KNOLL, INC.

 

Reconciliation and Tie between Trust Indenture Act of 1939
and Indenture Provisions (1)

 

Trust Indenture Act Section			Indenture Section
Section 310	(a)(1)		6.09
	(a)(2)		6.09
	(a)(3)		Not Applicable
	(a)(4)		Not Applicable
	(a)(5)		6.09
	(b)		6.08, 6.10
Section 311	(a)		6.13
	(b)		6.13
Section 312	(a)		7.01, 7.02
	(b)		7.02
	(c)		7.02
Section 313	(a)		7.03
	(b)		7.03
	(c)		7.03
	(d)		7.03
Section 314	(a)		7.04
	(a)(4)		10.04
	(b)		Not Applicable
	(c)(1)		1.02
	(c)(2)		1.02
	(c)(3)		Not Applicable
	(d)		Not Applicable
	(e)		1.02

 

 

Trust Indenture Act Section			Indenture Section
Section 315	(a)		6.01
	(b)		6.02
	(c)		6.01
	(d)		6.01
	(e)		5.14
Section 316	(a)		1.01
	(a)(1)(A)		5.02, 5.12
	(a)(1)(B)		5.13
	(a)(2)		Not Applicable
	(b)		5.08
	(c)		1.04
Section 317	(a)(1)		5.03
	(a)(2)		5.04
	(b)		10.03
Section 318	(a)		1.07

 

(1)  This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01	Definitions	1
SECTION 1.02	Compliance Certificates and Opinions	8
SECTION 1.03	Form of Documents Delivered to Trustee	8
SECTION 1.04	Acts of Holders; Record Dates	9
SECTION 1.05	Notices, Etc., to Trustee and Company	11
SECTION 1.06	Notice to Holders; Waiver	11
SECTION 1.07	Conflict with Trust Indenture Act	12
SECTION 1.08	Effect of Headings and Table of Contents	12
SECTION 1.09	Successors and Assigns	12
SECTION 1.10	Separability Clause	12
SECTION 1.11	Benefits of Indenture	12
SECTION 1.12	Governing Law and Waiver of Jury Trial	12
SECTION 1.13	Legal Holidays	12
SECTION 1.14	Computations	13
SECTION 1.15	Counterparts; Facsimile	13
ARTICLE II
Security Forms
SECTION 2.01	Forms Generally	13
SECTION 2.02	Form of Legend for Global Securities	14
SECTION 2.03	Form of Trustee’s Certificate of Authentication	14
ARTICLE III
The Securities
SECTION 3.01	Creation of Securities in Amount Unlimited	14
SECTION 3.02	Documents Required for Issuance of Each Series of Securities	15
SECTION 3.03	Denominations	17
SECTION 3.04	Execution, Delivery, Dating and Authentication	18
SECTION 3.05	Temporary Securities	19
SECTION 3.06	Registration, Registration of Transfer and Exchange	20
SECTION 3.07	Mutilated, Destroyed, Lost and Stolen Securities	21
SECTION 3.08	Payment of Interest; Interest Rights Preserved	22
SECTION 3.09	Persons Deemed Owners	23
SECTION 3.10	Cancellation	24
SECTION 3.11	Computation of Interest	24
SECTION 3.12	Depository	24
SECTION 3.13	CUSIP Numbers	25

 

 

