-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QhayUfD0IyKEI8o62jaAYF8GlK5RZ6CayuqppiHubjhkMreEB+sSV5BaBdWC6G4q bdbXS6jFt23kevcYJc7Ntw== 0001144204-09-035814.txt : 20090702 0001144204-09-035814.hdr.sgml : 20090702 20090702163620 ACCESSION NUMBER: 0001144204-09-035814 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20090702 DATE AS OF CHANGE: 20090702 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KULICKE & SOFFA INDUSTRIES INC CENTRAL INDEX KEY: 0000056978 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 231498399 STATE OF INCORPORATION: PA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-160426 FILM NUMBER: 09927978 BUSINESS ADDRESS: STREET 1: 1005 VIRGINIA DRIVE CITY: FT. WASHINGTON STATE: PA ZIP: 19034 BUSINESS PHONE: 2157846000 MAIL ADDRESS: STREET 1: 1005 VIRGINIA DRIVE CITY: FT. WASHINGTON STATE: PA ZIP: 19034 S-3 1 v153715_s3.htm

As filed with the Securities and Exchange Commission on July 2, 2009

Registration No. 333-         

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
 
KULICKE AND SOFFA INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
 
 
Pennsylvania
  
23-1498399
(State or other jurisdiction of incorporation or organization)
  
(I.R.S. Employer Identification Number)

1005 Virginia Drive
Fort Washington, Pennsylvania 19034
(215) 784-6000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
 
 
David J. Anderson
Vice President and General Counsel
1005 Virginia Drive
Fort Washington, Pennsylvania 19034
(215) 784-6000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
 

Copy to:

F. Douglas Raymond, III
Drinker Biddle & Reath LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103-6996
 

Approximate date of commencement of proposed sale to the public:  From time to time after the effective date of this Registration Statement, as determined by the registrant, depending on market conditions or other factors.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  o

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  x

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  o

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non−accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b−2 of the Exchange Act. (Check one):
Large Accelerated filer o
  
Accelerated filer  x
Non−accelerated filer o
  
Smaller reporting company o
(Do not check if a smaller reporting company)
 
 
 
 
CALCULATION OF REGISTRATION FEE
 
Title of Each Class of Securities to
be Registered
  
Amount to be
Registered (1)(2)
    
Proposed Maximum
Offering Price Per
Security (2)
    
Proposed Maximum
Aggregate Offering
Price (1)(2)
    
Amount of
Registration Fee
(2)(3)
  
Common Stock
Preferred Stock
Senior Debt Securities
Senior Subordinated Debt Securities
Subordinated Debt Securities
Warrants
Units
                        
    $ 100,000,000             $ 100,000,000     $ 5,580  

(1)
There are being registered under this registration statement such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities, which may be senior, senior subordinated or subordinated, of the registrant and such indeterminate number of warrants and units of the registrant, all at indeterminate prices, as shall have an aggregate initial offering price not to exceed $100,000,000 or the equivalent amount denominated in one or more foreign currencies. Any securities registered under this registration statement may be sold separately or as units with other securities registered under this registration statement.  If any debt securities are issued at an original issue discount, then the principal amount of such debt securities may be in such greater amount as shall result in an aggregate initial offering price not to exceed $100,000,000, less the aggregate dollar amount of all securities previously issued hereunder. The securities registered also include such indeterminate amounts and numbers of common stock, preferred stock and debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the anti-dilution provisions of any such securities.

(2)
Estimated for the sole purpose of computing the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”). Pursuant to General Instruction II.D. of Form S−3, the table lists each of the classes of securities being registered and the aggregate proceeds to be raised, but does not specify by each class information as to the amount to be registered, proposed maximum offering price per security, or the proposed maximum aggregate offering price. The proposed maximum offering price per security will be determined, from time to time, by the registrant in connection with the sale by the registrant of the securities registered under this registration statement.

(3)
Calculated pursuant to Rule 457(o) under the Securities Act of 1933.

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 
 
 

The information in this prospectus is not complete and may be changed.  We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is declared effective.  This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
 
SUBJECT TO COMPLETION DATED JULY 2, 2009

$100,000,000


Common Stock
Preferred Stock
Senior Debt Securities
Senior Subordinated Debt Securities
Subordinated Debt Securities
Warrants
Units
 
Kulicke & Soffa, from time to time, may offer, issue and sell, together or separately, (i) shares of common stock, (ii) shares of preferred stock, (iii) debt securities, which may be senior debt securities, senior subordinated debt securities or subordinated debt securities, and shares of common stock or preferred stock issuable upon conversion of such debt securities, (iv) warrants to purchase common stock, preferred stock, or other securities and (v) units consisting of two or more classes of the securities registered hereunder.  The aggregate public offering price of the securities we may sell under this prospectus will not exceed $100,000,000.

The form in which we are to issue the securities, their specific designation, aggregate principal amount or aggregate initial offering price, maturity, if any, rate and times of payment of interest or dividends, if any, redemption, conversion, and sinking fund terms, if any, voting or other rights, if any, exercise price and detachability, if any, and other specific terms will be described in a supplement to this prospectus, together with the terms of the offering of such securities.

Our common stock is traded on the NASDAQ Global Market under the symbol “KLIC”.  Any prospectus supplement will also contain information, where applicable, as to any other listing on a securities exchange of the securities covered by such prospectus supplement.

Investing in the securities offered hereby involves risks.  Purchasers of securities should read and consider the information set forth under “Risk Factors” on page 4 of this prospectus, in any accompanying prospectus supplement, and in the reports we file with the Securities and Exchange Commission that are incorporated by reference into this prospectus.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or the accompanying prospectus supplement is truthful or complete.  Any representation to the contrary is a criminal offense.

 
 
 

We may sell the securities directly or to or through underwriters or dealers, and also to other purchasers or through agents or a combination of these methods.  The names of any underwriters or agents participating in a sale of securities to you, and any applicable commissions or discounts, will be stated in an accompanying prospectus supplement.  For general information about the distribution of securities offered, please see “Plan of Distribution” on page 32 of this prospectus.

This prospectus may not be used to offer and sell securities unless it is accompanied by a prospectus supplement.

This prospectus is dated _______, 2009.

 
 
 

TABLE OF CONTENTS

 
 
(i)
 

About this Prospectus

All references in this prospectus to “Kulicke & Soffa,” “K&S,” the “Company,” “our,” “us” and “we” refer to Kulicke and Soffa Industries, Inc. and its consolidated subsidiaries, except where the context otherwise requires or as otherwise indicated.

This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration.  Under this shelf registration, we may sell any combination of the securities described in this prospectus in one or more offerings up to an aggregate initial offering price of $100,000,000.  This prospectus provides you with a general description of the securities we may offer.  Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering.  The prospectus supplement may also add, update or change information contained in this prospectus.

For general information about the distribution of securities offered, please see “Plan of Distribution” on page 32 of this prospectus.  You should read both this prospectus and any prospectus supplement together with the additional information described in “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” before you decide whether to invest in the securities.

You should rely only on the information contained in, or incorporated by reference into, this prospectus and any applicable prospectus supplement.  You may obtain the information incorporated by reference into this prospectus without charge by following the instructions under “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” below.  We have not authorized any other person to provide you with different information.  If anyone provides you with different or inconsistent information, you should not rely on it.  We are not making an offer to sell these securities or soliciting an offer to buy the securities in any jurisdiction where the offer or sale is not permitted.  You should assume that the information appearing in this prospectus is accurate only as of the date of this prospectus.  Our business, financial condition, results of operations and prospects may have changed since that date.

This prospectus summarizes certain documents and other information, and we refer you to them for a more complete understanding of what we discuss in this prospectus.  In making an investment decision, you must rely on your own examination of our company and the terms of this offering and the securities, including the merits and risks involved.

We are not making any representation to any purchaser of the securities regarding the legality of an investment in the securities by such purchaser.  You should not consider any information in this prospectus to be legal, business or tax advice.  You should consult your own attorney, business advisor or tax advisor for legal, business and tax advice regarding an investment in the securities.

 
 
 

 
In addition to historical information, this prospectus, including the information incorporated by reference into this prospectus, contains statements relating to future events or our future results.  These statements are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are subject to the safe harbor provisions created by statute.  Such forward-looking statements include, but are not limited to, statements that relate to our future revenue, product development, demand forecasts, competitiveness, operating expenses, cash flows and liquidity, profitability, gross margins, product prices, and benefits expected as a result of (among other factors):
 
·
projected growth rates in the overall semiconductor industry, the semiconductor assembly equipment market, and the market for semiconductor expendable tools; and
 
·
projected demand for ball, wedge and die bonder equipment. 
 
Generally, words such as “may,” “will,” “should,” “could,” “anticipate,” “expect,” “intend,” “estimate,” “plan,” “continue,” “goal” and “believe,” or the negative of or other variations on these and other similar expressions identify forward-looking statements.  These forward-looking statements are made only as of the date of this prospectus.  We do not undertake to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise.
 
Forward-looking statements are based on current expectations and involve risks and uncertainties. Our future results could differ significantly from those expressed or implied by our forward-looking statements. These risks and uncertainties include, without limitation, those described in this prospectus and in the applicable prospectus supplement and those incorporated by reference into this prospectus and under the heading “Risk Factors” within our reports and registration statements filed from time to time with the Securities and Exchange Commission, which are incorporated by reference into this prospectus.  This discussion should be read in conjunction with the Consolidated Financial Statements and Notes incorporated by reference into this prospectus.
 
We operate in a rapidly changing and competitive environment.  New risks emerge from time to time and it is not possible for us to predict all risks that may affect us.  Future events and actual results, performance and achievements could differ materially from those set forth in, contemplated by or underlying the forward-looking statements, which speak only as of the date on which they were made. Except as required by law, we assume no obligation to update or revise any forward-looking statement to reflect actual results or changes in, or additions to, the factors affecting such forward-looking statements. Given those risks and uncertainties, investors should not place undue reliance on forward-looking statements as prediction of actual results.

 
2
 

 
The following summary highlights certain information contained in or incorporated by reference in this prospectus. It does not contain all of the information that may be important to you and to your investment decision. The following summary is qualified in its entirety by the more detailed information and the financial statements and the notes included or incorporated by reference in this prospectus. You should carefully read this entire prospectus and the applicable prospectus supplement and should consider, among other things, the risks incorporated by reference into the sections of this prospectus and the applicable prospectus supplement entitled “Risk Factors” before deciding to invest in any of our securities.
 
Kulicke and Soffa Industries, Inc. 
 
We design, manufacture and market capital equipment and expendable tools, as well as service, maintain, repair and upgrade equipment, all used to assemble semiconductor devices.  Our customers primarily consist of integrated device manufacturers and subcontractor assembly facilities.  Beginning in fiscal 2009, our Packaging Materials segment was renamed Expendable Tools.
 
Our goal is to be the technology leader and the lowest cost supplier in our main business segments which are:
 
·
equipment, and

 
·
expendable tools.

Accordingly, we invest in research and engineering projects intended to enhance our position at the leading edge of semiconductor assembly technology.  We also remain focused on our cost structure, consolidating operations, moving certain manufacturing to Asia, moving a portion of our supply chain to lower cost suppliers and designing higher performing, lower cost equipment.  Cost reduction efforts are an important part of our normal ongoing operations, and are expected to generate efficiencies while maintaining overall product quality.

During our first fiscal quarter of 2009, we completed the acquisition of substantially all of the assets and assumption of certain liabilities of Orthodyne Electronics Corporation (“Orthodyne”).  Orthodyne is the leading supplier of both wedge bonders and wedges (the consumable product used in wedge bonding) for the power management and hybrid module markets.  In addition, during our first fiscal quarter of 2009, we completed the sale of our Wire business to W.C. Heraeus GmbH (“Heraeus”).

K&S was incorporated in Pennsylvania in 1956. Our principal offices are located at 1005 Virginia Drive, Fort Washington, Pennsylvania 19034 and our telephone number is (215) 784-6000. We maintain a website with the address www.kns.com. We are not including the information contained on our website as a part of, or incorporating it by reference into, this prospectus. We make available free of charge (other than an investor’s own Internet access charges) on or through our website our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and any amendments to these reports, as soon as reasonably practicable after the material is electronically filed with or otherwise furnished to the SEC. Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports are also available on the SEC website at www.sec.gov.

 
3
 

 
Investing in our securities involves risk.  You should carefully consider the risk factors contained in our most recent Annual Report on Form 10–K and our subsequent Quarterly Reports on Form 10–Q, which are incorporated by reference herein, and the other information contained in this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in the applicable prospectus supplement before you make an investment decision regarding the securities.

Our business, financial condition, or results of operations could be materially adversely affected by any of these risks and cause the value of our securities to decline.  The trading price of the securities could decline due to any of these risks, and you may lose all or part of your investment.

 
4
 


We do not currently know either the number or types of securities that will be ultimately sold pursuant to this prospectus or the prices at which such securities will be sold.  Unless the applicable prospectus supplement for a particular issuance of securities states otherwise, the net proceeds we receive from the sale of the securities offered by this prospectus will be used for general corporate purposes, which may include:
 
 
·
funding the development and growth of our product offerings and business;
 
 
·
repaying indebtedness that we may incur from time to time;
 
 
·
financing potential business acquisitions that we may consider from time to time; and
 
 
·
general working capital.
 
Pending these uses, we may use the net proceeds to make short-term investments or reduce short-term borrowings.

 
5
 

 
The ratio of earnings to fixed charges for each of the periods indicated is as follows:
 
   
Fiscal Years Ended,
    
Six Months
  
   
September
30, 2004
    
September
30, 2005
    
September
30, 2006
    
September
29, 2007
    
September
27, 2008
    
Ended
March 28, 2009
  
                                     
Ratio of earnings to fixed charges
    
6.34x
      
4.94x
      
14.31x
      
5.54x
      
—
      
—
  
 
These computations include us and our consolidated subsidiaries.  These ratios are computed by dividing (a) income (loss) before taxes from continuing operations plus fixed charges and equity in loss of joint ventures by (b) fixed charges, which includes interest expense plus the portion of rent expense under operating leases we deem to be representative of the interest factor and amortization of debt issuance costs.
 
We would have had to generate additional earnings of $23.2 million and $63.5 million in fiscal 2008 and for the six months ended March 28, 2009, respectively, to achieve a ratio of 1:1.  We had no preferred stock outstanding for any period presented.

 
6
 

 
This prospectus, including any information incorporated by reference into this prospectus, together with the additional information included in any applicable prospectus supplements, contains a summary of the material terms and provisions of our common stock, preferred stock, debt securities, including senior debt securities, senior subordinated debt securities and subordinated debt securities consisting of notes, debentures or other evidence of indebtedness, warrants, and units consisting of two or more classes of these securities.  We will describe in the applicable prospectus supplement relating to any securities the particular terms of the securities offered by that prospectus supplement.  We will also include in the prospectus supplement information, when applicable, about material U.S. federal income tax considerations relating to the securities, and the securities exchange, if any, on which the securities will be listed.
 
The securities offered by this prospectus may be offered in amounts, at prices and on terms to be determined at the time of the offering.  The aggregate initial offering price of securities offered by us under this prospectus will not exceed $100,000,000.  These summaries are not meant to be a complete description of each security.
 
 
The following is a general description of our capital stock.  The terms of our amended and restated articles of incorporation and bylaws are more detailed than the general information provided below.  Therefore, you should carefully read and consider the actual provisions of those documents, which are incorporated by reference as exhibits to the registration statement of which this prospectus forms a part.
 
Authorized Capital Stock
 
We are authorized to issue a total of 205,000,000 shares of our capital stock, each of which is without par value.  Of the authorized amount, 200,000,000 of the shares are designated as common stock and 5,000,000 of the shares are designated as preferred stock.
 
Our board of directors may, without further action by our shareholders, issue a series of preferred stock and fix the rights and preference of those shares, including the dividend rights, dividend rates, conversion rights, exchange rights, voting rights, terms of redemption, redemption price or prices, liquidation and other preferences and priorities and the number of shares constituting any series or the designation of such series.  The rights of the holders of common stock will be subject to, and may be adversely affected by, the rights of the holders of any preferred stock issued by us.  All of the 5,000,000 authorized shares of preferred stock are currently undesignated.
 
As of June 29, 2009 there were 61,251,334 shares of common stock issued and outstanding, and no shares of preferred stock issued or outstanding.
 
Common Stock
 
General.  Each share of our common stock has the same rights and privileges.  Holders of our common stock do not have any preferences or any preemptive, conversion or exchange rights.  All of our outstanding shares of common stock are fully paid and nonassessable.  Our common stock is listed on the NASDAQ Global Market under the symbol “KLIC”.

 
7
 

Voting Rights.  The holders of our common stock are entitled to vote upon all matters submitted to a vote of our shareholders and are entitled to one vote for each share of common stock held.  Our board of directors is classified into four classes, with one class being elected each year.  In the election of directors, the holders of our common stock have cumulative rights, meaning that they may multiply the number of votes they are entitled to cast by the total number of directors to be elected at a meeting of shareholders and cast the whole number of votes for one candidate or distribute them among some or all candidates.
 
Dividends.  Subject to the prior rights and preferences, if any, applicable to shares of preferred stock or any series of preferred stock, the holders of common stock are entitled to participate ratably in dividends, payable in cash, stock or otherwise, as may be declared by our board of directors out of any funds legally available for the payment of dividends.  Each such distribution shall be payable to holders of record as they appear on our stock transfer books on such record dates as may be fixed by our board of directors.
 
Liquidation and Distribution.  If we voluntarily or involuntarily liquidate, dissolve or wind-up, or upon any distribution of our assets, the holders of our common stock will be entitled to receive after distribution in full of the preferential amounts, if any, to be distributed to the holders of preferred stock or any series of preferred stock, all of the remaining assets available for distribution equally and ratably in proportion to the number of shares of common stock held by them.
 
Preferred Stock
 
General.  The rights, preferences, privileges and restrictions of the preferred stock of each series will be fixed by the certificate of designation relating to each particular series.  A prospectus supplement relating to each such series will specify the terms of the preferred stock as determined by our board of directors, including the following:
 
 
·
the title and stated value of the preferred stock being offered;
 
 
·
the number of shares of preferred stock being offered, their liquidation preference per share, if any, and their purchase price;
 
 
·
the dividend rate(s), period(s) and payment date(s) or method(s) of calculating the payment date(s) applicable to the preferred stock being offered;
 
 
·
whether dividends shall be cumulative or non-cumulative;
 
 
·
the provisions for redemption, if applicable, of the preferred stock being offered;
 
 
·
any listing of the preferred stock being offered on any securities exchange or market;
 
 
·
voting rights, if any, of the preferred stock being offered;
 
 
·
the relative ranking and preference of the series as to dividend rights and rights upon our dissolution or upon any distribution of our assets;
 
 
·
any limitations on issuance of any series of our preferred stock ranking senior to or on parity with that particular series of our preferred stock as to dividend rights and rights upon our dissolution or upon any distribution of our assets;
 
 
·
the provision for a sinking fund, if any, for such preferred stock;
 
 
·
any listing on any securities exchange of such preferred stock;
 
 
8
 

 
·
conversion features, including the conversion price of such stock; and
 
 
·
any other specific terms, preferences, priorities, rights, limitations or restrictions of the preferred stock being offered.
 
The description of the preferred stock set forth above and in any description of the terms of a particular series of preferred stock in the related prospectus supplement will not be complete.  You should refer to the applicable certificate of designation for such series of preferred stock for complete information with respect to such preferred stock.  The prospectus supplement will also contain a description of certain material United States federal income tax consequences relating to the preferred stock.
 
Although it has no present intention to do so, our board of directors, without shareholder approval, may issue preferred stock with voting and conversion rights that could adversely affect the voting power of the holders of common stock.  If we issue preferred stock, it may have the effect of delaying, deferring or preventing a change in control.
 
Voting Rights.  Holders of preferred stock will have voting rights as indicated in the applicable prospectus supplement.
 
Dividends.  Holders of the preferred stock of each series will be entitled to receive, when, as and if declared by our board of directors, out of our funds legally available for payment to shareholders, dividends at such rates and on such dates as will be set forth in the applicable prospectus supplement.  Each such distribution shall be payable to holders of record as they appear on our stock transfer books on such record dates as shall be fixed by our board of directors.
 
Liquidation and Distribution.  If we voluntarily or involuntarily liquidate, dissolve or wind-up, or upon any distribution of our assets, the holders of our preferred stock will have the rights as stated in the applicable prospectus supplement.
 
Redemption.  The terms and conditions, if any, upon which the preferred stock will be subject to mandatory redemption or redemption at our option, either in whole or in part, will be described in the applicable prospectus supplement.
 
Certain Charter and Bylaws Provisions
 
Some sections of our articles of incorporation and bylaws and provisions of Pennsylvania law may discourage certain transactions involving a change in control of the Company.
 
Our articles of incorporation and bylaws contain provisions that (i) classify the board of directors into four classes, with one class being elected each year, (ii) permit the board to issue “blank check” preferred stock without shareholder approval, and (iii) prohibit us from engaging in certain business combinations with a holder of 20% or more of our shares without super-majority board or shareholder approval.  Further, under the Pennsylvania Business Corporation Law, because our bylaws provide for a classified board of directors, shareholders may only remove directors for cause.
 
Kulicke and Soffa has opted out of several provisions of the Pennsylvania Business Corporation Law that could have the effect of delaying or interfering with a proposed change of control, but is also subject to other provisions of that law which could have those effects.  Our directors are subject to a provision of the Pennsylvania Business Corporation Law that permits them to consider the interests of constituencies other than the shareholders when deciding what will be in the best interests of the Company.  In addition, we are subject to two statutory provisions that are similar to the last provision of our articles of incorporation described above. These statutory provisions impose certain price and other requirements, and special approvals before a holder of 20% or more of our shares may engage in certain transactions.

 
9
 

Transfer Agent and Registrar
 
American Stock Transfer and Trust Company currently is the transfer agent and registrar for our common stock, with offices in New York, New York.  The transfer agent and registrar for any shares of preferred stock we issue will be set forth in the applicable prospectus supplement.

 
10
 

 
The following is a general description of the debt securities that we may issue from time to time.  The particular terms relating to each debt security, which may be different from or in addition to the terms described below, will be set forth in the prospectus supplement relating to such securities.
 
The debt securities will be our direct obligations.  The senior debt securities will rank equally with all of our other senior and unsubordinated debt.  The senior subordinated debt securities will have a junior position to all of our senior debt, which is generally defined in both the subordinated indenture and senior subordinated indenture to include all debt other than debt that is expressly subordinated to or pari passu with the subordinated debt securities or senior subordinated debt securities, as the case may be.  The subordinated debt securities will have a junior position to all of our senior debt and all of our senior subordinated debt.  The senior debt securities will be issued under a senior debt indenture, the senior subordinated debt securities will be issued under a senior subordinated debt indenture, and the subordinated debt securities will be issued under a subordinated debt indenture.  The indentures will be qualified under the Trust Indenture Act of 1939.
 
We have summarized below the material provisions of these indentures.  The summary is not complete and is subject in all respects to the provisions of, and is qualified in its entirety by reference to, the forms of indentures, which are filed as exhibits and incorporated by reference into the registration statement of which this prospectus forms a part.  The prospectus supplement relating to the applicable issuance of debt securities will describe any significant differences between the indentures and the summary below.  The senior indenture, the senior subordinated indenture and the subordinated indenture are substantially the same, except for certain covenants of ours and provisions relating to subordination. You should read the indentures for provisions that may be important to you.  The indentures may be supplemented or revised in connection with the filing of a prospectus supplement and such later version will govern any debt securities issued in conjunction with that prospectus supplement.
 
Terms Applicable to All Debt Securities
 
No Limit on Debt Amounts.  The indentures do not limit the amount of debt that can be issued under the indentures.  These amounts will be set from time to time by our board of directors.
 
Prospectus Supplements.  The applicable prospectus supplement will summarize the specific terms for the debt securities and the related offering including, with respect to each series of debt securities, some or all of the following, as well as any other material terms of the securities:
 
 
·
title and form of the securities;
 
 
·
offering price;
 
 
·
any limit on the amount that may be issued;
 
 
·
maturity date(s);
 
 
·
interest rate or the method of computing the interest rate;
 
 
·
dates on which interest will accrue, or how the dates will be determined, the interest payment dates and any related record dates;
 
 
11
 

 
·
the place or places where debt securities may be surrendered for registration of transfer or for exchange, where notices and demands to or upon us in respect of the debt securities and the indentures may be served and where notices to holders will be published;
 
 
·
terms and conditions on which the debt securities may be redeemed, in whole or in part, at our option;
 
 
·
date(s), if any, on which, and the price(s) at which we are obligated to redeem, or at the holder’s option to purchase, in whole or in part, the debt securities and related terms and provisions;
 
 
·
details of any required sinking fund payments;
 
 
·
the currency or currencies in which the debt securities will be denominated or payable, if other than U.S. dollars;
 
 
·
any index, formula or other method by which payments on the debt securities will be determined, and any special voting or defeasance provisions in connection with a determination, if the amount of payments are to be determined with reference to an index, formula or other method;
 
 
·
the persons to whom payments of interest will be made;
 
 
·
any provisions granting special rights to holders when a specified event occurs;
 
 
·
any changes to or additional events of defaults or covenants beyond or modifying those contained in the applicable indenture;
 
 
·
any special tax implications of the debt securities; including under what circumstances, if any, and with what procedures and documentation we will pay additional amounts on the debt securities held by a non-U.S. person in respect of taxes, assessments or similar charges withheld or deducted and, if so, the terms related to any option we will have to redeem those debt securities rather than pay those additional amounts;
 
 
·
whether or not the debt securities will be issued in global form and who the depositary will be;
 
 
·
any restrictions on the registration, transfer or exchange of the debt securities;
 
 
·
terms, if any, on which a series of debt securities may be convertible into or exercisable or exchangeable for our common stock, preferred stock or other securities, including provisions as to whether conversion, exercise or exchange is mandatory, at the option of the holder or at our option;
 
 
·
if the debt securities are convertible, exercisable or exchangeable, the events or circumstances that will result in adjustments to the conversion, exercise or exchange price and the formulae for determining the adjusted price;
 
 
·
whether the debt securities are secured or unsecured, and if secured, the amount and form of the security and related terms;
 
 
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·
subordination terms of any senior subordinated debt securities and subordinated debt securities; and
 
 
·
any other terms that are not inconsistent with the indenture applicable to a series of debt securities, including any terms that may be required by or advisable under United States laws or regulations or advisable (as determined by us) in connection with the marketing of that series of debt securities.
 
A series of debt securities may be issued under the relevant indenture as original issue discount securities, which are securities that are offered and sold at a substantial discount from their stated principal amount.  In addition, debt securities offered and sold at their stated principal amount may under some circumstances, pursuant to applicable Treasury Regulations, be treated as issued at an original issue discount for federal income tax purposes.  Federal income tax consequences and other special considerations applicable to any such original issue discount securities (or other debt securities treated as issued at an original issue discount) will be described in the prospectus supplement relating to those securities.
 
Covenants.  We will agree in the indentures to:
 
 
·
pay the principal, interest and any premium on the debt securities when due;
 
 
·
maintain an office or agency where debt securities may be surrendered for registration of transfer, exchange, payment or conversion (if the debt securities are convertible) and where notices and demands to or upon us in respect of the debt securities and the relevant indenture(s) may be served;
 
 
·
prepare and file or deliver certain reports, as more fully specified in the relevant indenture, with the trustee under the relevant indenture, the SEC, and/or registered holders of debt securities, as the case may be;
 
 
·
deliver to the trustee under the relevant indenture, as more fully specified in that indenture, officers’ certificates relating to our compliance under the relevant indenture and the occurrence of any default or event of default under that indenture;
 
 
·
file with the trustee under the relevant indenture and the SEC, in accordance with, and as may be required by, the rules and regulations prescribed from time to time by the SEC, the additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in the relevant indenture; and
 
 
·
unless our board of directors determines that it is no longer desirable in the conduct of our business and our significant subsidiaries, taken as a whole, and that there will be no adverse impact in any material respect to the holders of debt securities, subject to those exceptions as more fully specified in the relevant indenture, do or cause to be done all things necessary to preserve and keep in full force and effect:
 
 
o
our corporate existence; and
 
 
o
the rights, licenses and franchises of us and certain of our subsidiaries; and
 
 
·
not at any time seek application of any applicable stay, extension or usury law that may affect the covenants or the performance under the indentures.
 
13
 
Consolidation, Merger and Sale of Assets.  We will not consolidate with or merge into any other entity or transfer all or substantially all of our assets unless:
 
 
·
we are the surviving entity; or
 
 
·
the successor or surviving entity assumes all of our obligations under the debt securities and the indentures pursuant to supplemental indentures in forms reasonably satisfactory to the trustee(s) under the relevant indentures and either (A) is organized or existing under the laws of the United States of America, any state thereof or the District of Columbia or (B) if not organized in any such jurisdiction, then (1) the successor or surviving entity agrees to be subject to the service of process laws of the State of New York, and (2) under the laws of its jurisdiction or organization, payments on the securities would not be subject to withholding tax; and, in any case
 
 
·
immediately after we consolidate or merge, no event of default and no event which, after notice or lapse of time, or both, would become an event of default, will have happened and be continuing.
 
Upon any such consolidation, merger or transfer or all or substantially all of our assets, the successor will be substituted for us under the indenture and we will be relieved of all obligations and covenants under the indenture and the debt securities.
 
Satisfaction and Discharge.  Upon our request, the relevant indenture will no longer be effective with respect to any series for all but certain specified purposes if either:
 
 
·
all outstanding securities of that series have been delivered to the trustee for cancellation and we have paid all sums payable in respect of that series and we have delivered to the trustee a certificate and opinion of legal counsel that all conditions precedent to satisfaction and discharge have been fulfilled; or
 
 
·
the only securities that are still outstanding have, or within one year will, become due and payable or are to be called for redemption, we have deposited with the trustee funds that are sufficient to make all future payments, no default or event of default will have occurred and be continuing on the date of that deposit, we have paid all other sums payable in respect of that series, and we have delivered to the trustee a certificate and opinion of counsel that all conditions precedent to satisfaction and discharge have been fulfilled.
 
Legal Defeasance and Covenant Defeasance.  Under each indenture, we may elect with respect to a series of debt securities at our option and subject to the satisfaction of the conditions described below, either:
 
 
·
to be deemed to have paid and discharged the entire indebtedness represented by the outstanding debt securities of the applicable series and to have satisfied all of our other obligations under the debt securities of the applicable series and under the provisions of the relevant indenture, which we refer to as legal defeasance; or
 
 
·
to be released from some of our obligations under the relevant indenture, which we refer to as covenant defeasance.
 
We can exercise legal or covenant defeasance if the following conditions are met:
 
14
 
 
·
we irrevocably deposit with the applicable indenture trustee (or another trustee meeting certain eligibility requirements and agreeing to be bound by the applicable provisions of the relevant indenture), in trust, for the benefit of the holders of the applicable series of debt securities:
 
 
o
cash in United States dollars;
 
 
o
non-callable and non-redeemable direct obligations of the United States of America or of an agency or instrumentality controlled or supervised by the United States of America, in each instance, the payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States of America; or
 
 
o
a combination of the foregoing, that in each case is sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, interest and premium, if any, on the outstanding debt securities of the applicable series on their stated maturity or applicable redemption date, as the case may be, and any mandatory sinking fund payments applicable to that particular series of the debt securities on the day on which the payments are due;
 
 
·
we deliver to the trustee an opinion of counsel confirming that the holders of the outstanding securities of the applicable series will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance;
 
 
·
no default or event of default shall have occurred and be continuing on the date of the deposit of the amounts to be held in trust for the benefit of the holders (other than a default or event of default resulting from the borrowing of funds to be applied to the deposit) or in the case of any insolvency-related defaults, at any time in the period ending on the 91st day after the date of the deposit (or greater period of time in which any such deposit of trust funds may remain subject to bankruptcy or insolvency laws that apply to the deposit by us); and
 
 
·
we deliver to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent provided for or relating to legal defeasance or covenant defeasance, as the case may be, have been complied with.
 
After satisfying the conditions for legal defeasance, the applicable debt securities will be deemed outstanding only for limited purposes as more fully set forth in the relevant indenture.  After legal defeasance, the holders of outstanding debt securities will have to rely solely on the deposits we make to the trust for repayment on the debt securities.
 
After satisfying the conditions for covenant defeasance, the debt securities of the applicable series will be deemed not outstanding for the purposes of the covenants from which we have been released, but will continue to be deemed outstanding for all other purposes under the relevant indenture.
 
The applicable prospectus supplement may further describe additional provisions, if any, permitting legal defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to the debt securities of or within a particular series.
 
Information Concerning the Trustee.  The prospectus supplement with respect to particular debt securities will include information concerning the trustee and describe any relationship that we may have with the trustee for the debt securities offered.  We may also maintain bank accounts, borrow money and have other customary banking or investment banking relationships with the trustee, or its affiliates, in the ordinary course of business.
 
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Form, Exchange, Transfer.  Unless otherwise specified in the prospectus supplement, debt securities will be issued in registered form without coupons, in denominations of $1,000 or any integral multiple thereof.  They may also be issued in global form with accompanying book-entry procedures as outlined below.
 
A holder of debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and with the same terms and aggregate principal amount.  The securities are transferable at the corporate trust office of the trustee or at any transfer agent designated by us for that purpose.  No charge will be made for any such exchange or transfer except for any tax or governmental charge related to such exchange or transfer and any expenses payable in connection with any registration of transfer or exchange of debt securities, other than exchanges not involving any transfer, such as the issuance of definitive securities in replacement of temporary securities or the issuance of new securities upon surrender of a security that is redeemed or purchased in part.
 
Global Securities.  The registered debt securities may be issued in the form of one or more fully registered global securities that will be deposited with and registered in the name of a depositary or with a nominee for a depositary identified in the applicable prospectus supplement.
 
The specific terms of the depositary arrangement with respect to any debt securities to be represented by a registered global security will be described in the applicable prospectus supplement.  We anticipate the following will apply to all depositary arrangements.
 
Ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for such registered global security (“participants”) or persons that may hold interests through participants.  Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the principal amounts of the debt securities represented by the registered global security beneficially owned by such participants.  Ownership of beneficial interests in such registered global security will be shown on, and the transfer of such ownership interests will be effected only through, records maintained by the depositary for such registered global security or on the records of participants for interests of persons holding through participants.
 
So long as the depositary for a registered global security, or its nominee, is the registered owner of a registered global security, the depositary or the nominee will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes.  Except as set forth below, owners of beneficial interests in a registered global security will not:
 
 
·
be entitled to have the debt securities represented by such registered global security registered in their names;
 
 
·
receive or be entitled to receive physical delivery of such debt securities in definitive forms; or
 
 
·
be considered the owners of record or holders of the debt securities.
 
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for such registered global security and, if such person is not a participant, on the procedures of the participant through which such person owns its interest, to exercise any rights of a holder under the applicable indenture.  We understand that under existing industry practices, if we request any action of holders, or if an owner of a beneficial interest in a registered global security desires to take any action that a holder is entitled to take under the applicable indenture, the depositary would authorize the participants holding the relevant beneficial interests to take such action, and such participants would authorize beneficial owners owning through such participants to take such action.
 
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Principal, premium, if any, and interest payments on debt securities represented by a registered global security registered in the name of a depositary or its nominee will be made to such depositary or its nominee, as the case may be, as the registered owner of such registered global security.  Neither we nor the trustee will have any responsibility or liability for any aspect of the records relating to or payment made on account of beneficial ownership interests in such registered global security.
 
We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payment of principal, premium or interest will immediately credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in such registered global security as shown on the records of such depositary.  We also expect that payments by participants to owners of beneficial interest in such a registered global security held by the participants will be governed by standing customer instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in “street name.”
 
If the depositary notifies us that it is unwilling or unable to continue as depositary for the global security or if at any time the depositary ceases to be a clearing agency registered under the Exchange Act, if so required by applicable law or regulation, and, in either case, we do not appoint a successor depositary within 90 days, we will issue debt securities in certificated form in exchange for the global security.
 
We may at any time determine not to have any of the debt securities of a series represented by one or more registered global securities and, in such event, will issue debt securities of such series in certificated form in exchange for all of the global security or securities representing such debt securities.  Any debt securities issued in certificated form in exchange for a global security will be registered in such name or names as the depositary shall instruct the relevant trustee.  We expect that such instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in such registered global security.
 
If provided in a prospectus supplement relating to a series of debt securities, the debt securities of that series may also be issued in the form of one or more global securities that will be deposited with a common depositary identified in the prospectus supplement.  The specific terms and procedures, including the specific terms of the depositary arrangement, with respect to any portion of a series of debt securities to be represented by a global security will be described in the prospectus supplement.
 
Particular Terms of the Senior Debt Securities
 
Ranking of Senior Debt Securities.  The senior debt securities will constitute part of our senior debt and rank equally with all our other senior and unsecured debt (and will effectively rank junior to any secured debt).  The senior debt securities will be senior to our senior subordinated debt and subordinated debt.
 
Events of Default.  The following are events of default under a series of senior debt securities:
 
 
·
we fail to pay the principal, premium, if any, or any sinking fund payment, on any senior debt securities of that series when due;
 
 
·
we fail to pay interest on any senior debt securities of that series when due and that failure continues for a period of 30 days;
 
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·
we fail to observe or perform any other covenant, representation, warranty or other agreement in the senior indenture for the benefit of that series other than a covenant, representation or warranty with respect to which a failure to observe or perform is dealt with otherwise in the senior indenture or is expressly included in the senior indenture solely for the benefit of a series of debt securities other than such series of senior debt securities and that failure continues for 90 days after we receive notice to comply from the trustee or holders of at least 25% in aggregate principal amount of the outstanding senior debt securities of all series affected by that failure, treating all those series as a single class; and
 
 
·
certain events of bankruptcy or insolvency occur, whether voluntary or not.
 
No event of default will have occurred under a series of senior debt securities if we fail to file timely any annual report or information, document or other report that we are required to file with the SEC.
 
The prospectus supplement for a particular series may describe additional or different events of default that apply to that series.  An event of default with respect to one series of senior debt securities does not necessarily constitute an event of default with respect to any other series of senior debt securities.
 
If a default or an event of default occurs and is continuing, and if a responsible officer of the trustee under the indenture has actual knowledge thereof, the trustee will mail to the holders of senior debt securities of the affected series a notice to that effect within 90 days after it occurs.  Except in the case of a default in the payment of principal or interest, the trustee under the senior indenture may withhold notice if and so long as a committee of the trustee’s responsible officers in good faith determines that withholding the notice is in the interests of the holders.  In the case of any default specified in the third bullet above, no notice of default will be given to holders of the senior debt securities of the affected series until at least 90 days after we receive notice of the occurrence thereof.
 
If an event of default with respect to one or more series of senior debt securities occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the then outstanding senior debt securities of all series with respect to which the event of default occurs and is continuing, treating all those series as a single class, may declare the principal of, premium, if any, and accrued and unpaid interest of all the senior debt securities of those series (or a lesser amount as may be provided for in the senior debt securities of the series) to be immediately due and payable.  The holders of a majority in aggregate principal amount of the then outstanding senior debt securities of all series covered by such declaration may annul or rescind the declaration and any related payment default that resulted from the declaration but not any other payment default.  Certain events of bankruptcy and insolvency will result in all outstanding series of senior debt securities becoming due and payable immediately without any further action on the part of the trustee or the holders.
 
The senior indenture entitles the trustee to be indemnified by the holders before proceeding to exercise any right or power at the request of any of the holders.
 
The holders of a majority in principal amount of the outstanding senior debt securities of all series with respect to which an event of default occurs and is continuing, treating all those series as a single class, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust power conferred on it, except that:
 
 
·
the direction cannot conflict with any law or regulation or the indenture;
 
 
·
the trustee may take any other action deemed proper by the trustee that is not inconsistent with the direction; and
 
18
 
 
·
the trustee need not take any action that might involve it in personal liability or be unduly prejudicial to the holders of the senior debt securities not joining in the action.
 
