may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder.

      Section 6.07 . Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of the principal amount or any accrued interest in respect of the Securities held by such Holder, on or after the respective due dates expressed in the Securities, and to convert the Securities in accordance with Article 10, or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, shall not be impaired or affected adversely without the consent of such Holder.

      Section 6.08 . Collection Suit by Trustee. If an Event of Default in payment of interest, principal or sinking fund specified in Section 6.01(a), (b) or (c) occurs and is continuing on a series, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal and interest remaining unpaid on the series, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon such Securities and collect in the manner provided by law out of the property of the Company or other obligor upon such Securities, wherever situated, the moneys adjudged or decreed to be payable.

      Section 6.09 . Priorities. If the Trustee collects any money for a series pursuant to this Article 6, it shall pay out the money in the following order:

      First: to the Trustee for amounts due under Section 7.07;

      Second: to Securityholders of the series for amounts due and unpaid for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable for principal and interest, respectively; and

Third: to the Company.

      The Trustee may fix a payment date for any payment to Securityholders.

      Section 6.10 . Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal amount or any accrued interest in respect of the Securities

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shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any such amount) shall be entitled and empowered, by intervention in such proceeding or otherwise,

      (a) to file and prove a claim for the whole amount of the principal amount, or any accrued interest and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel or any other amounts due the Trustee under Section 7.07) and of the Holders allowed in such judicial proceeding,

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

      (c) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.

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

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

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