ARTICLE IV
Satisfaction and Discharge
SECTION 4.01	Satisfaction and Discharge of Indenture in Respect of any Series of Securities	25
SECTION 4.02	Application of Trust Money	26
ARTICLE V
Remedies
SECTION 5.01	Events of Default	26
SECTION 5.02	Acceleration of Maturity; Rescission and Annulment	28
SECTION 5.03	Collection of Indebtedness and Suits for Enforcement by Trustee	29
SECTION 5.04	Trustee May File Proofs of Claim	30
SECTION 5.05	Trustee May Enforce Claims Without Possession of Securities	30
SECTION 5.06	Application of Money Collected	30
SECTION 5.07	Limitation on Suits	31
SECTION 5.08	Unconditional Right of Holders to Receive Principal, Premium and Interest	31
SECTION 5.09	Restoration of Rights and Remedies	31
SECTION 5.10	Rights and Remedies Cumulative	32
SECTION 5.11	Delay or Omission Not Waiver	32
SECTION 5.12	Control by Holders	32
SECTION 5.13	Waiver of Past Defaults	32
SECTION 5.14	Undertaking for Costs	33
SECTION 5.15	Waiver of Stay or Extension Laws	33
ARTICLE VI
The Trustee
SECTION 6.01	Certain Duties and Responsibilities	33
SECTION 6.02	Notice of Defaults	33
SECTION 6.03	Certain Rights of Trustee	34
SECTION 6.04	Not Responsible for Recitals or Issuance of Securities	35
SECTION 6.05	May Hold Securities	35
SECTION 6.06	Money Held in Trust	35
SECTION 6.07	Compensation and Reimbursement	35
SECTION 6.08	Disqualification; Conflicting Interests	36
SECTION 6.09	Corporate Trustee Required; Eligibility	37
SECTION 6.10	Resignation and Removal; Appointment of Successor	37
SECTION 6.11	Acceptance of Appointment by Successor	39
SECTION 6.12	Merger, Conversion, Consolidation or Succession to Business	40
SECTION 6.13	Preferential Collection of Claims Against Company	40
SECTION 6.14	Appointment of Authenticating Agent	40

 

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ARTICLE VII
Holders’ Lists and Reports by Trustee and Company
SECTION 7.01	Company to Furnish Trustee Names and Addresses of Holders	42
SECTION 7.02	Preservation of Information; Communications to Holders	42
SECTION 7.03	Reports by Trustee	42
SECTION 7.04	Reports by Company	43
ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
SECTION 8.01	Company May Consolidate, Etc., Only on Certain Terms	43
SECTION 8.02	Successor Corporation Substituted	44
ARTICLE IX
Supplemental Indentures
SECTION 9.01	Supplemental Indentures Without Consent of Holders	44
SECTION 9.02	Supplemental Indentures with Consent of Holders	45
SECTION 9.03	Execution of Supplemental Indentures	47
SECTION 9.04	Effect of Supplemental Indentures	47
SECTION 9.05	Conformity with Trust Indenture Act	47
SECTION 9.06	Reference in Securities to Supplemental Indentures	47
ARTICLE X
Covenants
SECTION 10.01	Payment of Principal, Premium and Interest	47
SECTION 10.02	Maintenance of Office or Agency	48
SECTION 10.03	Money for Securities Payments to be Held in Trust	48
SECTION 10.04	Statement by Officers as to Default	50
SECTION 10.05	Waiver of Certain Covenants	50
ARTICLE XI
Redemption of Securities
SECTION 11.01	Applicability of Article	50
SECTION 11.02	Election to Redeem; Notice to Trustee	51
SECTION 11.03	Selection by Trustee of Securities to be Redeemed	51
SECTION 11.04	Notice of Redemption	51
SECTION 11.05	Deposit of Redemption Price	52
SECTION 11.06	Securities Payable on Redemption Date	52
SECTION 11.07	Securities Redeemed in Part	53

 

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ARTICLE XII
Sinking Funds
SECTION 12.01	Applicability of Article	53
SECTION 12.02	Satisfaction of Sinking Fund Payments with Securities	53
SECTION 12.03	Redemption of Securities for Sinking Fund	54
ARTICLE XIII
Subordination of Securities
SECTION 13.01	Securities Subordinate to Senior Indebtedness	54
SECTION 13.02	Payment Over of Proceeds Upon Dissolution, Etc	54
SECTION 13.03	Prior Payment to Senior Indebtedness Upon Acceleration of Securities	55
SECTION 13.04	No Payment When Senior Indebtedness in Default	56
SECTION 13.05	Payment Permitted if No Default	56
SECTION 13.06	Subrogation to Rights of Holders of Senior Indebtedness	57
SECTION 13.07	Provisions Solely to Define Relative Rights	57
SECTION 13.08	Trustee to Effectuate Subordination	57
SECTION 13.09	No Waiver of Subordination Provisions	58
SECTION 13.10	Notice to Trustee	58
SECTION 13.11	Reliance on Judicial Order or Certificate of Liquidating Agent	58
SECTION 13.12	Trustee Not Fiduciary For Holders of Senior Indebtedness	59
SECTION 13.13	Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights	59
SECTION 13.14	Article Applicable to Paying Agents	59
SECTION 13.15	Certain Conversions or Exchanges Deemed Payment	59
ARTICLE XIV
Defeasance and Covenant Defeasance
SECTION 14.01	Company’s Option to Effect Defeasance or Covenant Defeasance	59
SECTION 14.02	Defeasance and Discharge	60
SECTION 14.03	Covenant Defeasance	60
SECTION 14.04	Conditions to Defeasance or Covenant Defeasance	60
SECTION 14.05	Deposited Money or U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions	62
SECTION 14.06	Reinstatement	62