A holder may pursue a remedy directly under the indenture or the series of senior debt securities, but before doing so, the following must occur:
 
 
·
the holder must give to the trustee written notice that an event of default has occurred and is continuing;
 
 
·
the holders of at least 25% in principal amount of the then outstanding senior debt securities of all affected series, treating all those series as a single class, must make a written request to the trustee to pursue the remedy;
 
 
·
the holder, or holders, must offer and, if requested, provide to the trustee an indemnity satisfactory to the trustee against any loss, liability or expense from the taking of the action;
 
 
·
the trustee does not comply with the request within 60 days after receipt of the request and offer of indemnity; and
 
 
·
during the 60-day period, the holders of a majority in principal amount of the then outstanding senior debt securities of all those series, treating all those series as a single class, do not give the trustee a direction inconsistent with the written request.
 
However, holders have an absolute right to receipt of principal, premium, if any, and interest on or after the respective due dates and to institute suit for the enforcement of those payments.  The right of a holder of senior debt securities to bring suit for the enforcement of any payments of principal, premium, if any, and interest on senior debt securities on or after the respective due dates may not be impaired or affected without the consent of that holder.
 
The holders of a majority in principal amount of the senior debt securities then outstanding of all affected series, treating all such series as a single class, may by notice to the trustee on behalf of all holders of the senior debt securities of such series waive any past defaults, except:
 
 
·
a continuing default in payment of the principal of, premium, if any, or interest on, or any sinking fund payment on, senior debt securities of the series; and
 
 
·
a continuing default in respect of a covenant or provision of the indenture that cannot be amended or modified without the consent of each holder of senior debt securities affected.
 
We will periodically file statements with the trustees regarding our compliance with covenants in the senior indenture.
 
Modifications and Amendments.  Except as provided below, or more fully specified in the senior indenture and described in the prospectus supplement relating to a series of senior debt securities, the senior indenture may be amended or supplemented by us and the trustee with the consent of holders of a majority in principal amount of all series of senior debt securities affected by the amendment or supplement, treating all such series as a single class.  In addition, the record holders of a majority in principal amount of the outstanding senior debt securities of all series affected by the waiver, treating all such series as a single class, may, with respect to those series, waive defaults under, or compliance with, the provisions of the senior indenture.  Some amendments or waivers, however, require the consent of each holder of any senior debt security affected.  Without the consent of each holder, an amendment or waiver may not:
 
19
 
 
·
reduce the principal amount of the senior debt securities of any series whose holders must consent to an amendment, supplement or waiver;
 
 
·
reduce the principal or change the fixed maturity of the principal of, premium, if any, or mandatory sinking fund obligation, if any, of any senior debt securities of any series or alter the provisions with respect to the redemption of the senior debt securities;
 
 
·
reduce the rate, or change the time for payment, of interest, including default interest, on any senior debt security of any series;
 
 
·
impair the right, if any, to convert the senior debt securities into common stock;
 
 
·
waive a default or event of default in the payment of principal of, or interest or premium on, the senior debt securities of any series, except a rescission of acceleration of the senior debt securities by the holders of a majority in aggregate principal amount of the senior debt securities of any series and a waiver of the payment default that resulted from that acceleration;
 
 
·
make any senior debt security of any series payable in currency other than that stated in the senior debt securities of that series;
 
 
·
make any change in the provisions of the senior indenture relating to waivers of past defaults or the rights of the holders of senior debt securities to receive payments of principal of or interest or premium on the senior debt securities;
 
 
·
waive a redemption payment with respect to any senior debt security;
 
 
·
make any change in the right of any holders of senior debt securities regarding waivers of defaults or impair or affect the right of any holder of a senior debt security of any series to receive payment of principal, premium, if any, and interest on that security on or after the due date expressed in that security or to bring suit for the enforcement of any payment on or after the due date; or
 
 
·
make any change in the above amendment and waiver provisions.
 
We and the trustee under the senior indenture may amend or supplement the senior indenture or the senior debt securities issued thereunder without the consent of any holder:
 
 
·
to evidence the succession of another person to us, or successive successions, and the assumption by the successors of our covenants, agreements and obligations under the indenture as permitted by the indenture;
 
 
·
to add other covenants, restrictions or conditions for the protection of the holders of all or any series of senior debt securities;
 
 
·
to add events of default;
 
20
 
 
·
to provide for the issuance of senior debt securities in coupon form and to provide for exchangeability of those senior debt securities under the indenture in fully registered form;
 
 
·
to provide for the issuance of and to establish the form, terms and conditions of senior debt securities of any series;
 
 
·
to evidence and provide for the acceptance of appointment by a successor trustee and to add or change any of the provisions of the indenture necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee;
 
 
·
to cure any ambiguity, or to correct or supplement any provision in the indenture that may be defective or inconsistent with any other provision contained in the indenture or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising under that indenture, so long as the interests of holders of senior debt securities of any series are not adversely affected in any material respect under that indenture; or
 
 
·
to comply with the requirements of the Securities and Exchange Commission or to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939.
 
Particular Terms of the Senior Subordinated Debt Securities
 
Ranking of Senior Subordinated Debt Securities.  The senior subordinated debt securities will rank senior to any subordinated debt securities and will be subordinated and junior in right of payment to any senior debt securities and certain other indebtedness of Kulicke & Soffa to the extent set forth in the applicable indenture.  All series of the senior subordinated debt securities will rank equally with each other.
 
Subordination.  Unless the prospectus supplement indicates otherwise, the following provisions will apply to the senior subordinated debt securities.  Our obligations under the senior subordinated debt securities will be subordinated in right of payment to our obligations under our senior debt.  For this purpose, “senior debt” generally includes any indebtedness that does not expressly provide that it is on parity with or subordinated in right of payment to the senior subordinated debt securities.  Specifically, senior debt includes obligations under any credit facility with banks or other institutional lenders and obligations under the senior debt securities described in this prospectus.  Senior debt will not include:
 
 
·
any liability for federal, state, local or other taxes;
 
 
·
any indebtedness to any of our subsidiaries or other affiliates;
 
 
·
any trade payables;
 
 
·
any indebtedness that we may incur in violation of the senior subordinated indenture; or
 
 
·
obligations under the subordinated debt securities.
 
If we distribute our assets to creditors upon any dissolution, winding-up, liquidation or reorganization or in bankruptcy, insolvency, receivership or similar proceedings, we must first pay all amounts due or to become due on all senior debt before we pay the principal of, or make any other payment on, the senior subordinated debt securities.  The provisions of the senior subordinated indenture providing these payment restrictions will not limit the right, if any, of a holder of senior subordinated debt securities to convert the debt securities into equity securities.
 
21
 
We may not make any payment on the senior subordinated debt securities if a default in the payment of the principal, premium, if any, or interest, including a default under any repurchase or redemption obligation, in respect of designated senior debt occurs and continues beyond any applicable grace period.  We may not make any payment on the senior subordinated debt securities if any other default occurs and continues with respect to designated senior debt that permits holders of the designated senior debt to accelerate its maturity and the trustee receives a notice of default from us, a holder of designated senior debt or other person permitted to give notice.  We may not resume payments on the senior subordinated debt securities until the defaults are cured or specified time periods pass, unless the maturity of the senior debt is actually accelerated.  The provisions of the senior subordinated indenture providing these payment restrictions will not limit the right, if any, of a holder of senior subordinated debt securities to convert the debt securities into equity securities.
 
The term “designated senior debt” means our obligations under our principal bank or other institutional credit facility and any other debt expressly designated as senior debt with respect to the applicable senior subordinated debt securities.
 
We expect that the terms of some of our senior debt will provide that an event of default under the senior subordinated debt securities or an acceleration of their maturity will constitute an event of default under the senior debt.  In that case, if the maturity of the senior subordinated debt securities is accelerated because of an event of default, we may not make any payment on the senior subordinated debt securities until we have paid all senior debt or the acceleration has been rescinded.  If the payment of the senior subordinated debt securities is accelerated because of an event of default, we must promptly notify the holders of senior debt of the acceleration.
 
If we experience a bankruptcy, dissolution or reorganization, holders of senior debt may receive more, ratably, and holders of the senior subordinated debt securities may receive less, ratably, than our other creditors.
 
The indenture for senior subordinated debt securities may not limit our ability to incur additional senior debt.
 
The subordination provisions may not be amended in a manner adverse to the holders of the senior subordinated debt securities without the consent of the holders of at least 75% of the aggregate principal amount of senior subordinated debt securities then outstanding affected by the amendment, voting as a single class.
 
Events of Default.  The following are events of default under a series of senior subordinated debt securities:
 
 
·
we fail to pay the principal, premium, if any, or any sinking fund payment, on any senior subordinated debt securities of that series when due;
 
 
·
we fail to pay interest on any senior subordinated debt securities of that series when due and that failure continues for a period of 30 days;
 
 
·
we fail to observe or perform any other covenant, representation, warranty or other agreement in the senior subordinated debt indenture for the benefit of that series other than a covenant, representation or warranty with respect to which a failure to observe or perform is dealt with otherwise in the senior subordinated debt indenture or is expressly included in the senior subordinated debt indenture solely for the benefit of a series of debt securities other than such series of senior subordinated debt securities and that failure continues for 90 days after we receive notice to comply from the trustee or holders of at least 25% in aggregate principal amount of the outstanding senior subordinated debt securities of all series affected by that failure, treating all those series as a single class; and
 
22
 
 
·
certain events of bankruptcy or insolvency occur, whether voluntary or not.
 
No event of default will have occurred under a series of senior subordinated debt securities if we fail to file timely any annual report or information, document or other report that we are required to file with the SEC.
 
The prospectus supplement for a particular series may describe additional or different events of default that apply to that series.  An event of default with respect to one series of senior subordinated debt securities does not necessarily constitute an event of default with respect to any other series of senior subordinated debt securities.
 
If a default or an event of default occurs and is continuing, and if a responsible officer of the trustee under the indenture has actual knowledge thereof, the trustee will mail to the holders of senior subordinated debt securities of the affected series a notice to that effect within 90 days after it occurs.  Except in the case of a default in the payment of principal or interest, the trustee under the senior subordinated indenture may withhold notice if and so long as a committee of the trustee’s responsible officers in good faith determines that withholding the notice is in the interests of the holders.  In the case of any default specified in the third bullet above, no notice of default will be given to holders of the senior subordinated debt securities of the affected series until at least 90 days after we receive notice of the occurrence thereof.
 
If an event of default with respect to one or more series of senior subordinated debt securities occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the then outstanding senior subordinated debt securities of all series with respect to which the event of default occurs and is continuing, treating all those series as a single class, may declare the principal of, premium, if any, and accrued and unpaid interest (subject to applicable subordination provisions in the senior subordinated indenture) of all the senior subordinated debt securities of those series (or a lesser amount as may be provided for in the senior subordinated debt securities of the series) to be immediately due and payable.  The holders of a majority in aggregate principal amount of the then outstanding senior subordinated debt securities of all series covered by such declaration may annul and rescind the declaration and any related payment default that resulted from the declaration but not any other payment default.  Certain events of bankruptcy and insolvency will result in all outstanding series of senior subordinated debt securities becoming due and payable immediately without any further action on the part of the trustee or the holders.
 
The senior subordinated indenture entitles the trustee to be indemnified by the holders before proceeding to exercise any right or power at the request of any of the holders.
 
The holders of a majority in principal amount of the outstanding senior subordinated debt securities of all series with respect to which an event of default occurs and is continuing, treating all those series as a single class, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust power conferred on it, except that:
 
 
·
the direction cannot conflict with any law or regulation or the indenture;
 
 
·
the trustee may take any other action deemed proper by the trustee that is not inconsistent with the direction; and
 
23
 
 
·
the trustee need not take any action that might involve it in personal liability or be unduly prejudicial to the holders of the senior subordinated debt securities not joining in the action.
 
A holder may pursue a remedy directly under the senior subordinated indenture or the series of senior subordinated debt securities, but before doing so, the following must occur:
 
 
·
the holder must give to the trustee written notice that an event of default has occurred and is continuing;
 
 
·
the holders of at least 25% in principal amount of the then outstanding senior subordinated debt securities of all affected series, treating all those series as a single class, must make a written request to the trustee to pursue the remedy;
 
 
·
the holder, or holders, must offer and, if requested, provide to the trustee an indemnity satisfactory to the trustee against any loss, liability or expense from the taking of the action;
 
 
·
the trustee does not comply with the request within 60 days after receipt of the request and offer of indemnity; and
 
 
·
during the 60 day period, the holders of a majority in principal amount of the then outstanding senior subordinated debt securities of all those series, treating all those series as a single class, do not give the trustee a direction inconsistent with the written request.
 
Holders have an absolute right, however, to receipt of principal, premium, if any, and interest on or after the respective due dates and to institute suit for the enforcement of those payments.  The right of a holder of senior subordinated debt securities to bring suit for the enforcement of any payments of principal, premium, if any, and interest on senior subordinated debt securities on or after the respective due dates, without regard to acceleration or default, may not be impaired or affected without the consent of that holder.
 
The holders of a majority in principal amount of the senior subordinated debt securities then outstanding of all affected series, treating all such series as a single class, may by notice to the trustee on behalf of all holders of the senior subordinated debt securities of such series waive any past defaults, except:
 
 
·
a continuing default in payment of the principal of, premium, if any, or interest on, or any sinking fund payment on, senior subordinated debt securities of the series; and
 
 
·
a continuing default in respect of a covenant or provision of the indenture that cannot be amended or modified without the consent of each holder of senior subordinated debt securities affected.
 
We will periodically file statements with the trustees regarding our compliance with covenants in the senior subordinated indenture.
 
Modifications and Amendments.  Except as provided below, or more fully specified in the senior subordinated indenture and described in the prospectus supplement relating to a series of senior subordinated debt securities, the senior subordinated indenture may be amended or supplemented by us and the trustee with the consent of holders of a majority in principal amount of all series of senior subordinated debt securities affected by the amendment or supplement, treating all such series as a single class.  In addition, the record holders of a majority in principal amount of the outstanding senior subordinated debt securities of all series affected by the waiver, treating all such series as a single class, may, with respect to those series, waive defaults under, or compliance with, the provisions of the senior subordinated indenture.  Some amendments or waivers, however, require the consent of each holder of any senior subordinated debt security affected.  Without the consent of each holder, an amendment or waiver may not:
 
24
 
 
·
reduce the principal amount of the senior subordinated debt securities of any series whose holders must consent to an amendment, supplement or waiver;
 
 
·
reduce the principal or change the fixed maturity of the principal of, premium, if any, or mandatory sinking fund obligation, if any, of any senior subordinated debt securities of any series or alter the provisions with respect to the redemption of the senior subordinated debt securities;
 
 
·
reduce the rate, or change the time for payment, of interest, including default interest, on any senior subordinated debt security of any series;
 
 
·
impair any right, if any, to convert the senior subordinated debt securities into common stock;
 
 
·
waive a default or event of default in the payment of principal of, or interest or premium on, the senior subordinated debt securities of any series, except a rescission of acceleration of the senior subordinated debt securities by the holders of a majority in aggregate principal amount of the senior subordinated debt securities of any series and a waiver of the payment default that resulted from that acceleration;
 
 
·
make any senior subordinated debt security of any series payable in currency other than that stated in the senior subordinated debt securities of that series;
 
 
·
make any change in the provisions of the senior subordinated indenture relating to waivers of past defaults or the rights of the holders of senior subordinated debt securities to receive payments of principal of or interest or premium on the senior subordinated debt securities;
 
 
·
waive a redemption payment with respect to any senior subordinated debt security;
 
 
·
make any change in the right of any holders of senior subordinated debt securities regarding waivers of defaults or impair or affect the right of any holder of a senior subordinated debt security of any series to receive payment of principal, premium, if any, and interest on that security on or after the due date expressed in that security or to bring suit for the enforcement of any payment on or after the due date; or
 
 
·
make any change in the above amendment and waiver provisions.
 
We and the trustee under the senior subordinated indenture may amend or supplement the senior subordinated indenture or the senior subordinated debt securities issued thereunder without the consent of any holder:
 
 
·
to evidence the succession of another person to us, or successive successions, and the assumption by the successors of our covenants, agreements and obligations under the senior subordinated indenture as permitted by the indenture;
 
 
·
to add other covenants, restrictions or conditions for the protection of the holders of all or any series of senior subordinated debt securities;
 
25
 
 
·
to add events of default;
 
 
·
to provide for the issuance of senior subordinated debt securities in coupon form and to provide for exchangeability of those senior subordinated debt securities under the indenture in fully registered form;
 
 
·
to provide for the issuance of and to establish the form, terms and conditions of senior subordinated debt securities of any series;
 
 
·
to evidence and provide for the acceptance of appointment by a successor trustee and to add or change any of the provisions of the indenture necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee;
 
 
·
to cure any ambiguity, or to correct or supplement any provision in the indenture that may be defective or inconsistent with any other provision contained in the indenture or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising under that indenture, so long as the interests of holders of senior subordinated debt securities of any series are not adversely affected in any material respect under that indenture; or
 
 
·
to comply with the requirements of the Securities and Exchange Commission or to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939.
 
Particular Terms of the Subordinated Debt Securities
 
Ranking of Subordinated Debt Securities.  The subordinated debt securities will be subordinated and junior in right of payment to any senior debt securities and senior subordinated debt securities and certain other indebtedness of Kulicke & Soffa to the extent set forth in the prospectus supplement.
 
Subordination.  Unless the prospectus supplement indicates otherwise, the subordination provisions of the subordinated debt securities will be the same as those of the senior subordinated debt securities just described, with the following exceptions:
 
 
·
“Senior debt” will include our obligations under the senior subordinated debt securities, as well as under the other debt specified above; and
 
 
·
different series of subordinated debt securities may rank senior to other series.  In that case, our obligations under the higher-ranking series will be “senior debt” in relation to the lower-ranking series.
 
Events of Default.  The following are events of default under a series of subordinated debt securities:
 
 
·
we fail to pay the principal, premium, if any, or any sinking fund payment, on any subordinated debt securities of that series when due;
 
 
·
we fail to pay interest on any debt securities of that series when due and that failure continues for a period of 30 days;
 
26
 
 
·
we fail to observe or perform any other covenant, representation, warranty or other agreement in the subordinated debt indenture for the benefit of that series other than a covenant, representation or warranty with respect to which a failure to observe or perform is dealt with otherwise in the subordinated debt indenture or is expressly included in the subordinated debt indenture solely for the benefit of a series of debt securities other than such series of subordinated debt securities and that failure continues for 90 days after we receive notice to comply from the trustee or holders of at least 25% in aggregate principal amount of the outstanding subordinated debt securities of all series affected by that failure, treating all those series as a single class; and
 
 
·
certain events of bankruptcy or insolvency occur, whether voluntary or not.
 
No event of default will have occurred under a series of subordinated debt securities if we fail to file timely any annual report or information, document or other report that we are required to file with the SEC.
 
The prospectus supplement for a particular series may describe additional or different events of default that apply to that series.  An event of default with respect to one series of subordinated debt securities does not necessarily constitute an event of default with respect to any other series of subordinated debt securities.
 
If a default or an event of default occurs and is continuing, and if a responsible officer of the trustee under the indenture has actual knowledge thereof, the trustee will mail to the holders of subordinated debt securities of the affected series a notice to that effect within 90 days after it occurs.  Except in the case of a default in the payment of principal or interest, the trustee under the subordinated indenture may withhold notice if and so long as a committee of the trustee’s responsible officers in good faith determines that withholding the notice is in the interests of the holders.  In the case of any default specified in the third bullet above, no notice of default will be given to holders of the subordinated debt securities of the affected series until at least 90 days after we receive notice of the occurrence thereof.
 
If an event of default with respect to any series of subordinated debt securities occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the then outstanding subordinated debt securities of that series and all other series that rank equal with that series and with respect to which the event of default occurs and is continuing, treating all those series as a single class, may declare the principal of, premium, if any, and accrued and unpaid interest (subject to applicable subordination provisions in the relevant indenture) of all the subordinated debt securities of those series (or a lesser amount as may be provided for in the subordinated debt securities of the series) to be immediately due and payable.  The holders of a majority in aggregate principal amount of the then outstanding subordinated debt securities of all series covered by such declaration may annul and rescind the declaration and any related payment default that resulted from the declaration but not any other payment default.  Certain events of bankruptcy and insolvency will result in all outstanding series of subordinated debt securities becoming due and payable immediately without any further action on the part of the trustee or the holders.
 
The subordinated indenture entitles the trustee to be indemnified by the holders before proceeding to exercise any right or power at the request of any of the holders.
 
The holders of a majority in principal amount of the outstanding subordinated debt securities of all series with respect to which an event of default occurs and is continuing and that rank equal with each other, treating all those series as a single class, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust power conferred on it with respect to those series, except that:
 
 
·
the direction cannot conflict with any law or regulation or the subordinated indenture;
 
27
 
 
·
the trustee may take any other action deemed proper by the trustee that is not inconsistent with the direction; and
 
 
·
the trustee need not take any action that might involve it in personal liability or be unduly prejudicial to the holders of the subordinated debt securities not joining in the action.
 
A holder may pursue a remedy directly under the indenture or the series of subordinated debt securities, but before doing so, the following must occur:
 
 
·
the holder must give to the trustee written notice that an event of default has occurred and is continuing;
 
 
·
the holders of at least 25% in principal amount of the then outstanding subordinated debt securities of all affected series that rank equal with each other, treating all those securities as a single class, must make a written request to the trustee to pursue the remedy;
 
 
·
the holder, or holders, must offer and, if requested, provide to the trustee an indemnity satisfactory to the trustee against any loss, liability or expense from the taking of the action;
 
 
·
the trustee does not comply with the request within 60 days after receipt of the request and offer of indemnity; and
 
 
·
during the 60 day period, the holders of a majority in principal amount of the then outstanding subordinated debt securities of all those series, treating all those securities as a single class, do not give the trustee a direction inconsistent with the written request.
 
Holders have an absolute right, however, to receipt of principal, premium, if any, and interest on or after the respective due dates and to institute suit for the enforcement of those payments.  The right of a holder of subordinated debt securities to bring suit for the enforcement of any payments of principal, premium, if any, and interest on subordinated debt securities on or after the respective due dates may not be impaired or affected without the consent of that holder.
 
The holders of a majority in principal amount of the subordinated debt securities then outstanding of all affected series that rank equal with each other, treating all such series as a single class, may by notice to the trustee on behalf of all holders of the subordinated debt securities of such series waive any past defaults, except:
 
 
·
a continuing default in payment of the principal of, premium, if any, or interest on, or any sinking fund payment on, subordinated debt securities of the series; and
 
 
·
a continuing default in respect of a covenant or provision of the indenture that cannot be amended or modified without the consent of each holder of debt securities affected.
 
We will periodically file statements with the trustee regarding our compliance with covenants in the subordinated indenture.
 
Modifications and Amendments.  Except as provided below, or more fully specified in the subordinated indenture and described in the prospectus supplement relating to a series of subordinated debt securities, the subordinated indenture may be amended or supplemented by us and the trustee with the consent of holders of a majority in principal amount of each series of subordinated debt securities affected by the amendment or supplement that rank equal with each other, treating all such series as a single class.  In addition, the record holders of a majority in principal amount of the outstanding subordinated debt securities of all series affected by the waiver that rank equal with each other, treating all such series as a single class, may, with respect to those series, waive defaults under, or compliance with, the provisions of the subordinated indenture.  Some amendments or waivers, however, require the consent of each holder of any subordinated debt security affected.  Without the consent of each holder, an amendment or waiver may not:
 
28
 
 
·
reduce the principal amount of the subordinated debt securities of any series whose holders must consent to an amendment, supplement or waiver;
 
 
·
reduce the principal or change the fixed maturity of the principal of, premium, if any, or mandatory sinking fund obligation if any, of any subordinated debt securities of any series or alter the provisions with respect to the redemption of the subordinated debt securities;
 
 
·
reduce the rate, or change the time for payment, of interest, including default interest, on any subordinated debt security of any series;
 
 
·
impair the right, if any, to convert the subordinated debt securities into common stock;
 
 
·
waive a default or event of default in the payment of principal of, or interest or premium on, the subordinated debt securities of any series, except a rescission of acceleration of the subordinated debt securities by the holders of a majority in aggregate principal amount of the subordinated debt securities of any series and a waiver of the payment default that resulted from that acceleration;
 
 
·
make any subordinated debt security of any series payable in currency other than that stated in the debt securities of that series;
 
 
·
make any change in the provisions of the subordinated indenture relating to waivers of past defaults or the rights of the holders of subordinated debt securities to receive payments of principal of or interest or premium on the subordinated debt securities;
 
 
·
waive a redemption payment with respect to any subordinated debt security;
 
 
·
make any change in the right of any holders of subordinated debt securities regarding waivers of defaults or impair or affect the right of any holder of a subordinated debt security of any series to receive payment of principal, premium, if any, and interest on that security on or after the due date expressed in that security or to bring suit for the enforcement of any payment on or after the due date; or
 
 
·
make any change in the above amendment and waiver provisions.
 
We and the trustee under the subordinated indenture may amend or supplement the subordinated indenture or the subordinated debt securities issued thereunder without the consent of any holder:
 
 
·
to evidence the succession of another person to us, or successive successions, and the assumption by the successors of our covenants, agreements and obligations under the subordinated indenture as permitted by the indenture;
 
 
·
to add other covenants, restrictions or conditions for the protection of the holders of all or any series of subordinated debt securities;
 
29
 
 
·
to add events of default;
 
 
·
to provide for the issuance of subordinated debt securities in coupon form and to provide for exchangeability of those debt securities under the indenture in fully registered form;
 
 
·
to provide for the issuance of and to establish the form, terms and conditions of subordinated debt securities of any series;
 
 
·
to evidence and provide for the acceptance of appointment by a successor trustee and to add or change any of the provisions of the indenture necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee;
 
 
·
to cure any ambiguity, or to correct or supplement any provision in the indenture that may be defective or inconsistent with any other provision contained in the indenture or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising under that indenture, so long as the interests of holders of debt securities of any series are not adversely affected in any material respect under that indenture; or
 
 
·
to comply with the requirements of the Securities and Exchange Commission or to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939.
 
For the purpose of amending or supplementing our subordinated indenture, or waiving a default under or compliance with the provisions of the subordinated indenture, debt securities that are convertible into equity securities and debt securities that are not so convertible shall not be treated as part of the same class notwithstanding that such debt securities may otherwise rank equal with each other.
 
 
The following is a description of the general terms and provisions of the warrants to which any prospectus supplement may relate.  The prospectus supplement relating to the warrants will describe the particular terms of the warrants and the extent, if any, to which these general provisions may apply to the warrants offered.
 
We may issue warrants to purchase senior debt securities, senior subordinated debt securities, subordinated debt securities, preferred stock, common stock or any combination thereof.  The warrants may be issued independently or together with any other securities and may be attached or separate from the other securities.  Each series of warrants will be issued under a separate warrant agreement to be entered into between a warrant agent and us.  The warrant agent will act solely as our agent in connection with the warrants of any series and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants.
 
The applicable prospectus supplement will describe the terms of any warrants and the related offering in respect of which this prospectus is being delivered, including the following:
 
 
·
the title of the warrants;
 
 
·
the aggregate number of the warrants;
 
 
·
the price or prices at which the warrants will be issued;
 
30
 
 
 
·
the designation and terms of the underlying securities purchasable upon exercise of the warrants and the number of such underlying securities initially issuable upon exercise of the warrants;
 
 
·
the price or prices at which the warrants may be exercised to purchase the securities underlying them;
 
 
·
the date on which the right to exercise the warrants will commence and the date on which the right shall expire;
 
 
·
if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
 
 
·
if applicable, the designation and terms of the other securities with which the warrants are issued and the number of such warrants issued with each such underlying warrant security;
 
 
·
if applicable, the date on and after which the warrants and other securities will be separately transferable;
 
 
·
information with respect to book-entry procedures, if any;
 
 
·
if applicable, a discussion of certain material United States federal income tax considerations;
 
 
·
the procedures and conditions relating to the exercise of the warrants; and
 
 
·
any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
 
 
We may issue units consisting of common stock, preferred stock, warrants, debt securities or any combination of those securities. The applicable prospectus supplement will describe the terms of any units including the following:
 
 
·
the terms of the units and each of the securities included in the units, including whether and under what circumstances the securities included in the units may or may not be traded separately;
 
 
·
the terms of any unit agreement governing the units; and
 
 
·
the provisions for the payment, settlement, transfer or exchange of the units.
 
 
31
 

 
We may sell the securities in any one or more of the following ways:
 
 
·
directly to investors, including through a specific bidding, auction or other process;
 
 
·
to investors through agents;
 
 
·
directly to agents;
 
 
·
to or through brokers or dealers;
 
 
·
to the public through underwriting syndicates led by one or more managing underwriters;
 
 
·
in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise;
 
 
·
to one or more underwriters acting alone for resale to investors or to the public; and
 
 
·
through a combination of any such methods of sale.
 
If we sell securities to a dealer acting as principal, the dealer may resell such securities at varying prices to be determined by such dealer in its discretion at the time of resale without consulting with us and such resale prices may not be disclosed in the applicable prospectus supplement.
 
Any underwritten offering may be on a best efforts or a firm commitment basis. We may also offer securities through subscription rights distributed to our stockholders on a pro rata basis, which may or may not be transferable. In any distribution of subscription rights to stockholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly to third parties or may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to sell the unsubscribed securities to third parties.
 
Sales of the securities may be effected from time to time in one or more transactions, including negotiated transactions:
 
 
·
at a fixed price or prices, which may be changed;
 
 
·
at market prices prevailing at the time of sale;
 
 
·
at prices related to prevailing market prices; or
 
 
·
at negotiated prices.
 
Any of the prices may represent a discount from the then prevailing market prices.
 
In connection with the sale of any of the securities, underwriters or agents may receive compensation from us in the form of underwriting discounts or commissions and may also receive compensation from purchasers of the securities, for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Discounts, concessions and commissions may be changed from time to time. Dealers and agents that participate in the distribution of the securities may be deemed to be underwriters under the Securities Act, and any discounts, concessions or commissions they receive from us and any profit on the resale of securities they realize may be deemed to be underwriting compensation under applicable federal and state securities laws.
 
32
 
The applicable prospectus supplement will, where applicable:
 
 
·
identify any such underwriter, dealer or agent;
 
 
·
describe any compensation in the form of discounts, concessions, commissions or otherwise received from us by each such underwriter or agent and in the aggregate by all underwriters and agents;
 
 
·
describe any discounts, concessions or commissions allowed by underwriters to participating dealers;
 
 
·
identify the amounts underwritten; and
 
 
·
identify the nature of the underwriter’s or underwriters’ obligation to take the securities.
 
Unless otherwise specified in the related prospectus supplement, each series of securities will be a new issue with no established trading market, other than our common stock, which is listed on the NASDAQ Global Market. Any common stock sold pursuant to a prospectus supplement will be listed on the NASDAQ Global Market, subject to official notice of issuance. We may elect to list any series of debt securities or preferred stock on an exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of, or the trading market for, any offered securities.

We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If disclosed in the applicable prospectus supplement, in connection with those derivative transactions third parties may sell securities covered by this prospectus and such prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or from others to settle those short sales or to close out any related open borrowings of securities, and may use securities received from us in settlement of those derivative transactions to close out any related open borrowings of securities. If the third party is or may be deemed to be an underwriter under the Securities Act, it will be identified in the applicable prospectus supplements.

Until the distribution of the securities is completed, rules of the SEC may limit the ability of any underwriters and selling group members to bid for and purchase the securities. As an exception to these rules, underwriters are permitted to engage in some transactions that stabilize the price of the securities. Such transactions consist of bids or purchases for the purpose of pegging, fixing or maintaining the price of the securities.

Underwriters may engage in overallotment. If any underwriters create a short position in the securities in an offering in which they sell more securities than are set forth on the cover page of the applicable prospectus supplement, the underwriters may reduce that short position by purchasing the securities in the open market.

The lead underwriters may also impose a penalty bid on other underwriters and selling group members participating in an offering. This means that if the lead underwriters purchase securities in the open market to reduce the underwriters’ short position or to stabilize the price of the securities, they may reclaim the amount of any selling concession from the underwriters and selling group members who sold those securities as part of the offering.
 
33
 
In general, purchases of a security for the purpose of stabilization or to reduce a short position could cause the price of the security to be higher than it might be in the absence of such purchases. The imposition of a penalty bid might also have an effect on the price of a security to the extent that it were to discourage resales of the security before the distribution is completed.

We do not make any representation or prediction as to the direction or magnitude of any effect that the transactions described above might have on the price of the securities. In addition, we do not make any representation that underwriters will engage in such transactions or that such transactions, once commenced, will not be discontinued without notice.

Under agreements into which we may enter, underwriters, dealers and agents who participate in the distribution of the securities may be entitled to indemnification by us against or contribution towards certain civil liabilities, including liabilities under the applicable securities laws.

Underwriters, dealers and agents may engage in transactions with us, perform services for us or be our tenants in the ordinary course of business.

If indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by particular institutions to purchase securities from us at the public offering price set forth in such prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in such prospectus supplement. Each delayed delivery contract will be for an amount no less than, and the aggregate amounts of securities sold under delayed delivery contracts shall be not less nor more than, the respective amounts stated in the applicable prospectus supplement. Institutions with which such contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but will in all cases be subject to our approval. The obligations of any purchaser under any such contract will be subject to the conditions that (a) the purchase of the securities shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which the purchaser is subject, and (b) if the securities are being sold to underwriters, we shall have sold to the underwriters the total amount of the securities less the amount thereof covered by the contracts. The underwriters and such other agents will not have any responsibility in respect of the validity or performance of such contracts.

To comply with applicable state securities laws, the securities offered by this prospectus will be sold, if necessary, in such jurisdictions only through registered or licensed brokers or dealers. In addition, securities may not be sold in some states unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.

 
Certain legal matters in connection with the legality of any common stock, preferred stock, debt securities, warrants and units offered hereby will be passed upon for us by Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania.
 
34
 
 
The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) of Kulicke and Soffa Industries, Inc. incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended September 27, 2008 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

The financial statements of Orthodyne Electronics Corporation incorporated into this prospectus by reference from our Current Reports on Form 8-K/A dated October 28, 2008 and Form 8-K dated July 2, 2009 have been audited by McGladrey & Pullen, LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
 
 
We have filed with the Securities and Exchange Commission a registration statement on Form S−3, of which this prospectus is a part. This prospectus and any accompanying prospectus supplement do not contain all of the information set forth in the registration statement and exhibits and schedules to the registration statement. For further information with respect to our Company and the securities registered hereby, reference is made to the registration statement, including the exhibits and schedules to the registration statement. Statements contained in this prospectus and any accompanying prospectus supplement as to the contents of any contract or other document referred to in, or incorporated by reference in, this prospectus and any accompanying prospectus supplement are not necessarily complete and, where that contract or other document is an exhibit to the registration statement, each statement is qualified in all respects by the exhibit to which the reference relates.

We file annual, quarterly, special reports, proxy statements and other information with the Securities and Exchange Commission. These documents contain specific information regarding us. These documents, including exhibits and schedules thereto, may be inspected without charge at the Securities and Exchange Commission’s principal office in Washington, D.C., and copies of all or any part thereof may be obtained from the Public Reference Section of the Securities and Exchange Commission, 100 F Street, N.E., Washington, D.C. 20549. Information on the operation of the Public Reference Section may be obtained by calling the Securities and Exchange Commission at 1-800-SEC-0330. The Securities and Exchange Commission also maintains a World Wide Web site which provides online access to reports, proxy and information statements and other information regarding registrants that file electronically with the Securities and Exchange Commission at the address http://www.sec.gov.
 
We make our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and all amendments to these reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act available (free of charge) on or through our Internet website located at http://www.kns.com. We maintain a website with the address www.kns.com. We are not including the information contained on our website as part of, or incorporating it by reference into, this prospectus.
 
Our common stock is listed on the NASDAQ Global Market under the symbol “KLIC”. Our reports, proxy statements, and other information are also available at the following NASDAQ address: NASDAQ Operations, 1735 K Street, N.W., Washington, D.C. 20006.
 
35
 
 
The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those document. These documents contain important information about us and our financial condition. The information incorporated by reference is considered to be part of this prospectus.
 
Information that we file later with the Securities and Exchange Commission will automatically update and supersede this information. We incorporate by reference the documents listed below, except for information furnished under Item 2.02 or Item 7.01 of Form 8-K which is neither deemed filed nor incorporated by reference herein:
 
 
·
Our Annual Report on Form 10-K for the year ended September 27, 2008;
 
 
·
Our Quarterly Reports on Form 10-Q for the quarters ended December 27, 2008 and March 28, 2009;
 
 
·
Our Current Reports on Form 8-K filed on October 2, 2008, October 3, 2008, October 8, 2008 and amended on October 28, 2008, October 15, 2008, November 18, 2008, December 1, 2008, January 2, 2009, January 8, 2009, January 15, 2009, February 25, 2009, March 31, 2009, April 2, 2009, May 19, 2009, June 26, 2009 and July 2, 2009;
 
 
·
The description of our common stock contained in our registration statement on Form 8-A12G/A filed on July 17, 2000, including any and all amendments and reports filed for the purpose of updating that description; and
 
 
·
Any future filings we make under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, including any filings after the date of this registration statement until we terminate this offering.
 
Any statement contained in a document incorporated or deemed to be incorporated by reference herein may be modified or superseded in the future. Any such statement so modified shall not be deemed to constitute a part of the Registration Statement except as so modified and any statement so superseded shall not be deemed to constitute a part of this Registration Statement.
 
We will provide to you without charge, upon receipt of your written or oral request, a copy of any or all of the documents that are incorporated by reference in this prospectus, other than exhibits that are not specifically incorporated by reference in such documents. You should direct written or telephone requests to Investor Relations Department, Kulicke and Soffa Industries, Inc., 1005 Virginia Drive, Fort Washington, PA 19034, telephone (215) 784-6000.

You should rely only upon the information provided in this prospectus. We have not authorized anyone to provide you with different information. You should not assume that the information in this prospectus is accurate as of any date other than the date of this prospectus.
 
Our logo appearing on the front and back covers of this prospectus is a trademark of Kulicke and Soffa Industries, Inc.

 
36
 

PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
 
The following table sets forth the expenses expected to be incurred by us in connection with the issuance and distribution of the securities registered hereby, other than underwriting fees and discounts. All of these expenses, except for the registration fee, are estimates:
 
Securities and Exchange Commission Registration Fee
   $ 5,580  
         
Printing and Engraving Expenses
   $ 3,000  
         
Legal Fees and Expenses
   $ 75,000  
         
Accounting Fees and Expenses
   $ 25,000  
         
Trustee’s Fees and Expenses
   $ 10,000  
         
Miscellaneous Expenses
   $ 6,475  
         
Total
   $ 125,055  

ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
 
Section 1741 of the Pennsylvania Business Corporation Law provides us the power to indemnify any officer or director acting in his capacity as a representative of us who was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding against expenses, judgments, penalties, fines and amounts paid in settlement in connection with such action or proceeding whether the action was instituted by a third party or arose by or in the right of us. Generally, the only limitation on the ability of us to indemnify our officers and directors is if the act or failure to act is finally determined by a court to have constituted willful misconduct or recklessness.

Our bylaws require us to indemnify any person who is or was a party or witness in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including without limitation one bought by or in the right of the Company, by reason of the fact that he or she is or was a director or officer of the Company or is or was serving while a director or officer at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such proceeding, except to the extent such indemnification is prohibited by applicable law. Our bylaws provide that such persons are automatically entitled to advances from us for the payment of certain expenses incurred by such persons upon receipt of an undertaking by or on behalf of the person to repay such advances if it is ultimately determined that the person is not entitled to indemnification by us. Notwithstanding anything to the contrary, we are not obligated to indemnify any person or advance expenses with respect to any action, suit or proceeding commenced by the person, other than mandatory counterclaims and affirmative defenses. We may indemnify employees and agents of the Company, and advance expenses to them, on the same basis as provided in our bylaws for directors and officers, as the board of directors of the Company may from time to time determine or authorize.
 
II-1
 
In addition, we maintain directors and officers insurance under which our directors and officers are insured against certain liabilities that may be incurred by them in their capacities as such.
 
ITEM 16. EXHIBITS
 
(a)
The following exhibits are filed with this registration statement.
 
EXHIBIT
    
NUMBER
  
ITEM
     
1(i)(1)
  
Form of underwriting agreement for offering of common stock.
     
1(ii)(1)
  
Form of underwriting agreement for offering of preferred stock.
     