 

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SUBORDINATED INDENTURE, dated as of August 21, 2009, between Knoll, Inc. , a Delaware corporation (the “ Company ”), and U.S. Bank National Association, a national banking association, as trustee hereunder (the “ Trustee ”).

 

RECITALS OF THE COMPANY

 

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

 

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

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

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

 

ARTICLE I
Definitions and Other Provisions of General Application

 

SECTION 1.01                  Definitions .  For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

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

 

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

 

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

 

(d)           the words “herein”, “hereinafter”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally within an Article of this Indenture, may be defined in that Article.

 

“ Act ”, when used with respect to any Holder, has the meaning specified in Section 1.04.

 

 

“ 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 contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

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

 

“ Board of Directors ” means the board of directors of the Company or any duly authorized committee of that board.

 

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

 

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

 

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

 

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

 

“ Company Request ” or “ Company Order ” means a written request or order signed in the name of the Company by one of its officers and delivered to the Trustee.

 

“ Corporate Trust Office ” means the principal office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is 425 Walnut Street, Cincinnati, Ohio 45202, except that with respect to the presentation of Securities for payment or for registration of transfer and exchange, such term shall mean the office or the agency of the Trustee designated for such purpose.

 

“ Corporation ” includes corporations, associations, companies (including limited liability companies) and business trusts.

 

“ Covenant Defeasance ” has the meaning specified in Section 14.03.

 

“ Defaulted Interest ” has the meaning specified in Section 3.08(b).

 

“ Defeasance ” has the meaning specified in Section 14.02.

 

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“ Depository ” means the clearing agency registered under the Exchange Act that is designated by the Company to act as depository for any series of Securities (or any successor to such clearing agency).

 

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

 

“ Event of Default ” has the meaning specified in Section 5.01.

 

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

 

“ Expiration Date ” has the meaning specified in Section 1.04.

 

“ Global Security ” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.02 (or such legend as may be specified as contemplated by Section 3.02 for such Securities).

 

“ Holder ” or “ holder ” means a Person in whose name at the time a particular Security is registered in the Security Register.

 

“ Indebtedness ” of any Person means the principal of (and premium, if any) and interest, if any, due on indebtedness of such Person, whether outstanding on the date of this Indenture or thereafter created, incurred or assumed, whether recourse is to all or a portion of the assets of such Person and whether or not contingent, which is (a) indebtedness for money borrowed, and (b) any amendments, renewals, extensions, modifications and refundings of any such indebtedness. For the purposes of this definition, “indebtedness for money borrowed” means (i) any obligation of, or any obligation guaranteed by, such Person for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, (ii) any obligation of, or any such obligation guaranteed by, such Person evidenced by bonds, debentures, notes or similar written instruments, including obligations assumed or incurred in connection with the acquisition of property, assets or businesses ( provided , however , that the deferred purchase price of any property, assets or business shall not be considered Indebtedness if the purchase price thereof is payable in full within 90 days from the date on which such indebtedness was created), and (iii) any obligations of such Person as lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles and leases of property or assets made as part of any sale and lease-back transaction to which such Person is a party. Indebtedness does not include trade accounts payable or accrued liabilities arising in the ordinary course of business.

 

“ Indenture ” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.  The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.02.

 

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

 

“ Interest Rate ” means the rate of interest specified or determined as specified in each Security as being the rate of interest payable on such Security.

 

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

 

“ Junior Subordinated Payment ” has the meaning specified in Section 13.02.

 

“ Lien ” means any mortgage, pledge, security interest or lien or other encumbrance of any nature whatsoever.

 

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

 

“ Notice of Default ” means a written notice of the kind specified in Section 5.01(iv).