1(iii)(1)
  
Form of underwriting agreement for offering of units.
     
1(iv)(1)
  
Form of underwriting agreement for offering of debt securities (senior debt securities, senior subordinated debt securities and/or subordinated debt securities).
     
1(v)(1)
  
Form of underwriting agreement for offering of warrants.
     
2(i)
  
Master Sale and Purchase Agreement between W.C. Heraeus GmbH and Kulicke and Soffa Industries, Inc., dated July 31, 2008 is incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed on July 31, 2008.
     
2(ii)
  
Amendment No. 1 to the Master Sale and Purchase Agreement between W.C. Heraeus GmbH and Kulicke and Soffa Industries, Inc., dated as of September 5, 2008 is incorporated by reference to Exhibit 2.2 of the Company’s Form 8-K filed on October 2, 2008.
     
2(iii)
  
Asset Purchase Agreement between Orthodyne Electronics Corporation and Kulicke and Soffa Industries, Inc., dated July 31, 2008 is incorporated by reference to Exhibit 10.2 of the Company’s Form 8-K filed on July 31, 2008.
     
2(iv)
  
Amendment to the Asset Purchase Agreement between Orthodyne Electronics Corporation and Kulicke and Soffa Industries, Inc., dated as of October 3, 2008 is incorporated by reference to Exhibit 2.2 of the Company’s Form 8-K filed on October 8, 2008.
     
4(i)
  
The Company’s Form of Amended and Restated Articles of Incorporation dated December 5, 2007, filed as Exhibit 3(i) to the Company’s annual report on Form 10-K for the year ended September 29, 2007, is incorporated herein by reference.
     
4(ii)
  
The Company’s Form of Amended and Restated By-Laws dated December 5, 2007, filed as Exhibit 3(ii) to the Company’s annual report on Form 10-K for the year ended September 29, 2007, are incorporated herein by reference.
 
II-2
 
4(iii)
  
Specimen Common Share Certificate of Kulicke and Soffa Industries, Inc., filed as Exhibit 4 to the Company’s Form 8-A12G/A dated September 11, 1995, SEC file number 000-00121, is incorporated herein by reference.
     
4(iv)
  
Senior debt securities indenture.
     
4(v)
  
Senior subordinated debt securities indenture.
     
4(vi)
  
Subordinated debt securities indenture.
     
4(vii)
  
Form of any senior debt security (included in Exhibit 4(iv)).
     
4(viii)
  
Form of any senior subordinated debt security (included in Exhibit 4(v)).
     
4(ix)
  
Form of any subordinated debt security (included in Exhibit 4(vi)).
     
4(x)(1)
  
Form of any certificate of designation with respect to any preferred stock (together with form of preferred stock certificate).
     
4(xi) (1)
  
Form of unit agreement.
     
4(xii) (1)
  
Form of debt warrant agreement for warrants sold alone, including form of warrant.
     
4(xiii) (1)
  
Form of debt warrant agreement for warrants sold attached to debt securities, including form of warrant.
     
4(xiv) (1)
  
Form of equity warrant agreement for warrants sold alone, including form of warrant.
     
4(xv)
  
Indenture, including Form of Note, dated as of June 30, 2004 between the Company and J.P. Morgan Trust Company, National Association, as Trustee, filed as Exhibit 4.1 to the Company’s quarterly report on Form 10-Q for the quarterly period ended June 30, 2004, is incorporated herein by reference.
     
4(xvi)
  
Registration Rights Agreement dated as of June 30, 2004, between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Initial Purchaser, filed as Exhibit 4.2 to the Company’s quarterly report on Form 10-Q for the quarterly period ended June 30, 2004, is incorporated herein by reference.
     
4(xvii)
  
Indenture, including Form of Note, between the Company and The Bank of New York, dated as of June 6, 2007, filed as Exhibit 4.1 to the Company’s Form 8-K dated June 7, 2007, is incorporated herein by reference.
     
4(xviii)
  
Registration Rights Agreement dated as of June 6, 2007, between the Company and Bank of America Securities, LLC as Initial Purchaser, filed as Exhibit 10.1 to the Company’s Form 8-K dated June 6, 2007, is incorporated by reference.
     
5
  
Opinion of Drinker Biddle & Reath LLP.
     
12
  
Computation of Ratio of Earnings to Fixed Charges.
     
23(i)
  
Consent of PricewaterhouseCoopers LLP (Independent Registered Public Accounting Firm).
 
II-3
 
23(ii)
  
Consent of McGladrey & Pullen, LLP (Independent Registered Public Accounting Firm).
     
23(iii)
  
Consent of Drinker Biddle & Reath LLP (included in Exhibit 5).
     
24(i)
  
Power of Attorney (contained in the signature page to this registration statement).
     
25.1(2)
  
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture with respect to the senior debt securities.
     
25.2(2)
  
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture with respect to the senior subordinated debt securities.
     
25.3(2)
  
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture with respect to the subordinated debt securities.
 
 
(1)
To be filed as an exhibit or incorporated by reference as an exhibit to a document incorporated or deemed to be incorporated by reference in this registration statement, including, where permitted, a Current Report on Form 8-K.
 
(2)
To be incorporated by reference to a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
 
ITEM 17. UNDERTAKINGS
 
(a)
The undersigned registrant hereby undertakes:
 
(1)           To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
 
(i)           To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
 
(ii)           To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.  Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
 
(iii)           To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
 
II-4
 
Provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
 
(2)           That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(3)           To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(4)           That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

(i)           Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

(ii)           Each prospectus  required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposed of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

(5)           That for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this  registration statement, regardless of the underwriting method used to sell securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i)           Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii)           Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
 
II-5
 
(iii)           The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv)           Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

(b)           The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual reports pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)           The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act ("Act") in accordance with the rules and regulations prescribed by the Commission under section 305(b)2 of the Act.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
 
 
II-6
 

SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Washington, State of Pennsylvania on this 2nd day of July, 2009.

KULICKE AND SOFFA INDUSTRIES, INC.
   
By:
/s/ C. Scott Kulicke
 
C. Scott Kulicke
 
Chairman of the Board and Chief Executive Officer

POWER OF ATTORNEY
 
Each person whose signature appears below constitutes and appoints C. Scott Kulicke and Maurice E. Carson, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign and file any and all amendments to this registration statement (including post-effective amendments) and any subsequent registration statement filed by Kulicke and Soffa Industries, Inc. pursuant to Rule 462(b) of the Securities Act of 1933, and to file the same with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

NAME
  
CAPACITY
  
DATE
         
/s/ C. Scott Kulicke
  
Chairman of the Board and Chief Executive
    
C. Scott Kulicke
  
Officer (principal executive officer)
  
 July 2, 2009
         
/s/ Maurice E. Carson
  
Senior Vice President and Chief Financial
    
Maurice E. Carson
  
Officer (principal financial officer and
principal accounting officer)
  
 July 2, 2009
         
/s/ Brian R. Bachman
        
Brian R. Bachman
  
Director
  
 July 2, 2009
         
/s/ John A. O’Steen
        
John A. O’Steen
  
Director
  
 July 2, 2009
         
/s/ Garrett E. Pierce
        
Garrett E. Pierce
  
Director
  
 July 2, 2009
         
/s/ MacDonell Roehm, Jr.
        
MacDonell Roehm, Jr.
  
Director
  
 July 2, 2009
         
/s/ Barry Waite
        
Barry Waite
  
Director
  
 July 2, 2009
         
/s/ C. William Zadel
        
C. William Zadel
  
Director
  
 July 2, 2009
 
 
S-1
 

EXHIBIT INDEX

EXHIBIT
    
NUMBER
  
ITEM
     
1(i)(1)
  
Form of underwriting agreement for offering of common stock.
     
1(ii)(1)
  
Form of underwriting agreement for offering of preferred stock.
     
1(iii)(1)
  
Form of underwriting agreement for offering of units.
     
1(iv)(1)
  
Form of underwriting agreement for offering of debt securities (senior debt securities, senior subordinated debt securities and/or subordinated debt securities).
     
1(v)(1)
  
Form of underwriting agreement for offering of warrants.
     
2(i)
  
Master Sale and Purchase Agreement between W.C. Heraeus GmbH and Kulicke and Soffa Industries, Inc., dated July 31, 2008 is incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed on July 31, 2008.
     
2(ii)
  
Amendment No. 1 to the Master Sale and Purchase Agreement between W.C. Heraeus GmbH and Kulicke and Soffa Industries, Inc., dated as of September 5, 2008 is incorporated by reference to Exhibit 2.2 of the Company’s Form 8-K filed on October 2, 2008.
     
2(iii)
  
Asset Purchase Agreement between Orthodyne Electronics Corporation and Kulicke and Soffa Industries, Inc., dated July 31, 2008 is incorporated by reference to Exhibit 10.2 of the Company’s Form 8-K filed on July 31, 2008.
     
2(iv)
  
Amendment to the Asset Purchase Agreement between Orthodyne Electronics Corporation and Kulicke and Soffa Industries, Inc., dated as of October 3, 2008 is incorporated by reference to Exhibit 2.2 of the Company’s Form 8-K filed on October 8, 2008.
     
4(i)
  
The Company’s Form of Amended and Restated Articles of Incorporation dated December 5, 2007, filed as Exhibit 3(i) to the Company’s annual report on Form 10-K for the year ended September 29, 2007, is incorporated herein by reference.
     
4(ii)
  
The Company’s Form of Amended and Restated By-Laws dated December 5, 2007, filed as Exhibit 3(ii) to the Company’s annual report on Form 10-K for the year ended September 29, 2007, are incorporated herein by reference.
     
4(iii)
  
Specimen Common Share Certificate of Kulicke and Soffa Industries, Inc., filed as Exhibit 4 to the Company’s Form 8-A12G/A dated September 11, 1995, SEC file number 000-00121, is incorporated herein by reference.
     
4(iv)
  
Senior debt securities indenture.
     
4(v)
  
Senior subordinated debt securities indenture.
     
4(vi)
  
Subordinated debt securities indenture.
 
E-1
 
4(vii)
  
Form of any senior debt security (included in Exhibit 4(iv)).
     
4(viii)
  
Form of any senior subordinated debt security (included in Exhibit 4(v)).
     
4(ix)
  
Form of any subordinated debt security (included in Exhibit 4(vi)).
     
4(x)(1)
  
Form of any certificate of designation with respect to any preferred stock (together with form of preferred stock certificate).
     
4(xi) (1)
  
Form of unit agreement.
     
4(xii) (1)
  
Form of debt warrant agreement for warrants sold alone, including form of warrant.
     
4(xiii) (1)
  
Form of debt warrant agreement for warrants sold attached to debt securities, including form of warrant.
     
4(xiv) (1)
  
Form of equity warrant agreement for warrants sold alone, including form of warrant.
     
4(xv)
  
Indenture, including Form of Note, dated as of June 30, 2004 between the Company and J.P. Morgan Trust Company, National Association, as Trustee, filed as Exhibit 4.1 to the Company’s quarterly report on Form 10-Q for the quarterly period ended June 30, 2004, is incorporated herein by reference.
     
4(xvi)
  
Registration Rights Agreement dated as of June 30, 2004, between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Initial Purchaser, filed as Exhibit 4.2 to the Company’s quarterly report on Form 10-Q for the quarterly period ended June 30, 2004, is incorporated herein by reference.
     
4(xvii)
  
Indenture, including Form of Note, between the Company and The Bank of New York, dated as of June 6, 2007, filed as Exhibit 4.1 to the Company’s Form 8-K dated June 7, 2007, is incorporated herein by reference.
     
4(xviii)
  
Registration Rights Agreement dated as of June 6, 2007, between the Company and Bank of America Securities, LLC as Initial Purchaser, filed as Exhibit 10.1 to the Company’s Form 8-K dated June 6, 2007, is incorporated by reference.
     
5
  
Opinion of Drinker Biddle & Reath LLP.
     
12
  
Computation of Ratio of Earnings to Fixed Charges.
     
23(i)
  
Consent of PricewaterhouseCoopers LLP (Independent Registered Public Accounting Firm).
     
23(ii)
  
Consent of McGladrey & Pullen, LLP  (Independent Registered Public Accounting Firm).
     
23(iii)
  
Consent of Drinker Biddle & Reath LLP (included in Exhibit 5).
     
24(i)
  
Power of Attorney (contained in the signature page to this registration statement).
     
25.1(2)
  
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture with respect to the senior debt securities.
 
E-2
 
25.2(2)
  
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture with respect to the senior subordinated debt securities.
     
25.3(2)
  
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture with respect to the subordinated debt securities.
 
 
(1)
To be filed as an exhibit or incorporated by reference as an exhibit to a document incorporated or deemed to be incorporated by reference in this registration statement, including, where permitted, a Current Report on Form 8-K.
 
(2)
To be incorporated by reference to a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
 
 
E-3
 
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Exhibit 4(iv)
 
KULICKE AND SOFFA INDUSTRIES, INC.

SENIOR
INDENTURE

Dated as of ________________
Providing for Issuance of Senior Debt Securities in Series

[_______________]
as Trustee

 
 
 

Reconciliation and Tie Between the Trust Indenture Act of 1939 and Indenture dated as of _____________, between Kulicke and Soffa Industries, Inc. and [___________], as Trustee.
 
Act Section
  
Indenture Section
  
       
310(a)(1)
  
7.10
  
310(a)(2)
  
7.10
  
310(a)(3)
  
N/A
  
310(a)(4)
  
N/A
  
310(a)(5)
  
7.10
  
310(b)
  
7.03, 7.08, 7.10
  
310(c)
  
N/A
  
311(a)
  
7.11
  
311(b)
  
7.11
  
311(c)
  
N/A
  
312(a)
  
2.07
  
312(b)
  
11.03
  
312(c)
  
11.03
  
313(a)
  
7.06
  
313(b)
  
7.06
  
313(c)
  
7.06, 11.02
  
313(d)
  
7.06
  
314(a)
  
4.03, 4.04
  
314(b)
  
N/A
  
314(c)
  
4.04, 11.05
  
314(d)
  
N/A
  
314(e)
  
11.05
  
314(f)
  
N/A
  
315(a)
  
7.01
  
315(b)
  
7.05
  
315(c)
  
7.01
  
315(d)
  
7.01
  
315(e)
  
6.11
  
316(a)(1)
  
6.04, 6.05
  
316(a)(2)
  
N/A
  
316(a) last sentence
  
2.11
  
316(b)
  
6.07
  
317(a)
  
6.08, 6.09
  
317(b)
  
2.06
  
318(a)
  
11.01
  
318(c)
  
11.01
  

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

 
i
 

INDENTURE dated as of __________________ between Kulicke and Soffa Industries, Inc., a Pennsylvania corporation, and [____________], as Trustee.
 
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its secured or unsecured debentures, notes, bonds or other evidences of indebtedness (“Securities”) to be issued in one or more series as herein provided.
 
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
 
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders of the Securities:
 
ARTICLE 1
 
DEFINITIONS AND INCORPORATION BY REFERENCE
 
 
SECTION 1.01
DEFINITIONS.
 
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided, however, that beneficial ownership of 10% or more of the voting securities of a Person shall be deemed to be control.
 
“Agent” means any Registrar or Paying Agent.
 
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
 
“Board” or “Board of Directors” means the Board of Directors of the Company or any authorized committee of the Board of Directors.
 
“Board Resolution” means a resolution of the Board of Directors.
 
“Business Day” means any day other than a Legal Holiday.
 
“Code” means the Internal Revenue Code of 1986, as amended.
 
“Company” means Kulicke and Soffa Industries, Inc., a Pennsylvania corporation, and any and all successors thereto.

 
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 “Corporate Trust Office of the Trustee” shall be the address of the Trustee specified in Section 11.02 hereof or such other address as to which the Trustee may give notice to the Company.
 
“Custodian” means the Trustee, as custodian with respect to Securities in global form, or any successor entity thereto.
 
“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
 
“Depositary” means, with respect to any series of Securities issuable or issued in whole or in part in global form, the Person specified in Section 2.05 hereof as the Depositary with respect to the Global Securities of that series, and any and all successors thereto registered and in good standing as a clearing agency under the Exchange Act, appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
“Global Securities” means, individually and collectively, the Securities issued in global form issued in accordance with Sections 2.01 and 2.08 hereof.
 
“Holder” means a Person in whose name a Security is registered.
 
“Indenture” means this Indenture, as amended and restated hereby or as amended, waived or supplemented from time to time and shall include and incorporate by reference the forms and terms of particular series of Securities established as contemplated hereunder.
 
“Indirect Participant” means a Person who holds a beneficial interest in a Global Security through a Participant.
 
“Interest Payment Date” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
 
“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.
 
“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Principal Accounting Officer, the Secretary, any Assistant Secretary, any Vice President or any Assistant Vice President of such Person.
 
“Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements of Section 11.05 hereof.

 
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“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 11.05 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.
 
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
 
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or agency or political subdivision thereof.
 
“Responsible Officer” when used with respect to the Trustee, means any officer within the Corporate Trust Administration department of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
 
“SEC” means the Securities and Exchange Commission.
 
“Securities” has the meaning assigned to it in the preamble to this Indenture.
 
“Securities Act” means the Securities Act of 1933, as amended.
 
“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.
 
“Stated Maturity” means, with respect to any interest or principal on any series of Securities, the date on which such payment of interest or principal is scheduled to be paid thereon by its terms as in effect from time to time, and does not include any contingent obligation to repay, redeem or repurchase any such interest or principal prior to the date scheduled for the payment thereof.
 
“Subsidiary” means, with respect to any Person, (i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of capital stock or other equity interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof) and (ii) any partnership (a) the sole general partner or the managing general partner of which is such a Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof.)

 
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“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb as amended) as in effect on the date on which this Indenture is qualified under the TIA.
 
“Trustee” means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
 
“U.S. Government Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a 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.
 
 
SECTION 1.02
OTHER DEFINITIONS
 
Term
  
Defined in Section
     
“Act”
  
1.05
“Authentication Order”
  
2.04
“Covenant Defeasance”
  
8.03
“custodian”
  
6.01
“Event of Default”
  
6.01
“Legal Defeasance”
  
8.02
“mandatory sinking fund payment”
  
3.07
“Notice of Default”
  
6.01
“optional sinking fund payment”
  
3.07
“outstanding”
  
8.02
“Paying Agent”
  
2.05
“Registrar”
  
2.05
“sinking fund payment date”
  
3.07

 
SECTION 1.03
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
 
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.  The following TIA terms used in this Indenture have the following meanings:

 
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“indenture security holder” means a Holder of a Security;
 
“indenture to be qualified” means this Indenture;
 
 “indenture trustee” or “institutional trustee” means the Trustee;
 
“obligor” on the Securities means the Company and any successor obligor upon the Securities.
 
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the meanings so assigned to them.
 
 
SECTION 1.04
RULES OF CONSTRUCTION.
 
For the purposes of this Indenture, unless the context otherwise requires:
 
(1)           a term has the meaning assigned to it;
 
(2)           an accounting term not otherwise defined has the meaning assigned to it in accordance with United States generally accepted accounting principles;
 
(3)           “or” is not exclusive;
 
(4)           words in the singular include the plural, and in the plural include the singular;
 
(5)           provisions apply to successive events and transactions; and  (6) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time.
 
 
SECTION 1.05
ACTS OF HOLDERS.
 
(a)           Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders, in person or by an agent duly appointed in writing or may be embodied in and evidenced by the record of Holders voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders duly called and held in accordance with the provisions of Article 10, or a combination of such instruments or record and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or instruments and so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section and Section 10.06. The record of any meeting of Holders shall be proved in the manner provided in Section 10.06.

 
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(b)           Without limiting the generality of this Section, unless otherwise provided in or pursuant to this Indenture, a Holder, including a Depositary that is a Holder of a Global Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security through such Depositary’s standing instructions and customary practices.
 
(c)           The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
 
(d)           The ownership of Securities shall be proved by the Register.
 
ARTICLE 2
 
THE SECURITIES
 
 
SECTION 2.01
FORM AND DATING.
 
(a)           General.  The Securities of each series shall be in substantially such form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any applicable securities exchange, organizational document, governing instrument or law or as may, consistently herewith, be determined by the officers executing such Securities as evidenced by their execution of the Securities. If temporary Securities of any series are issued as permitted by Section 2.12, the form thereof also shall be established as provided in the preceding sentence. If the forms of Securities of any series are established by, or by action taken pursuant to, a Board Resolution, a copy of the Board Resolution, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, together with an appropriate record of any such action taken pursuant thereto, including a copy of the approved form of Securities shall be delivered to the Trustee at or prior to the delivery of the Authentication Order contemplated by Section 2.04 for the authentication and delivery of such Securities. The Trustee’s certificate of authentication shall be in substantially the following form:
 
This is one of the Securities of the series described in the within-mentioned Indenture.
 
 
    
 
as Trustee
   
 
By:
 
    
 
Authorized Signatory
 
 
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(b)           Global Securities.  If Securities of or within a series are issuable in whole or in part in global form, any such Security may provide that it shall represent the aggregate or specified amount of outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of outstanding Securities represented thereby, shall be made in such manner and by such Person or Persons as shall be specified therein or upon the written order of the Company signed by an Officer to be delivered to the Trustee pursuant to Section 2.04 or 2.12. Subject to the provisions of Section 2.04, Section 2.12, if applicable, and Section 2.08, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable written order of the Company signed by an Officer. Any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing.
 
The provisions of the last paragraph of Section 2.04 shall apply to any Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with a written instructions with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last paragraph of Section 2.04.
 
Notwithstanding the provisions of this Section 2.01, unless otherwise specified as contemplated by Section 2.02, payment of principal of, premium, if any, and interest on any Security in permanent global form shall be made to the Holder thereof.
 
 
SECTION 2.02
AMOUNT UNLIMITED; ISSUABLE IN SERIES.
 
(a)           The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued from time to time in one or more series.
 
(b)           The following matters shall be established with respect to each series of Securities issued hereunder (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and set forth, or determined in the manner provided, in an Officers’ Certificate or (iii) in one or more indentures supplemental hereto:
 
(1)           the title of the Securities of the series (which title shall distinguish the Securities of the series from all other series of Securities);
 
(2)           any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (which limit shall not pertain to Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.12, 3.06 or 9.05 or any Securities that, pursuant to Section 2.04, are deemed never to have been authenticated and delivered hereunder);

 
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(3)           the date or dates on which the principal of and premium, if any, on the Securities of the series is payable or the method or methods of determination thereof;
 
(4)           the rate or rates at which the Securities of the series shall bear interest, if any, or the method or methods of calculating such rate or rates of interest, the date or dates from which such interest shall accrue or the method or methods by which such date or dates shall be determined, the Interest Payment Dates on which any such interest shall be payable, the right, if any, of the Company to defer or extend an Interest Payment Date, the record date, if any, for the interest payable on any Security on any Interest Payment Date, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
 
(5)           the place or places where the principal of, premium, if any, and interest, if any, on Securities of the series shall be payable, any Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served and notices to Holders pursuant to Section 11.02 will be published;
 
(6)           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 may be redeemed, in whole or in part, at the option of the Company and, if other than as provided in Section 3.03, the manner in which the particular Securities of such series (if less than all Securities of such series are to be redeemed) are to be selected for redemption;
 
(7)           the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event 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 or purchased, in whole or in part, pursuant to such obligation;
 
(8)           if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
 
(9)           if other than U.S. dollars, the currency or currencies (including currency unit or units) in which the principal of, premium, if any, and interest, if any, on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated, and the particular provisions applicable;
 
(10)         if the payments of principal of, premium, if any, or interest, if any, on the Securities of the series are to be made, at the election of the Company or a Holder, in a currency or currencies (including currency unit or units) other than that in which such Securities are denominated or designated to be payable, the currency or currencies (including currency unit or units) in which such payments are to be made, the terms and conditions of such payments and the manner in which the exchange rate with respect to such payments shall be determined, and the particular provisions applicable thereto;

 
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(11)         if the amount of payments of principal of, premium, if any, and interest, if any, on the Securities of the series shall be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on a currency or currencies (including currency unit or units) other than that in which the Securities of the series are denominated or designated to be payable), the index, formula or other method by which such amounts shall be determined and any special voting or defeasance provisions in connection therewith;
 
(12)         if other than the principal amount thereof, the portion of the principal amount of such Securities of the series which shall be payable upon declaration of acceleration thereof pursuant to Section 6.02 or the method by which such portion shall be determined;
 
(13)         the Person to whom any interest on any Security of the series shall be payable;
 
(14)         provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;
 
(15)         any deletions from, modifications of or additions to the Events of Default set forth in Section 6.01 or covenants of the Company set forth in Article 4 pertaining to the Securities of the series;
 
(16)         under what circumstances, if any, and with what procedures and documentation the Company will pay additional amounts on the Securities of that series held by a Person who is not a U.S. Person (including any definition of such term) in respect of taxes, assessments or similar charges withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts (and the terms of any such option);
 
(17)         the forms of the Securities of the series;
 
(18)         the applicability, if any, to the Securities of the series of Sections 8.02 and 8.03, or such other means of defeasance or covenant defeasance as may be specified for the Securities of such series;
 
(19)         if other than the Trustee, the identity of the Registrar and any Paying Agent;
 
(20)         if the Securities of the series shall be issued in whole or in part in global form, (A) the Depositary for such Global Securities, (B) whether beneficial owners of interests in any Securities of the series in global form may exchange such interests for certificated Securities of such series, to be registered in the names of or to be held by such beneficial owners or their nominees and to be of like tenor of any authorized form and denomination, and (C) if other than as provided in Section 2.08, the circumstances under which any such exchange may occur;
 
(21)         the designation of the Depositary;

 
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(22)         any restrictions on the registration, transfer or exchange of the Securities;
 
(23)         if the Securities of the series may be issued or delivered (whether upon original issuance or upon exchange of a temporary Security of such series or otherwise), or any installment of principal or interest is payable, only upon receipt of certain certificates or other documents or satisfaction of other conditions in addition to those specified in this Indenture, the form and terms of such certificates, documents or conditions;
 
(24)         the terms and conditions of any right to convert, exercise or exchange Securities of the series into or for other securities or property of the Company, including whether conversion, exercise or exchange is mandatory, at the option of the Holder or at the option of the Company;
 
(25)         whether the Securities are secured or unsecured, and if secured, the security and related terms in connection therewith; and
 
(26)         any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture) including any terms which may be required by or advisable under United States laws or regulations or advisable (as determined by the Company) in connection with the marketing of Securities of the series.
 
(c)           All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and set forth, or determined in the manner provided, in the related Officers’ Certificate or (iii) in an indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.
 
(d)           If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of such Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth, or providing the manner for determining, the terms of the Securities of such series, and an appropriate record of any action taken pursuant thereto in connection with the issuance of any Securities of such series shall be delivered to the Trustee prior to the authentication and delivery thereof.
 
 
SECTION 2.03
DENOMINATIONS.
 
Unless otherwise provided as contemplated by Section 2.02, Securities of a series denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any integral multiple thereof. Securities denominated in a foreign currency shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.
 
 
SECTION 2.04
EXECUTION AND AUTHENTICATION.
 
An Officer shall sign the Securities for the Company by manual or facsimile signature.

 
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If an Officer whose signature is on a Security no longer holds that office at the time a Security is authenticated, the Security shall nevertheless be valid.
 
A Security shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
 
The Trustee shall, upon a written order of the Company signed by an Officer (an “Authentication Order”), together with an Officers’ Certificate and an Opinion of Counsel, authenticate Securities for original issue in the aggregate principal amount stated in the Authentication Order.  The Officers’ Certificate and Opinion of Counsel shall each state that all conditions precedent provided for or relating to the issuance of such Securities have been complied with.
 
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.
 
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.13 together with a written statement 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 not be entitled to the benefits of this Indenture.
 
 
SECTION 2.05
REGISTRAR AND PAYING AGENT; APPOINTMENT OF DEPOSITARY.
 
The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Securities may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall promptly notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
 
The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Securities.
 
The Company initially appoints the Trustee to act as the Registrar and Paying Agent with respect to the Securities and to act as Custodian with respect to the Global Securities.

 
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SECTION 2.06
PAYING AGENT TO HOLD MONEY IN TRUST.
 
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Securities or other payments in respect of the Securities or otherwise held by it as Paying Agent, and will notify the Trustee of any default by the Company in making any such payment when due. While any such default continues, the Trustee may require a Paying Agent to pay all money 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 (if other than the Company or a Subsidiary) shall have no further liability for the money.
 
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Securities.
 
 
SECTION 2.07
HOLDER LISTS.
 
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA §312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Securities, and the Company shall otherwise comply with TIA §312(a).
 
 
SECTION 2.08
TRANSFER AND EXCHANGE.
 
(a)           Upon surrender for registration of transfer of any certificated Security of any series at the office or agency maintained pursuant to Section 4.02 in a place of payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new certificated Securities of the same series, of any authorized denominations and of a same aggregate principal amount and like tenor and containing identical terms and provisions.
 
(b)          At the option of the Holder, Securities of any series (except a Security in global form) may be exchanged for other Securities of the same series, of any authorized denominations, of a same aggregate principal amount and like tenor and containing identical terms and provisions, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
 
(c)          Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in certificated form, a Security in global form representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.

 
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(d)           If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be registered and in good standing as a clearing agency under the Exchange Act, the Company shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Securities of such series is not appointed by the Company prior to the resignation of the Depositary and, in any event, within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s designation of the Depositary pursuant to Section 2.02(b)(21) shall no longer be effective with respect to the Securities of such series and the Company shall execute, and the Trustee, upon receipt of an Authentication Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.
 
(e)          The Company may at any time in its sole discretion determine that all (but not less than all) Securities of a series issued in global form shall no longer be represented by such a Security or Securities in global form. In such event the Company shall execute, and the Trustee, upon receipt of an Authentication Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.
 
(f)           If specified by the Company pursuant to Section 2.02 with respect to a series of Securities, the Depositary for such series may surrender a Security in global form of such series in exchange in whole or in part for Securities of such series in certificated form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,
 
(i)            to each Person specified by such Depositary a new  certificated Security or Securities of the same  series of like tenor, 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 Security in global form; and
 
(ii)           to such Depositary a new Security in global form of  like tenor in a denomination equal to the difference, if any, between the principal amount of the  surrendered Security in global form and the aggregate  principal amount of certificated Securities delivered to Holders thereof.

 
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(g)          Upon the exchange of a Security in global form for Securities in certificated form, such Security in global form shall be canceled by the Trustee. Securities in certificated form issued in exchange for a Security in global form pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Security in global form, pursuant to instructions from its direct or Indirect Participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
 
(h)          Whenever any Securities are 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.
 
(i)           All Securities issued upon any registration of transfer or upon any 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.
 
(j)           Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing.
 
(k)           No service charge shall be made for any registration of transfer or for any exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax, expense payable or other governmental charge that may be imposed in connection with any registration or transfer or exchange of Securities, other than exchanges pursuant to Section 2.12 or 3.06 not involving any transfer.
 
(l)           The Company shall not be required (i) to issue, register the transfer of, or exchange any Securities for a period beginning at the opening of business 15 days before any selection for redemption of Securities of like tenor and of the series of which such Security is a part and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of Securities of like tenor and of such series to be redeemed; 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.
 
(m)          The foregoing provisions relating to registration, transfer and exchange may be modified, supplemented or superseded with respect to any series of Securities by a Board Resolution or in one or more indentures supplemental hereto.
 
(n)          The following legend shall appear on the face of all Global Securities unless specifically stated otherwise in the applicable provision of this Indenture:

 
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“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE  INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE  BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND, UNLESS AND UNTIL IT IS  EXCHANGED FOR SECURITIES IN CERTIFICATED FORM IN ACCORDANCE WITH THE  INDENTURE, (I) IS NOT TRANSFERABLE EXCEPT AS A WHOLE BY THE DEPOSITARY  TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO  THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE  DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR SUCCESSOR  NOMINEE, AND (II) MAY NOT BE EXCHANGED OR CANCELLED EXCEPT IN THE  LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.”
 
(o)          At such time as all beneficial interests in a particular Global Security have been exchanged for certificated Securities or a particular Global Security has been redeemed, repurchased or canceled in whole and not in part, each such Global Security shall be returned to or retained and canceled by the Trustee in accordance with Section 2.13 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security or for certificated Securities, the principal amount of Securities represented by such Global Security shall be reduced accordingly and an endorsement shall be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security, such other Global Security shall be increased accordingly and an endorsement shall be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
 
(p)          Prior to due presentment for the registration of a transfer of any Security, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of and interest on such Securities and for all other purposes, and neither the Trustee, any Agent nor the Company shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by any Depositary, as a Holder, with respect to such Global Security or impair, as between such Depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Global Security.
 
 
SECTION 2.09
REPLACEMENT SECURITIES.
 
If any mutilated Security is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Security, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Security if the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Security is replaced. The Company may charge for its expenses in replacing a Security.

 
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Every replacement Security is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Securities duly issued hereunder.
 
 
SECTION 2.10
OUTSTANDING SECURITIES.
 
The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.11 hereof, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
 
If a Security is replaced pursuant to Section 2.09 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a “protected purchaser” (within the meaning of Article 8 of the Uniform Commercial Code) or a Person with comparable status under other applicable law.
 
If the principal amount of any Security is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
 
If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Securities payable on that date, then on and after that date such Securities shall be deemed to be no longer outstanding and shall cease to accrue interest.
 
 
SECTION 2.11
TREASURY SECURITIES.
 
In determining whether the Holders of the required principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities that the Trustee knows are so owned shall be so disregarded.
 
 
SECTION 2.12
TEMPORARY SECURITIES.
 
Until certificates representing Securities are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate 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 and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities in exchange for temporary Securities.
 
Holders of temporary Securities shall be entitled to all of the benefits of this Indenture.

 
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SECTION 2.13 
CANCELLATION.
 
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy canceled Securities (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Securities shall be delivered to the Company. The Company may not issue new Securities to replace Securities that it has paid or that have been delivered to the Trustee for cancellation.
 
SECTION 2.14 
DEFAULTED INTEREST.
 
If the Company defaults in a payment of interest on the Securities, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Securities. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Security and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest.
 
At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
 
ARTICLE 3
 
REDEMPTION AND PREPAYMENT
 
SECTION 3.01                     APPLICABILITY OF ARTICLE.
 
The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.02 for Securities of such series.
 
SECTION 3.02                     SELECTION OF SECURITIES TO BE REDEEMED.
 
If less than all of the Securities of any series are to be redeemed at any time, the Trustee shall select the Securities of such series to be redeemed among the Holders of the Securities of such series in compliance with the requirements of the principal national securities exchange, if any, on which the Securities of such series are listed or, if the Securities of such series are not so listed, to be redeemed among the Holders of Securities of such series on a pro rata basis, by lot or by such method as the Trustee deems fair and appropriate; provided that no Securities of $1,000 or less shall be redeemed in part. In the event of partial redemption by lot, the particular Securities of such series to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Securities of the series not previously called for redemption.

 
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The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed. Securities and portions of Securities selected shall be in amounts of $1,000 or whole multiples of $1,000; except that if all of the Securities of a series of a Holder are to be redeemed, the entire outstanding amount of Securities of such series held by such Holder, even if not a multiple of $1,000, shall be redeemed. A new Security of the same series in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Security. Securities called for redemption shall become due on the redemption date. On and after the redemption date, interest will cease to accrue on the Securities or portions of them called for redemption. Except as provided in this Section 3.02, provisions of this Indenture that apply to Securities called for redemption shall also apply to portions of Securities called for redemption.
 
SECTION 3.03                     NOTICE OF REDEMPTION.
 
At least 30 days but not more than 60 days before a redemption date, the Company shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Securities are to be redeemed at its registered address.
 
The notice shall identify the Securities to be redeemed, including the series thereof, 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 must be surrendered to the Paying Agent to collect the redemption price;
 
(e)           that, unless the Company defaults in making such redemption payment, interest on Securities called for redemption will cease to accrue on and after the redemption date;
 
(f)           that any Security being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the redemption date upon surrender of such Security, a new Security or Securities of the same series in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original;
 
(g)           the paragraph of the Securities and/or Section of this Indenture pursuant to which the Securities called for redemption are being redeemed; and
 
(h)           that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities.

 
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At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense; provided, however, that the Company shall have delivered to the Trustee, at least 30 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
 
SECTION 3.04                     EFFECT OF NOTICE OF REDEMPTION.
 
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Securities called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional.
 
SECTION 3.05                     DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
 
Not later than10:00 a.m., Eastern Time, on the Business Day immediately preceding any redemption date, the Company shall deposit with the Trustee or with the Paying Agent money in immediately available funds sufficient to pay the redemption or purchase price of and accrued interest, if any, on all Securities to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Securities to be redeemed or purchased.
 
SECTION 3.06                     SECURITIES REDEEMED OR PURCHASED IN PART.
 
Upon surrender of a Security that is redeemed or purchased in part, the Company shall issue and, upon the Company’s written request, the Trustee shall authenticate for the Holder at the expense of the Company a new Security of the same series equal in principal amount to the unredeemed or unpurchased portion of the Security surrendered.
 
SECTION 3.07                     MANDATORY REDEMPTION; SINKING FUND.
 
The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Securities, unless otherwise specified in the terms of a particular series of Securities. If a mandatory or optional sinking fund is specified in the terms of a particular series of Securities, the following provisions will apply thereto (unless otherwise specified):
 
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment, ” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.” The last date on which any such payment may be made is herein referred to as a “sinking fund payment date.”

 
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In lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series theretofore purchased by the Company and (b) may apply as a credit Securities of that series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of optional sinking fund payments pursuant to the next succeeding paragraph, in each case in satisfaction of all or any part of any mandatory sinking fund payment, provided that such Securities have not been previously so credited. Each such Security so delivered or applied as a credit shall be credited at the sinking fund redemption price for such Securities and the amount of any mandatory sinking fund shall be reduced accordingly. If the Company intends so to deliver or credit such Securities with respect to any mandatory sinking fund payment it shall deliver to the Trustee at least 30 days prior to the next succeeding sinking fund payment date for such series (a) a certificate signed by any Officer specifying the portion of such sinking fund payment, if any, to be satisfied by payment of cash and the portion of such sinking fund payment, if any, which is to be satisfied by delivering and crediting such Securities and (b) any Securities to be so delivered. All Securities so delivered to the Trustee shall be cancelled by the Trustee and no Securities shall be authenticated in lieu thereof. If the Company fails to deliver such certificate and Securities at or before the time provided above, the Company shall not be permitted to satisfy any portion of such mandatory sinking fund payment by delivery or credit of Securities.
 
At its option the Company may pay into the sinking fund for the retirement of Securities of any particular series, on or before each sinking fund payment date for such series, any additional sum in cash as specified by the terms of such series of Securities. If the Company intends to exercise its right to make any such optional sinking fund payment, it shall deliver to the Trustee at least 30 days prior to the next succeeding sinking fund payment date for such series of Securities a certificate signed by any Officer stating that the Company intends to exercise such optional right and specifying the amount which the Company intends to pay on such sinking fund payment date. If the Company fails to deliver such certificate at or before the time provided above, the Company shall not be permitted to make any optional sinking fund payment with respect to such sinking fund payment date. To the extent that such right is not exercised in any year it shall not be cumulative or carried forward to any subsequent year.
 
If the sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request) with respect to the Securities of any particular series, it shall be applied by the Trustee or one or more Paying Agents on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. The Trustee shall select, in the manner provided in Section 3.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to exhaust said cash, as nearly as may be, and the Trustee shall, at the expense and in the name of the Company, thereupon cause notice of redemption of Securities of such series to be given in substantially the manner and with the effect provided in Sections 3.02 and 3.03 for the redemption of Securities of that series in part at the option of the Company, except that the notice of redemption shall also state that the Securities of such series are being redeemed for the sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee or any Paying Agent to the redemption of Securities of that series shall be added to the next cash sinking fund payment received by the Trustee or the Paying Agent and, together with such payment, shall be applied in accordance with the provisions of this Section 3.07. Any and all sinking fund moneys held by the Trustee or any Paying Agent on the maturity date of the Securities of any particular series, and not held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee or such Paying Agent, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of that series at maturity. On or before each sinking fund payment date, the Company shall pay to the Trustee or to one or more Paying Agents in cash a sum equal to all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date pursuant to this Section. Neither the Trustee nor any Paying Agent shall redeem any Securities of a series with sinking fund moneys, and the Trustee shall not mail any notice of redemption of Securities for such series by operation of the sinking fund, during the continuance of a default in payment of interest on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph), except that if the notice of redemption of any Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee or any Paying Agent shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee or such Paying Agent for that purpose in accordance with the terms of this Article 3. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of all such Securities; provided, however, that in case such Event of Default or default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next succeeding sinking fund payment date on which such moneys may be applied pursuant to the provisions of this Section 3.07.