 

“ Officer’s Certificate ” means a certificate signed by an officer of the Company, and delivered to the Trustee. Each such Officer’s Certificate shall contain the statements provided in Section 1.02 if and to the extent required by the provisions of such Section.

 

“ Opinion of Counsel ” means a written opinion of counsel, who may be counsel for or an employee of the Company and who shall be acceptable to the Trustee.  Each Opinion of Counsel shall contain the statements provided in Section 1.02 if and to the extent required by the provisions of such Section.

 

“ Original Issue Date ” means the date of issuance specified as such in each Security.

 

“ Original Issue Discount Security ” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.

 

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

 

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

 

(ii)           Securities for whose payment or redemption money in the necessary amount and in the required currency or currency unit has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has

 

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been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

(iii)          Securities as to which Defeasance has been effected pursuant to Section 14.02; and

 

(iv)          Securities which have been paid pursuant to Section 3.07 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof  to such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.02, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the Dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.02, of the principal amount of such Security (or, in the case of a Security described in clause (A) or (B) above, of the amount determined as provided in such clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

 

“ Paying Agent ” means the Trustee or any other Person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Securities on behalf of the Company.

 

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

 

“ Place of Payment ”, when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of that series are payable as specified in accordance with Section 3.02.

 

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“ Predecessor Security ” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.07 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

“ Proceeding ” has the meaning specified in Section 13.02.

 

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

 

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

 

“ Regular Record Date ” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.02, which date shall be, unless otherwise specified pursuant to Section 3.02, the fifteenth day preceding such Interest Payment Date, whether or not such day shall be a Business Day.

 

“ Responsible Trust Officer ”, when used with respect to the Trustee, means any of the following officers of the Trustee who engage in corporate trust matters on behalf of the Trustee: any Vice President, any assistant Vice President, the treasurer, any assistant treasurer, any trust officer or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers who shall have direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

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

 

“ Security Register ” has the meaning specified in Section 3.06(a).

 

“ Security Registrar ” means the Person appointed as the initial Security Registrar in Section 3.06(a) or any Person appointed by the Company as a successor or replacement Security Registrar.

 

“ Senior Indebtedness ” means the principal of (and premium, if any) and interest, if any (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company whether or not such claim for post-petition interest is allowed in such proceeding), on Indebtedness, whether incurred on or prior to the date of this Indenture or thereafter incurred, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that  such obligations are not superior in right of payment to the Securities or to other Indebtedness which is pari passu with, or subordinated to, the Securities; provided , however , that Senior Indebtedness shall not be deemed to include (a) any Indebtedness of the Company which, when incurred and without respect to any election under Section 1111(b) of Title 11, United States Code, was without recourse to the Company, (b) any Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness to

 

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any employee of the Company or any employee of a Subsidiary of the Company, (d) any liability for taxes, (e) Indebtedness or other monetary obligations to trade creditors created or assumed by the Company or any of its Subsidiaries in the ordinary course of business in connection with the obtaining of goods, materials or services and (f) the Securities.

 

“ Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.08(b).

 

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

 

“ Subsidiary ” means any entity of which at the time of determination the Company and/or one or more other Subsidiaries owns or controls directly or indirectly more than 50% of the shares of Voting Stock.

 

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

 

“ Trust Indenture Act ” means the Trust Indenture Act of 1939 and any statute successor thereto, in each case as amended from time to time.

 

“ United States ” means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

“ U.S. Government Obligation ” means, with respect to the Securities of any series, securities which are (i) direct obligations of the United States or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the payment of which is unconditionally guaranteed by the United States and which, in either case, are full faith and credit obligations of the United States and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.

 

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

 

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“ Voting Stock ” means stock of a Corporation of the class or classes having general voting power under ordinary circumstances in the election of directors, managers or trustees of such Corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

 

SECTION 1.02                   Compliance Certificates and Opinions .  (a)  Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act.  Each such certificate and opinion shall be given in the form of an Officer’s Certificate, if to be given by an officer of the Company, and an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.  In the case of an application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

 

(b)            Unless expressly otherwise specified with respect to any certificate or opinion provided for in this Indenture, every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than annual certificates provided pursuant to Section 10.04) shall include:

 

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

 

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

 

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

 

(iv)          a statement as to whether or not, in the opinion of each such individual, such condition or covenant has been complied with.

 

SECTION 1.03                  Form of Documents Delivered to Trustee .  (a)  In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

(b)           Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it

 

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relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

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

 

SECTION 1.04                  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 of Securities of any series may be embodied in and evidenced by (i) one or more instruments of substantially similar tenor signed by such Holders in person or by proxies duly appointed in writing, (ii) the record of such Holders voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called, or (iii) a combination of any such record and one or more instruments of substantially similar tenor signed by such Holders in person or by proxies duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such record and/or instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such record or instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such proxy shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.

 

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

 

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

 

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

 

(e)           The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request,

 

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demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph.  If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date and no other Holders shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date.  Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken.  Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.

 

(f)            The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration, or any rescission or annulment of any such declaration, referred to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(ii) or (iv) any direction referred to in Section 5.12. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.

 

(g)           With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day;  provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the existing Expiration Date.  If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such

 

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record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.  Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

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

 

SECTION 1.05                  Notices, Etc., to Trustee and Company .  Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:

 

(a)           the Trustee by any Holder or by the Company shall be made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office and unless otherwise herein expressly provided, any such document shall be deemed to be sufficiently made, given, furnished or filed upon its receipt by a Responsible Trust Officer of the Trustee, or

 

(b)           the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and delivered in person, mailed, first-class postage prepaid, or sent by overnight mail to the Company addressed to it at 1235 Water Street, East Greenville, Pennsylvania 18041 or at any other address previously furnished in writing to the Trustee by the Company, Attention: Legal Department.

 

(c)           Neither the Company nor the Trustee shall be deemed to have received any such request, demand, authorization, direction, notice, consent, waiver or other Act of Holders unless given, furnished or filed as provided in this Section 1.05.

 

SECTION 1.06                  Notice to Holders; Waiver .  (a)  Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided or unless otherwise specified in such Securities) if in writing and delivered in person, mailed, first-class postage prepaid or sent by overnight mail, to each Holder affected by such event, at his address as it appears in the Security Register, within the time prescribed for the giving of such notice, and

 

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

 

(c)           In any case where notice to a Holder is given in any manner specified in paragraph (a) above, such notice shall be conclusively presumed to have been duly given, whether or not such Holder receives such notice. In any case where notice to Holders is given in any manner specified in paragraph (a) above, neither the failure to deliver, mail or send such notice, nor any defect in any notice so mailed or sent, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.

 

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

 

SECTION 1.07                                                      Conflict with Trust Indenture Act .  If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

SECTION 1.08                                                      Effect of Headings and Table of Contents .  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 1.09                                                      Successors and Assigns .  All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

 

SECTION 1.10                                                      Separability Clause .  In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SECTION 1.11                                                      Benefits of Indenture .  Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

SECTION 1.12                                                      Governing Law and Waiver of Jury Trial .  This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to applicable principles of conflicts of laws to the extent the laws of another jurisdiction would be required thereby.  EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

SECTION 1.13                                                      Legal Holidays .  In any case where any Interest Payment Date, Redemption Date, Maturity, or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Maturity or Stated Maturity, as the case may be, provided that no interest shall accrue for the period from and after such Interest Payment Date,

 

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Redemption Date, Maturity or Stated Maturity, as the case may be, to the next succeeding Business Day at such Place of Payment.

 

SECTION 1.14                                                      Computations .  Unless otherwise specifically provided, the certificate or opinion of any independent firm of public accountants of recognized standing selected by the Chief Financial Officer or Chief Accounting Officer of the Company shall be conclusive evidence of the correctness of any computation made under the provisions of this Indenture.  The Company shall furnish to the Trustee upon its request a copy of any such certificate or opinion.

 

SECTION 1.15                                                      Counterparts; Facsimile .  This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, and signature pages may be delivered by facsimile, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

ARTICLE II
Security Forms

 

SECTION 2.01                                                      Forms Generally .  The Securities of each series shall be in the form or forms established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate provisions as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depository therefor or as may, consistently herewith, be determined by the officer executing such Securities, as evidenced by the officer’s execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.04 with respect to the authentication and delivery of such Securities.

 

The Trustee’s certificate of authentication shall be substantially in the form set forth in this Article.