 
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ARTICLE 4
 
COVENANTS
 
SECTION 4.01                     PAYMENT OF SECURITIES.
 
The Company shall pay or cause to be paid the principal of, premium, if any, and interest on the Securities on the dates and in the manner provided in the Securities. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m., Eastern Time, on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
 
SECTION 4.02                     MAINTENANCE OF OFFICE OR AGENCY.
 
The Company shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) where Securities may be surrendered for registration of transfer, exchange, payment or conversion (if the Securities are convertible) and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Trustee’s principal agency in [_________________], which currently is located at [________________].

 
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The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
 
SECTION 4.03                     REPORTS.
 
(a)           Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company covenants and agrees to file with the Trustee, and to provide by mail to each Holder, within 15 days after the Company is or would be required to file the same with the SEC, copies of the annual reports, quarterly reports and the information, documents and other reports which the Company is or would be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act, provided, however, that to the extent permitted by law, any such document, information and other report filed and publicly available through the SEC’s EDGAR filing system shall be deemed to have been received by the Trustee and the Holders.
 
(b)           The Company covenants and agrees to file with the Trustee and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
 
(c)           The Company covenants and agrees to furnish to the Trustee within 120 days of the end of each fiscal year, the compliance certificate required by Section 314(a)(4) of the Trust Indenture Act.
 
(d)           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).
 
SECTION 4.04                     COMPLIANCE CERTIFICATE.
 
(a)           The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default, Event of Default or other instance of non-compliance with any of the terms of this Indenture shall have occurred, describing all such Defaults, Events of Default or instances of non-compliance of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, premium, if any, or interest on the Securities is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.

 
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(b)           The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, forthwith upon any Officer of the Company becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
 
(c)           The Company shall file with the Trustee and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture, as may be required from time to time by such rules and regulations.
 
SECTION 4.05                     CONTINUED EXISTENCE.
 
Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence and (ii) the rights (charter and statutory), licenses and franchises of the Company and any of its Significant Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Significant Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Significant Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Securities.
 
SECTION 4.06                     STAY, EXTENSION AND USURY LAWS.
 
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

 
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ARTICLE 5
 
SUCCESSORS
 
SECTION 5.01                     MERGER, CONSOLIDATION, OR SALE OF ASSETS.
 
The Company may consolidate or merge with or into, convert itself into, or sell, assign, transfer, lease, convey or otherwise dispose of (including any such disposition that might be deemed to occur as a result of the conversion of the Company into another form of organization) all or substantially all of its properties or assets in one or more related transactions, to another Person (other than an individual, a government or an agency or political subdivision of a government), but only if (a) the Company is the surviving entity; or (b) the Person formed by or surviving any such consolidation, merger or conversion (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee and either (A) the Person formed by or surviving any such consolidation, merger or conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized or existing under the laws of the United States, any state thereof or the District of Columbia or (B) if not organized or existing under the laws of the United States, any state thereof or the District of Columbia, the Person agrees to be subject to the service of process of the laws of the State of New York, and under the laws of its jurisdiction or organization, payments on the Securities would not be subject to withholding tax; and in any event; (c) immediately after such transaction no Default or Event of Default exists.  If the Company requests the Trustee to enter into any supplemental indenture, or to take any other action, as a result of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the Company will also furnish to the Trustee an Officers’ Certificate and an Opinion of Counsel, each to the effect that the conditions precedent set forth in this Section 5.01 have been complied with.
 
SECTION 5.02                     SUCCESSOR PERSON SUBSTITUTED.
 
Upon any consolidation, merger or conversion, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the Company is merged or converted or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, conversion, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein.
 
ARTICLE 6
 
DEFAULTS AND REMEDIES
 
SECTION 6.01                     EVENTS OF DEFAULT.
 
An “Event of Default,” with respect to Securities of any series shall have occurred if:
 
(a)           the Company defaults in the payment when due of interest on, with respect to, any Security of that series and such default continues for a period of 30 days;

 
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(b)           the Company defaults in the payment when due of principal of or premium, if any, on, or sinking fund payment with respect to, any Security of that series when the same becomes due and payable at maturity, upon redemption or otherwise;
 
(c)           the Company fails for 90 days after notice to comply to observe or perform any other covenant, representation, warranty or other agreement in this Indenture, with respect to any Security of that series for the benefit of that series other than a covenant, representation or warranty with respect to which a failure to observe or perform is dealt with otherwise in this Indenture or is expressly included in this Indenture solely for the benefit of a series of debt securities other than any series of Securities; provided, however, no Notice of Default (as defined below) will be given to the Holders until at least 90 days after the occurrence thereof;
 
(d)           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 of it or for all or substantially all of its property;
 
(iv)         makes a general assignment for the benefit of its creditors; or
 
(v)         generally is not paying its debts as they become due;
 
(e)           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 of the Company for all or substantially all of the property of the Company; or
 
(iii)         orders the liquidation of the Company; and the order or decree remains unstayed and in effect for 60 consecutive days; or
 
(f)           any other event provided with respect to Securities of that series in the terms thereof as contemplated by Section 2.02 hereof shall occur.
 
The term “custodian” as used in this Article 6 means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
 
A Default under clause (c) with respect to the Securities of any series is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in principal amount of the then outstanding Securities of all series affected by the Default (treating all such series as a single class) notify the Company and the Trustee, of the Default and the Company does not cure the Default within 90 days 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.”

 
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Notwithstanding the foregoing, no Event of Default will have occurred under Securities of any series if the Company fails to file timely any annual report or information, document or other report that it is required to file with the SEC.
 
SECTION 6.02                     ACCELERATION.
 
If any Event of Default with respect to one or more series of Securities (other than an Event of Default specified in clause (d) or (e) of Section 6.01 hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Securities of all series with respect to which an Event of Default shall have occurred and be continuing (treating all such series as a single class) may declare all the Securities of all such series to be due and payable immediately. Upon any such declaration, the principal of, premium, if any, and accrued and unpaid interest (or lesser amount as may be provided in the form of security of such series) with respect to the Securities of all such series shall become due and payable immediately.  Notwithstanding the foregoing, if an Event of Default specified in clause (d) or (e) of Section 6.01 hereof occurs with respect to the Company, all outstanding Securities of all series shall be due and payable immediately without further action or notice.
 
SECTION 6.03                     OTHER REMEDIES.
 
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.
 
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Security 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; RESCISSION OF ACCELERATION.
 
Holders of a majority in aggregate principal amount of the then outstanding Securities of all series affected (treating all such series as a single class) may, by notice to the Trustee, on behalf of the Holders of all of the Securities of all such series, waive an existing Default or Event of Default and its consequences hereunder (including in connection with an offer to purchase or exchange), except a continuing Default or Event of Default in the payment of the principal of, premium, if any, interest on, or any sinking fund payment with respect to, the Securities of such series, and except a continuing Default or Event of Default under any provision of this Indenture that, under Section 9.02, cannot be modified or waived without the consent of a greater number of Holders or of each Holder affected. Upon any such waiver, such Default or Event of Default shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. The Holders of a majority in aggregate principal amount of the then outstanding Securities of all series affected (treating all such series as a single class) may also rescind an acceleration and its consequences with respect to such series, including any related payment default that resulted from such acceleration, but not including any other payment default.

 
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SECTION 6.05                     CONTROL BY MAJORITY.
 
Holders of a majority in principal amount of the then outstanding Securities of all series with respect to which an Event of Default shall have occurred and be continuing (treating all such series as a single class) may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it; provided that
 
(i)  such direction shall not be in conflict with any law or regulation or with this Indenture;
 
(ii)  the Trustee may take any other action deemed proper by  the Trustee which is not inconsistent with such direction; and
 
(iii)  the Trustee need not take any action which might involve  it in personal liability or be unduly prejudicial to the Holders of  Securities of such series not joining therein.
 
SECTION 6.06                     LIMITATION ON SUITS.
 
A Holder of a Security of any series may pursue a remedy with respect to this Indenture or the Securities of such series only if:
 
(a)           the Holder of a Security of any or all series affected gives to the Trustee written notice of a continuing Event of Default;
 
(b)           the Holders of at least 25% in principal amount of the then outstanding Securities of all affected series (treating all such series as a single class) make a written request to the Trustee to pursue the remedy;
 
(c)           such Holder or Holders offer and, if requested, provide 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 and, if requested, the provision of indemnity; and
 
(e)           during such 60-day period the Holders of a majority in principal amount of the then outstanding Securities of all such series (treating all such series as a single class) do not give the Trustee a direction inconsistent with the request.
 
A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of a Security or to obtain a preference or priority over another Holder of a Security.

 
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SECTION 6.07                     RIGHTS OF HOLDERS OF SECURITIES TO RECEIVE PAYMENT.
 
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security of any series to receive payment of principal, premium, if any, and interest on such Security, on or after the respective due dates expressed in such Security (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
 
SECTION 6.08                     COLLECTION SUIT BY TRUSTEE.
 
If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing with respect to any series of Securities, the Trustee is authorized to recover judgment in its own name and as Trustee of an express trust against the Company for the whole amount of principal of, premium, if any, and interest remaining unpaid on such Securities and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
 
SECTION 6.09                     TRUSTEE MAY FILE PROOFS OF CLAIM.
 
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Securities of any series allowed in any judicial proceedings relative to the Company (or any other obligor upon the Securities), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing 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 of any series or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
 
SECTION 6.10                     PRIORITIES.
 
If the Trustee collects any money or other property pursuant to this Article, it shall pay out the money or other property in the following order:

 
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First:  to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
 
Second:  to Holders of Securities for amounts due and unpaid on the Securities for principal, premium, if any, interest and any other amounts, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal, premium, if any, interest and other amounts, respectively; and  Third:  to the Company or to such party as a court of competent jurisdiction shall direct.
 
The Trustee may fix a record date and payment date for any payment to Holders of Securities pursuant to this Section 6.10.
 
SECTION 6.11                     UNDERTAKING FOR COSTS.
 
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Securities of any series.
 
ARTICLE 7
 
TRUSTEE
 
SECTION 7.01                     DUTIES OF TRUSTEE.
 
(a)           If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture or an indenture supplemental hereto, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
 
(b)           Except during the continuance of an Event of Default:
 
(i)           the duties of the Trustee shall be determined solely by the  express provisions of this Indenture or an indenture supplemental  hereto, and the Trustee need perform only those duties that are  specifically set forth in this Indenture or an indenture supplemental  hereto and no others, and no implied covenants or obligations shall be  read into this Indenture or an indenture supplemental hereto against  the Trustee; and
 
(ii)           in the absence of bad faith on its part, the Trustee may  conclusively rely, as to the truth of the statements and the  correctness of the opinions expressed therein, upon certificates or  opinions furnished to the Trustee and conforming to the requirements of  this Indenture. However, the Trustee shall examine the certificates and  opinions to determine whether or not they conform to the requirements  of this Indenture.

 
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(c)           The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
 
(i)           this paragraph does not limit the effect of paragraph (b) of  this Section;
 
(ii)          the Trustee shall not be liable for any error of judgment  made in good faith by a Responsible Officer, unless it is proven that  the Trustee was negligent in ascertaining the pertinent facts; and
 
(iii)         the Trustee shall not be liable with respect to any action  it takes or omits to take in good faith in accordance with a direction  received by it pursuant to Section 6.05 hereof.
 
(d)           Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section.
 
(e)           No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee security and indemnity satisfactory to it against any losses, costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
 
(f)           The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
 
SECTION 7.02                     RIGHTS OF TRUSTEE.
 
(a)           The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
 
(b)           Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
 
(c)           The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.

 
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(d)           The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
 
(e)           Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
 
SECTION 7.03                     INDIVIDUAL RIGHTS OF TRUSTEE.
 
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (within the meaning of TIA § 310(b)) it must eliminate such conflicting interest within 90 days after the default referred to in such § 310(b), apply to the SEC for permission to continue as trustee, or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
 
SECTION 7.04                     TRUSTEE’S DISCLAIMER.
 
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities; it shall not be accountable for the Company’s use of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision of this Indenture; it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee; and it shall not be responsible for any statement or recital herein or any statement in the Securities or any other document in connection with the sale of the Securities or pursuant to this Indenture other than its certificate of authentication.
 
SECTION 7.05                     NOTICE OF DEFAULTS.
 
If a Default or Event of Default occurs and is continuing and if a Responsible Officer of the Trustee has actual knowledge of such Default or Event of Default, the Trustee shall mail to Holders of Securities a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, or interest on, any Security, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities.
 
SECTION 7.06                     REPORTS BY TRUSTEE TO HOLDERS OF THE SECURITIES.
 
On or before July 31 of each year, beginning with the July 31 following the date on which Securities are first issued under this Indenture, and for so long as Securities remain outstanding, the Trustee shall mail to the Holders of the Securities a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA § 313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA § 313(c). A copy of each report at the time of its mailing to the Holders of Securities shall be mailed to the Company and filed with the SEC and each stock exchange on which the Securities are listed in accordance with TIA § 313(d). The Company shall promptly notify the Trustee when the Securities are listed on any stock exchange.

 
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SECTION 7.07                     COMPENSATION AND INDEMNITY.
 
The Company shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the Company and Trustee have separately agreed. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
 
The Company shall indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company (including this Section 7.07) and defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or willful misconduct. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim, and the Trustee shall cooperate in the defense. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
 
The obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture.
 
To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium, if any, and interest on particular Securities. Such lien shall survive the satisfaction and discharge of this Indenture.
 
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(e) or (f) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
 
SECTION 7.08                     REPLACEMENT OF TRUSTEE.
 
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.

 
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The Trustee may resign with respect to one or more or all series of Securities at any time and be discharged from the trust hereby created by so notifying the Company in writing. The Holders of a majority in principal amount of the then outstanding Securities of any series may remove the Trustee with respect to such series by so notifying the Trustee and the Company in writing.
 
The Company may remove the Trustee if:
 
(a)           the Trustee ceases to be eligible in accordance with Section 7.10 hereof;
 
(b)           the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
 
(c)           a custodian or public officer takes charge of the Trustee or its property; or
 
(d)           the Trustee becomes incapable of acting.
 
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities of a series may appoint a successor Trustee to replace the successor Trustee appointed by the Company with respect to that series of Securities.
 
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in principal amount of the then outstanding Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee.
 
If the Trustee, after written request by any Holder of a Security who has been a Holder of a Security for at least six months, ceases to be eligible in accordance with Section 7.10, such Holder of a Security may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
 
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of the Securities. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.

 
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If a successor Trustee is appointed with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees as co-trustees of the same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
 
SECTION 7.09                     SUCCESSOR TRUSTEE BY MERGER, ETC.
 
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
 
SECTION 7.10                     ELIGIBILITY; DISQUALIFICATION.
 
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
 
This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b).
 
SECTION 7.11                     PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
 
The Trustee is subject to TIA § 311(a), excluding any creditor relationship described in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
 
ARTICLE 8
 
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
 
SECTION 8.01                     OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
 
(a)           The Company may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof, with such modifications thereto as may be specified pursuant to Section 2.02 in the Board Resolution, Officers’ Certificate or supplemental indenture establishing a particular series of Securities, be applied to all outstanding Securities of one or more series upon compliance with the conditions set forth below in this Article 8.

 
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(b)           As an alternative to having Section 8.02 or 8.03 be applied to all outstanding Securities of one or more series, the Company may terminate its obligations under the Securities of one or more series and its obligations under this Indenture in respect of such series of Securities (except those obligations referred to in the penultimate paragraph of this Section 8.01(b), and any obligation of the Company to convert or exchange Securities of such series as expressly provided for in the Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing such Series) (1) if (i) all Securities of such series theretofore authenticated and delivered (except lost, stolen or destroyed Securities that have been replaced or paid and Securities for whose payment cash in United States dollars has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust as provided in Section 8.06) have been delivered to the Trustee for cancellation; (ii) the Company has paid all sums payable by it hereunder or under the applicable Board Resolution, Officers’ Certificate or indenture supplemental hereto in respect of such series of Securities; and (iii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the satisfaction and discharge of this Indenture have been complied with; or (2) if (i) either (A) in the case of a series of Securities redeemable prior to its Stated Maturity, the Company shall, pursuant to Article 3, have given notice to the Trustee and mailed a notice of redemption to each Holder of Securities of such series of the redemption of all of such Securities under arrangements satisfactory to the Trustee for the giving of such notice or (B) all Securities of such series have otherwise become due and payable hereunder or will become due and payable within one year; (ii) the Company shall have irrevocably deposited or caused to be deposited with the Trustee (or a trustee satisfactory to the Trustee, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee), as trust funds in trust solely for the benefit of the Holders of Securities of such series for that purpose, cash in United States dollars in such amount as is sufficient without consideration of reinvestment of interest or other earnings on such cash, to pay the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for the principal of, premium, if any, and interest on the outstanding Securities of such series to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or redemption date, as the case may be; (iii) no Default or Event of Default with respect to this Indenture or the Securities shall have occurred and be continuing on the date of such deposit; (iv) the Company shall have paid all other sums payable by it hereunder in respect of Securities of such series; and (v) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the satisfaction and discharge of this Indenture have been complied with.
 
Notwithstanding the foregoing paragraph, the Company’s obligations in Sections 2.07, 2.08, 2.09, 2.10, 4.01, including any provision of the applicable Board Resolution, Officers’ Certificate or indenture supplemental hereto relating to the payment of principal, premium or interest, 4.02, 7.07, 8.06 and 8.07 shall survive with respect to the Securities of the applicable series until they are no longer outstanding pursuant to the last paragraph of Section 2.10. After the Securities of the applicable series are no longer outstanding, the Company’s obligations in Sections 7.07, 8.06 and 8.07 shall survive in respect of Securities of the applicable series.
 
After such delivery or irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Company’s obligations under the Securities of the applicable series and the Company’s obligations under this Indenture with respect to the Securities of such series, except for those surviving obligations specified above.
 
 
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SECTION 8.02                     LEGAL DEFEASANCE AND DISCHARGE.
 
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02 relating to one or more series of Securities, the Company shall, upon the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from its obligations with respect to all outstanding Securities of such series on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose,
 
Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities of the applicable series, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all of its other obligations under the Securities of the applicable series and under the provisions of this Indenture applicable to such series (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Securities of the applicable series to receive solely from the trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest, on such Securities when such payments are due, (b) the Company’s obligations with respect to such Securities under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the Company’s obligations in connection therewith and (d) this Article 8. Subject to compliance  with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
 
SECTION 8.03                     COVENANT DEFEASANCE.
 
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 relating to one or more series of Securities, the Company shall, upon the satisfaction of the conditions set forth in Section 8.04 hereof, be released from its obligations under the covenants contained in Sections 4.03, 4.04, 4.05 and 4.06 hereof with respect to the outstanding Securities of the applicable series, and under any other covenants specified in the Board Resolution, Officers’ Certificate or supplemental indenture establishing the applicable series as covenants to which this Section 8.03 applies, on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of the applicable series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder. For this purpose, Covenant Defeasance means that, with respect to the “outstanding” Securities of the applicable series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
 
 
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SECTION 8.04                     CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
 
The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Securities of one or more series:
 
In order to exercise either Legal Defeasance or Covenant Defeasance:
 
(a)           the Company must irrevocably deposit with the Trustee, (or another trustee satisfying the requirements of Section 7.10, who shall agree to comply with the provisions of this Article 8 applicable to it) in trust, for the benefit of the Holders of the Securities of the applicable series, (i) an amount of cash in United States dollars, (ii) non-callable U.S. Government Obligations which, through scheduled payment of principal and interest in respect thereof in accordance with their terms, will provide, not later than one Business Day before the due date of any payment of principal of, premium, if any, or interest on the Securities of such series, cash in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, interest and premium, if any, on the outstanding Securities of the applicable series on the Stated Maturity or on the applicable redemption date, as the case may be, and any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due, and the Company must specify whether the Securities of the applicable series are being defeased to maturity or to a particular redemption date;
 
(b)           in the case of an election under Section 8.02 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities of the applicable series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
 
(c)           in the case of an election under Section 8.03 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Securities of the applicable series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
 
(d)           no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or insofar as Sections 6.01(e) or (f) hereof are concerned, at any time in the period ending on the 91st day after the date of deposit (or greater period of time in which any such deposit of trust funds may remain subject to Bankruptcy Law insofar as those apply to the deposit by the Company); and
 
 
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(e)           the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
 
SECTION 8.05                     DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
 
Subject to Section 8.06 hereof, all money and non-callable U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Securities of the applicable series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
 
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities of the applicable series.
 
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance of the applicable series.
 
SECTION 8.06                     REPAYMENT TO COMPANY.
 
Any money and U.S. Government Obligations deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium or interest on any Security and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such money and U.S. Government Obligations, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
 
 
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SECTION 8.07                     REINSTATEMENT.
 
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S. Government Obligations deposited pursuant to Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium or interest on any Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
 
ARTICLE 9
 
AMENDMENT, SUPPLEMENT AND WAIVER
 
SECTION 9.01                     WITHOUT CONSENT OF HOLDERS OF SECURITIES.
 
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Securities without the consent of any Holder of a Security:
 
(a)           to evidence the succession of another Person to the Company, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Company pursuant to Article 5 hereof;
 
(b)           to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities stating that such covenants are expressly being included for the benefit of such series) as the Board of Directors and the Trustee shall consider to be for the protection of the Holders of such Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default;
 
(c)           to provide for the issuance under this Indenture of Securities in coupon form (including Securities registrable as to principal only) and to provide for exchangeability of such Securities with the Securities issued hereunder in fully registered form and to make all appropriate changes for such purpose;
 
 
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(d)           to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture that may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture; provided that any such action shall not adversely affect the interests of the Holders of the Securities;
 
(e)           to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 7.08;
 
(f)           to comply with the requirements of the SEC or to effect or maintain the qualification of the Indenture under the TIA; or
 
(g)           to provide for the issuance of and establish the form and terms and conditions of the Securities of any series, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the Holders of any series of Securities.
 
Upon the request of the Company accompanied by a copy of a Board Resolution, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
 
SECTION 9.02                     WITH CONSENT OF HOLDERS OF SECURITIES.
 
Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture, or the Securities of any series may be amended or supplemented, with the consent of the Holders of a majority in principal amount of the Securities then outstanding of all series affected by such supplemental indenture (treated as a single class) (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium or interest on the Securities) or compliance with any provision of this Indenture or the Securities of such series may be waived with the consent of the Holders of a majority in principal amount of the Securities then outstanding of all series affected by such waiver (treated as a single class) (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for the Securities).
 
 
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Upon the request of the Company accompanied by a copy of a Board Resolution, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Securities of each such series as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02(b) hereof, the Trustee shall join with the Company in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
 
It shall not be necessary for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
 
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders of Securities of such series affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
 
However, without the consent of each Holder of Securities affected, an amendment or waiver may not (with respect to any Securities held by a non-consenting Holder):
 
(a)           reduce the principal amount of the Securities whose Holders must consent to an amendment, supplement or waiver;
 
(b)           reduce the principal of or change the fixed maturity of the principal of, premium, if any, or mandatory sinking fund obligation, if any, with respect to any Securities of any series or alter the provisions with respect to the redemption of the Securities;
 
(c)           impair any right, if any, to convert the Securities into common stock;
 
(d)           reduce the rate of or change the time for payment of interest, including default interest, on any Security of any series;
 
(e)           waive a Default or Event of Default in the payment of principal of or interest or premium on the Securities of any series (except a rescission of acceleration of maturity of the Securities by the Holders of a majority in aggregate principal amount of the Securities of one or more affected series and a waiver of the payment default that resulted from such acceleration);
 
(f)           make any Security of any series payable in currency other than that stated in the Securities of such series;
 
(g)           make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Securities to receive payments of principal of or interest or premium on the Securities;
 
(h)           waive a redemption payment with respect to any Security; or
 
 
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(i)           make any change in Section 6.04 or 6.07 hereof or in the amendment and waiver provisions of Section 9.01 or this Section 9.02.
 
SECTION 9.03                     COMPLIANCE WITH TRUST INDENTURE ACT.
 
Every amendment or supplement to this Indenture or the Securities shall be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.
 
SECTION 9.04                     REVOCATION AND EFFECT OF CONSENTS.
 
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder of a Security and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Securities, even if notation of the consent is not made on any Securities. However, any such Holder of a Security or subsequent Holder of a Security may revoke the consent as to its Securities if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
 
SECTION 9.05                     NOTATION ON OR EXCHANGE OF SECURITIES.
 
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Securities thereafter authenticated. The Company in exchange for all Securities may issue and the Trustee shall authenticate new Securities that reflect the amendment, supplement or waiver.
 
Failure to make the appropriate notation or to issue new Securities shall not affect the validity and effect of such amendment, supplement or waiver.
 
SECTION 9.06                     TRUSTEE TO SIGN AMENDMENTS, ETC.
 
The Company may not sign an amendment or supplemental indenture until its Board of Directors approves it. The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment or supplemental indenture, the Trustee shall be entitled to receive and, subject to Section 7.01 hereof, shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that such amendment or supplemental indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon the Company in accordance with its terms.
 
 
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ARTICLE 10
 
MEETINGS OF HOLDERS
 
SECTION 10.01                   PURPOSES FOR WHICH MEETING  MAY BE CALLED.
 
A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article 10 to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
 
SECTION 10.02                   CALL, NOTICE AND PLACE OF MEETINGS.
 
(a)           The Trustee may at any time call a meeting of Holders of Securities of any one or more series for any purpose specified in Section 10.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in such other place as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 11.02, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
 
(b)           In case at any time the Company, by or pursuant to a Board Resolution, or the Holders of at least 25% in principal amount of the outstanding Securities of any one or more series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 10.01 by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of such meeting within 20 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (a) of this Section.
 
SECTION 10.03                   PERSONS ENTITLED TO VOTE AT MEETINGS.
 
To be entitled to vote at any meeting of Holders of Securities of any one or more series, a Person shall be (a) a Holder of one or more outstanding Securities of such series, or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
 
SECTION 10.04                   QUORUM; ACTION.
 
The Persons entitled to vote a majority in principal amount of the outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however, that if the meeting is of the Holders of more than one series of Securities, a quorum shall consist of Persons entitled to vote a majority in principal amount of the outstanding Securities of all such series (voting as a single class); and provided further that if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture (or any Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing a series of Securities hereunder) expressly provides may be given by the Holders of more or less than a majority in principal amount of the outstanding Securities of a series, the Persons entitled to vote such percentage in principal amount of the outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any such adjourned meeting shall be given as provided in Section 10.02(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened.
 
 
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Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the outstanding Securities of such series which shall constitute a quorum.
 
Except as otherwise provided in Section 6.02 or 9.02 (or in any Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing a series of Securities hereunder), any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the outstanding Securities of that series (or, if applicable, of all series participating in a meeting (voting as a single class)); provided, however, that, except as otherwise provided in Section 6.02 or 9.02 (or in any Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing a series of Securities hereunder), any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture or any supplemental indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of the outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the outstanding Securities of such series (or, if applicable, of all series participating in the meeting (voting as a single class)).
 
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series, whether or not such Holders were present or represented at the meeting.
 
SECTION 10.05                   DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
 
(a)           Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of one or more series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.  Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 1.05 and the appointment of any proxy shall be proved in the manner specified in Section 1.05. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.05 or other proof.
 
 
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(b)           The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 10.02(b), in which case the Company or the Holders of Securities of the series calling the meeting (voting as a single class if there is more than one such series), as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote at least a majority in principal amount of the outstanding Securities of such series (voting as a single class if there is more than one such series) represented at the meeting.
 
(c)           At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $25 principal amount of the outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
 
(d)           Any meeting of Holders of Securities of any series duly called pursuant to Section 10.02 at which a quorum is present may be adjourned from time to time by Persons entitled to vote at least a majority in principal amount of the outstanding Securities of such series (voting as a single class if there is more than one such series) represented at the meeting; and the meeting may be held as so adjourned without further notice.
 
SECTION 10.06                   COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
 
(a)           The vote upon any resolution submitted to any meeting of Holders of Securities of any one or more series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any one or more series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 10.02 and, if applicable, Section 10.04. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
 
 
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SECTION 10.07                   ARTICLE SUBJECT TO OTHER PROVISIONS.
 
Each provision of this Article 10 (whether or not expressly so stated) is subject to any other provision of this Indenture (or any Board Resolution, Officers’ Certificate or supplemental indenture establishing a series of Securities hereunder) that provides that Securities of different series constitute a single class.
 
ARTICLE 11
 
MISCELLANEOUS
 
SECTION 11.01                   TRUST INDENTURE ACT CONTROLS.
 
This Indenture is subject to the provisions of the TIA that are required to be part of this Indenture and shall, to the extent applicable, by governed by such provisions.
 
SECTION 11.02                   NOTICES.
 
Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the others’ address:
 
If to the Company:
 
Kulicke and Soffa Industries, Inc.
1005 Virginia Drive
Fort Washington, PA  19034
Facsimile No.:  (215) 784-6001
Attention:  David J. Anderson

If to the Trustee:
 
[_________________]

The Company or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.
 
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged or confirmed, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
 
Any notice or communication to a Holder shall be mailed by first class mail or by overnight courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication shall also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
 
 
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If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
 
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
 
SECTION 11.03                   COMMUNICATION BY HOLDERS OF SECURITIES WITH OTHER HOLDERS OF  SECURITIES.
 
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
 
SECTION 11.04                   CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
 
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
 
(a)           an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
 
(b)           an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
 
SECTION 11.05                   STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
 
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
 
(a)           a statement that the Person making such certificate or opinion has read such covenant or condition;
 
(b)           a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
(c)           a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
 
 
47
 

(d)           a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
 
SECTION 11.06                   RULES BY TRUSTEE AND AGENTS.
 
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
 
SECTION 11.07                   NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS.
 
No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, shall have any liability for any obligations of the Company under the Securities, this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Securities by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities.
 
SECTION 11.08                   GOVERNING LAW.
 
THE INTERNAL LAW OF THE STATE OF [NEW YORK] SHALL GOVERN AND BE USED TO CONSTRUE AND ENFORCE THIS INDENTURE AND THE SECURITIES.
 
SECTION 11.09                   NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
 
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
 
SECTION 11.10                   SUCCESSORS.
 
All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.
 
SECTION 11.11                   SEVERABILITY.
 
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 11.12                   COUNTERPART ORIGINALS.
 
The parties may sign any number of copies of this Indenture.
 
Each signed copy shall be an original, but all of them together represent the same agreement. This Indenture will be effective when each party shall have signed and delivered (including delivery by facsimile transmission), one or more counterparts to the other, but it shall not be necessary for both parties to sign the same counterpart.
 
 
48
 

SECTION 11.13                   TABLE OF CONTENTS, HEADINGS, ETC.
 
The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
 
[Signature Page Follows]
 
 
49
 
 
SIGNATURES
 
IN WITNESS WHEREOF, the parties have executed this Indenture as of the date first written above.
 
 
KULICKE AND SOFFA INDUSTRIES, INC.
   
 
By:  ___________________________________
 
Name:
 
Title:
   
 
[___________________________________],
   
 
______________________________________
 
as Trustee
   
 
By: ___________________________________
 
Name:
 
Title:

 
50
 

TABLE OF CONTENTS
 
   
Page
     
ARTICLE 1     DEFINITIONS AND INCORPORATION BY REFERENCE
1
SECTION 1.01
DEFINITIONS
1
SECTION 1.02
OTHER DEFINITIONS
4
SECTION 1.03
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
4
SECTION 1.04
RULES OF CONSTRUCTION
5
SECTION 1.05
ACTS OF HOLDERS
5
     
ARTICLE 2     THE SECURITIES
6
SECTION 2.01
FORM AND DATING
6
SECTION 2.02
AMOUNT UNLIMITED; ISSUABLE IN SERIES
7
SECTION 2.03
DENOMINATIONS
10
SECTION 2.04
EXECUTION AND AUTHENTICATION
10
SECTION 2.05
REGISTRAR AND PAYING AGENT; APPOINTMENT OF DEPOSITARY
11
SECTION 2.06
PAYING AGENT TO HOLD MONEY IN TRUST
12
SECTION 2.07
HOLDER LISTS
12
SECTION 2.08
TRANSFER AND EXCHANGE
12
SECTION 2.09
REPLACEMENT SECURITIES
15
SECTION 2.10
OUTSTANDING SECURITIES
16
SECTION 2.11
TREASURY SECURITIES
16
SECTION 2.12
TEMPORARY SECURITIES
16
SECTION 2.13
CANCELLATION
17
SECTION 2.14
DEFAULTED INTEREST
17
   
ARTICLE 3     REDEMPTION AND PREPAYMENT
17
SECTION 3.01
APPLICABILITY OF ARTICLE
17
SECTION 3.02
SELECTION OF SECURITIES TO BE REDEEMED
17
SECTION 3.03
NOTICE OF REDEMPTION
18
SECTION 3.04
EFFECT OF NOTICE OF REDEMPTION
19
SECTION 3.05
DEPOSIT OF REDEMPTION OR PURCHASE PRICE
19
SECTION 3.06
SECURITIES REDEEMED OR PURCHASED IN PART
19
SECTION 3.07
MANDATORY REDEMPTION; SINKING FUND
19
     
ARTICLE 4     COVENANTS
21
SECTION 4.01
PAYMENT OF SECURITIES
21
SECTION 4.02
MAINTENANCE OF OFFICE OR AGENCY
21
SECTION 4.03
REPORTS
22
SECTION 4.04
COMPLIANCE CERTIFICATE
22
SECTION 4.05
CONTINUED EXISTENCE
23
SECTION 4.06
STAY, EXTENSION AND USURY LAWS
23
     
ARTICLE 5     SUCCESSORS
24
SECTION 5.01
MERGER, CONSOLIDATION, OR SALE OF ASSETS
24
 
 
i
 
 
TABLE OF CONTENTS
(continued)
 
   
Page
     
SECTION 5.02
SUCCESSOR PERSON SUBSTITUTED
24
     
ARTICLE 6     DEFAULTS AND REMEDIES
24
SECTION 6.01
EVENTS OF DEFAULT
24
SECTION 6.02
ACCELERATION
26
SECTION 6.03
OTHER REMEDIES
26
SECTION 6.04
WAIVER OF PAST DEFAULTS; RESCISSION OF ACCELERATION
26
SECTION 6.05
CONTROL BY MAJORITY
27
SECTION 6.06
LIMITATION ON SUITS
27
SECTION 6.07
RIGHTS OF HOLDERS OF SECURITIES TO RECEIVE PAYMENT
28
SECTION 6.08
COLLECTION SUIT BY TRUSTEE
28
SECTION 6.09
TRUSTEE MAY FILE PROOFS OF CLAIM
28
SECTION 6.10
PRIORITIES
28
SECTION 6.11
UNDERTAKING FOR COSTS
29
     
ARTICLE 7    TRUSTEE
29
SECTION 7.01
DUTIES OF TRUSTEE
29
SECTION 7.02
RIGHTS OF TRUSTEE
30
SECTION 7.03
INDIVIDUAL RIGHTS OF TRUSTEE
31
SECTION 7.04
TRUSTEE’S DISCLAIMER
31
SECTION 7.05
NOTICE OF DEFAULTS
31
SECTION 7.06
REPORTS BY TRUSTEE TO HOLDERS OF THE SECURITIES
31
SECTION 7.07
COMPENSATION AND INDEMNITY
32
SECTION 7.08
REPLACEMENT OF TRUSTEE
32
SECTION 7.09
SUCCESSOR TRUSTEE BY MERGER, ETC.
34
SECTION 7.10
ELIGIBILITY; DISQUALIFICATION
34
SECTION 7.11
PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
34
     
ARTICLE 8    LEGAL DEFEASANCE AND COVENANT DEFEASANCE
34
SECTION 8.01
OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
34
SECTION 8.02
LEGAL DEFEASANCE AND DISCHARGE
36
SECTION 8.03
COVENANT DEFEASANCE
36
SECTION 8.04
CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
37
SECTION 8.05
DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS
38
SECTION 8.06
REPAYMENT TO COMPANY
38
SECTION 8.07
REINSTATEMENT
39
 
 
ii
 
 
TABLE OF CONTENTS
(continued)
 
 
Page
   
ARTICLE 9    AMENDMENT, SUPPLEMENT AND WAIVER
39
SECTION 9.01
WITHOUT CONSENT OF HOLDERS OF SECURITIES
39
SECTION 9.02
WITH CONSENT OF HOLDERS OF SECURITIES
40
SECTION 9.03
COMPLIANCE WITH TRUST INDENTURE ACT
42
SECTION 9.04
REVOCATION AND EFFECT OF CONSENTS
42
SECTION 9.05
NOTATION ON OR EXCHANGE OF SECURITIES
42
SECTION 9.06
TRUSTEE TO SIGN AMENDMENTS, ETC.
42
     
ARTICLE 10    MEETINGS OF HOLDERS
43
SECTION 10.01
PURPOSES FOR WHICH MEETING  MAY BE CALLED
43
SECTION 10.02
CALL, NOTICE AND PLACE OF MEETINGS
43
SECTION 10.03
PERSONS ENTITLED TO VOTE AT MEETINGS
43
SECTION 10.04
QUORUM; ACTION
43
SECTION 10.05
DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS
44
SECTION 10.06
COUNTING VOTES AND RECORDING ACTION OF MEETINGS
45
SECTION 10.07
ARTICLE SUBJECT TO OTHER PROVISIONS
46
     
ARTICLE 11    MISCELLANEOUS
 46
SECTION 11.01
TRUST INDENTURE ACT CONTROLS
46
SECTION 11.02
NOTICES
46
SECTION 11.03
COMMUNICATION BY HOLDERS OF SECURITIES WITH OTHER HOLDERS OF  SECURITIES
47
SECTION 11.04
 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT 47
SECTION 11.05
STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
47
SECTION 11.06
RULES BY TRUSTEE AND AGENTS
48
SECTION 11.07
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
48
SECTION 11.08
GOVERNING LAW
48
SECTION 11.09
NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
48
SECTION 11.10
SUCCESSORS
48
SECTION 11.11
SEVERABILITY
48
SECTION 11.12
COUNTERPART ORIGINALS
48
SECTION 11.13
TABLE OF CONTENTS, HEADINGS, ETC.
49
 
 
iii
 

Exhibit A-1
(Face of Note)

__% [Series__] Senior Note due [_____]

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

CUSIP:
  
No:
$______________

KULICKE AND SOFFA INDUSTRIES, INC.

promises to pay to ______________ or registered assigns, the principal sum of ______________
 
Dollars on _____________.
Interest Payment Dates: _____________.
Record Dates: _____________.

 
KULICKE AND SOFFA INDUSTRIES, INC.
     
 
By:
 
 
Name:
 
Title:
 
This is one of the
Notes referred to in the
within-mentioned Indenture:

________________________________,
as Trustee
   
By:
____________________________________________
Authorized Officer

 
 
 

 
(Back of Note)
 
 
__% [Series __] Senior Note due [____]
 
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1.           Interest.  Kulicke and Soffa Industries, Inc., a Pennsylvania corporation (the “Company”), promises to pay interest on the principal amount of this Note at __% per annum from  [__________] until maturity.  The Company will pay interest [__________] on _________ and _________ of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”).  Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be ___________.  The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful.  Interest will be computed on the basis of a 360-day year of twelve 30-day months.
 
2.           Method of Payment.  The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the ________ or ________ next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Indenture with respect to defaulted interest.  The Notes will be payable as to principal, premium and interest at the office or agency of the Company maintained for such purpose within or without the [__________], provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent.  Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
 
3.           Paying Agent and Registrar.  Initially, ____________________, the Trustee under the Indenture, will act as Paying Agent and Registrar.  The Company may change any Paying Agent or Registrar without notice to any Holder.  The Company may act in any such capacity.
 