 

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

 

The Securities of each series will initially be issued in the form of one or more Global Securities. Each such Global Security shall represent such of the Outstanding Securities of such series as shall be specified therein and each shall provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amounts of Outstanding Securities of such series represented thereby may from time to time be reduced or increased, as appropriate. The Global Security or Securities evidencing the Securities of a series (and all Securities issued in exchange therefore) shall bear the legend indicated in Section 2.02.

 

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SECTION 2.02                                                      Form of Legend for Global Securities .

 

Every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:

 

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

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

 

SECTION 2.03                                                      Form of Trustee’s Certificate of Authentication .

 

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

 

Certificate of Authentication

 

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

 

Dated:

 

	U.S. Bank National Association, as Trustee
	By:
	Authorized Signatory

 

ARTICLE III
The Securities

 

SECTION 3.01                                                      Creation of Securities in Amount Unlimited .  An unlimited aggregate principal amount of Securities may be issued pursuant to this Article III. The Securities may be authenticated and delivered, as authorized by the Board of Directors, in an unlimited number of series.

 

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SECTION 3.02                                                      Documents Required for Issuance of Each Series of Securities .  At any time and from time to time, Securities of each series created pursuant to the provisions of this Article III may be executed by the Company and delivered to the Trustee and shall be authenticated by the Trustee as contemplated by Section 3.04 upon receipt by the Trustee of the following:

 

(a)                                   A Board Resolution or Board Resolutions authorizing the execution, authentication and delivery of the Securities of the series, or one or more indentures supplemental hereto, specifying:

 

(i)                                      the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);

 

(ii)                                   any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Article III (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the same series pursuant to Section 3.05, 3.06, 3.07, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.04, are deemed never to have been authenticated and delivered hereunder); provided , however , that the authorized aggregate principal amount of such series may be increased above such amount by a Board Resolution to such effect;

 

(iii)                                the date or dates on which the principal (and premium, if any) of any of the Securities of the series are payable or the method of determination thereof;

 

(iv)                               the rate or rates, or the method of determination thereof, at which any of the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date (if other than as defined in this Indenture) for the interest payable on any Securities on any Interest Payment Date;

 

(v)                                  the place or places where the principal of (and premium, if any) and interest, if any, on any of the Securities of the series shall be payable and the office or agency for the Securities of the series maintained by the Company pursuant to Section 10.02;

 

(vi)                               the period or periods within which, the price or prices at which and the terms and conditions upon which any of the Securities of the series may be redeemed or prepaid, in whole or in part, at the option of the Company;

 

(vii)                            the terms of any sinking fund and the obligation or the right, if any, of the Company to redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;

 

(viii)                         the terms, if any, for the attachment to Securities of the series of warrants, options or other rights to purchase or sell stock or other securities of the Company;

 

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

 

(x)                                    if other than the principal amount thereof, the portion of the principal amount of any of the Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;

 

(xi)                                 any deletions or modifications of or additions to the Events of Default set forth in Section 5.01 or covenants of the Company set forth in Article VIII or X pertaining to the Securities of the series;

 

(xii)                              the form or forms of the Securities of the series;

 

(xiii)                           if other than Dollars, the currency or currencies, or currency unit or units, in which the Securities of such series will be denominated and/or in which payment of the principal of (and premium, if any) and interest, if any, on any of the Securities of the series shall be payable;

 

(xiv)                          if the principal of (and premium, if any) or interest, if any, on any of the Securities of the series are to be payable at the election of the Company or a Holder thereof, or under some or all other circumstances, in a currency or currencies, or currency unit or units, other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made, or the other circumstances under which any of the Securities are to be so payable, including, without limitation, any provision requiring the Holder to bear currency exchange costs by deduction from such payments;

 

(xv)                             if the amount of payments of principal of (and premium, if any) or interest, if any, on any of the Securities of the series may be determined with reference to an index or indices based on (A) a currency or currencies or currency unit or units other than that in which such Securities are stated to be payable or (B) any method, not inconsistent with the provisions of this Indenture, specified in or pursuant to such Board Resolution, then in each case (A) and (B) the manner in which such amounts shall be determined;

 

(xvi)                          the additions or changes, if any, to this Indenture with respect to the Securities of such series as shall be necessary to permit or facilitate the issuance of the Securities of such series in bearer form, registrable or not registrable as to principal, and with or without interest coupons;

 

(xvii)                       whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in definitive global form and, if so, whether beneficial owners of interests in any such definitive global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which and the place or places where any such exchanges may occur, if other than in the manner provided in Section 3.06;

 

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(xviii)                    if the Securities of the series are to be issued upon the exercise of warrants or subscription rights, the time, manner and place for such Securities to be authenticated and delivered;

 

(xix)                            whether and under what circumstances and with what procedures and documentation the Company will pay additional amounts on any of the Securities of the series to any Holder who is not a U.S. Person (including a definition of such term), in respect of any tax assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay additional amounts (and the terms of any such option);

 

(xx)                               the Person to whom any interest on any Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 3.05;

 

(xxi)                            the terms and conditions of any right or obligation on the part of the Company, or any option on the part of the Holders, to convert or exchange the Securities of such series into cash or any other securities or property of the Company or any other Person, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange;

 

(xxii)                         whether and under what circumstances any or all of the provisions of this Indenture relating to the subordination of the Securities (including the provisions of Article XIII), or different subordination provisions, including a different definition of “Senior Indebtedness” will apply or cease to apply to the Securities of the series; and

 

(xxiii)                      any other terms of any of the Securities of the series (which terms shall not be inconsistent with the provisions of this Indenture).

 

If any of the terms of the series are established by action taken pursuant to a Board Resolution or Board Resolutions, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee.

 

(b)                                  In case the Securities of the series to be authenticated and delivered are to be created pursuant to one or more supplemental indentures, such supplemental indenture or indentures, accompanied by a Board Resolution or Board Resolutions authorizing such supplemental indenture or indentures and designating the new series to be created and prescribing, pursuant to paragraph (a) above, consistent with the applicable provisions of this Indenture, the terms and provisions relating to the Securities of the series.

 

SECTION 3.03                                                      Denominations .  The Securities of each series issued in registered form shall be issuable in such denominations as shall be specified as contemplated by Section 3.02. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series denominated in Dollars shall be issuable in denominations of $l,000 and in any integral multiple thereof. Each Security shall bear the appropriate legends, if any, as required by U.S. Federal tax law and regulations.

 

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SECTION 3.04                                                      Execution, Delivery, Dating and Authentication .  (a)  The Securities shall be executed on behalf of the Company by a manual or facsimile signature of one of its officers or, if required by any securities exchange on which the Securities may be listed, by a manual or facsimile signature of two of its officers. In case an officer of the Company who shall have signed any of the Securities shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such officer; and any Securities may be signed on behalf of the Company by such person as, at the actual date of the execution of such Security, shall be such officer of the Company, although at the date of the execution of this Indenture any such person was not such officer.

 

(b)                                  At any time and from time to time, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.02, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided with, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating:

 

(i)                                      if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Sections 2.01 and 3.02, that such form has been established in conformity with the provisions of this Indenture;

 

(ii)                                   if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 3.02, that such terms have been established in conformity with the provisions of this Indenture; and

 

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

 

(c)                                   The Trustee shall not be required to authenticate Securities of any series if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

(d)                                  Notwithstanding the provisions of Section 3.02, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.02 or the Company Order and Opinion of Counsel otherwise required pursuant to Section 3.04(b) at or prior to the authentication of each Security

 

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of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

(e)                                   Each Security shall be dated the date of its authentication.

 

(f)                                     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been duly authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.10 together with a written statement (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

(g)                                  Minor typographical and other minor errors in the text of any Security shall not affect the validity and enforceability of such Security if it has been duly authenticated and delivered by the Trustee.

 

(h)                                  The Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities with respect to each series of Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the initially issued Securities of such series, (ii) shall be registered in the name of the Depository or the nominee of the Depository, (iii) shall be delivered by the Trustee to the Depository or pursuant to the Depository’s instruction and (iv) shall bear a legend substantially in the form required in Section 2.02.

 

The Depository must, at all times while it serves as such Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.

 

SECTION 3.05                                                      Temporary Securities .  (a)  Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officer executing such Securities may determine (but which do not affect the rights, duties or immunities of the Trustee), as evidenced conclusively by his or her execution of such Securities. Such temporary Securities may be in global form.