4.           Indenture.  The Company issued the Notes under an Indenture dated as of _____________ (the “Indenture”) between the Company and the Trustee.  The terms of the Notes include those stated in the Indenture and in [a Supplemental Indenture] [resolutions of [the [___] Committee of ] the Company’s Board of Directors] [an Officers’ Certificate] dated                          , and those terms made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”).  The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms.  The Notes are general obligations of the Company.  “Notes” means this Note and all other Notes of the series of which this Note is a part.  The Notes are “Securities” within the meaning of the Indenture, and references in the Indenture to “Securities” (including terms such as “Global Securities”) include the Notes (and any “Global Notes” as used herein).
 
 
- 2 - -
 

5.           Optional Redemption.
 
  [(a)]           The Notes will not be redeemable at the Company’s option prior to _____________.  The Notes may be redeemed, in whole or in part, at the option of the Company on or after _____________, at the redemption prices specified below (expressed as percentages of the principal amount thereof), in each case, together with accrued and unpaid interest thereon to the date of redemption, upon not less than 30 nor more than 60 days’ notice, if redeemed during the twelve-month period beginning on ___________ of the years indicated below:

 
Year
 
Redemption
Price
     
     
     
 
[(b)             Notwithstanding the foregoing, prior to ____________, the Company may, on any one or more occasions, use the net proceeds of one or more offerings of its capital stock to redeem up to __% of the aggregate principal amount of all Notes that had been issued under the Indenture up to the time of redemption at a redemption price of __% the principal amount of the Notes redeemed, plus accrued and unpaid interest, to the date of redemption; provided that, after any such redemption, the aggregate principal amount of the Notes outstanding (excluding Notes held by the Company and its Subsidiaries) must equal at least __% of the Notes that had been issued under the Indenture up to the time of redemption; and provided further, that any such redemption shall occur within 90 days of the date of closing of such offering of Capital Stock of the Company.]
 
6.             Mandatory Redemption.  [The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.] or [Describe mandatory redemption or sinking fund provisions.]
 
7.             Notice of Redemption.  Notice of Redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address.  Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.  On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption.

 
- 3 - -
 
 
8.             Denominations, Transfer, Exchange.  The Notes are in registered form without coupons in all appropriate denominations.  The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes, fees or expenses required by law or permitted by the Indenture.  The Company need not transfer or exchange any Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part.  Also, it need not transfer or exchange any Note for a period of 15 days before a selection of Notes to be redeemed.
 
9.             Persons Deemed Owners.  The registered Holder of a Note will be treated as its owner for all purposes.
 
10.             Amendment, Supplement and Waiver.  Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of a majority in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class), and any existing default or compliance with any provision of the Indenture, the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class).  Without the consent of any Holder of a Note, the Indenture or the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for Notes in coupon form, to provide for a successor Trustee, to provide for the assumption of the Company’s obligations to Holders of the Notes in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the rights under the Indenture of any such Holder, or to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA.
 
11.             Defaults and Remedies.  Each of the following constitutes an Event of Default:  (i) default by the Company in the payment of interest on the Notes when the same becomes due and payable and default continues for a period of 30 days; (ii) default by the Company in the payment of the principal of or premium, if any, on the Notes when the same becomes due and payable at maturity, upon redemption or otherwise; (iii) failure by the Company for 90 days after notice to comply with any of its other agreements in the Indenture or the Notes other than any agreements with respect to which a failure to observe or perform is dealt with otherwise in the Indenture or Notes or is expressly included in the Indenture or Notes solely for the benefit of a series of notes other than these Notes and (iv) certain events of bankruptcy or insolvency with respect to the Company.  Notwithstanding the foregoing, no Event of Default will have occurred under the Notes if the Company fails to file timely any annual report or information, document or other report that it is required to be filed with the SEC.  If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class) may declare all the Notes to be due and payable immediately.  Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Company, all outstanding Notes will become due and payable without further action or notice.  Holders of the Notes may not enforce the Indenture or the Notes except as provided in the Indenture.  Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class) may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest.  The Holders of a majority in aggregate principal amount of the Notes and other series of Securities affected (treating the Notes and such other series as a single class) then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of principal, interest or premium on the Notes.  The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

 
- 4 - -
 
 
12.             Trustee Dealings with the Company.  The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
 
13.             No Recourse Against Others.  No director, officer, employee, incorporator or stockholder of the Company shall have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for the issuance of the Notes.
 
14.             Authentication.  This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
 
15.             Abbreviations.  Customary abbreviations may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
 
16.             CUSIP Numbers.  Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders.  No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture.  Requests may be made to:

Kulicke and Soffa Industries, Inc.
1005 Virginia Drive
Fort Washington, PA 19034
Attention:  David J. Anderson

 
- 5 - -
 

Assignment Form
 
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
 
(Insert assignee’s soc. sec. or tax I.D. no.)
 
 
 
 
(Print or type assignee’s name, address and zip code)
and irrevocably appoint _________________________________________________________ to transfer this Note on the books of the Company.  The agent may substitute another to act for him.
 
 
Date: ________________
 
Signature:
 
(Sign exactly as your name appears
on the face of this Note)

Signature Guarantee.

 
- 6 - -
 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
 
The following exchanges of a part of this Global Note for an interest in another Global Note or for a certificated Note, or exchanges of a part of another Global Note or certificated Note for an interest in this Global Note, have been made:
 
 
 
 
 
Date of Exchange
  
 
Amount of
decrease in
Principal
Amount of this
Global Note
  
 
Amount of
increase in
Principal
Amount of this
Global Note
  
Principal
Amount of
this Global Note
following such
decrease
(or increase)
  
 
Signature of
authorized
officer of
Trustee or
Note Custodian
                 
                 

 
- 7 - -
 
EX-4.V 4 v153715_ex4v.htm
Exhibit 4(v)

KULICKE AND SOFFA INDUSTRIES, INC.
_____________________
 
 
SENIOR SUBORDINATED
INDENTURE
 
Dated as of __________
 
Providing for Issuance of Senior Subordinated Debt Securities
in Series
 
_____________________
__________________
 
[_______________________]
as Trustee
 
___________________
 
 
 
 
 
Reconciliation and Tie Between the Trust Indenture Act of 1939 and Indenture dated as of ____________, between Kulicke and Soffa Industries, Inc. and [____________], as Trustee.
 
TIA Section
  
Indenture Section
     
310(a)(1)
  
7.10
310(a)(2)
  
7.10
310(a)(3)
  
N/A
310(a)(4)
  
N/A
310(a)(5)
  
7.10
310(b)
  
7.03, 7.08, 7.10
310(c)
  
N/A
311(a)
  
7.11
311(b)
  
7.11
311(c)
  
N/A
312(a)
  
2.07
312(b)
  
12.03
312(c)
  
12.03
313(a)
  
7.06
313(b)
  
7.06
313(c)
  
7.06, 12.02
313(d)
  
7.06
314(a)
  
4.03, 4.04
314(b)
  
N/A
314(c)
  
4.04, 12.05
314(d)
  
N/A
314(e)
  
12.05
314(f)
  
N/A
315(a)
  
7.01
315(b)
  
7.05
315(c)
  
7.01
315(d)
  
7.01
315(e)
  
6.11
316(a)(1)
  
6.04, 6.05
316(a)(2)
  
N/A
316(a) last sentence
  
2.11
316(b)
  
6.07
317(a)
  
6.08, 6.09
317(b)
  
2.06
318(a)
  
12.01
318(c)
  
12.01

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

 
 
 

INDENTURE dated as of __________________ between Kulicke and Soffa Industries, Inc., a Pennsylvania corporation, and [___________________], as Trustee.

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its secured or unsecured senior subordinated debentures, notes, bonds or other evidences of indebtedness (“Securities”) to be issued in one or more series as herein provided.
 
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
 
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders of the Securities:
 
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
 
Section 1.01.
Definitions.
 
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided, however, that beneficial ownership of 10% or more of the voting securities of a Person shall be deemed to be control.
 
“Agent” means any Registrar or Paying Agent.
 
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
 
“Board” or “Board of Directors” means the Board of Directors of the Company or any authorized committee of the Board of Directors.
 
“Board Resolution” means a resolution of the Board of Directors.
 
“Business Day” means any day other than a Legal Holiday.
 
“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized on a balance sheet in accordance with GAAP.
 
“Code” means the Internal Revenue Code of 1986, as amended.
 
 
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“Company” means Kulicke and Soffa Industries, Inc., a Pennsylvania corporation, and any and all successors thereto.
 
“Corporate Trust Office of the Trustee” shall be the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.
 
“Credit Facility” means any principal bank or institutional credit facility of the Company identified in any supplemental indenture establishing a series of Securities, including any amendment, supplement, modification, restatement, replacement, refunding or refinancing.
 
“Custodian” means the Trustee, as custodian with respect to Securities in global form, or any successor entity thereto.
 
“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
 
“Depositary” means, with respect to any series of Securities issuable or issued in whole or in part in global form, the Person specified in Section 2.05 hereof as the Depositary with respect to the Global Securities of that series, and any and all successors thereto registered and in good standing as a clearing agency under the Exchange Act, appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
“GAAP” means United States generally accepted accounting principles.
 
“Global Securities” means, individually and collectively, the Securities issued in global form issued in accordance with Sections 2.01 and 2.08 hereof.
 
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under (i) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements and (ii) other agreements or arrangements designed to protect such Person against fluctuations in interest rates.
 
“Holder” means a Person in whose name a Security is registered.
 
“Indebtedness” means, with respect to any Person, any indebtedness of such Person, whether or not contingent, in respect of borrowed money or evidenced by bonds, securities, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) or banker’s acceptances or representing any Capital Lease Obligations or the balance deferred and unpaid of the purchase price of any property or representing any Hedging Obligations, except any such balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, as well as all indebtedness of others secured by a lien on any asset of such Person (whether or not such indebtedness is assumed by such Person) and, to the extent not otherwise included, the guarantee by such Person of any indebtedness of any other Person.  The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations at such date; provided that the amount outstanding at any time of any Indebtedness issued with original issue discount is the full amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with GAAP.  The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof, in the case of any Indebtedness issued with original issue discount and (ii) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.
 
 
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“Indenture” means this Senior Subordinated Indenture, as amended and restated hereby or as amended, waived or supplemented from time to time and shall include and incorporate by reference the forms and terms of particular series of Securities established as contemplated hereunder.
 
“Indirect Participant” means a Person who holds a beneficial interest in a Global Security through a Participant.
 
“Interest Payment Date” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
 
“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed.  If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.
 
“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable (1) under this Indenture or the applicable Securities, or (2) under Senior Debt.
 
“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Principal Accounting Officer, the Secretary, any Assistant Secretary, any Vice President or any Assistant Vice President of such Person.
 
“Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements of Section 12.05 hereof.
 
“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.05 hereof.  The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.
 
 
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“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
 
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or agency or political subdivision thereof.
 
“Responsible Officer” when used with respect to the Trustee, means any officer within the Corporate Trust Trustee Administration department of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
 
“SEC” means the Securities and Exchange Commission.
 
“Securities” has the meaning assigned to it in the preamble to this Indenture.
 
“Securities Act” means the Securities Act of 1933, as amended.
 
“Senior Bank Debt” means the Indebtedness (including letters of credit) outstanding under the Credit Facility as such agreement may be restated, further amended, supplemented or otherwise modified or replaced from time to time hereafter, together with any refunding or replacement of such Indebtedness.
 
“Senior Debt” means any Indebtedness unless the instrument under which such Indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the Securities.  Without limiting the generality of the foregoing, Senior Debt includes Obligations under the Credit Facility, Obligations under the Senior Indenture, and Obligations under any securities issued under the Senior Indenture.  Notwithstanding anything to the contrary in the foregoing, Senior Debt will not include (a) any liability for federal, state, local or other taxes owed or owing by the Company, (b) any Indebtedness of the Company to any of its Subsidiaries or other Affiliates, (c) any trade payables, (d) any Indebtedness that is incurred in violation of this Indenture, or (e) Obligations under the Subordinated Indenture or Obligations under any securities issued under the Subordinated Indenture.
 
“Senior Indenture” means the Senior Indenture dated the date hereof between the Company and [________________], as trustee, as amended, modified or supplemented from time to time.
 
“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.
 
“Stated Maturity” means, with respect to any interest or principal on any series of Securities, the date on which such payment of interest or principal is scheduled to be paid thereon by its terms as in effect from time to time, and does not include any contingent obligation to repay, redeem or repurchase any such interest or principal prior to the date scheduled for the payment thereof.
 
 
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“Subordinated Indenture” means the Subordinated Indenture dated the date hereof between the Company and [______________], as trustee, as amended, modified or supplemented from time to time.
 
“Subsidiary” means, with respect to any Person, (i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of capital stock or other equity interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof) and (ii) any partnership (a) the sole general partner or the managing general partner of which is such a Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof.)
 
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. (§§) 77aaa-77bbbb as amended) as in effect on the date on which this Indenture is qualified under the TIA.
 
“Trustee” means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
 
“U.S. Government Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a 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.
 
 
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Section 1.02.
Other Definitions
 
Term
Defined in
Section
“Act”
1.05
“Authentication Order”
2.04
“Covenant Defeasance”
8.03
“custodian”
6.01
“Designated Senior Debt”
10.02
“distribution”
10.02
“Event of Default”
6.01
“Legal Defeasance”
8.02
“mandatory sinking fund payment”
3.07
“Notice of Default”
6.01
“optional sinking fund payment”
3.07
“Outstanding”
8.02
“Paying Agent”
2.05
“Payment Blockage Notice”
10.04
“Registrar”
2.05
“Representative”
10.02
“sinking fund payment date”
3.07
 
Section 1.03.
Incorporation By Reference of Trust Indenture Act.
 
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
 
The following TIA terms used in this Indenture have the following meanings:
 
“indenture security holder” means a Holder of a Security;
 
“indenture to be qualified” means this Indenture;
 
“indenture trustee” or “institutional trustee” means the Trustee;
 
“obligor” on the Securities means the Company and any successor obligor upon the Securities.
 
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the meanings so assigned to them.
 
Section 1.04.
Rules of Construction.
 
For the purposes of this Indenture, unless the context otherwise requires:
 
(1)           a term has the meaning assigned to it;
 
(2)           an accounting term not otherwise defined has the meaning assigned to it in accordance with United States generally accepted accounting principles;
 
(3)           “or” is not exclusive;
 
(4)           words in the singular include the plural, and in the plural include the singular;
 
 
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(5)           provisions apply to successive events and transactions; and
 
(6)           references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time.
 
Section 1.05.
Acts of Holders.
 
(a)           Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders, in person or by an agent duly appointed in writing or may be embodied in and evidenced by the record of Holders voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders duly called and held in accordance with the provisions of Article 11, or a combination of such instruments or record and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or instruments and so voting at any such meeting.  Proof of execution of any such instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section and Section 11.06.  The record of any meeting of Holders shall be proved in the manner provided in Section 11.06.
 
(b)           Without limiting the generality of this Section, unless otherwise provided in or pursuant to this Indenture, a Holder, including a Depositary that is a Holder of a Global Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security through such Depositary’s standing instructions and customary practices.
 
(c)           The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
 
(d)           The ownership of Securities shall be proved by the Register.
 
ARTICLE 2.
THE SECURITIES
 
Section 2.01.
Form and Dating.
 
(a)           General.  The Securities of each series shall be in substantially such form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any applicable securities exchange, organizational document, governing instrument or law or as may, consistently herewith, be determined by the officers executing such Securities as evidenced by their execution of the Securities.  If temporary Securities of any series are issued as permitted by Section 2.12, the form thereof also shall be established as provided in the preceding sentence.  If the forms of Securities of any series are established by, or by action taken pursuant to, a Board Resolution, a copy of the Board Resolution, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, together with an appropriate record of any such action taken pursuant thereto, including a copy of the approved form of Securities shall be delivered to the Trustee at or prior to the delivery of the Authentication Order contemplated by Section 2.04 for the authentication and delivery of such Securities.  The Trustee’s certificate of authentication shall be in substantially the following form:
 
 
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This is one of the Securities of the series described in the within-mentioned Indenture.
 
 
___________________________________,
 
as Trustee
   
 
By: ________________________________
 
Authorized Signatory
 
(b)           Global Securities.  If Securities of or within a series are issuable in whole or in part in global form, any such Security may provide that it shall represent the aggregate or specified amount of outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased to reflect exchanges.  Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of outstanding Securities represented thereby, shall be made in such manner and by such Person or Persons as shall be specified therein or upon the written order of the Company signed by an Officer to be delivered to the Trustee pursuant to Section 2.04 or 2.12.  Subject to the provisions of Section 2.04, Section 2.12, if applicable, and Section 2.08, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable written order of the Company signed by an Officer.  Any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing.
 
The provisions of the last paragraph of Section 2.04 shall apply to any Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with a written instructions with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last paragraph of Section 2.04.
 
Notwithstanding the provisions of this Section 2.01, unless otherwise specified as contemplated by Section 2.02, payment of principal of, premium, if any, and interest on any Security in permanent global form shall be made to the Holder thereof.
 
 
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Section 2.02.
Amount Unlimited; Issuable in Series
 
(a)           The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.  The Securities may be issued from time to time in one or more series.
 
(b)           The following matters shall be established with respect to each series of Securities issued hereunder (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and set forth, or determined in the manner provided, in an Officers’ Certificate or (iii) in one or more indentures supplemental hereto:
 
(1)           the title of the Securities of the series (which title shall distinguish the Securities of the series from all other series of Securities);
 
(2)           any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (which limit shall not pertain to Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.12, 3.06 or 9.05 or any Securities that, pursuant to Section 2.04, are deemed never to have been authenticated and delivered hereunder);
 
(3)           the date or dates on which the principal of and premium, if any, on the Securities of the series is payable or the method or methods of determination thereof;
 
(4)           the rate or rates at which the Securities of the series shall bear interest, if any, or the method or methods of calculating such rate or rates of interest, the date or dates from which such interest shall accrue or the method or methods by which such date or dates shall be determined, the Interest Payment Dates on which any such interest shall be payable, the right, if any, of the Company to defer or extend an Interest Payment Date, the record date, if any, for the interest payable on any Security on any Interest Payment Date, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
 
(5)           the place or places where the principal of, premium, if any, and interest, if any, on Securities of the series shall be payable, any Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served and notices to Holders pursuant to Section 12.02 will be published;
 
(6)           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 may be redeemed, in whole or in part, at the option of the Company and, if other than as provided in Section 3.03, the manner in which the particular Securities of such series (if less than all Securities of such series are to be redeemed) are to be selected for redemption;
 
(7)           the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event 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 or purchased, in whole or in part, pursuant to such obligation;
 
 
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(8)           if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
 
(9)           if other than U.S. dollars, the currency or currencies (including currency unit or units) in which the principal of, premium, if any, and interest, if any, on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated, and the particular provisions applicable;
 
(10)           if the payments of principal of, premium, if any, or interest, if any, on the Securities of the series are to be made, at the election of the Company or a Holder, in a currency or currencies (including currency unit or units) other than that in which such Securities are denominated or designated to be payable, the currency or currencies (including currency unit or units) in which such payments are to be made, the terms and conditions of such payments and the manner in which the exchange rate with respect to such payments shall be determined, and the particular provisions applicable thereto;
 
(11)           if the amount of payments of principal of, premium, if any, and interest, if any, on the Securities of the series shall be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on a currency or currencies (including currency unit or units) other than that in which the Securities of the series are denominated or designated to be payable), the index, formula or other method by which such amounts shall be determined and any special voting or defeasance provisions in connection therewith;
 
(12)           if other than the principal amount thereof, the portion of the principal amount of such Securities of the series which shall be payable upon declaration of acceleration thereof pursuant to Section 6.02 or the method by which such portion shall be determined;
 
(13)           the Person to whom any interest on any Security of the series shall be payable;
 
(14)           provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;
 
(15)           any deletions from, modifications of or additions to the Events of Default set forth in Section 6.01 or covenants of the Company set forth in Article 4 pertaining to the Securities of the series;
 
(16)           under what circumstances, if any, and with what procedures and documentation the Company will pay additional amounts on the Securities of that series held by a Person who is not a U.S. Person (including any definition of such term) in respect of taxes, assessments or similar charges withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts (and the terms of any such option);
 
 
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(17)           the forms of the Securities of the series;
 
(18)           the applicability, if any, to the Securities of the series of Sections 8.02 and 8.03, or such other means of defeasance or covenant defeasance as may be specified for the Securities of such series;
 
(19)           if other than the Trustee, the identity of the Registrar and any Paying Agent;
 
(20)           if the Securities of the series shall be issued in whole or in part in global form, (A) the Depositary for such Global Securities, (B) whether beneficial owners of interests in any Securities of the series in global form may exchange such interests for certificated Securities of such series, to be registered in the names of or to be held by such beneficial owners or their nominees and to be of like tenor of any authorized form and denomination, and (C) if other than as provided in Section 2.08, the circumstances under which any such exchange may occur;
 
(21)           the designation of the Depositary;
 
(22)           any restrictions on the registration, transfer or exchange of the Securities;
 
(23)           if the Securities of the series may be issued or delivered (whether upon original issuance or upon exchange of a temporary Security of such series or otherwise), or any installment of principal or interest is payable, only upon receipt of certain certificates or other documents or satisfaction of other conditions in addition to those specified in this Indenture, the form and terms of such certificates, documents or conditions;
 
(24)           the terms and conditions of any right to convert, exercise or exchange Securities of the series into or for other securities or property of the Company including whether conversion, exercise or exchange is mandatory, at the option of the Holder or at the option of the Company;
 
(25)           whether the Securities are secured or unsecured, and if secured, the security and related terms in connection therewith;
 
(26)           the relative degree, if any, to which the Securities of the series shall be senior to or be subordinated to other series of Securities in right of payment, whether such other series of Securities are outstanding or not;
 
(27)           any modification of the subordination provisions of this Indenture (including applicable definitions) that are to apply to Securities of the series; and
 
(28)           any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture) including any terms which may be required by or advisable under United States laws or regulations or advisable (as determined by the Company) in connection with the marketing of Securities of the series.
 
 
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(c)           All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and set forth, or determined in the manner provided, in the related Officers’ Certificate or (iii) in an indenture supplemental hereto.  All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.
 
(d)           If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of such Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth, or providing the manner for determining, the terms of the Securities of such series, and an appropriate record of any action taken pursuant thereto in connection with the issuance of any Securities of such series shall be delivered to the Trustee prior to the authentication and delivery thereof.
 
Section 2.03.
Denominations.
 
Unless otherwise provided as contemplated by Section 2.02, Securities of a series denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any integral multiple thereof.  Securities denominated in a foreign currency shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.
 
Section 2.04.
Execution and Authentication.
 
An Officer shall sign the Securities for the Company by manual or facsimile signature.
 
If an Officer whose signature is on a Security no longer holds that office at the time a Security is authenticated, the Security shall nevertheless be valid.
 
A Security shall not be valid until authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
 
The Trustee shall, upon a written order of the Company signed by an Officer (an “Authentication Order”), together with an Officers’ Certificate and an Opinion of Counsel, authenticate Securities for original issue in the aggregate principal amount stated in the Authentication Order.  The Officers’ Certificate and Opinion of Counsel shall each state that all conditions precedent provided for or relating to the issuance of such Securities have been complied with.
 
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities.  An authenticating agent may authenticate Securities whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.
 
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.13 together with a written statement 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 not be entitled to the benefits of this Indenture.
 
 
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Section 2.05.
Registrar and Paying Agent; Appointment of Depositary.
 
The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Securities may be presented for payment (“Paying Agent”).  The Registrar shall keep a register of the Securities and of their transfer and exchange.  The Company may appoint one or more co-registrars and one or more additional paying agents.  The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.  The Company may change any Paying Agent or Registrar without notice to any Holder.  The Company shall promptly notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.  If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.  The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
 
The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Securities.
 
The Company initially appoints the Trustee to act as the Registrar and Paying Agent with respect to the Securities and to act as Custodian with respect to the Global Securities.
 
Section 2.06.
Paying Agent to Hold Money in Trust.
 
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Securities or other payments in respect of the Securities or otherwise held by it as Paying Agent, and will notify the Trustee of any default by the Company in making any such payment when due.  While any such default continues, the Trustee may require a Paying Agent to pay all money 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 (if other than the Company or a Subsidiary) shall have no further liability for the money.  If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Securities.
 
Section 2.07.
Holder Lists.
 
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA §312(a) ..  If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Securities, and the Company shall otherwise comply with TIA §312(a).
 

 
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Section 2.08.
Transfer and Exchange.
 
(a)           Upon surrender for registration of transfer of any certificated Security of any series at the office or agency maintained pursuant to Section 4.02 in a place of payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new certificated Securities of the same series, of any authorized denominations and of a same aggregate principal amount and like tenor and containing identical terms and provisions.
 
(b)           At the option of the Holder, Securities of any series (except a Security in global form) may be exchanged for other Securities of the same series, of any authorized denominations, of a same aggregate principal amount and like tenor and containing identical terms and provisions, upon surrender of the Securities to be exchanged at such office or agency.  Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
 
(c)           Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in certificated form, a Security in global form representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
 
(d)           If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be registered and in good standing as a clearing agency under the Exchange Act, the Company shall appoint a successor Depositary with respect to the Securities of such series.  If a successor Depositary for the Securities of such series is not appointed by the Company prior to the resignation of the Depositary and, in any event, within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s designation of the Depositary pursuant to Section 2.02(b)(21) shall no longer be effective with respect to the Securities of such series and the Company shall execute, and the Trustee, upon receipt of an Authentication Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.
 
(e)           The Company may at any time in its sole discretion determine that all (but not less than all) Securities of a series issued in global form shall no longer be represented by such a Security or Securities in global form.  In such event the Company shall execute, and the Trustee, upon receipt of an Authentication Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.
 
 
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(f)           If specified by the Company pursuant to Section 2.02 with respect to a series of Securities, the Depositary for such series may surrender a Security in global form of such series in exchange in whole or in part for Securities of such series in certificated form on such terms as are acceptable to the Company and such Depositary.  Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,
 
(i)           to each Person specified by such Depositary a new certificated Security or Securities of the same series of like tenor, 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 Security in global form; and
 
(ii)           to such Depositary a new Security in global form of like tenor in a denomination equal to the difference, if any, between the principal amount of the surrendered Security in global form and the aggregate principal amount of certificated Securities delivered to Holders thereof.
 
(g)           Upon the exchange of a Security in global form for Securities in certificated form, such Security in global form shall be canceled by the Trustee.  Securities in certificated form issued in exchange for a Security in global form pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Security in global form, pursuant to instructions from its direct or Indirect Participants or otherwise, shall instruct the Trustee in writing.  The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
 
(h)           Whenever any Securities are 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.
 
(i)           All Securities issued upon any registration of transfer or upon any 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.
 
(j)           Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing.
 
(k)           No service charge shall be made for any registration of transfer or for any exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax, expense payable or other governmental charge that may be imposed in connection with any registration or transfer or exchange of Securities, other than exchanges pursuant to Section 2.12 or 3.06 not involving any transfer.
 
 
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(l)           The Company shall not be required (i) to issue, register the transfer of, or exchange any Securities for a period beginning at the opening of business 15 days before any selection for redemption of Securities of like tenor and of the series of which such Security is a part and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of Securities of like tenor and of such series to be redeemed; 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.
 
(m)           The foregoing provisions relating to registration, transfer and exchange may be modified, supplemented or superseded with respect to any series of Securities by a Board Resolution or in one or more indentures supplemental hereto.
 
(n)           The following legend shall appear on the face of all Global Securities unless specifically stated otherwise in the applicable provision of this Indenture:
 
“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND, UNLESS AND UNTIL IT IS EXCHANGED FOR SECURITIES IN CERTIFICATED FORM IN ACCORDANCE WITH THE INDENTURE, (I) IS NOT TRANSFERABLE EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR SUCCESSOR NOMINEE, AND (II) MAY NOT BE EXCHANGED OR CANCELLED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.”
 
(o)           At such time as all beneficial interests in a particular Global Security have been exchanged for certificated Securities or a particular Global Security has been redeemed, repurchased or canceled in whole and not in part, each such Global Security shall be returned to or retained and canceled by the Trustee in accordance with Section 2.13 hereof.  At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security or for certificated Securities, the principal amount of Securities represented by such Global Security shall be reduced accordingly and an endorsement shall be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security, such other Global Security shall be increased accordingly and an endorsement shall be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
 
 
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(p)           Prior to due presentment for the registration of a transfer of any Security, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of and interest on such Securities and for all other purposes, and neither the Trustee, any Agent nor the Company shall be affected by notice to the contrary.  Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by any Depositary, as a Holder, with respect to such Global Security or impair, as between such Depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Global Security.
 
Section 2.09.
Replacement Securities.
 
If any mutilated Security is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Security, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Security if the Trustee’s requirements are met.  If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Security is replaced.  The Company may charge for its expenses in replacing a Security.
 
Every replacement Security is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Securities duly issued hereunder.
 
Section 2.10.
Outstanding Securities.
 
The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding.  Except as set forth in Section 2.11 hereof, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
 
If a Security is replaced pursuant to Section 2.09 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a “protected purchaser” (within the meaning of Article 8 of the Uniform Commercial Code) or a Person with comparable status under other applicable law.
 
If the principal amount of any Security is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
 
If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Securities payable on that date, then on and after that date such Securities shall be deemed to be no longer outstanding and shall cease to accrue interest.
 
 
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Section 2.11.
Treasury Securities.
 
In determining whether the Holders of the required principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities that the Trustee knows are so owned shall be so disregarded.
 
Section 2.12.
Temporary Securities.
 
Until certificates representing Securities are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate 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 and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities in exchange for temporary Securities.
 
Holders of temporary Securities shall be entitled to all of the benefits of this Indenture.
 
Section 2.13.
Cancellation.
 
The Company at any time may deliver Securities to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy canceled Securities (subject to the record retention requirement of the Exchange Act).  Certification of the destruction of all canceled Securities shall be delivered to the Company.  The Company may not issue new Securities to replace Securities that it has paid or that have been delivered to the Trustee for cancellation.
 
Section 2.14.
Defaulted Interest.
 
If the Company defaults in a payment of interest on the Securities, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Securities.  The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Security and the date of the proposed payment.  The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest.  At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.  Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
 
 
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ARTICLE 3.
REDEMPTION AND PREPAYMENT
 
Section 3.01.
Applicability of Article.
 
The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.02 for Securities of such series.
 
Section 3.02.
Selection of Securities to be Redeemed.
 
If less than all of the Securities of any series are to be redeemed at any time, the Trustee shall select the Securities of such series to be redeemed among the Holders of the Securities of such series in compliance with the requirements of the principal national securities exchange, if any, on which the Securities of such series are listed or, if the Securities of such series are not so listed, to be redeemed among the Holders of Securities of such series on a pro rata basis, by lot or by such method as the Trustee deems fair and appropriate; provided that no Securities of $1,000 or less shall be redeemed in part.  In the event of partial redemption by lot, the particular Securities of such series to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Securities of the series not previously called for redemption.
 
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed.  Securities and portions of Securities selected shall be in amounts of $1,000 or whole multiples of $1,000; except that if all of the Securities of a series of a Holder are to be redeemed, the entire outstanding amount of Securities of such series held by such Holder, even if not a multiple of $1,000, shall be redeemed.  A new Security of the same series in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Security.  Securities called for redemption shall become due on the redemption date.  On and after the redemption date, interest will cease to accrue on the Securities or portions of them called for redemption.  Except as provided in this Section 3.02, provisions of this Indenture that apply to Securities called for redemption shall also apply to portions of Securities called for redemption.
 
Section 3.03.
Notice of Redemption.
 
At least 30 days but not more than 60 days before a redemption date, the Company shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Securities are to be redeemed at its registered address.
 
The notice shall identify the Securities to be redeemed, including the series thereof, and shall state:

 
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(a)           the redemption date;
 
(b)           the redemption price;
 
(c)           the name and address of the Paying Agent;
 
(d)           that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price;
 
(e)           that, unless the Company defaults in making such redemption payment, interest on Securities called for redemption will cease to accrue on and after the redemption date;
 
(f)           that any Security being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the redemption date upon surrender of such Security, a new Security or Securities of the same series in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original;
 
(g)           the paragraph of the Securities and/or Section of this Indenture pursuant to which the Securities called for redemption are being redeemed; and
 
(h)           that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities.
 
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense; provided, however, that the Company shall have delivered to the Trustee, at least 30 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
 
Section 3.04.
Effect of Notice of Redemption.
 
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Securities called for redemption become irrevocably due and payable on the redemption date at the redemption price.  A notice of redemption may not be conditional.
 
Section 3.05.
Deposit of Redemption or Purchase Price.
 
Not later than 10:00 a.m., Eastern Time, on the Business Day immediately preceding any redemption date, the Company shall deposit with the Trustee or with the Paying Agent money in immediately available funds sufficient to pay the redemption or purchase price of and accrued interest, if any, on all Securities to be redeemed or purchased on that date.  The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Securities to be redeemed or purchased.

 
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Section 3.06.
Securities Redeemed or Purchased in Part.
 
Upon surrender of a Security that is redeemed or purchased in part, the Company shall issue and, upon the Company’s written request, the Trustee shall authenticate for the Holder at the expense of the Company a new Security of the same series equal in principal amount to the unredeemed or unpurchased portion of the Security surrendered.
 
Section 3.07.
Mandatory Redemption; Sinking Fund.
 
The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Securities, unless otherwise specified in the terms of a particular series of Securities.  If a mandatory or optional sinking fund is specified in the terms of a particular series of Securities, the following provisions will apply thereto (unless otherwise specified):
 
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.”  The last date on which any such payment may be made is herein referred to as a “sinking fund payment date.”
 
In lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series theretofore purchased by the Company and (b) may apply as a credit Securities of that series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of optional sinking fund payments pursuant to the next succeeding paragraph, in each case in satisfaction of all or any part of any mandatory sinking fund payment, provided that such Securities have not been previously so credited.  Each such Security so delivered or applied as a credit shall be credited at the sinking fund redemption price for such Securities and the amount of any mandatory sinking fund shall be reduced accordingly.  If the Company intends so to deliver or credit such Securities with respect to any mandatory sinking fund payment it shall deliver to the Trustee at least 30 days prior to the next succeeding sinking fund payment date for such series (a) a certificate signed by any Officer specifying the portion of such sinking fund payment, if any, to be satisfied by payment of cash and the portion of such sinking fund payment, if any, which is to be satisfied by delivering and crediting such Securities and (b) any Securities to be so delivered.  All Securities so delivered to the Trustee shall be cancelled by the Trustee and no Securities shall be authenticated in lieu thereof.  If the Company fails to deliver such certificate and Securities at or before the time provided above, the Company shall not be permitted to satisfy any portion of such mandatory sinking fund payment by delivery or credit of Securities.

 
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At its option the Company may pay into the sinking fund for the retirement of Securities of any particular series, on or before each sinking fund payment date for such series, any additional sum in cash as specified by the terms of such series of Securities.  If the Company intends to exercise its right to make any such optional sinking fund payment, it shall deliver to the Trustee at least 30 days prior to the next succeeding sinking fund payment date for such series of Securities a certificate signed by any Officer stating that the Company intends to exercise such optional right and specifying the amount which the Company intends to pay on such sinking fund payment date.  If the Company fails to deliver such certificate at or before the time provided above, the Company shall not be permitted to make any optional sinking fund payment with respect to such sinking fund payment date.  To the extent that such right is not exercised in any year it shall not be cumulative or carried forward to any subsequent year.
 
If the sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request) with respect to the Securities of any particular series, it shall be applied by the Trustee or one or more Paying Agents on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption.  The Trustee shall select, in the manner provided in Section 3.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to exhaust said cash, as nearly as may be, and the Trustee shall, at the expense and in the name of the Company, thereupon cause notice of redemption of Securities of such series to be given in substantially the manner and with the effect provided in Sections 3.02 and 3.03 for the redemption of Securities of that series in part at the option of the Company, except that the notice of redemption shall also state that the Securities of such series are being redeemed for the sinking fund.  Any sinking fund moneys not so applied or allocated by the Trustee or any Paying Agent to the redemption of Securities of that series shall be added to the next cash sinking fund payment received by the Trustee or the Paying Agent and, together with such payment, shall be applied in accordance with the provisions of this Section 3.07.  Any and all sinking fund moneys held by the Trustee or any Paying Agent on the maturity date of the Securities of any particular series, and not held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee or such Paying Agent, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of that series at maturity.  On or before each sinking fund payment date, the Company shall pay to the Trustee or to one or more Paying Agents in cash a sum equal to all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date pursuant to this Section.  Neither the Trustee nor any Paying Agent shall redeem any Securities of a series with sinking fund moneys, and the Trustee shall not mail any notice of redemption of Securities for such series by operation of the sinking fund, during the continuance of a default in payment of interest on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph), except that if the notice of redemption of any Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee or any Paying Agent shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee or such Paying Agent for that purpose in accordance with the terms of this Article 3.  Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of all such Securities; provided, however, that in case such Event of Default or default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next succeeding sinking fund payment date on which such moneys may be applied pursuant to the provisions of this Section 3.07.

 
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ARTICLE 4.
COVENANTS
 
Section 4.01.
Payment of Securities.
 
The Company shall pay or cause to be paid the principal of, premium, if any, and interest on the Securities on the dates and in the manner provided in the Securities.  Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m., Eastern Time, on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
 
Section 4.02.
Maintenance of Office or Agency.
 
The Company shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) where Securities may be surrendered for registration of transfer, exchange, payment or conversion (if the Securities are convertible) and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.  The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Trustee’s principal agency in [_____________], which currently is located at [___________________].
 
The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes.  The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
 
Section 4.03.
Reports.
 
(a)           Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company covenants and agrees to file with the Trustee, and to provide by mail to each Holder, within 15 days after the Company is or would be required to file the same with the SEC, copies of the annual reports, quarterly reports and the information, documents and other reports which the Company is or would be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act, provided, however, that to the extent permitted by law, any such document information and other reports filed and publicly available through the SEC’s EDGAR filing system shall be deemed to have been received by the Trustee and the Holders.

 
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(b)           The Company covenants and agrees to file with the Trustee and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
 
(c)           The Company covenants and agrees to furnish to the Trustee within 120 days of the end of each fiscal year, the compliance certificate required by Section 314(a)(4) of the Trust Indenture Act.
 
(d)           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).
 
Section 4.04.
Compliance Certificate.
 
(a)           The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default, Event of Default or other instance of non-compliance with any of the terms of this Indenture shall have occurred, describing all such Defaults, Events of Default or instances of non-compliance of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, premium, if any, or interest on the Securities is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
 
(b)           The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, forthwith upon any Officer of the Company becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
 
(c)           The Company shall file with the Trustee and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture, as may be required from time to time by such rules and regulations.

 
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Section 4.05.
Continued Existence.
 
Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence and (ii) the rights (charter and statutory), licenses and franchises of the Company and any of its Significant Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Significant Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Significant Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Securities.
 
Section 4.06.
Stay, Extension and Usury Laws.
 
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
 
Section 4.07.
No Senior Subordinated Debt
 
Notwithstanding any other provision hereof, the Company shall not incur, create, issue, assume, guarantee or otherwise become liable directly or indirectly for any Indebtedness that is contractually subordinate or junior in right of payment to any Senior Debt of the Company and senior in any respect in right of payment to the Securities.  Indebtedness is not “contractually subordinate or junior” to other Indebtedness for purposes of this covenant solely because the other Indebtedness is secured.
 
ARTICLE 5.
SUCCESSORS
 
Section 5.01.
Merger, Consolidation, or Sale of Assets.
 
The Company may consolidate or merge with or into, convert itself into, or sell, assign, transfer, lease, convey or otherwise dispose of (including any such disposition that might be deemed to occur as a result of the conversion of the Company into another form of organization) all or substantially all of its properties or assets in one or more related transactions, to another Person (other than an individual, a government or an agency or political subdivision of a government), but only if (a) the Company is the surviving entity; or (b) the Person formed by or surviving any such consolidation, merger or conversion (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee and either (A) the Person formed by or surviving any such consolidation, merger or conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized or existing under the laws of the United States, any state thereof or the District of Columbia or (B) if not organized or existing under the laws of the United States, any state thereof or the District of Columbia, the Person agrees to be subject to the service of process of the laws of the State of New York, and under the laws of its jurisdiction or organization, payments on the Securities would not be subject to withholding tax; and in any event (c) immediately after such transaction no Default or Event of Default exists.  If the Company requests the Trustee to enter into any supplemental indenture, or to take any other action, as a result of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the Company will also furnish to the Trustee an Officers’ Certificate and an Opinion of Counsel, each to the effect that the conditions precedent set forth in this Section 5.01 have been complied with.

 
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Section 5.02.
Successor Person Substituted.
 
Upon any consolidation, merger or conversion, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the Company is merged or converted or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, conversion, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein.
 
ARTICLE 6.
DEFAULTS AND REMEDIES
 
Section 6.01.
Events of Default.
 
An “Event of Default,” with respect to Securities of any series shall have occurred if:
 
(a)           the Company defaults in the payment when due of interest on, with respect to, any Security of that series and such default continues for a period of 30 days;
 
(b)           the Company defaults in the payment when due of principal of or premium, if any, on, or sinking fund payment with respect to, any Security of that series when the same becomes due and payable at maturity, upon redemption or otherwise;
 
(c)           the Company fails for 90 days after notice to comply to observe or perform any other covenant, representation, warranty or other agreement in this Indenture, with respect to any Security of that series for the benefit of that series other than a covenant, representation or warranty with respect to which a failure to observe or perform is dealt with otherwise in this Indenture or is expressly included in this Indenture solely for the benefit of a series of debt securities other than any series of Securities; provided, however, no Notice of Default (as defined below) will be given to the Holders until at least 90 days after the occurrence thereof;

 
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(d)           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 of it or for all or substantially all of its property;
 
(iv)          makes a general assignment for the benefit of its creditors; or
 
(v)           generally is not paying its debts as they become due;
 
(e)           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 of the Company for all or substantially all of the property of the Company; or
 
(iii)          orders the liquidation of the Company; and the order or decree remains unstayed and in effect for 60 consecutive days; or
 
(f)           any other event provided with respect to Securities of that series in the terms thereof as contemplated by Section 2.02 hereof shall occur.
 
The term “custodian” as used in this Article 6 means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
 
A Default under clause (c) with respect to the Securities of any series is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in principal amount of the then outstanding Securities of all series affected by the Default (treating all such series as a single class) notify the Company and the Trustee, of the Default and the Company does not cure the Default within 90 days 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.”
 
Notwithstanding the foregoing, no Event of Default will have occurred under Securities of any series if the Company fails to file timely any annual report or information, document or other report that it is required to file with the SEC.

 
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Section 6.02.
Acceleration.
 
If any Event of Default with respect to one or more series of Securities (other than an Event of Default specified in clause (d) or (e) of Section 6.01 hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Securities of all series with respect to which an Event of Default shall have occurred and be continuing (treating all such series as a single class) may declare all the Securities of all such series to be due and payable immediately.  Upon any such declaration, the principal of, premium, if any, and accrued and unpaid interest with respect to the Securities of all such series shall become due and payable immediately.  Notwithstanding the foregoing, if an Event of Default specified in clause (d) or (e) of Section 6.01 hereof occurs with respect to the Company, all outstanding Securities of all series shall be due and payable immediately without further action or notice, provided that the payment of principal and interest (or lesser amount as may be provided in the form of security of such series) on such Securities shall remain subordinated to the extent provided in Article 10.
 
Section 6.03.
Other Remedies.
 
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.
 
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder of a Security 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; Rescission of Acceleration.
 
Holders of a majority in aggregate principal amount of the then outstanding Securities of all series affected (treating all such series as a single class) may, by notice to the Trustee, on behalf of the Holders of all of the Securities of all such series, waive an existing Default or Event of Default and its consequences hereunder (including in connection with an offer to purchase or exchange), except a continuing Default or Event of Default in the payment of the principal of, premium, if any, interest on, or any sinking fund payment with respect to, the Securities of such series, and except a continuing Default or Event of Default under any provision of this Indenture that, under Section 9.02, cannot be modified or waived without the consent of a greater number of Holders or of each Holder affected.  Upon any such waiver, such Default or Event of Default shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.  The Holders of a majority in aggregate principal amount of the then outstanding Securities of all series affected (treating all such series as a single class) may also rescind an acceleration and its consequences with respect to all such series, including any related payment default that resulted from such acceleration, but not including any other payment default.
 
Section 6.05.
Control by Majority.
 
Holders of a majority in principal amount of the then outstanding Securities of all series with respect to which an Event of Default shall have occurred and be continuing (treating all such series as a single class) may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it; provided that
 

 
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(i)           such direction shall not be in conflict with any law or regulation or with this Indenture;
 
(ii)           the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
 
(iii)           the Trustee need not take any action which might involve it in personal liability or be unduly prejudicial to the Holders of Securities of such series not joining therein.
 
Section 6.06.
Limitation On Suits.
 
A Holder of a Security of any series may pursue a remedy with respect to this Indenture or the Securities of such series only if:
 
(a)           the Holder of a Security of any or all series affected gives to the Trustee written notice of a continuing Event of Default;
 
(b)           the Holders of at least 25% in principal amount of the then outstanding Securities of all affected series (treating all such series as a single class) make a written request to the Trustee to pursue the remedy;
 
(c)           such Holder or Holders offer and, if requested, provide 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 and, if requested, the provision of indemnity; and
 
(e)           during such 60-day period the Holders of a majority in principal amount of the then outstanding Securities of all such series (treating all such series as a single class) do not give the Trustee a direction inconsistent with the request.
 
A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of a Security or to obtain a preference or priority over another Holder of a Security.
 
Section 6.07.
Rights of Holders of Securities to Receive Payment.
 
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security of any series to receive payment of principal, premium, if any, and interest on such Security, on or after the respective due dates expressed in such Security (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
 
Section 6.08.
Collection Suit by Trustee.
 
If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing with respect to any series of Securities, the Trustee is authorized to recover judgment in its own name and as Trustee of an express trust against the Company for the whole amount of principal of, premium, if any, and interest remaining unpaid on such Securities and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 
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Section 6.09.
Trustee May File Proofs of Claim.
 
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Securities of any series allowed in any judicial proceedings relative to the Company (or any other obligor upon the Securities), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing 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 of any series or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
 
Section 6.10.
Priorities.
 
If the Trustee collects any money or other property pursuant to this Article, it shall pay out the money or other property in the following order:
 
First:  to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
 
Second: to Holders of Securities for amounts due and unpaid on the Securities for principal, premium, if any, interest and any other amounts, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal, premium, if any, interest and other amounts, respectively; and
 
Third:  to the Company or to such party as a court of competent jurisdiction shall direct.

 
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The Trustee may fix a record date and payment date for any payment to Holders of Securities pursuant to this Section 6.10.
 
Section 6.11.
Undertaking for Costs.
 
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section does not apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Securities of any series.
 
ARTICLE 7.
TRUSTEE
 
Section 7.01.
Duties of Trustee.
 
(a)           If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture or an indenture supplemental hereto, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
 
(b)           Except during the continuance of an Event of Default:
 
(i)           the duties of the Trustee shall be determined solely by the express provisions of this Indenture or an indenture supplemental hereto, and the Trustee need perform only those duties that are specifically set forth in this Indenture or an indenture supplemental hereto and no others, and no implied covenants or obligations shall be read into this Indenture or an indenture supplemental hereto against the Trustee; and
 
(ii)           in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.  However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
 
(c)           The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
 
(i)           this paragraph does not limit the effect of paragraph (b) of this Section;
 
(ii)           the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proven that the Trustee was negligent in ascertaining the pertinent facts; and

 
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(iii)           the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
 
(d)           Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section.
 
(e)           No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability.  The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee security and indemnity satisfactory to it against any losses, costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
 
(f)           The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.  Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
 
Section 7.02.
Rights of Trustee.
 
(a)           The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in the document.
 
(b)           Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.  The Trustee may consult with counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
 
(c)           The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
 
(d)           The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
 
(e)           Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
 
Section 7.03.
Individual Rights of Trustee.
 
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.  However, in the event that the Trustee acquires any conflicting interest (within the meaning of TIA § 310(b)) it must eliminate such conflicting interest within 90 days after the default referred to in such § 310(b), apply to the SEC for permission to continue as trustee, or resign.  Any Agent may do the same with like rights and duties.  The Trustee is also subject to Sections 7.10 and 7.11 hereof.

 
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Section 7.04.
Trustee’s Disclaimer.
 
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities; it shall not be accountable for the Company’s use of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision of this Indenture; it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee; and it shall not be responsible for any statement or recital herein or any statement in the Securities or any other document in connection with the sale of the Securities or pursuant to this Indenture other than its certificate of authentication.
 
Section 7.05.
Notice of Defaults.
 
If a Default or Event of Default occurs and is continuing and if a Responsible Officer of the Trustee has actual knowledge of such Default or Event of Default, the Trustee shall mail to Holders of Securities a notice of the Default or Event of Default within 90 days after it occurs.  Except in the case of a Default or Event of Default in payment of principal of, or interest on, any Security, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities.
 
Section 7.06.
Reports by Trustee to Holders of the Securities.
 
On or before July 31 of each year, beginning with the July 31 following the date on which Securities are first issued under this Indenture, and for so long as Securities remain outstanding, the Trustee shall mail to the Holders of the Securities a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted).  The Trustee also shall comply with TIA § 313(b)(2).  The Trustee shall also transmit by mail all reports as required by TIA § 313(c).  A copy of each report at the time of its mailing to the Holders of Securities shall be mailed to the Company and filed with the SEC and each stock exchange on which the Securities are listed in accordance with TIA § 313(d).  The Company shall promptly notify the Trustee when the Securities are listed on any stock exchange.
 
Section 7.07.
Compensation and Indemnity.
 
The Company shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the Company and Trustee have separately agreed.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 
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The Company shall indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company (including this Section 7.07) and defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or willful misconduct.  The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder.  The Company shall defend the claim, and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel.  The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
 
The obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture.
 
To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium, if any, and interest on particular Securities.  Such lien shall survive the satisfaction and discharge of this Indenture.
 
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(e) or (f) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
 
Section 7.08.
Replacement of Trustee.
 
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
 
The Trustee may resign with respect to one or more or all series of Securities at any time and be discharged from the trust hereby created by so notifying the Company in writing.  The Holders of a majority in principal amount of the then outstanding Securities of any series may remove the Trustee with respect to such series by so notifying the Trustee and the Company in writing.
 
The Company may remove the Trustee if:
 
(a)           the Trustee ceases to be eligible in accordance with Section 7.10 hereof;
 
(b)           the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
 
(c)           a custodian or public officer takes charge of the Trustee or its property; or

 
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(d)           the Trustee becomes incapable of acting.
 
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.  Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities of a series may appoint a successor Trustee to replace the successor Trustee appointed by the Company with respect to that series of Securities.
 
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in principal amount of the then outstanding Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee.
 
If the Trustee, after written request by any Holder of a Security who has been a Holder of a Security for at least six months, ceases to be eligible in accordance with Section 7.10, such Holder of a Security may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.  A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company.  Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to Holders of the Securities.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the lien provided for in Section 7.07 hereof.  Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
 
If a successor Trustee is appointed with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees as co-trustees of the same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
 
Section 7.09.
Successor Trustee by Merger, etc.
 
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.

 
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Section 7.10.
Eligibility; Disqualification.
 
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
 
This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5).  The Trustee is subject to TIA § 310(b).
 
Section 7.11.
Preferential Collection of Claims Against Company.
 
The Trustee is subject to TIA § 311(a), excluding any creditor relationship described in TIA § 311(b).  A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
 
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE;
SATISFACTION AND DISCHARGE
 
Section 8.01.
Option to Effect Legal Defeasance or Covenant Defeasance; Alternative Satisfaction and Discharge.
 
(a)           The Company may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof, with such modifications thereto as may be specified pursuant to Section 2.02 in the Board Resolution, Officers’ Certificate or supplemental indenture establishing a particular series of Securities, be applied to all outstanding Securities of one or more series upon compliance with the conditions set forth below in this Article 8.

 
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(b)           As an alternative to having Section 8.02 or 8.03 be applied to all outstanding Securities of one or more series, the Company may terminate its obligations under the Securities of one or more series and its obligations under this Indenture in respect of such series of Securities (except those obligations referred to in the penultimate paragraph of this Section 8.01(b), and any obligation of the Company to convert or exchange Securities of such series as expressly provided for in the Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing such Series) (1) if (i) all Securities of such series theretofore authenticated and delivered (except lost, stolen or destroyed Securities that have been replaced or paid and Securities for whose payment cash in United States dollars has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust as provided in Section 8.06) have been delivered to the Trustee for cancellation; (ii) the Company has paid all sums payable by it hereunder or under the applicable Board Resolution, Officers’ Certificate or indenture supplemental hereto in respect of such series of Securities; and (iii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the satisfaction and discharge of this Indenture have been complied with; or (2) if (i) either (A) in the case of a series of Securities redeemable prior to its Stated Maturity, the Company shall, pursuant to Article 3, have given notice to the Trustee and mailed a notice of redemption to each Holder of Securities of such series of the redemption of all of such Securities under arrangements satisfactory to the Trustee for the giving of such notice or (B) all Securities of such series have otherwise become due and payable hereunder or will become due and payable within one year; (ii) the Company shall have irrevocably deposited or caused to be deposited with the Trustee (or a trustee satisfactory to the Trustee, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee), as trust funds in trust solely for the benefit of the Holders of Securities of such series for that purpose, cash in United States dollars in such amount as is sufficient without consideration of reinvestment of interest or other earnings on such cash, to pay the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for the principal of, premium, if any, and interest on the outstanding Securities of such series to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or redemption date, as the case may be; (iii) no Default or Event of Default with respect to this Indenture or the Securities shall have occurred and be continuing on the date of such deposit; (iv) the Company shall have paid all other sums payable by it hereunder in respect of Securities of such series; and (v) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the satisfaction and discharge of this Indenture have been complied with.
 
Notwithstanding the foregoing paragraph, the Company’s obligations in Sections 2.07, 2.08, 2.09, 2.10, 4.01, including any provision of the applicable Board Resolution, Officers’ Certificate or indenture supplemental hereto relating to the payment of principal, premium or interest, 4.02, 7.07, 8.06 and 8.07 shall survive with respect to the Securities of the applicable series until they are no longer outstanding pursuant to the last paragraph of Section 2.10.  After the Securities of the applicable series are no longer outstanding, the Company’s obligations in Sections 7.07, 8.06 and 8.07 shall survive in respect of Securities of the applicable series.
 
After such delivery or irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Company’s obligations under the Securities of the applicable series and the Company’s obligations under this Indenture with respect to the Securities of such series, except for those surviving obligations specified above.
 
Section 8.02.
Legal Defeasance and Discharge.
 
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02 relating to one or more series of Securities, the Company shall, upon the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from its obligations with respect to all outstanding Securities of such series on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities of the applicable series, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all of its other obligations under the Securities of the applicable series and under the provisions of this Indenture applicable to such series (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Securities of the applicable series to receive solely from the trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest, on such Securities when such payments are due, (b) the Company’s obligations with respect to such Securities under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the Company’s obligations in connection therewith and (d) this Article 8.  Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

 
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Section 8.03.
Covenant Defeasance.
 
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 relating to one or more series of Securities, the Company shall, upon the satisfaction of the conditions set forth in Section 8.04 hereof, be released from its obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.06 and 4.07 hereof with respect to the outstanding Securities of the applicable series, and under any other covenants specified in the Board Resolution, Officers’ Certificate or supplemental indenture establishing the applicable series as covenants to which this Section 8.03 applies, on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of the applicable series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder.  For this purpose, Covenant Defeasance means that, with respect to the “outstanding” Securities of the applicable series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
 
Section 8.04.
Conditions to Legal or Covenant Defeasance.
 
The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Securities of one or more series:
 
In order to exercise either Legal Defeasance or Covenant Defeasance:
 
(a)           the Company must irrevocably deposit with the Trustee, (or another trustee satisfying the requirements of Section 7.10, who shall agree to comply with the provisions of this Article 8 applicable to it) in trust, for the benefit of the Holders of the Securities of the applicable series, (i) an amount of cash in United States dollars, (ii) non-callable U.S. Government Obligations which, through scheduled payment of principal and interest in respect thereof in accordance with their terms, will provide, not later than one Business Day before the due date of any payment of principal of, premium, if any, or interest on the Securities of such series, cash in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, interest and premium, if any, on the outstanding Securities of the applicable series on the Stated Maturity or on the applicable redemption date, as the case may be, and any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due, and the Company must specify whether the Securities of the applicable series are being defeased to maturity or to a particular redemption date;

 
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 (b)          in the case of an election under Section 8.02 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities of the applicable series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
 
(c)           in the case of an election under Section 8.03 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Securities of the applicable series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
 
(d)           no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or insofar as Sections 6.01(e) or (f) hereof are concerned, at any time in the period ending on the 91st day after the date of deposit (or greater period of time in which any such deposit of trust funds may remain subject to Bankruptcy Law insofar as those apply to the deposit by the Company) and;
 
(e)           the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
 
Section 8.05.
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
 
Subject to Section 8.06 hereof, all money and non-callable U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Securities of the applicable series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.

 
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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities of the applicable series.
 
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance of the applicable series.
 
Section 8.06.
Repayment to Company.
 
Any money and U.S. Government Obligations deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium or interest on any Security and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such money and U.S. Government Obligations, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
 
Section 8.07.
Reinstatement.
 
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S. Government Obligations deposited pursuant to Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium or interest on any Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.

 
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
 
Section 9.01.
Without Consent of Holders of Securities.
 
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Securities without the consent of any Holder of a Security:
 
(a)           to evidence the succession of another Person to the Company, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Company pursuant to Article 5 hereof;
 
(b)           to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities stating that such covenants are expressly being included for the benefit of such series) as the Board of Directors and the Trustee shall consider to be for the protection of the Holders of such Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default;
 
(c)           to provide for the issuance under this Indenture of Securities in coupon form (including Securities registrable as to principal only) and to provide for exchangeability of such Securities with the Securities issued hereunder in fully registered form and to make all appropriate changes for such purpose;
 
(d)           to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture that may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture; provided that any such action shall not adversely affect the interests of the Holders of the Securities;
 
(e)           to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 7.08;
 
(f)           to comply with the requirements of the SEC or to effect or maintain the qualification of the Indenture under the TIA; or
 
(g)           to provide for the issuance of and establish the form and terms and conditions of the Securities of any series, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the Holders of any series of Securities.
 
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Upon the request of the Company accompanied by a copy of a Board Resolution, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
 
Section 9.02.
With Consent of Holders of Securities.
 
Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture, or the Securities of any series may be amended or supplemented, with the consent of the Holders of a majority in principal amount of the Securities then outstanding of all series affected by such supplemental indenture, treated as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium or interest on the Securities) or compliance with any provision of this Indenture or the Securities of such series may be waived with the consent of the Holders of a majority in principal amount of the Securities then outstanding of all series affected by such waiver, treated as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for the Securities).  Any amendment to the provisions of Article 10 hereof will require the consent of the Holders of at least 75% in aggregate principal amount of the Securities then outstanding (treating all outstanding series as a single class) if such amendment would adversely affect the rights of Holders of the Securities.
 
Upon the request of the Company accompanied by a copy of a Board Resolution, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Securities of each such series as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02(b) hereof, the Trustee shall join with the Company in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
 
It shall not be necessary for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
 
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After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders of Securities of such series affected thereby a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
 
However, without the consent of each Holder of Securities affected, an amendment or waiver may not (with respect to any Securities held by a non-consenting Holder):
 
(a)           reduce the principal amount of the Securities whose Holders must consent to an amendment, supplement or waiver;
 
(b)           reduce the principal of or change the fixed maturity of the principal of, premium, if any, or mandatory sinking fund obligation, if any, with respect to any Securities of any series or alter the provisions with respect to the redemption of the Securities;
 
(c)           impair any right, if any, to convert the Securities into common stock
 
(d)           reduce the rate of or change the time for payment of interest, including default interest, on any Security of any series;
 
(e)           waive a Default or Event of Default in the payment of principal of or interest or premium on the Securities of any series (except a rescission of acceleration of maturity of the Securities by the Holders of a majority in aggregate principal amount of the Securities of one or more affected series and a waiver of the payment default that resulted from such acceleration);
 
(f)            make any Security of any series payable in currency other than that stated in the Securities of such series;
 
(g)           make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Securities to receive payments of principal of or interest or premium on the Securities;
 
(h)           waive a redemption payment with respect to any Security; or
 
(i)            make any change in Section 6.04 or 6.07 hereof or in the amendment and waiver provisions of Section 9.01 or this Section 9.02.
 
Section 9.03.
Compliance With Trust Indenture Act.
 
Every amendment or supplement to this Indenture or the Securities shall be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.
 
Section 9.04.
Revocation and Effect of Consents.
 
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder of a Security and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Securities, even if notation of the consent is not made on any Securities.  However, any such Holder of a Security or subsequent Holder of a Security may revoke the consent as to its Securities if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective.  An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
 
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Section 9.05.
Notation On or Exchange of Securities.
 
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Securities thereafter authenticated.  The Company in exchange for all Securities may issue and the Trustee shall authenticate new Securities that reflect the amendment, supplement or waiver.
 
Failure to make the appropriate notation or to issue new Securities shall not affect the validity and effect of such amendment, supplement or waiver.
 
Section 9.06.
Trustee to Sign Amendments, Etc.
 
The Company may not sign an amendment or supplemental indenture until its Board of Directors approves it.  The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee.  If it does, the Trustee may, but need not, sign it.  In signing or refusing to sign such amendment or supplemental indenture, the Trustee shall be entitled to receive and, subject to Section 7.01 hereof, shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that such amendment or supplemental indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon the Company in accordance with its terms.
 
ARTICLE 10.
SUBORDINATION
 
Section 10.01.
Agreement to Subordinate.
 
(a)           The Company agrees, and each Holder by accepting a Security agrees, that the Indebtedness evidenced by the Securities is subordinated in right of payment, to the extent and in the manner provided in this Article, to the prior payment in full of all Senior Debt (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt.
 
(b)           If any holder of Senior Debt is required by any court or otherwise to return to the Company, or any custodian, trustee, or similar official acting in relation to the Company, any amount paid by the Company to such holder of Senior Debt, the provisions of this Article 10, to the extent theretofore discharged, shall be reinstated in full force and effect; provided, however, that any amounts paid pursuant to this Indenture to Holders of Securities shall not be subject to disgorgement pursuant to the provisions of this paragraph (b).

 
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Section 10.02.
Certain Definitions.
 
“Designated Senior Debt” means (i) the Senior Bank Debt and (ii) any other Indebtedness expressly designated as Senior Debt with respect to the Securities.
 
“Representative” means the indenture trustee or other trustee, agent or representative for the Holders of any Senior Debt.
 
A “distribution” may consist of cash, securities or other property, by set-off or otherwise.
 
Section 10.03.
Liquidation; Dissolution; Bankruptcy.
 
Upon any distribution to creditors of the Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, an assignment for the benefit of creditors or any marshalling of the Company’s assets and liabilities:
 
(1)           holders of Senior Debt shall be entitled to receive payment in full of all Obligations due in respect of such Senior Debt (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Debt) before the Holders of Securities shall be entitled to receive the principal of, or any other payment, with respect to the Securities (except that Holders may receive (i) securities that are subordinated to at least the same extent as the Securities to (a) Senior Debt and (b) any securities issued in exchange for Senior Debt, (ii) payments and other distributions made from any defeasance trust created pursuant to Section 8.05 hereof and (iii) securities issuable upon conversion of the Securities issuable hereunder); and
 
(2)           until all Obligations with respect to Senior Debt (as provided in subsection (1) above) are paid in full, any distribution to which the Holders of Securities would be entitled but for this Article shall be made to holders of Senior Debt (except that Holders may receive (i) securities that are subordinated to at least the same extent as the Securities to (a) Senior Debt and (b) any securities issued in exchange for Senior Debt, (ii) payments and other distributions made from any defeasance trust created pursuant to Section 8.05 hereof and (iii) securities issuable upon conversion of the Securities issuable hereunder), as their interests may appear.
 
Section 10.04.
Default On Designated Senior Debt.
 
(a)           The Company may not make any payment or distribution to the Trustee or any Holder in respect of the Securities and may not acquire from the Trustee or any Holder any Securities for cash or property (other than (1) securities that are subordinated to at least the same extent as the Securities to (A) Senior Debt and (B) any securities issued in exchange for Senior Debt, (2) payments and other distributions made from any defeasance trust created pursuant to Section 8.05 hereof and (3) securities issuable upon conversion of the Securities issuable hereunder) until all principal and other Obligations with respect to the Senior Debt have been paid in full if:

 
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(1)           a default in the payment of the principal of, premium, if any, or interest, including a default under any repurchase or redemption obligation, on Designated Senior Debt occurs and is continuing beyond any applicable grace period in the agreement, indenture or other document governing such Designated Senior Debt; or
 
(2)           a default, other than a default specified in Section 10.04(a) (1), on Designated Senior Debt occurs and is continuing with respect to Designated Senior Debt that then permits holders of the Designated Senior Debt as to which such default relates to accelerate its maturity and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a Person who may give it pursuant to Section 10.12 hereof.  If the Trustee receives any such Payment Blockage Notice, no subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and until (I) at least 360 days shall have elapsed since the effectiveness of the immediately prior Payment Blockage Notice and (II) all scheduled payments of principal and premium, if any, and interest on the Securities that have come due (other than by reason of acceleration) have been paid in full in cash.  No default described in this paragraph (2) that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice.
 
(b)           The Company may and shall resume payments on and distributions in respect of the Securities and may acquire them:
 
(i)           in the case of a default described in Section 10.04(a)(1), upon the date on which the default is cured or waived, and
 
(ii)           in the case of a default referred to in Section 10.04(a)(2) hereof, the earlier of the date on which such default is cured or waived or 179 days after the date on which the applicable Payment Blockage Notice is received, unless the maturity of any Designated Senior Debt has been accelerated, if this Article otherwise permits the payment, distribution or acquisition at the time of such payment or acquisition.
 
Section 10.05.
Acceleration of Securities.
 
If payment of the Securities is accelerated because of an Event of Default, the Company shall promptly notify holders of Senior Debt of the acceleration.
 
Section 10.06.
When Distribution Must Be Paid Over.
 
In the event that the Trustee or any Holder receives any payment of any Obligations with respect to the Securities at a time when the Trustee or such Holder, as applicable, has actual knowledge that such payment is prohibited by Section 10.04 hereof, such payment shall be held by the Trustee or such Holder, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to, the holders of Senior Debt as their interests may appear or their Representative under the indenture or other agreement (if any) pursuant to which Senior Debt may have been issued, as their respective interests may appear, for application to the payment of all Obligations with respect to Senior Debt remaining unpaid to the extent necessary to pay such Obligations in full in accordance with their terms, after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt.

 
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With respect to the holders of Senior Debt, the Trustee undertakes to perform only such obligations on the part of the Trustee as are specifically set forth in this Article 10, and no implied covenants or obligations with respect to the holders of Senior Debt shall be read into this Indenture against the Trustee.  The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt, and shall not be liable to any such holders if the Trustee shall pay over or distribute to or on behalf of Holders or the Company or any other Person money or assets to which any holders of Senior Debt shall be entitled by virtue of this Article 10, except if such payment is made as a result of the willful misconduct or gross negligence of the Trustee.
 
Section 10.07.
Notice by Company.
 
The Company shall promptly notify the Trustee and the Paying Agent of any facts known to the Company that would cause a payment of any Obligations with respect to the Securities to violate this Article, but failure to give such notice shall not affect the subordination of the Securities to the Senior Debt as provided in this Article.
 
Section 10.08.
Subrogation.
 
After all Senior Debt is paid in full and until the Securities are paid in full, Holders of the Securities shall be subrogated (equally and ratably with all other Indebtedness pari passu with such Securities) to the rights of holders of Senior Debt to receive distributions applicable to Senior Debt to the extent that distributions otherwise payable to the Holders have been applied to the payment of Senior Debt.  A distribution made under this Article to holders of Senior Debt that otherwise would have been made to Holders is not, as between the Company and Holders, a payment by the Company on the Senior Debt.
 
Section 10.09.
Relative Rights.
 
This Article defines the relative rights of Holders and holders of Senior Debt.  Nothing in this Indenture shall:
 
(i)           impair, as between the Company and Holders, the obligation of the Company, which is absolute and unconditional, to pay principal of, premium, if any, and interest on the Securities in accordance with their terms;
 
(ii)         affect the relative rights of Holders and creditors of the Company other than the rights of Holders of the Securities in relation to holders of Senior Debt; or
 
(iii)         prevent the Trustee or any Holder from exercising its available remedies upon a Default or Event of Default, subject to the rights of holders of Senior Debt to receive distributions and payments otherwise payable to Holders.
 
If the Company fails because of this Article to pay principal of or interest on a Security on the due date, the failure is still a Default or Event of Default.
 
Section 10.10.
Subordination May Not Be Impaired By Company.
 
No right of any holder of Senior Debt to enforce the subordination of the Indebtedness evidenced by the Securities shall be impaired by any act or failure to act by the Company or any Holder or by the failure of the Company or any Holder to comply with this Indenture.
 
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Section 10.11.
Distribution or Notice to Representative.
 
Whenever a distribution is to be made or a notice given to holders of Senior Debt, the distribution may be made and the notice given to their Representative.
 
Upon any payment or distribution of assets of the Company referred to in this Article 10, the Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of competent jurisdiction or upon any certificate of such Representative or of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Debt and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 10.
 
Section 10.12.
Rights of Trustee and Paying Agent.
 
Notwithstanding the provisions of this Article 10 or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment or distribution by the Trustee, and the Trustee and any Paying Agent may continue to make payments on the Securities, unless the Trustee shall have received at the Corporate Trust Office of the Trustee at least five Business Days prior to the date of such payment written notice of facts that would cause the payment of any Obligations with respect to the Securities to violate this Article or otherwise has actual knowledge of such facts.  Only the Company or a Representative may give the notice.  A Payment Blockage Notice may be given only by a Representative of holders of Designated Senior Debt or by a holder for which there is no Representative.  Nothing in this Article 10 shall impair the claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.
 
The Trustee in its individual or any other capacity may hold Senior Debt with the same rights it would have if it were not Trustee.  Any Agent may do the same with like rights.
 
Section 10.13.
Authorization to Effect Subordination.
 
Each Holder of a Security by the Holder’s acceptance thereof authorizes and directs the Trustee on the Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article 10, and appoints the Trustee to act as the Holder’s attorney-in-fact for any and all such purposes.  If the Trustee does not file a proper proof of claim or proof of debt in the form required in any proceeding referred to in Section 6.09 hereof at least 30 days before the expiration of the time to file such claim, the Representative under any Credit Facility (or in the absence of such Representative, the lender) is hereby authorized to file an appropriate claim for and on behalf of the Holders of the Securities.

 
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ARTICLE 11.
MEETINGS OF HOLDERS
 
Section 11.01.
Purposes for Which Meeting May be Called.
 
A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article 11 to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
 
Section 11.02.
Call, Notice and Place of Meetings.
 
(a)           The Trustee may at any time call a meeting of Holders of Securities of any one or more series for any purpose specified in Section 11.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in such other place as the Trustee shall determine.  Notice of every meeting of Holders of Securities of any one or more series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 12.02, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
 
(b)           In case at any time the Company, by or pursuant to a Board Resolution, or the Holders of at least 25% in principal amount of the outstanding Securities of any one or more series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 11.01 by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of such meeting within 20 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (a) of this Section.
 
Section 11.03.
Persons Entitled to Vote at Meetings.
 
To be entitled to vote at any meeting of Holders of Securities of any one or more series, a Person shall be (a) a Holder of one or more outstanding Securities of such series, or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more outstanding Securities of such a series by such Holder or Holders.  The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
 
49
 
Section 11.04.
Quorum; Action.

The Persons entitled to vote a majority in principal amount of the outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however, that if the meeting is of the Holders of more than one series of Securities, a quorum shall consist of Persons entitled to vote a majority in principal amount of the outstanding Securities of all such series (voting as a single class); and provided further that if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture (or any Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing a series of Securities hereunder) expressly provides may be given by the Holders of more or less than a majority in principal amount of the outstanding Securities of a series, the Persons entitled to vote such percentage in principal amount of the outstanding Securities of such series shall constitute a quorum.  In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved.  In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting.  In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.  Notice of the reconvening of any such adjourned meeting shall be given as provided in Section 11.02(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the outstanding Securities of such series which shall constitute a quorum.
 
Except as otherwise provided in Section 6.02 or 9.02 (or in any Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing a series of Securities hereunder), any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the outstanding Securities of that series (or, if applicable, of all series participating in the meeting (voting as a single class)); provided, however, that, except as otherwise provided in Section 6.02 or 9.02 (or in any Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing a series of Securities hereunder), any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture or any supplemental indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of the outstanding Securities of a series (or, if applicable, of all series participating in the meeting (voting as a single class))may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the outstanding Securities of such series (or, if applicable, of all series participating in the meeting (voting as a single class)).
 
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series, whether or not such Holders were present or represented at the meeting.
 
Section 11.05.
Determination of Voting Rights; Conduct and Adjournment of Meetings.
 
(a)           Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of one or more series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.  Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 1.05 and the appointment of any proxy shall be proved in the manner specified in Section 1.05.  Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.05 or other proof.

 
50
 
 
(b)           The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 11.02(b), in which case the Company or the Holders of Securities of the series calling the meeting (voting as a single class if there is more than one such series), as the case may be, shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote at least a majority in principal amount of the outstanding Securities of such series (voting as a single class if there is more than one such series) represented at the meeting.
 
(c)           At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $25 principal amount of the outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding.  The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
 
(d)           Any meeting of Holders of Securities of any series duly called pursuant to Section 11.02 at which a quorum is present may be adjourned from time to time by Persons entitled to vote at least a majority in principal amount of the outstanding Securities of such series represented (voting as a single class if there is more than one such series) at the meeting; and the meeting may be held as so adjourned without further notice.
 
Section 11.06.
Counting Votes and Recording Action of Meetings.
 
The vote upon any resolution submitted to any meeting of Holders of Securities of any one or more series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the outstanding Securities of such series held or represented by them.  The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting.  A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any one or more series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 11.02 and, if applicable, Section 11.04.  Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.  Any record so signed and verified shall be conclusive evidence of the matters therein stated.

 
51
 
 
Section 11.07.
Article Subject to Other Provisions.
 
Each provision of this Article 11 (whether or not expressly so stated) is subject to any other provision of this Indenture (or any Board Resolution, Officers’ Certificate or supplemental indenture establishing a series of Securities hereunder) that provides that Securities of different series constitute a single class.
 
ARTICLE 12.
MISCELLANEOUS
 
Section 12.01.
Trust Indenture Act Controls.
 
This Indenture is subject to the provisions of the TIA that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
 
Section 12.02.
Notices.
 
Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the others’ address:
 
 
If to the Company:
Kulicke and Soffa Industries, Inc.
 
1005 Virginia Drive
 
Fort Washington, PA 19034
 
Facsimile No.: (215) 784-6001
 
Attention: David J. Anderson
 
 
If to the Trustee:
[__________________]
 
The Company or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.
 
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged or confirmed , if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
 
Any notice or communication to a Holder shall be mailed by first class mail or by overnight courier guaranteeing next day delivery to its address shown on the register kept by the Registrar.  Any notice or communication shall also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA.  Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
 
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

 
52
 
 
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
 
Section 12.03.
Communication by Holders of Securities with Other Holders of Securities.
 
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Securities.  The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
 
Section 12.04.
Certificate and Opinion as to Conditions Precedent.
 
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
 
(a)           an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
 
(b)           an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
 
Section 12.05.
Statements Required in Certificate or Opinion.
 
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
 
(a)           a statement that the Person making such certificate or opinion has read such covenant or condition;
 
(b)           a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
(c)           a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
 
(d)           a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
 
Section 12.06.
Rules by Trustee and Agents.
 
The Trustee may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
 
53
 
Section 12.07.
No Personal Liability of Directors, Officers, Employees and Stockholders.
 
No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, shall have any liability for any obligations of the Company under the Securities, this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of Securities by accepting a Security waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Securities.
 
Section 12.08.
Governing Law.
 
THE INTERNAL LAW OF THE STATE OF [NEW YORK] SHALL GOVERN AND BE USED TO CONSTRUE AND ENFORCE THIS INDENTURE AND THE SECURITIES.
 
Section 12.09.
No Adverse Interpretation of Other Agreements.
 
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
 
Section 12.10.
Successors.
 
All agreements of the Company in this Indenture and the Securities shall bind its successors.  All agreements of the Trustee in this Indenture shall bind its successors.
 
Section 12.11.
Severability.
 
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 12.12.
Counterpart Originals.
 
The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  This Indenture will be effective when each party shall have signed and delivered (including delivery by facsimile transmission), one or more counterparts to the other, but it shall not be necessary for both parties to sign the same counterpart.
 
Section 12.13.
Table of Contents, Headings, Etc.
 
The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
 
[Signature Page Follows]

 
54
 
 
SIGNATURES
 
IN WITNESS WHEREOF, the parties have executed this Indenture as of the date first written above.
 
KULICKE AND SOFFA INDUSTRIES, INC.
 