 

(b)                                  If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company in a Place of Payment without charge to the Holder. Upon surrender for cancellation of any one or more

 

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temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and having the same Original Issue Date and Stated Maturity and having the same terms as such temporary Securities.  Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.

 

SECTION 3.06                                                      Registration, Registration of Transfer and Exchange .  (a)  The Company shall cause to be kept at an office or agency to be maintained by the Company in accordance with Section 10.02 a register (being the combined register of the Security Registrar and all additional transfer agents designated pursuant to Section 10.02 for the purpose of registration of transfer of Securities and sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and the registration of transfers of Securities. U.S. Bank National Association is hereby appointed the initial Security Registrar, with the Security Register initially to be kept at 425 Walnut Street, Cincinnati, Ohio 45202. At all reasonable times each register maintained by the Security Registrar and any additional transfer agents shall be open for inspection by the Trustee.

 

(b)                                  Upon surrender for registration of transfer of any Security of any series at the office or agency of the Company maintained pursuant to Section 10.02 for such purpose in a Place of Payment for such series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, of the same Original Issue Date and Stated Maturity and having the same terms.

 

(c)                                   At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, of the same Original Issue Date and Stated Maturity and having the same terms, upon surrender of the Securities to be exchanged at any such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

(d)                                  Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

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

 

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

 

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(g)                                  No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.05, 9.06 or 11.07 not involving any transfer.

 

(h)                                  The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 Business Days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part.

 

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

 

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

 

(2)                                   Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depository for such Global Security or a nominee thereof unless (A) such Depository (i) has notified the Company that it is unwilling or unable to continue as Depository for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.02.

 

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

 

(4)                                    Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.05, 3.07, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depository for such Global Security or a nominee thereof.

 

SECTION 3.07                                                      Mutilated, Destroyed, Lost and Stolen Securities .  (a)  If any mutilated Security is surrendered to the Trustee together with such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount, having the same Original Issue Date and

 

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Stated Maturity and bearing the same Interest Rate as such mutilated Security, and bearing a number not contemporaneously outstanding.

 

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

 

(c)                                   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.

 

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

 

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

 

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

 

SECTION 3.08                                                      Payment of Interest; Interest Rights Preserved .  (a)  Unless otherwise provided as contemplated by Section 3.02, with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.  The initial payment of interest on any Security of any series which is issued between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in the Board Resolution pursuant to Section 3.02 with respect to the related series of Securities.

 

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

 

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

 

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

 

Subject to the foregoing provisions of this Section and Section 3.06, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

SECTION 3.09                                                      Persons Deemed Owners .  (a)  Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 3.06 and 3.08 and unless otherwise specified as contemplated by Section 3.02) interest on such Security and for all other purposes whatsoever, whether or not such Security is overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

(b)                                  None of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments

 

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made on account of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

SECTION 3.10                                                      Cancellation .  All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered shall be promptly cancelled by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered to the Trustee shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedure unless otherwise directed by a Company Order; provided , however , that the Trustee may, but shall not be required to, destroy such cancelled Securities.

 

SECTION 3.11                                                      Computation of Interest .  Except as otherwise specified as contemplated by Section 3.02, for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

SECTION 3.12                                                      Depository .

 

(a)                                   If at any time the Depository notifies the Company that it is unwilling or unable to continue as Depository or if at any time the Depository shall cease to be a clearing agency registered under the Exchange Act, the Company shall appoint a successor Depository. If a successor Depository is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities, will authenticate and make available for delivery, individual Securities in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing the Outstanding Securities in exchange for such Global Security or Securities.

 

(b)                                  The Company may at any time and in its sole discretion (subject to the procedures of the Depository) determine that Securities issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities, will authenticate and make available for delivery, individual Securities in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing the Outstanding Securities in exchange for such Global Security or Securities.

 

(c)                                   The Depository may surrender a Global Security in exchange in whole or in part for individual Securities on such terms as are acceptable to the Company, the Trustee and such Depository. Thereupon, the Company shall execute, and the Trustee shall authenticate and make available for delivery, without service charge:

 

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(1)                                   to each Person specified by such Depository a new individual Security or Securities of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and

 

(2)                                   to such Depository a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of individual Securities delivered to Holders thereof.

 

(d)                                  Upon the exchange of a Global Security for individual Securities in an aggregate principal amount equa