By
  
Name:
Title:
 
[__________________________________________________],
as Trustee
 
By
  
Name:
Title:

 
55
 

TABLE OF CONTENTS

   
Page
     
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
1
Section 1.01.
Definitions
1
Section 1.02.
Other Definitions
6
Section 1.03.
Incorporation By Reference of Trust Indenture Act
6
Section 1.04.
Rules of Construction
6
Section 1.05.
Acts of Holders
7
ARTICLE 2.
THE SECURITIES
7
Section 2.01.
Form and Dating
7
Section 2.02.
Amount Unlimited; Issuable in Series
9
Section 2.03.
Denominations
12
Section 2.04.
Execution and Authentication
12
Section 2.05.
Registrar and Paying Agent; Appointment of Depositary
13
Section 2.06.
Paying Agent to Hold Money in Trust
13
Section 2.07.
Holder Lists
13
Section 2.08.
Transfer and Exchange
14
Section 2.09.
Replacement Securities
17
Section 2.10.
Outstanding Securities
17
Section 2.11.
Treasury Securities
18
Section 2.12.
Temporary Securities
18
Section 2.13.
Cancellation
18
Section 2.14.
Defaulted Interest
18
ARTICLE 3.
REDEMPTION AND PREPAYMENT
19
Section 3.01.
Applicability of Article
19
Section 3.02.
Selection of Securities to be Redeemed
19
Section 3.03.
Notice of Redemption
19
Section 3.04.
Effect of Notice of Redemption
20
Section 3.05.
Deposit of Redemption or Purchase Price
20
Section 3.06.
Securities Redeemed or Purchased in Part
21
Section 3.07.
Mandatory Redemption; Sinking Fund
21
ARTICLE 4.
COVENANTS
23
Section 4.01.
Payment of Securities
23
Section 4.02.
Maintenance of Office or Agency
23
Section 4.03.
Reports
23
Section 4.04.
Compliance Certificate
24
Section 4.05.
Continued Existence
25
Section 4.06.
Stay, Extension and Usury Laws
25
Section 4.07.
No Senior Subordinated Debt
25
ARTICLE 5.
SUCCESSORS
25
Section 5.01.
Merger, Consolidation, or Sale of Assets
25
Section 5.02.
Successor Person Substituted
26
ARTICLE 6.
DEFAULTS AND REMEDIES
26
Section 6.01.
Events of Default
26
Section 6.02.
Acceleration
28
 
 
i
 

TABLE OF CONTENTS
(continued)

   
Page
     
Section 6.03.
Other Remedies
28
Section 6.04.
Waiver of Past Defaults; Rescission of Acceleration
28
Section 6.05.
Control by Majority
28
Section 6.06.
Limitation On Suits
29
Section 6.07.
Rights of Holders of Securities to Receive Payment
29
Section 6.08.
Collection Suit by Trustee
29
Section 6.09.
Trustee May File Proofs of Claim
30
Section 6.10.
Priorities
30
Section 6.11.
Undertaking for Costs
31
ARTICLE 7.
TRUSTEE
31
Section 7.01.
Duties of Trustee
31
Section 7.02.
Rights of Trustee
32
Section 7.03.
Individual Rights of Trustee
32
Section 7.04.
Trustee’s Disclaimer
33
Section 7.05.
Notice of Defaults
33
Section 7.06.
Reports by Trustee to Holders of the Securities
33
Section 7.07.
Compensation and Indemnity
33
Section 7.08.
Replacement of Trustee
34
Section 7.09.
Successor Trustee by Merger, etc
35
Section 7.10.
Eligibility; Disqualification
36
Section 7.11.
Preferential Collection of Claims Against Company
36
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE; SATISFACTION AND DISCHARGE
36
Section 8.01.
Option to Effect Legal Defeasance or Covenant Defeasance; Alternative Satisfaction and Discharge
36
Section 8.02.
Legal Defeasance and Discharge
37
Section 8.03.
Covenant Defeasance
38
Section 8.04.
Conditions to Legal or Covenant Defeasance
38
Section 8.05.
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
39
Section 8.06.
Repayment to Company
40
Section 8.07.
Reinstatement
40
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
41
Section 9.01.
Without Consent of Holders of Securities
41
Section 9.02.
With Consent of Holders of Securities
42
Section 9.03.
Compliance With Trust Indenture Act
43
Section 9.04.
Revocation and Effect of Consents
43
Section 9.05.
Notation On or Exchange of Securities
44
Section 9.06.
Trustee to Sign Amendments, Etc
44
ARTICLE 10.
SUBORDINATION
44
Section 10.01.
Agreement to Subordinate
44
Section 10.02.
Certain Definitions
45
Section 10.03.
Liquidation; Dissolution; Bankruptcy
45

 
ii
 

TABLE OF CONTENTS
(continued)

   
Page
     
Section 10.04.
Default On Designated Senior Debt
45
Section 10.05.
Acceleration of Securities
46
Section 10.06.
When Distribution Must Be Paid Over
46
Section 10.07.
Notice by Company
47
Section 10.08.
Subrogation
47
Section 10.09.
Relative Rights
47
Section 10.10.
Subordination May Not Be Impaired By Company
47
Section 10.11.
Distribution or Notice to Representative
48
Section 10.12.
Rights of Trustee and Paying Agent
48
Section 10.13.
Authorization to Effect Subordination
48
ARTICLE 11.
MEETINGS OF HOLDERS
49
Section 11.01.
Purposes for Which Meeting May be Called
49
Section 11.02.
Call, Notice and Place of Meetings
49
Section 11.03.
Persons Entitled to Vote at Meetings
49
Section 11.04.
Quorum; Action
50
Section 11.05.
Determination of Voting Rights; Conduct and Adjournment of Meetings
50
Section 11.06.
Counting Votes and Recording Action of Meetings
51
Section 11.07.
Article Subject to Other Provisions
52
ARTICLE 12.
MISCELLANEOUS
52
Section 12.01.
Trust Indenture Act Controls
52
Section 12.02.
Notices
52
Section 12.03.
Communication by Holders of Securities with Other Holders of Securities
53
Section 12.04.
Certificate and Opinion as to Conditions Precedent
53
Section 12.05.
Statements Required in Certificate or Opinion
53
Section 12.06.
Rules by Trustee and Agents
53
Section 12.07.
No Personal Liability of Directors, Officers, Employees and Stockholders
54
Section 12.08.
Governing Law
54
Section 12.09.
No Adverse Interpretation of Other Agreements
54
Section 12.10.
Successors
54
Section 12.11.
Severability
54
Section 12.12.
Counterpart Originals
54
Section 12.13.
Table of Contents, Headings, Etc
54

 
iii
 

Exhibit A-1
 
(Face of Note)
 
__% [Series__] Senior Subordinated Note due [_____]
 
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
 
   
     
No:
  
$______________

KULICKE AND SOFFA INDUSTRIES, INC.
 
promises to pay to ______________ or registered assigns, the principal sum of ______________
 
Dollars on _____________.
 
Interest Payment Dates: _____________.
 
Record Dates: _____________.
 
KULICKE AND SOFFA INDUSTRIES,
INC.
 
By:
  
Name:
Title:
 
This is one of the
Notes referred to in the
within-mentioned Indenture:

  
as Trustee
 
By:
  
Authorized Officer

 
 
 
(Back of Note)
 
__% [Series __] Senior Subordinated Note due [____]
 
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1.           Interest.  Kulicke and Soffa Industries, Inc., a Pennsylvania corporation (the “Company”), promises to pay interest on the principal amount of this Note at __% per annum from  [__________] until maturity.  The Company will pay interest [__________] on _________ and _________ of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”).  Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be ___________.  The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful.  Interest will be computed on the basis of a 360-day year of twelve 30-day months.
 
2.           Method of Payment.  The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the ________ or ________ next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Indenture with respect to defaulted interest.  The Notes will be payable as to principal, premium and interest at the office or agency of the Company maintained for such purpose within or without the [____________], provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent.  Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
 
3.           Paying Agent and Registrar.  Initially, _____________________, the Trustee under the Indenture, will act as Paying Agent and Registrar.  The Company may change any Paying Agent or Registrar without notice to any Holder.  The Company may act in any such capacity.

 
- 2 - -
 

4.           Indenture.  The Company issued the Notes under an Indenture dated as of _____________ (the “Indenture”) between the Company and the Trustee.  The terms of the Notes include those stated in the Indenture and in [a Supplemental Indenture] [resolutions of [the [___] Committee of ] the Company’s Board of Directors] [an Officers’ Certificate] dated  , and those terms made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”).  The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms.  The Notes are general obligations of the Company.  “Notes” means this Note and all other Notes of the series of which this Note is a part.  The Notes are “Securities” within the meaning of the Indenture, and references in the Indenture to “Securities” (including terms such as “Global Securities”) include the Notes (and any “Global Notes” as used herein).
 
5.           Optional Redemption.
 
[(a)]       The Notes will not be redeemable at the Company’s option prior to _____________.  The Notes may be redeemed, in whole or in part, at the option of the Company on or after _____________, at the redemption prices specified below (expressed as percentages of the principal amount thereof), in each case, together with accrued and unpaid interest thereon to the date of redemption, upon not less than 30 nor more than 60 days’ notice, if redeemed during the twelve-month period beginning on ___________ of the years indicated below:
 
 
Year
  
Redemption
Price
  
         
         
         
         
 
[(b)        Notwithstanding the foregoing, prior to ____________, the Company may, on any one or more occasions, use the net proceeds of one or more offerings of its capital stock to redeem up to __% of the aggregate principal amount of all Notes that had been issued under the Indenture up to the time of redemption at a redemption price of __% the principal amount of the Notes redeemed, plus accrued and unpaid interest, to the date of redemption; provided that, after any such redemption, the aggregate principal amount of the Notes outstanding (excluding Notes held by the Company and its Subsidiaries) must equal at least __% of the Notes that had been issued under the Indenture up to the time of redemption; and provided further, that any such redemption shall occur within 90 days of the date of closing of such offering of Capital Stock of the Company.]
 
6.           Mandatory Redemption.  [The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.] or [Describe mandatory redemption or sinking fund provisions.]

 
- 3 - -
 
 
7.           Notice of Redemption.  Notice of Redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address.  Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.  On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption.
 
8.           Denominations, Transfer, Exchange.  The Notes are in registered form without coupons in all appropriate denominations.  The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes, fees or expenses required by law or permitted by the Indenture.  The Company need not transfer or exchange any Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part.  Also, it need not transfer or exchange any Note for a period of 15 days before a selection of Notes to be redeemed.
 
9.           Persons Deemed Owners.  The registered Holder of a Note will be treated as its owner for all purposes.
 
10.         Amendment, Supplement and Waiver.  Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of a majority in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class), and any existing default or compliance with any provision of the Indenture, the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class).  Without the consent of any Holder of a Note, the Indenture or the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for Notes in coupon form, to provide for a successor trustee, to provide for the assumption of the Company’s obligations to Holders of the Notes in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the rights under the Indenture of any such Holder, or to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA.

 
- 4 - -
 

11.           Defaults and Remedies.  Each of the following constitutes an Event of Default:  (i) default by the Company in the payment of interest on the Notes when the same becomes due and payable and default continues for a period of 30 days; (ii) default by the Company in the payment of the principal of or premium, if any, on the Notes when the same becomes due and payable at maturity, upon redemption or otherwise; (iii) failure by the Company for 90 days after notice to comply with any of its other agreements in the Indenture or the Notes other than any agreements with respect to which a failure to observe or perform is dealt with otherwise in the Indenture or Notes or is expressly included in the Indenture or Notes solely for the benefit of a series of notes other than these Notes and (iv) certain events of bankruptcy or insolvency with respect to the Company.  Notwithstanding the foregoing, no Event of Default will have occurred under the Notes if the Company fails to file timely any annual report or information, document or other report that it is required to be filed with the SEC.  If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class) may declare all the Notes to be due and payable immediately.  Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Company, all outstanding Notes will become due and payable without further action or notice.  Holders of the Notes may not enforce the Indenture or the Notes except as provided in the Indenture.  Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class) may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest.  The Holders of a majority in aggregate principal amount of the Notes and other series of Securities affected (treating the Notes and such other series as a single class) then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of principal, interest or premium on the Notes.  The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
 
12.           Subordination.  Each Holder by accepting a Note agrees that the payment of principal of, premium and interest on each Note is subordinated in right of payment, to the extent and in the manner provided in the Indenture, to the prior payment in full of all Senior Debt (whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt.
 
13.           Trustee Dealings with the Company.  The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
 
14.           No Recourse Against Others.  No director, officer, employee, incorporator or stockholder of the Company shall have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for the issuance of the Notes.
 
15.           Authentication.  This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
 
16.           Abbreviations.  Customary abbreviations may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 
- 5 - -
 
 
17.           CUSIP Numbers.  Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders.  No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
 
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture.  Requests may be made to:
 
Kulicke and Soffa Industries, Inc.
1005 Virginia Drive
Fort Washington, PA 19034
Attention:  David J. Anderson

 
- 6 - -
 

Assignment Form
 
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
 

(Insert assignee’s soc. sec. or tax I.D. no.)
 
 
 
 
 
 
 
 
(Print or type assignee’s name, address and zip code)
 
and irrevocably appoint _________________________________________________________ to transfer this Note on the books of the Company.  The agent may substitute another to act for him.

 

Date: ________________

Your Signature:
  
(Sign exactly as your name appears
on the face of this Note)
 
Signature Guarantee.

 
- 7 - -
 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
 
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Certificated Note, or exchanges of a part of another Global Note or Certificated Note for an interest in this Global Note, have been made:
 
Date of
Exchange
  
Amount of
decrease in
Principal
Amount of this
Global Note
    
Amount of
increase in
Principal
Amount of this
Global Note
    
Principal
Amount of
this Global Note
following such
decrease
(or increase)
    
Signature of
authorized
officer of
Trustee or
Note Custodian
  
                                 
                                 

 
- 8 - -
 
EX-4.VI 5 v153715_ex4vi.htm

Exhibit 4(vi)

KULICKE AND SOFFA INDUSTRIES, INC.
________________________
 
SUBORDINATED
INDENTURE

Dated as of ________________

Providing for Issuance of Subordinated Debt Securities in Series

________________________
________________________
 
[______________________]
as Trustee
________________________
 
 
 
 

Reconciliation and Tie Between the Trust Indenture Act of 1939 and Indenture dated as of ___________, between Kulicke and Soffa Industries, Inc. and [____________], as Trustee.
 
TIA Section
  
Indenture Section
  
       
310(a)(1)
    
7.10
  
310(a)(2)
    
7.10
  
310(a)(3)
    
N/A
  
310(a)(4)
    
N/A
  
310(a)(5)
    
7.10
  
310(b)
    
7.03, 7.08, 7.10
  
310(c)
    
N/A
  
311(a)
    
7.11
  
311(b)
    
7.11
  
311(c)
    
N/A
  
312(a)
    
2.07
  
312(b)
    
12.03
  
312(c)
    
12.03
  
313(a)
    
7.06
  
313(b)
    
7.06
  
313(c)
    
7.06, 12.02
  
313(d)
    
7.06
  
314(a)
    
4.03, 4.04
  
314(b)
    
N/A
  
314(c)
    
4.04, 12.05
  
314(d)
    
N/A
  
314(e)
    
12.05
  
314(f)
    
N/A
  
315(a)
    
7.01
  
315(b)
    
7.05
  
315(c)
    
7.01
  
315(d)
    
7.01
  
315(e)
    
6.11
  
316(a)(1)
    
6.04, 6.05
  
316(a)(2)
    
N/A
  
316(a) last sentence
    
2.11
  
316(b)
    
6.07
  
317(a)
    
6.08, 6.09
  
317(b)
    
2.06
  
318(a)
    
12.01
  
318(c)
    
12.01
  

*Note:
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture
 
 
i
 

INDENTURE dated as of __________________ between Kulicke and Soffa Industries, Inc., a Pennsylvania corporation, and [________________], as Trustee.
 
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its secured or unsecured subordinated debentures, notes, bonds or other evidences of indebtedness (“Securities”) to be issued in one or more series as herein provided.
 
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
 
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders of the Securities:
 
ARTICLE 1
 
DEFINITIONS AND INCORPORATION
BY REFERENCE
 
Section 1.01
Definitions.
 
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided, however, that beneficial ownership of 10% or more of the voting securities of a Person shall be deemed to be control.
 
“Agent” means any Registrar or Paying Agent.
 
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
 
“Board” or “Board of Directors” means the Board of Directors of the Company or any authorized committee of the Board of Directors.
 
“Board Resolution” means a resolution of the Board of Directors.
 
“Business Day” means any day other than a Legal Holiday.
 
“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized on a balance sheet in accordance with GAAP.
 
“Code” means the Internal Revenue Code of 1986, as amended.

 
1
 

 “Company” means Kulicke and Soffa Industries, Inc., a Pennsylvania corporation, and any and all successors thereto.
 
“Corporate Trust Office of the Trustee” shall be the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.
 
“Credit Facility” means any principal bank or institutional credit facility of the Company identified in any supplemental indenture establishing a series of Securities, including any amendment, supplement, modification, restatement, replacement, refunding or refinancing.
 
“Custodian” means the Trustee, as custodian with respect to Securities in global form, or any successor entity thereto.
 
“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
 
“Depositary” means, with respect to any series of Securities issuable or issued in whole or in part in global form, the Person specified in Section 2.05 hereof as the Depositary with respect to the Global Securities of that series, and any and all successors thereto registered and in good standing as a clearing agency under the Exchange Act, appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
“GAAP” means United States generally accepted accounting principles.
 
“Global Securities” means, individually and collectively, the Securities issued in global form issued in accordance with Sections 2.01 and 2.08 hereof.
 
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under (i) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements and (ii) other agreements or arrangements designed to protect such Person against fluctuations in interest rates.
 
“Holder” means a Person in whose name a Security is registered.

 
2
 

“Indebtedness” means, with respect to any Person, any indebtedness of such Person, whether or not contingent, in respect of borrowed money or evidenced by bonds, securities, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) or banker’s acceptances or representing any Capital Lease Obligations or the balance deferred and unpaid of the purchase price of any property or representing any Hedging Obligations, except any such balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, as well as all indebtedness of others secured by a lien on any asset of such Person (whether or not such indebtedness is assumed by such Person) and, to the extent not otherwise included, the guarantee by such Person of any indebtedness of any other Person.  The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations at such date; provided that the amount outstanding at any time of any Indebtedness issued with original issue discount is the full amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with GAAP.  The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof, in the case of any Indebtedness issued with original issue discount and (ii) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.
 
“Indenture” means this Subordinated Indenture, as amended and restated hereby or as amended, waived or supplemented from time to time and shall include and incorporate by reference the forms and terms of particular series of Securities established as contemplated hereunder.
 
“Indirect Participant” means a Person who holds a beneficial interest in a Global Security through a Participant.
 
“Interest Payment Date” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
 
“Legal Holiday” means a Saturday, a Sunday or a day on which  banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed.  If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.
 
“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable (1) under this Indenture or the applicable Securities, or (2) under Senior Debt.
 
“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Principal Accounting Officer, the Secretary, any Assistant Secretary, any Vice President or any Assistant Vice President of such Person.
 
“Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements of Section 12.05 hereof.
 
“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.05 hereof.  The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.
 
 
3
 

“Pari Passu Series” means, with reference to any series of Securities, all series of Securities (including the referent series) that by their terms rank on a parity in right of payment with the referent series, except that no series that is convertible into equity securities of the Company is a Pari Passu Series with reference to any series that is not so convertible.
 
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.   “Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or agency or political subdivision thereof.   “Responsible Officer” when used with respect to the Trustee, means any officer within the Corporate Trust Trustee Administration department of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
 
“SEC” means the Securities and Exchange Commission.
 
“Securities” has the meaning assigned to it in the preamble to this Indenture.
 
“Securities Act” means the Securities Act of 1933, as amended.
 
“Senior Bank Debt” means the Indebtedness (including letters of credit) outstanding under the Credit Facility as such agreement may be restated, further amended, supplemented or otherwise modified or replaced from time to time hereafter, together with any refunding or replacement of such Indebtedness.
 
“Senior Debt” means any Indebtedness unless the instrument under which such Indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the Securities.  Without limiting the generality of the foregoing, Senior Debt includes Obligations under the Credit Facility, Obligations under the Senior Indenture, Obligations under the Senior Subordinated Indenture, and Obligations under any securities issued under the Senior Indenture or the Senior Subordinated Indenture.  Notwithstanding anything to the contrary in the foregoing, Senior Debt will not include (a) any liability for federal, state, local or other taxes owed or owing by the Company, (b) any Indebtedness of the Company to any of its Subsidiaries or other Affiliates, (c) any trade payables or (d) any Indebtedness that is incurred in violation of this Indenture.
 
“Senior Indenture” means the Senior Indenture dated the date hereof between the Company and [_______________], as Trustee, as amended, modified or supplemented from time to time.
 
“Senior Subordinated Indenture” means the Senior Subordinated Indenture dated the date hereof between the Company and [_____________], as Trustee, as amended, modified or supplemented from time to time.
 
 
4
 
 
“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.
 
“Stated Maturity” means, with respect to any interest or principal on any series of Securities, the date on which such payment of interest or principal is scheduled to be paid thereon by its terms as in effect from time to time, and does not include any contingent obligation to repay, redeem or repurchase any such interest or principal prior to the date scheduled for the payment thereof.
 
“Subsidiary” means, with respect to any Person, (i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of capital stock or other equity interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof) and (ii) any partnership (a) the sole general partner or the managing general partner of which is such a Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof.)
 
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C.  §§ 77aaa-77bbbb as amended) as in effect on the date on which this Indenture is qualified under the TIA.
 
“Trustee” means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
 
“U.S. Government Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a 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.

 
5
 

Section 1.02
Other Definitions.
 
 
Term
Defined in
Section
   
Act
1.05
   
“Authentication Order”
2.04
   
“Covenant Defeasance”
8.03
   
“custodian”
6.01
   
“Designated Senior Debt”
10.02
   
“distribution”
10.02
   
“Event of Default”
6.01
   
“Legal Defeasance”
8.02
   
“mandatory sinking fund payment”
3.07
   
“Notice of Default”
6.01
   
“optional sinking fund payment”
3.07
   
“Outstanding”
8.02
   
“Paying Agent”
2.05
   
“Payment Blockage Notice”
10.04
   
“Registrar”
2.05
   
“Representative”
10.02
   
“sinking fund payment date”
3.07
 
Section 1.03
Incorporation by Reference of Trust Indenture Act.
 
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
 
The following TIA terms used in this Indenture have the following meanings:
 
“indenture security holder” means a Holder of a Security;
 
“indenture to be qualified” means this Indenture;

 
6
 

“indenture trustee” or “institutional trustee” means the Trustee;
 
“obligor” on the Securities means the Company and any successor obligor upon the Securities.
 
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the meanings so assigned to them.
 
Section 1.04
Rules of Construction.
 
For the purposes of this Indenture, unless the context otherwise requires:
 
(1)           a term has the meaning assigned to it;
 
(2)           an accounting term not otherwise defined has the meaning assigned to it in accordance with United States generally accepted accounting principles;
 
(3)           “or” is not exclusive;
 
(4)           words in the singular include the plural, and in the plural include the singular;
 
(5)           provisions apply to successive events and transactions; and
 
(6)           references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time.
 
Section 1.05
Acts of Holders.
 
(a)       Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders, in person or by an agent duly appointed in writing or may be embodied in and evidenced by the record of Holders voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders duly called and held in accordance with the provisions of Article 11, or a combination of such instruments or record and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or instruments and so voting at any such meeting.  Proof of execution of any such instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section and Section 11.06.  The record of any meeting of Holders shall be proved in the manner provided in Section 11.06.

 
7
 
 
(b)       Without limiting the generality of this Section, unless otherwise provided in or pursuant to this Indenture, a Holder, including a Depositary that is a Holder of a Global Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security through such Depositary’s standing instructions and customary practices.
 
(c)       The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
 
(d)       The ownership of Securities shall be proved by the Register.
 
ARTICLE 2
 
THE SECURITIES
 
Section 2.01
Form and Dating.
 
(a)       General.  The Securities of each series shall be in substantially such form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any applicable securities exchange, organizational document, governing instrument or law or as may, consistently herewith, be determined by the officers executing such Securities as evidenced by their execution of the Securities.  If temporary Securities of any series are issued as permitted by Section 2.12, the form thereof also shall be established as provided in the preceding sentence.  If the forms of Securities of any series are established by, or by action taken pursuant to, a Board Resolution, a copy of the Board Resolution, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, together with an appropriate record of any such action taken pursuant thereto, including a copy of the approved form of Securities shall be delivered to the Trustee at or prior to the delivery of the Authentication Order contemplated by Section 2.04 for the authentication and delivery of such Securities.  The Trustee’s certificate of authentication shall be in substantially the following form:
 
This is one of the Securities of the series described in the within-mentioned Indenture.
 
    
,
 
as Trustee
 
By:
   
 
Authorized Signatory
 
 
8
 

(b)       Global Securities.  If Securities of or within a series are issuable in whole or in part in global form, any such Security may provide that it shall represent the aggregate or specified amount of outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased to reflect exchanges.  Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of outstanding Securities represented thereby, shall be made in such manner and by such Person or Persons as shall be specified therein or upon the written order of the Company signed by an Officer to be delivered to the Trustee pursuant to Section 2.04 or 2.12.  Subject to the provisions of Section 2.04, Section 2.12, if applicable, and Section 2.08, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable written order of the Company signed by an Officer.  Any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing.
 
The provisions of the last paragraph of Section 2.04 shall apply to any Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with a written instructions with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last paragraph of Section 2.04.
 
Notwithstanding the provisions of this Section 2.01, unless otherwise specified as contemplated by Section 2.02, payment of principal of, premium, if any, and interest on any Security in permanent global form shall be made to the Holder thereof.
 
Section 2.02
Amount Unlimited; Issuable in Series.
 
(a)       The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.  The Securities may be issued from time to time in one or more series.
 
(b)       The following matters shall be established with respect to each series of Securities issued hereunder (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and set forth, or determined in the manner provided, in an Officers’ Certificate or (iii) in one or more indentures supplemental hereto:
 
(1)           the title of the Securities of the series (which title shall distinguish the Securities of the series from all other series of Securities);
 
(2)           any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (which limit shall not pertain to Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.12, 3.06 or 9.05 or any Securities that, pursuant to Section 2.04, are deemed never to have been authenticated and delivered hereunder);
 
(3)           the date or dates on which the principal of and premium, if any, on the Securities of the series is payable or the method or methods of determination thereof;
 
 
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(4)           the rate or rates at which the Securities of the series shall bear interest, if any, or the method or methods of calculating such rate or rates of interest, the date or dates from which such interest shall accrue or the method or methods by which such date or dates shall be determined, the Interest Payment Dates on which any such interest shall be payable, the right, if any, of the Company to defer or extend an Interest Payment Date, the record date, if any, for the interest payable on any Security on any Interest Payment Date, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
 
(5)           the place or places where the principal of, premium, if any, and interest, if any, on Securities of the series shall be payable, any Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served and notices to Holders pursuant to Section 12.02 will be published;
 
(6)           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 may be redeemed, in whole or in part, at the option of the Company and, if other than as provided in Section 3.03, the manner in which the particular Securities of such series (if less than all Securities of such series are to be redeemed) are to be selected for redemption;
 
(7)           the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event 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 or purchased, in whole or in part, pursuant to such obligation;
 
(8)           if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
 
(9)           if other than U.S. dollars, the currency or currencies (including currency unit or units) in which the principal of, premium, if any, and interest, if any, on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated, and the particular provisions applicable;
 
(10)           if the payments of principal of, premium, if any, or interest, if any, on the Securities of the series are to be made, at the election of the Company or a Holder, in a currency or currencies (including currency unit or units) other than that in which such Securities are denominated or designated to be payable, the currency or currencies (including currency unit or units) in which such payments are to be made, the terms and conditions of such payments and the manner in which the exchange rate with respect to such payments shall be determined, and the particular provisions applicable thereto;
 
 
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(11)           if the amount of payments of principal of, premium, if any, and interest, if any, on the Securities of the series shall be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on a currency or currencies (including currency unit or units) other than that in which the Securities of the series are denominated or designated to be payable), the index, formula or other method by which such amounts shall be determined and any special voting or defeasance provisions in connection therewith;
 
(12)           if other than the principal amount thereof, the portion of the principal amount of such Securities of the series which shall be payable upon declaration of acceleration thereof pursuant to Section 6.02 or the method by which such portion shall be determined;
 
(13)           the Person to whom any interest on any Security of the series shall be payable;
 
(14)           provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;
 
(15)           any deletions from, modifications of or additions to the Events of Default set forth in Section 6.01 or covenants of the Company set forth in Article 4 pertaining to the Securities of the series;
 
(16)           under what circumstances, if any, and with what procedures and documentation the Company will pay additional amounts on the Securities of that series held by a Person who is not a U.S. Person (including any definition of such term) in respect of taxes, assessments or similar charges withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts (and the terms of any such option);
 
(17)           the forms of the Securities of the series;
 
(18)           the applicability, if any, to the Securities of the series of Sections 8.02 and 8.03, or such other means of defeasance or covenant defeasance as may be specified for the Securities of such series;
 
(19)           if other than the Trustee, the identity of the Registrar and any Paying Agent;
 
(20)           if the Securities of the series shall be issued in whole or in part in global form, (A) the Depositary for such Global Securities, (B) whether beneficial owners of interests in any Securities of the series in global form may exchange such interests for certificated Securities of such series, to be registered in the names of or to be held by such beneficial owners or their nominees and to be of like tenor of any authorized form and denomination, and (C) if other than as provided in Section 2.08, the circumstances under which any such exchange may occur;
 
(21)           the designation of the Depositary;
 
(22)           any restrictions on the registration, transfer or exchange of the Securities;

 
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(23)           if the Securities of the series may be issued or delivered (whether upon original issuance or upon exchange of a temporary Security of such series or otherwise), or any installment of principal or interest is payable, only upon receipt of certain certificates or other documents or satisfaction of other conditions in addition to those specified in this Indenture, the form and terms of such certificates, documents or conditions;
 
(24)           the terms and conditions of any right to convert, exercise or exchange Securities of the series into or for other securities or property of the Company, including whether conversion, exercise or exchange is mandatory, at the option of the Holder or at the option of the Company;
 
(25)           whether the Securities are secured or unsecured, and if secured, the security and related terms in connection therewith;
 
(26)           any modification of the subordination provisions of this Indenture (including applicable definitions) that are to apply to Securities of the series; and
 
(27)           any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture) including any terms which may be required by or advisable under United States laws or regulations or advisable (as determined by the Company) in connection with the marketing of Securities of the series.
 
(c)       All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and set forth, or determined in the manner provided, in the related Officers’ Certificate or (iii) in an indenture supplemental hereto.  All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.
 
(d)       If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of such Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth, or providing the manner for determining, the terms of the Securities of such series, and an appropriate record of any action taken pursuant thereto in connection with the issuance of any Securities of such series shall be delivered to the Trustee prior to the authentication and delivery thereof.
 
Section 2.03
Denominations.
 
Unless otherwise provided as contemplated by Section 2.02, Securities of a series denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any integral multiple thereof.  Securities denominated in a foreign currency shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.
 
Section 2.04
Execution and Authentication.
 
An Officer shall sign the Securities for the Company by manual or facsimile signature.
 
 
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If an Officer whose signature is on a Security no longer holds that office at the time a Security is authenticated, the Security shall nevertheless be valid.
 
A Security shall not be valid until authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
 
The Trustee shall, upon a written order of the Company signed by an Officer (an “Authentication Order”), together with an Officers’ Certificate and an Opinion of Counsel, authenticate Securities for original issue in the aggregate principal amount stated in the Authentication Order.  The Officers’ Certificate and Opinion of Counsel shall each state that all conditions precedent provided for or relating to the issuance of such Securities have been complied with.
 
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities.  An authenticating agent may authenticate Securities whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.
 
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.13 together with a written statement 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 not be entitled to the benefits of this Indenture.
 
Section 2.05
Registrar and Paying Agent; Appointment of Depositary.
 
The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Securities may be presented for payment (“Paying Agent”).  The Registrar shall keep a register of the Securities and of their transfer and exchange.  The Company may appoint one or more co-registrars and one or more additional paying agents.  The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.  The Company may change any Paying Agent or Registrar without notice to any Holder.  The Company shall promptly notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.  If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.  The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
 
The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Securities.
 
The Company initially appoints the Trustee to act as the Registrar and Paying Agent with respect to the Securities and to act as Custodian with respect to the Global Securities.

 
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Section 2.06
Paying Agent to Hold Money in Trust.
 
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Securities or other payment in respect of the Securities or otherwise held by it as Paying Agent, and will notify the Trustee of any default by the Company in making any such payment when due.  While any such default continues, the Trustee may require a Paying Agent to pay all money 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 (if other than the Company or a Subsidiary) shall have no further liability for the money.  If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Securities.
 
Section 2.07
Holder Lists.
 
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a).  If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Securities, and the Company shall otherwise comply with TIA § 312(a).
 
Section 2.08
Transfer and Exchange.
 
(a)       Upon surrender for registration of transfer of any certificated Security of any series at the office or agency maintained pursuant to Section 4.02 in a place of payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new certificated Securities of the same series, of any authorized denominations and of a same aggregate principal amount and like tenor and containing identical terms and provisions.
 
(b)       At the option of the Holder, Securities of any series (except a Security in global form) may be exchanged for other Securities of the same series, of any authorized denominations, of a same aggregate principal amount and like tenor and containing identical terms and provisions, upon surrender of the Securities to be exchanged at such office or agency.  Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
 
(c)        Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in certificated form, a Security in global form representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
 
 
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(d)       If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be registered and in good standing as a clearing agency under the Exchange Act, the Company shall appoint a successor Depositary with respect to the Securities of such series.  If a successor Depositary for the Securities of such series is not appointed by the Company prior to the resignation of the Depositary and, in any event, within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s designation of the Depositary pursuant to Section 2.02(b)(21) shall no longer be effective with respect to the Securities of such series and the Company shall execute, and the Trustee, upon receipt of an Authentication Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.
 
(e)        The Company may at any time in its sole discretion determine that all (but not less than all) Securities of a series issued in global form shall no longer be represented by such a Security or Securities in global form.
 
In such event the Company shall execute, and the Trustee, upon receipt of an Authentication Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.
 
(f)        If specified by the Company pursuant to Section 2.02 with respect to a series of Securities, the Depositary for such series may surrender a Security in global form of such series in exchange in whole or in part for Securities of such series in certificated form on such terms as are acceptable to the Company and such Depositary.  Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,
 
(i)           to each Person specified by such Depositary a new  certificated Security or Securities of the same series  of like tenor, 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 Security in global form; and
 
(ii)           to such Depositary a new Security in global form of  like tenor in a denomination equal to the difference, if any, between the principal amount of the  surrendered Security in global form and the aggregate  principal amount of certificated Securities delivered  to Holders thereof.

 
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(g)       Upon the exchange of a Security in global form for Securities in certificated form, such Security in global form shall be canceled by the Trustee.  Securities in certificated form issued in exchange for a Security in global form pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Security in global form, pursuant to instructions from its direct or Indirect Participants or otherwise, shall instruct the Trustee in writing.  The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
 
(h)       Whenever any Securities are 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.
 
(i)        All Securities issued upon any registration of transfer or upon any 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.
 
(j)        Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing.
 
(k)       No service charge shall be made for any registration of transfer or for any exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax, expense payable or other governmental charge that may be imposed in connection with any registration or transfer or exchange of Securities, other than exchanges pursuant to Section 2.12 or 3.06 not involving any transfer.
 
(l)        The Company shall not be required (i) to issue, register the transfer of, or exchange any Securities for a period beginning at the opening of business 15 days before any selection for redemption of Securities of like tenor and of the series of which such Security is a part and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of Securities of like tenor and of such series to be redeemed; 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.
 
(m)      The foregoing provisions relating to registration, transfer and exchange may be modified, supplemented or superseded with respect to any series of Securities by a Board Resolution or in one or more indentures supplemental hereto.
 
(n)       The following legend shall appear on the face of all Global Securities unless specifically stated otherwise in the applicable provision of this Indenture:
 
 
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“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE  INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE  BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND, UNLESS AND UNTIL IT IS  EXCHANGED FOR SECURITIES IN CERTIFICATED FORM IN ACCORDANCE WITH THE  INDENTURE, (I) IS NOT TRANSFERABLE EXCEPT AS A WHOLE BY THE DEPOSITARY TO A  NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE  DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR  ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR SUCCESSOR NOMINEE, AND (II) MAY NOT BE EXCHANGED OR CANCELLED EXCEPT IN THE LIMITED CIRCUMSTANCES  DESCRIBED IN THE INDENTURE.”
 
(o)       At such time as all beneficial interests in a particular Global Security have been exchanged for certificated Securities or a particular Global Security has been redeemed, repurchased or canceled in whole and not in part, each such Global Security shall be returned to or retained and canceled by the Trustee in accordance with Section 2.13 hereof.  At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security or for certificated Securities, the principal amount of Securities represented by such Global Security shall be reduced accordingly and an endorsement shall be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security, such other Global Security shall be increased accordingly and an endorsement shall be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
 
(p)       Prior to due presentment for the registration of a transfer of any Security, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of and interest on such Securities and for all other purposes, and neither the Trustee, any Agent nor the Company shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by any Depositary, as a Holder, with respect to such Global Security or impair, as between such Depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Global Security.
 
Section 2.09
Replacement Securities.
 
If any mutilated Security is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Security, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Security if the Trustee’s requirements are met.  If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Security is replaced.  The Company may charge for its expenses in replacing a Security.
 
 
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Every replacement Security is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Securities duly issued hereunder.
 
Section 2.10
Outstanding Securities.
 
The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding.  Except as set forth in Section 2.11 hereof, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
 
If a Security is replaced pursuant to Section 2.09 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a “protected purchaser” (within the meaning of Article 8 of the Uniform Commercial Code) or a Person with comparable status under other applicable law.
 
If the principal amount of any Security is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
 
If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Securities payable on that date, then on and after that date such Securities shall be deemed to be no longer outstanding and shall cease to accrue interest.
 
Section 2.11
Treasury Securities.
 
In determining whether the Holders of the required principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities that the Trustee knows are so owned shall be so disregarded.
 
Section 2.12
Temporary Securities.
 
Until certificates representing Securities are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate 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 and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities in exchange for temporary Securities.

 
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Holders of temporary Securities shall be entitled to all of the benefits of this Indenture.
 
Section2.13 
Cancellation.
 
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy canceled Securities (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Securities shall be delivered to the Company. The Company may not issue new Securities to replace Securities that it has paid or that have been delivered to the Trustee for cancellation.
 
Section 2.14
Defaulted Interest.
 
If the Company defaults in a payment of interest on the Securities, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Securities. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Security and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest.
 
At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
 
ARTICLE 3
 
REDEMPTION AND PREPAYMENT
 
Section 3.01
Applicability of Article.
 
The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.02 for Securities of such series.
 
Section 3.02
Selection of Securities to Be Redeemed.
 
If less than all of the Securities of any series are to be redeemed at any time, the Trustee shall select the Securities of such series to be redeemed among the Holders of the Securities of such series in compliance with the requirements of the principal national securities exchange, if any, on which the Securities of such series are listed or, if the Securities of such series are not so listed, to be redeemed among the Holders of Securities of such series on a pro rata basis, by lot or by such method as the Trustee deems fair and appropriate; provided that no Securities of $1,000 or less shall be redeemed in part. In the event of partial redemption by lot, the particular Securities of such series to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Securities of the series not previously called for redemption.
 
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The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed. Securities and portions of Securities selected shall be in amounts of $1,000 or whole multiples of $1,000; except that if all of the Securities of a series of a Holder are to be redeemed, the entire outstanding amount of Securities of such series held by such Holder, even if not a multiple of $1,000, shall be redeemed. A new Security of the same series in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Security. Securities called for redemption shall become due on the redemption date. On and after the redemption date, interest will cease to accrue on the Securities or portions of them called for redemption. Except as provided in this Section 3.02, provisions of this Indenture that apply to Securities called for redemption shall also apply to portions of Securities called for redemption.
 
Section 3.03
Notice of Redemption.
 
At least 30 days but not more than 60 days before a redemption date, the Company shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Securities are to be redeemed at its registered address.
 
The notice shall identify the Securities to be redeemed, including the series thereof, 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 must be surrendered to the Paying Agent to collect the redemption price;
 
(e)       that, unless the Company defaults in making such redemption payment, interest on Securities called for redemption will cease to accrue on and after the redemption date;
 
(f)        that any Security being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the redemption date upon surrender of such Security, a new Security or Securities of the same series in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original;
 
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(g)       the paragraph of the Securities and/or Section of this Indenture pursuant to which the Securities called for redemption are being redeemed; and  (h) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities.
 
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense; provided, however, that the Company shall have delivered to the Trustee, at least 30 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
 
Section 3.04
Effect of Notice of Redemption.
 
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Securities called for redemption become irrevocably due and payable on the redemption date at the redemption price.  A notice of redemption may not be conditional.
 
Section 3.05
Deposit of Redemption or Purchase Price.
 
Not later than 10:00 a.m., Eastern Time, on the Business Day immediately preceding any redemption date, the Company shall deposit with the Trustee or with the Paying Agent money in immediately available funds sufficient to pay the redemption or purchase price of and accrued interest, if any, on all Securities to be redeemed or purchased on that date.  The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Securities to be redeemed or purchased.
 
Section 3.06
Securities Redeemed or Purchased in Part.
 
Upon surrender of a Security that is redeemed or purchased in part, the Company shall issue and, upon the Company’s written request, the Trustee shall authenticate for the Holder at the expense of the Company a new Security of the same series equal in principal amount to the unredeemed or unpurchased portion of the Security surrendered.
 
Section 3.07
Mandatory Redemption; Sinking Fund.
 
The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Securities, unless otherwise specified in the terms of a particular series of Securities.  If a mandatory or optional sinking fund is specified in the terms of a particular series of Securities, the following provisions will apply thereto (unless otherwise specified):
 
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment, ” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.” The last date on which any such payment may be made is herein referred to as a “sinking fund payment date.”
 
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In lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series theretofore purchased by the Company and (b) may apply as a credit Securities of that series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of optional sinking fund payments pursuant to the next succeeding paragraph, in each case in satisfaction of all or any part of any mandatory sinking fund payment, provided that such Securities have not been previously so credited.  Each such Security so delivered or applied as a credit shall be credited at the sinking fund redemption price for such Securities and the amount of any mandatory sinking fund shall be reduced accordingly.  If the Company intends so to deliver or credit such Securities with respect to any mandatory sinking fund payment it shall deliver to the Trustee at least 30 days prior to the next succeeding sinking fund payment date for such series (a) a certificate signed by any Officer specifying the portion of such sinking fund payment, if any, to be satisfied by payment of cash and the portion of such sinking fund payment, if any, which is to be satisfied by delivering and crediting such Securities and (b) any Securities to be so delivered.  All Securities so delivered to the Trustee shall be cancelled by the Trustee and no Securities shall be authenticated in lieu thereof.  If the Company fails to deliver such certificate and Securities at or before the time provided above, the Company shall not be permitted to satisfy any portion of such mandatory sinking fund payment by delivery or credit of Securities.
 
At its option the Company may pay into the sinking fund for the retirement of Securities of any particular series, on or before each sinking fund payment date for such series, any additional sum in cash as specified by the terms of such series of Securities.  If the Company intends to exercise its right to make any such optional sinking fund payment, it shall deliver to the Trustee at least 30 days prior to the next succeeding sinking fund payment date for such series of Securities a certificate signed by any Officer stating that the Company intends to exercise such optional right and specifying the amount which the Company intends to pay on such sinking fund payment date.  If the Company fails to deliver such certificate at or before the time provided above, the Company shall not be permitted to make any optional sinking fund payment with respect to such sinking fund payment date.  To the extent that such right is not exercised in any year it shall not be cumulative or carried forward to any subsequent year.
 
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If the sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request) with respect to the Securities of any particular series, it shall be applied by the Trustee or one or more Paying Agents on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption.  The Trustee shall select, in the manner provided in Section 3.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to exhaust said cash, as nearly as may be, and the Trustee shall, at the expense and in the name of the Company, thereupon cause notice of redemption of Securities of such series to be given in substantially the manner and with the effect provided in Sections 3.02 and 3.03 for the redemption of Securities of that series in part at the option of the Company, except that the notice of redemption shall also state that the Securities of such series are being redeemed for the sinking fund.  Any sinking fund moneys not so applied or allocated by the Trustee or any Paying Agent to the redemption of Securities of that series shall be added to the next cash sinking fund payment received by the Trustee or the Paying Agent and, together with such payment, shall be applied in accordance with the provisions of this Section 3.07.  Any and all sinking fund moneys held by the Trustee or any Paying Agent on the maturity date of the Securities of any particular series, and not held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee or such Paying Agent, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of that series at maturity.  On or before each sinking fund payment date, the Company shall pay to the Trustee or to one or more Paying Agents in cash a sum equal to all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date pursuant to this Section.  Neither the Trustee nor any Paying Agent shall redeem any Securities of a series with sinking fund moneys, and the Trustee shall not mail any notice of redemption of Securities for such series by operation of the sinking fund, during the continuance of a default in payment of interest on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph), except that if the notice of redemption of any Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee or any Paying Agent shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee or such Paying Agent for that purpose in accordance with the terms of this Article 3.  Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of all such Securities; provided, however, that in case such Event of Default or default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next succeeding sinking fund payment date on which such moneys may be applied pursuant to the provisions of this Section 3.07.
 
ARTICLE 4
 
COVENANTS
 
Section 4.01
Payment of Securities.
 
The Company shall pay or cause to be paid the principal of, premium, if any, and interest on the Securities on the dates and in the manner provided in the Securities.  Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m., Eastern Time, on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
 
Section 4.02
Maintenance of Office or Agency.
 
The Company shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) where Securities may be surrendered for registration of transfer, exchange, payment or conversion (if the Securities are convertible) and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.  The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Trustee’s principal agency in [______________________], which currently is located at [______________________].
 
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The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes.  The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
 
Section 4.03
Reports.
 
(a)       Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company covenants and agrees to file with the Trustee, and to provide by mail to each Holder, within 15 days after the Company is or would be required to file the same with the SEC, copies of the annual reports, quarterly reports and the information, documents and other reports which the Company is or would be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act, provided, however, that to the extent permitted by law, any such document, information and other reports filed and publicly available through the SEC’s EDGAR filing system shall be deemed to have been received by the Trustee and the Holders.
 
(b)       The Company covenants and agrees to file with the Trustee and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
 
(c)       The Company covenants and agrees to furnish to the Trustee within 120 days of the end of each fiscal year, the compliance certificate required by Section 314(a)(4) of the Trust Indenture Act.
 
(d)       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).
 
Section 4.04
Compliance Certificate.
 
(a)       The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default, Event of Default or other instance of non-compliance with any of the terms of this Indenture shall have occurred, describing all such Defaults, Events of Default or instances of non-compliance of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, premium, if any, or interest on the Securities is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
 
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(b)       The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, forthwith upon any Officer of the Company becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
 
(c)       The Company shall file with the Trustee and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture, as may be required from time to time by such rules and regulations.
 
Section 4.05
Continued Existence.
 
Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence and (ii) the rights (charter and statutory), licenses and franchises of the Company and any of its Significant Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Significant Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Significant Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Securities.
 
Section 4.06
Stay, Extension and Usury Laws.
 
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
 
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ARTICLE 5
 
SUCCESSORS
 
Section 5.01
Merger, Consolidation, or Sale of Assets.
 
The Company may consolidate or merge with or into, convert itself into, or sell, assign, transfer, lease, convey or otherwise dispose of (including any such disposition that might be deemed to occur as a result of the conversion of the Company into another form of organization) all or substantially all of its properties or assets in one or more related transactions, to another Person (other than an individual, a government or an agency or political subdivision of a government), but only if (a) the Company is the surviving entity; or (b) the Person formed by or surviving any such consolidation, merger or conversion (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee and either (A) the Person formed by or surviving any such consolidation, merger or conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized or existing under the laws of the United States, any state thereof or the District of Columbia or (B) if not organized or existing under the laws of the United States, any state thereof or the District of Columbia, the Person agrees to be subject to the service of process of the laws of the State of New York and, under the laws of its jurisdiction or organization, payments on the Securities would not be subject to withholding tax; and in any event (c) immediately after such transaction no Default or Event of Default exists.  If the Company requests the Trustee to enter into any supplemental indenture, or to take any other action, as a result of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the Company will also furnish to the Trustee an Officers’ Certificate and an Opinion of Counsel, each to the effect that the conditions precedent set forth in this Section 5.01 have been complied with.
 
Section 5.02
Successor Person Substituted.
 
Upon any consolidation, merger or conversion, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the Company is merged or converted or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, conversion, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein.
 
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ARTICLE 6
 
DEFAULTS AND REMEDIES
 
Section 6.01
Events of Default.
 
An “Event of Default,” with respect to Securities of any series shall have occurred if:
 
(a)       the Company defaults in the payment when due of interest on, with respect to, any Security of that series and such default continues for a period of 30 days;
 
(b)       the Company defaults in the payment when due of principal of or premium, if any, on, or sinking fund payment with respect to, any Security of that series when the same becomes due and payable at maturity, upon redemption or otherwise;
 
(c)       the Company fails for 90 days after notice to comply to observe or perform any other covenant, representation, warranty or other agreement in this Indenture, with respect to any Security of that series for the benefit of that series other than a covenant, representation or warranty with respect to which a failure to observe or perform is dealt with otherwise in this Indenture or is expressly included in this Indenture solely for the benefit of a series of debt securities other than any series of Securities; provided, however, no Notice of Default (as defined below) will be given to the Holders until at least 90 days after the occurrence thereof;
 
(d)       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 of it or for all or substantially all of its property;
 
(iv)         makes a general assignment for the benefit of its creditors; or
 
(v)          generally is not paying its debts as they become due;
 
(e)       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 of the Company for all or substantially all  of the property of the Company; or
 
(iii)         orders the liquidation of the Company; and the order or decree remains unstayed and in effect for 60 consecutive days; or
 
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(f)        any other event provided with respect to Securities of that series in the terms thereof as contemplated by Section 2.02 hereof shall occur.
 
The term “custodian” as used in this Article 6 means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
 
A Default under clause (c) with respect to the Securities of any series is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in principal amount of the then outstanding Securities of such series and of all Pari Passu Series with respect to which such Default shall have occurred (treating such series and all Pari Passu Series as a single class) notify the Company and the Trustee, of the Default and the Company does not cure the Default within 90 days 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.”
 
Notwithstanding the foregoing, no Event of Default will have occurred under Securities of any series if the Company fails to file timely any annual report or information, document or other report that it is required to file with the SEC.
 
Section 6.02
Acceleration.
 
If any Event of Default with respect to any series of Securities (other than an Event of Default specified in clause (d) or (e) of Section 6.01 hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Securities of such series and of all Pari Passu Series with respect to which such Event of Default shall have occurred and be continuing (treating such series and all such Pari Passu Series as a single class) may declare all the Securities of such series and all such Pari Passu Securities to be due and payable immediately.  Upon any such declaration, the principal of, premium, if any, and accrued and unpaid interest with respect to the Securities of all such series shall become due and payable immediately.  Notwithstanding the foregoing, if an Event of Default specified in clause (d) or (e) of Section 6.01 hereof occurs with respect to the Company, all outstanding Securities of all series shall be due and payable immediately without further action or notice, provided that the payment of principal and interest (or lesser amount as may be provided in the form of security of such series) on such Securities shall remain subordinated to the extent provided in Article 10.
 
Section 6.03
Other Remedies.
 
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.
 
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder of a Security 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.
 
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Section 6.04
Waiver of Past Defaults; Rescission of Acceleration.
 
Holders of a majority in aggregate principal amount of the then outstanding Securities of a series and of all Pari Passu Series affected (treating all such series as a single class) may, by notice to the Trustee on behalf of the Holders of all of the Securities of all such series, waive an existing Default or Event of Default and its consequences hereunder (including in connection with an offer to purchase or exchange), except a continuing Default or Event of Default in the payment of the principal of, premium, if any, interest on, or any sinking fund payment with respect to, the Securities of such series, and except a continuing Default or Event of Default under any provision of this Indenture that, under Section 9.02, cannot be modified or waived without the consent of a greater number of Holders or of each Holder affected.  Upon any such waiver, such Default or Event of Default shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.  The Holders of a majority in aggregate principal amount of the then outstanding Securities of a series and of all Pari Passu Series affected (treating all such securities as a single class) may also rescind an acceleration and its consequences with respect to all such series, including any related payment default that resulted from such acceleration, but not including any other payment default.
 
Section 6.05
Control by Majority.
 
Holders of a majority in principal amount of the then outstanding Securities of all Pari Passu Series with respect to which an Event of Default shall have occurred and be continuing  (treating all such series as a single class) may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it; provided that
 
(i)           such direction shall not be in conflict with any law or regulation or with this Indenture;
 
(ii)          the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
 
(iii)         the Trustee need not take any action which might involve it in personal liability or be unduly prejudicial to the Holders of Securities of such series not joining therein.
 
Section 6.06
Limitation on Suits.
 
A Holder of a Security of any series may pursue a remedy with respect to this Indenture or the Securities of such series only if
 
(a)       the Holder of a Security of any or all such series affected gives to the Trustee written notice of a continuing Event of Default;
 
(b)       the Holders of at least 25% in principal amount of the then outstanding Securities of such series and of all Pari Passu Series affected (treating all such series as a single class) make a written request to the Trustee to pursue the remedy;
 
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(c)       such Holder or Holders offer and, if requested, provide 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 and, if requested, the provision of indemnity; and
 
(e)       during such 60-day period the Holders of a majority in principal amount of the then outstanding Securities of such series and of all Pari Passu Series affected (treating all such series as a single class) do not give the Trustee a direction inconsistent with the request.
 
A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of a Security or to obtain a preference or priority over another Holder of a Security.
 
Section 6.07
Rights of Holders of Securities to Receive Payment.
 
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security of any series to receive payment of principal, premium, if any, and interest on such Security, on or after the respective due dates expressed in such Security (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
 
Section 6.08
Collection Suit by Trustee.
 
If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing with respect to any series of Securities, the Trustee is authorized to recover judgment in its own name and as Trustee of an express trust against the Company for the whole amount of principal of, premium, if any, and interest remaining unpaid on such Securities and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
 
Section 6.09
Trustee May File Proofs of Claim.
 
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Securities of any series allowed in any judicial proceedings relative to the Company (or any other obligor upon the Securities), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing 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 of any series or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
 
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Section 6.10
Priorities.
 
If the Trustee collects any money or other property pursuant to this Article, it shall pay out the money or other property in the following order:
 
First:  to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
 
Second:  to Holders of Securities for amounts due and unpaid on the Securities for principal, premium, if any, interest and any other amounts, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal, premium, if any, interest and other amounts, respectively; and  Third: to the Company or to such party as a court of competent jurisdiction shall direct.
 
The Trustee may fix a record date and payment date for any payment to Holders of Securities pursuant to this Section 6.10.
 
Section 6.11
Undertaking for Costs.
 
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.
 
This Section does not apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Securities of any series.
 
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ARTICLE 7
 
TRUSTEE
 
Section 7.01
Duties of Trustee.
 
(a)       If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture or an indenture supplemental hereto, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
 
(b)       Except during the continuance of an Event of Default:
 
(i)           the duties of the Trustee shall be determined solely by the  express provisions of this Indenture or an indenture supplemental  hereto, and the Trustee need perform only those duties that are  specifically set forth in this Indenture or an indenture  supplemental hereto and no others, and no implied covenants or  obligations shall be read into this Indenture or an indenture  supplemental hereto against the Trustee; and
 
(ii)          in the absence of bad faith on its part, the Trustee may  conclusively rely, as to the truth of the statements and the  correctness of the opinions expressed therein, upon certificates  or opinions furnished to the Trustee and conforming to the  requirements of this Indenture.  However, the Trustee shall  examine the certificates and opinions to determine whether or not  they conform to the requirements of this Indenture.
 
(c)       The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
 
(i)           this paragraph does not limit the effect of paragraph (b) of this  Section;
 
(ii)          the Trustee shall not be liable for any error of judgment made in  good faith by a Responsible Officer, unless it is proven that the  Trustee was negligent in ascertaining the pertinent facts; and
 
(iii)         the Trustee shall not be liable with respect to any action it  takes or omits to take in good faith in accordance with a  direction received by it pursuant to Section 6.05 hereof.
 
(d)       Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section.
 
(e)       No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability.  The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee security and indemnity satisfactory to it against any losses, costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
 
(f)        The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.  Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
 
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Section 7.02
Rights of Trustee.
 
(a)       The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in the document.
 
(b)       Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.  The Trustee may consult with counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
 
(c)       The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
 
(d)       The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
 
(e)       Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
 
Section 7.03
Individual Rights of Trustee.
 
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.  However, in the event that the Trustee acquires any conflicting interest (within the meaning of TIA § 310(b)) it must eliminate such conflicting interest within 90 days after the default referred to in such § 310(b), apply to the SEC for permission to continue as trustee, or resign.  Any Agent may do the same with like rights and duties.  The Trustee is also subject to Sections 7.10 and 7.11 hereof.
 
Section 7.04
Trustee’s Disclaimer.
 
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities; it shall not be accountable for the Company’s use of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision of this Indenture; it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee; and it shall not be responsible for any statement or recital herein or any statement in the Securities or any other document in connection with the sale of the Securities or pursuant to this Indenture other than its certificate of authentication.
 
Section 7.05
Notice of Defaults.
 
If a Default or Event of Default occurs and is continuing and if a Responsible Officer of the Trustee has actual knowledge of such Default or Event of Default, the Trustee shall mail to Holders of Securities a notice of the Default or Event of Default within 90 days after it occurs.  Except in the case of a Default or Event of Default in payment of principal of, or interest on, any Security, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities.
 
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Section 7.06
Reports by Trustee to Holders of the Securities.
 
On or before July 31 of each year, beginning with the July 31 following the date on which Securities are first issued under this Indenture, and for so long as Securities remain outstanding, the Trustee shall mail to the Holders of the Securities a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted).  The Trustee also shall comply with TIA § 313(b)(2).  The Trustee shall also transmit by mail all reports as required by TIA § 313(c).  A copy of each report at the time of its mailing to the Holders of Securities shall be mailed to the Company and filed with the SEC and each stock exchange on which the Securities are listed in accordance with TIA § 313(d).  The Company shall promptly notify the Trustee when the Securities are listed on any stock exchange.
 
Section 7.07
Compensation and Indemnity.
 
The Company shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the Company and Trustee have separately agreed.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
 
The Company shall indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company (including this Section 7.07) and defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or willful misconduct.  The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder.
 
The Company shall defend the claim, and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel.  The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
 
The obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture.
 
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To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium, if any, and interest on particular Securities.  Such lien shall survive the satisfaction and discharge of this Indenture.
 
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(e) or (f) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
 
Section 7.08
Replacement of Trustee.
 
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
 
The Trustee may resign with respect to one or more or all series of Securities at any time and be discharged from the trust hereby created by so notifying the Company in writing.  The Holders of a majority in principal amount of the then outstanding Securities of any series may remove the Trustee with respect to such series by so notifying the Trustee and the Company in writing.
 
The Company may remove the Trustee if:
 
(a)       the Trustee ceases to be eligible in accordance with Section 7.10 hereof;
 
(b)       the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
 
(c)       a custodian or public officer takes charge of the Trustee or its property; or
 
(d)       the Trustee becomes incapable of acting.
 
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.  Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then- outstanding Securities of a series may appoint a successor Trustee to replace the successor Trustee appointed by the Company with respect to that series of Securities.
 
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in principal amount of the then outstanding Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee.
 
If the Trustee, after written request by any Holder of a Security who has been a Holder of a Security for at least six months, ceases to be eligible in accordance with Section 7.10, such Holder of a Security may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.  A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company.
 
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Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to Holders of the Securities.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the lien provided for in Section 7.07 hereof.  Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
 
If a successor Trustee is appointed with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees as co-trustees of the same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
 
Section 7.09
Successor Trustee by Merger, etc.
 
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
 
Section 7.10
Eligibility; Disqualification.
 
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
 
This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5).  The Trustee is subject to TIA § 310(b).
 
Section 7.11
Preferential Collection of Claims Against Company.
 
The Trustee is subject to TIA § 311(a), excluding any creditor relationship described in TIA § 311(b).  A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
 
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ARTICLE 8
 
LEGAL DEFEASANCE AND COVENANT DEFEASANCE; SATISFACTION AND  DISCHARGE
 
Section 8.01
Option to Effect Legal Defeasance or Covenant Defeasance; Alternative Satisfaction and Discharge.
 
(a)       The Company may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof, with such modifications thereto as may be specified pursuant to Section 2.02 in the Board Resolution, Officers’ Certificate or supplemental indenture establishing a particular series of Securities, be applied to all outstanding Securities of one or more series upon compliance with the conditions set forth below in this Article 8.
 
(b)       As an alternative to having Section 8.02 or 8.03 be applied to all outstanding Securities of one or more series, the Company may terminate its obligations under the Securities of one or more series and its obligations under this Indenture in respect of such series of Securities (except those obligations referred to in the penultimate paragraph of this Section 8.01(b), and any obligation of the Company to convert or exchange Securities of such series as expressly provided for in the Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing such Series) (1) if (i) all Securities of such series theretofore authenticated and delivered (except lost, stolen or destroyed Securities that have been replaced or paid and Securities for whose payment cash in United States dollars has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust as provided in Section 8.06) have been delivered to the Trustee for cancellation; (ii) the Company has paid all sums payable by it hereunder or under the applicable Board Resolution, Officers’ Certificate or indenture supplemental hereto in respect of such series of Securities; and (iii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the satisfaction and discharge of this Indenture have been complied with; or (2) if (i) either (A) in the case of a series of Securities redeemable prior to its Stated Maturity, the Company shall, pursuant to Article 3, have given notice to the Trustee and mailed a notice of redemption to each Holder of Securities of such series of the redemption of all of such Securities under arrangements satisfactory to the Trustee for the giving of such notice or (B) all Securities of such series have otherwise become due and payable hereunder or will become due and payable within one year; (ii) the Company shall have irrevocably deposited or caused to be deposited with the Trustee (or a trustee satisfactory to the Trustee, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee), as trust funds in trust solely for the benefit of the Holders of Securities of such series for that purpose, cash in United States dollars in such amount as is sufficient without consideration of reinvestment of interest or other earnings on such cash, to pay the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for the principal of, premium, if any, and interest on the outstanding Securities of such series to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or redemption date, as the case may be; (iii) no Default or Event of Default with respect to this Indenture or the Securities shall have occurred and be continuing on the date of such deposit; (iv) the Company shall have paid all other sums payable by it hereunder in respect of Securities of such series; and (v) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the satisfaction and discharge of this Indenture have been complied with.
 
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Notwithstanding the foregoing paragraph, the Company’s obligations in Sections 2.07, 2.08, 2.09, 2.10, 4.01, including any provision of the applicable Board Resolution, Officers’ Certificate or indenture supplemental hereto relating to the payment of principal, premium or interest, 4.02, 7.07, 8.06 and 8.07 shall survive with respect to the Securities of the applicable series until they are no longer outstanding pursuant to the last paragraph of Section 2.10.  After the Securities of the applicable series are no longer outstanding, the Company’s obligations in Sections 7.07, 8.06 and 8.07 shall survive in respect of Securities of the applicable series.
 
After such delivery or irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Company’s obligations under the Securities of the applicable series and the Company’s obligations under this Indenture with respect to the Securities of such series, except for those surviving obligations specified above.
 
Section 8.02
Legal Defeasance and Discharge.
 
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02 relating to one or more series of Securities, the Company shall, upon the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from its obligations with respect to all outstanding Securities of such series on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities of the applicable series, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all of its other obligations under the Securities of the applicable series and under the provisions of this Indenture applicable to such series (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Securities of the applicable series to receive solely from the trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest, on such Securities when such payments are due, (b) the Company’s obligations with respect to such Securities under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the Company’s obligations in connection therewith and (d) this Article 8.  Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
 
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Section 8.03
Covenant Defeasance.
 
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 relating to one or more series of Securities, the Company shall, upon the satisfaction of the conditions set forth in Section 8.04 hereof, be released from its obligations under the covenants contained in Sections 4.03, 4.04, 4.05 and 4.06 hereof with respect to the outstanding Securities of the applicable series, and under any other covenants specified in the Board Resolution, Officers’ Certificate or supplemental indenture or other terms of the applicable series as covenants to which this Section 8.03 applies, on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of the applicable series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder.  For this purpose, Covenant Defeasance means that, with respect to the “outstanding” Securities of the applicable series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
 
Section 8.04
Conditions to Legal or Covenant Defeasance.
 
The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Securities of one or more series:
 
In order to exercise either Legal Defeasance or Covenant Defeasance:
 
(a)       the Company must irrevocably deposit with the Trustee, (or another trustee satisfying the requirements of Section 7.10, who shall agree to comply with the provisions of this Article 8 applicable to it) in trust, for the benefit of the Holders of the Securities of the applicable series, (i) an amount of cash in United States dollars, (ii) non-callable U.S. Government Obligations which, through scheduled payment of principal and interest in respect thereof in accordance with their terms, will provide, not later than one Business Day before the due date of any payment of principal of, premium, if any, or interest on the Securities of such series, cash in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, interest and premium, if any, on the outstanding Securities of the applicable series on the Stated Maturity or on the applicable redemption date, as the case may be, and any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due, and the Company must specify whether the Securities of the applicable series are being defeased to maturity or to a particular redemption date;
 
(b)       in the case of an election under Section 8.02 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities of the applicable series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
 
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(c)       in the case of an election under Section 8.03 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Securities of the applicable series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
 
(d)       no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or insofar as Sections 6.01(e) or (f) hereof are concerned, at any time in the period ending on the 91st day after the date of deposit (or greater period of time in which any such deposit of trust funds may remain subject to Bankruptcy Law insofar as those apply to the deposit by the Company); and
 
(e)       the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
 
Section 8.05
Deposited Money and U.S. Government Obligations to be Held in  Trust; Other Miscellaneous Provisions.
 
Subject to Section 8.06 hereof, all money and non-callable U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Securities of the applicable series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
 
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S.
 
Government Obligations deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities of the applicable series.
 
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance of the applicable series.
 
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Section 8.06
Repayment to Company.
 
Any money and U.S. Government Obligations deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium or interest on any Security and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such money and U.S. Government Obligations, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
 
Section 8.07
Reinstatement.
 
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S. Government Obligations deposited pursuant to Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium or interest on any Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
 
ARTICLE 9
 
AMENDMENT, SUPPLEMENT AND WAIVER
 
Section 9.01
Without Consent of Holders of Securities.
 
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Securities without the consent of any Holder of a Security:
 
(a)       to evidence the succession of another Person to the Company, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Company pursuant to Article 5 hereof;
 
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(b)       to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities stating that such covenants are expressly being included for the benefit of such series) as the Board of Directors and the Trustee shall consider to be for the protection of the Holders of such Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default;
 
(c)       to provide for the issuance under this Indenture of Securities in coupon form (including Securities registrable as to principal only) and to provide for exchangeability of such Securities with the Securities issued hereunder in fully registered form and to make all appropriate changes for such purpose;
 
(d)       to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture that may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture; provided that any such action shall not adversely affect the interests of the Holders of the Securities;
 
(e)       to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 7.08;
 
(f)        to comply with the requirements of the SEC or to effect or maintain the qualification of the Indenture under the TIA; or
 
(g)       to provide for the issuance of and establish the form and terms and conditions of the Securities of any series, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the Holders of any series of Securities.
 
Upon the request of the Company accompanied by a copy of a Board Resolution, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
 
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Section 9.02
With Consent of Holders of Securities.
 
Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture, or the Securities of any series may be amended or supplemented, with the consent of the Holders of a majority in principal amount of the Securities then outstanding of all series affected by such supplemental indenture (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium or interest on the Securities) or compliance with any provision of this Indenture or the Securities of such series may be waived with the consent of the Holders of a majority in principal amount of the Securities then outstanding of all series affected by such waiver (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for the Securities).  Any amendment to the provisions of Article 10 hereof will require the consent of the Holders of at least 75% in aggregate principal amount of the Securities then outstanding of all series affected by such amendment (treating all series that are Pari Passu Series with respect to each other as a single class) if such amendment would adversely affect the rights of Holders of such Securities.
 
For purposes of determining the consent required under this Section 9.02 all Pari Passu Series shall be treated as a single class.
 
Upon the request of the Company accompanied by a copy of a Board Resolution, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Securities of each such series as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02(b) hereof, the Trustee shall join with the Company in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
 
It shall not be necessary for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
 
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders of Securities of such series affected thereby a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
 
However, without the consent of each Holder of Securities affected an amendment or waiver may not (with respect to any Securities held by a non-consenting Holder):
 
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(a)       reduce the principal amount of the Securities whose Holders must consent to an amendment, supplement or waiver;
 
(b)       reduce the principal of or change the fixed maturity of the principal of, premium, if any, or mandatory sinking fund obligation, if any, with respect to any Securities of any series or alter the provisions with respect to the redemption of the Securities;
 
(c)       impair any right, if any, to convert the Securities into common stock;
 
(d)       reduce the rate of or change the time for payment of interest, including default interest, on any Security of any series;
 
(e)       waive a Default or Event of Default in the payment of principal of or interest or premium on the Securities of any series (except a rescission of acceleration of maturity of the Securities by the Holders of a majority in aggregate principal amount of the Securities of any one or more affected series and a waiver of the payment default that resulted from such acceleration);
 
(f)        make any Security of any series payable in currency other than that stated in the Securities of such series;
 
(g)       make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Securities to receive payments of principal of or interest or premium on the Securities;
 
(h)       waive a redemption payment with respect to any Security; or
 
(i)        make any change in Section 6.04 or 6.07 hereof or in the amendment and waiver provisions of Section 9.01 or this Section 9.02.
 
Section 9.03
Compliance with Trust Indenture Act.
 
Every amendment or supplement to this Indenture or the Securities shall be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.
 
Section 9.04
Revocation and Effect of Consents.
 
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder of a Security and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Securities, even if notation of the consent is not made on any Securities. However, any such Holder of a Security or subsequent Holder of a Security may revoke the consent as to its Securities if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
 
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Section 9.05
Notation on or Exchange of Securities.
 
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Securities thereafter authenticated. The Company in exchange for all Securities may issue and the Trustee shall authenticate new Securities that reflect the amendment, supplement or waiver.
 
Failure to make the appropriate notation or to issue new Securities shall not affect the validity and effect of such amendment, supplement or waiver.
 
Section 9.06
Trustee to Sign Amendments, Etc.
 
The Company may not sign an amendment or supplemental indenture until its Board of Directors approves it. The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
 
In signing or refusing to sign such amendment or supplemental indenture, the Trustee shall be entitled to receive and, subject to Section 7.01 hereof, shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that such amendment or supplemental indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon the Company in accordance with its terms.
 
ARTICLE 10
 
SUBORDINATION
 
Section 10.01
Agreement to Subordinate.
 
(a)       The Company agrees, and each Holder by accepting a Security agrees, that the Indebtedness evidenced by the Securities is subordinated in right of payment, to the extent and in the manner provided in this Article, to the prior payment in full of all Senior Debt (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt.
 
(b)       If any holder of Senior Debt is required by any court or otherwise to return to the Company, or any custodian, trustee, or similar official acting in relation to the Company, any amount paid by the Company to such holder of Senior Debt, the provisions of this Article 10, to the extent theretofore discharged, shall be reinstated in full force and effect; provided, however, that any amounts paid pursuant to this Indenture to Holders of Securities shall not be subject to disgorgement pursuant to the provisions of this paragraph (b).
 
Section 10.02
Certain Definitions.
 
“Designated Senior Debt” means (i) the Senior Bank Debt and (ii) any other Indebtedness expressly designated as Senior Debt with respect to the Securities.
 
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“Representative” means the indenture trustee or other trustee, agent or representative for the holders of any Senior Debt.
 
A “distribution” may consist of cash, securities or other property, by set-off or otherwise.
 
Section 10.03
Liquidation; Dissolution; Bankruptcy.
 
Upon any distribution to creditors of the Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, an assignment for the benefit of creditors or any marshalling of the Company’s assets and liabilities:
 
 (1)        holders of Senior Debt shall be entitled to receive payment in full of all Obligations due in respect of such Senior Debt (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Debt) before the Holders of Securities shall be entitled to receive the principal of, or any other payment, with respect to the Securities (except that Holders may receive (i) securities that are subordinated to at least the same extent as the Securities to (a) Senior Debt and (b) any securities issued in exchange for Senior Debt, (ii) payments and other distributions made from any defeasance trust created pursuant to Section 8.05 hereof and (iii) securities issuable upon conversion of the Securities issuable hereunder); and
 
 (2)        until all Obligations with respect to Senior Debt (as provided in subsection (1) above) are paid in full, any distribution to which the Holders of Securities would be entitled but for this Article shall be made to holders of Senior Debt (except that Holders may receive (i) securities that are subordinated to at least the same extent as the Securities to (a) Senior Debt and (b) any securities issued in exchange for Senior Debt, (ii) payments and other distributions made from any defeasance trust created pursuant to Section 8.05 hereof and (iii) securities issuable upon conversion of the Securities issuable hereunder), as their interests may appear.
 
Section 10.04
Default on Designated Senior Debt.
 
(a)       The Company may not make any payment or distribution to the Trustee or any Holder in respect of the Securities and may not acquire from the Trustee or any Holder any Securities for cash or property (other than (1) securities that are subordinated to at least the same extent as the Securities to (A) Senior Debt and (B) any securities issued in exchange for Senior Debt; (2) payments and other distributions made from any defeasance trust created pursuant to Section 8.05 hereof); and (3) securities issuable upon conversion of the Securities issuable hereunder) until all principal and other Obligations with respect to the Senior Debt have been paid in full if:
 
 (1)        a default in the payment of the principal of, premium, if any, or interest, including a default under any repurchase or redemption obligation, on Designated Senior Debt occurs and is continuing beyond any applicable grace period in the agreement, indenture or other document governing such Designated Senior Debt; or
 
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 (2)        a default, other than a default specified in Section 10.04(a)(1), on Designated Senior Debt occurs and is continuing with respect to Designated Senior Debt that then permits holders of the Designated Senior Debt as to which such default relates to accelerate its maturity and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a Person who may give it pursuant to Section 10.12 hereof.  If the Trustee receives any such Payment Blockage Notice, no subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and until (I) at least 360 days shall have elapsed since the effectiveness of the immediately prior Payment Blockage Notice and (II) all scheduled payments of principal and premium, if any, and interest on the Securities that have come due (other than by reason of acceleration) have been paid in full in cash.  No default described in this paragraph (2) that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice.
 
(b)       The Company may and shall resume payments on and distributions in respect of the Securities and may acquire them:
 
 (i)         in the case of a default described in Section 10.04(a)(1), upon the date on which the default is cured or waived, and
 
 (ii)        in the case of a default referred to in Section 10.04(a)(2) hereof, the earlier of the date on which such default is cured or waived or 179 days after the date on which the applicable Payment  Blockage Notice is received, unless the maturity of any Designated  Senior Debt has been accelerated, if this Article otherwise permits the payment, distribution or acquisition at the time of such payment or acquisition.
 
Section 10.05
Acceleration of Securities.
 
If payment of the Securities is accelerated because of an Event of Default, the Company shall promptly notify holders of Senior Debt of the acceleration.
 
Section 10.06
When Distribution Must Be Paid Over.
 
In the event that the Trustee or any Holder receives any payment of any Obligations with respect to the Securities at a time when the Trustee or such Holder, as applicable, has actual knowledge that such payment is prohibited by Section 10.04 hereof, such payment shall be held by the Trustee or such Holder, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to, the holders of Senior Debt as their interests may appear or their Representative under the indenture or other agreement (if any) pursuant to which Senior Debt may have been issued, as their respective interests may appear, for application to the payment of all Obligations with respect to Senior Debt remaining unpaid to the extent necessary to pay such Obligations in full in accordance with their terms, after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt.
 
With respect to the holders of Senior Debt, the Trustee undertakes to perform only such obligations on the part of the Trustee as are specifically set forth in this Article 10, and no implied covenants or obligations with respect to the holders of Senior Debt shall be read into this Indenture against the Trustee.  The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt, and shall not be liable to any such holders if the Trustee shall pay over or distribute to or on behalf of Holders or the Company or any other Person money or assets to which any holders of Senior Debt shall be entitled by virtue of this Article 10, except if such payment is made as a result of the willful misconduct or gross negligence of the Trustee.
 
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Section 10.07
Notice by Company.
 
The Company shall promptly notify the Trustee and the Paying Agent of any facts known to the Company that would cause a payment of any Obligations with respect to the Securities to violate this Article, but failure to give such notice shall not affect the subordination of the Securities to the Senior Debt as provided in this Article.
 
Section 10.08
Subrogation.
 
After all Senior Debt is paid in full and until the Securities are paid in full, Holders of the Securities shall be subrogated (equally and ratably with all other Indebtedness pari passu with such Securities) to the rights of holders of Senior Debt to receive distributions applicable to Senior Debt to the extent that distributions otherwise payable to the Holders have been applied to the payment of Senior Debt.  A distribution made under this Article to holders of Senior Debt that otherwise would have been made to Holders is not, as between the Company and Holders, a payment by the Company on the Senior Debt.
 
Section 10.09
Relative Rights.
 
This Article defines the relative rights of Holders and holders of Senior Debt.  Nothing in this Indenture shall:
 
(i)          impair, as between the Company and Holders, the obligation of the  Company, which is absolute and unconditional, to pay principal  of, premium, if any, and interest on the Securities in accordance with their terms;
 
(ii)         affect the relative rights of Holders and creditors of the  Company other than rights of Holders of the Securities in  relation to holders of Senior Debt; or
 
(iii)        prevent the Trustee or any Holder from exercising its available  remedies upon a Default or Event of Default, subject to the  rights of holders of Senior Debt to receive  distributions and payments otherwise payable to Holders.
 
If the Company fails because of this Article to pay principal of or interest on a Security on the due date, the failure is still a Default or Event of Default.
 
Section 10.10
Subordination May Not Be Impaired By Company.
 
No right of any holder of Senior Debt to enforce the subordination of the Indebtedness evidenced by the Securities shall be impaired by any act or failure to act by the Company or any Holder or by the failure of the Company or any Holder to comply with this Indenture.
 
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Section 10.11
Distribution or Notice to Representative.
 
Whenever a distribution is to be made or a notice given to holders of Senior Debt, the distribution may be made and the notice given to their Representative.
 
Upon any payment or distribution of assets of the Company referred to in this Article 10, the Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of competent jurisdiction or upon any certificate of such Representative or of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Debt and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 10.
 
Section 10.12
Rights of Trustee and Paying Agent.
 
Notwithstanding the provisions of this Article 10 or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment or distribution by the Trustee, and the Trustee and any Paying Agent may continue to make payments on the Securities, unless the Trustee shall have received at the Corporate Trust Office of the Trustee at least five Business Days prior to the date of such payment written notice of facts that would cause the payment of any Obligations with respect to the Securities to violate this Article or otherwise has actual knowledge of such facts.  Only the Company or a Representative may give the notice.  A Payment Blockage Notice may be given only by a Representative of holders of Designated Senior Debt or by a holder of designated Senior Debt for which there is no Representative.  Nothing in this Article 10 shall impair the claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.
 
The Trustee in its individual or any other capacity may hold Senior Debt with the same rights it would have if it were not Trustee.  Any Agent may do the same with like rights.
 
Section 10.13
Authorization to Effect Subordination.
 
Each Holder of a Security by the Holder’s acceptance thereof authorizes and directs the Trustee on the Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article 10, and appoints the Trustee to act as the Holder’s attorney-in-fact for any and all such purposes.  If the Trustee does not file a proper proof of claim or proof of debt in the form required in any proceeding referred to in Section 6.09 hereof at least 30 days before the expiration of the time to file such claim, the Representative under any Credit Facility (or in the absence of such Representative, the lender) is hereby authorized to file an appropriate claim for and on behalf of the Holders of the Securities.
 
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ARTICLE 11
 
MEETINGS OF HOLDERS
 
Section 11.01
Purposes for Which Meeting May Be Called.
 
A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article 11 to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
 
Section 11.02
Call, Notice and Place of Meetings.
 
(a)       The Trustee may at any time call a meeting of Holders of Securities of any one or more series for any purpose specified in Section 11.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in such other place as the Trustee shall determine.  Notice of every meeting of Holders of Securities of any one or more series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 12.02, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
 
(b)       In case at any time the Company, by or pursuant to a Board Resolution, or the Holders of at least 25% in principal amount of the outstanding Securities of any one or more series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 11.01 by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of such meeting within 20 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (a) of this Section.
 
Section 11.03
Persons Entitled to Vote at Meetings.
 
To be entitled to vote at any meeting of Holders of Securities of any one or more series, a Person shall be (a) a Holder of one or more outstanding Securities of such series, or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more outstanding Securities of such series by such Holder or Holders.  The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
 
Section 11.04
Quorum; Action.
 
The Persons entitled to vote a majority in principal amount of the outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however, that if the meeting is of the Holders of more than one series of Securities, a quorum shall consist of Persons entitled to vote a majority in principal amount of the outstanding Securities of all such series (voting as a single class); and provided further that if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture (or any Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing a series of Securities hereunder) expressly provides may be given by the Holders of more or less than a majority in principal amount of the outstanding Securities of a series, the Persons entitled to vote such percentage in principal amount of the outstanding Securities of such series shall constitute a quorum.  In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved.  In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting.  In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.  Notice of the reconvening of any such adjourned meeting shall be given as provided in Section 11.02(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened.
 
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Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the outstanding Securities of such series which shall constitute a quorum.
 
Except as otherwise provided in Section 6.02 or 9.02 (or in any Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing a series of Securities hereunder), any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the outstanding Securities of that series (or, if applicable, of all Pari Passu Securities participating in the meeting (voting as a single class)); provided, however, that, except as otherwise provided in Section 6.02 or 9.02 (or in any Board Resolution, Officers’ Certificate or indenture supplemental hereto establishing a series of Securities hereunder), any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture or any supplemental indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of the outstanding Securities of a series (or, if applicable, of all Pari Passu Securities participating in the meeting (voting as a single class)) may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the outstanding Securities of such series (or, if applicable, of all Pari Passu Securities participating in the meeting (voting as a single class)).
 
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series, whether or not such Holders were present or represented at the meeting.
 
Section 11.05
Determination of Voting Rights; Conduct and Adjournment of  Meetings.
 
(a)       Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of one or more series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.  Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 1.05 and the appointment of any proxy shall be proved in the manner specified in Section 1.05.  Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.05 or other proof.
 
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(b)       The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 11.02(b), in which case the Company or the Holders of Securities of the series calling the meeting (or, if applicable, of all Pari Passu Securities participating in the meeting (voting as a single class)), as the case may be, shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote at least a majority in principal amount of the outstanding Securities of such series (or, if applicable, of all Pari Passu Securities participating in the meeting (voting as a single class)) represented at the meeting.
 
(c)       At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $25 principal amount of the outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding.  The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
 
(d)       Any meeting of Holders of Securities of any series duly called pursuant to Section 11.02 at which a quorum is present may be adjourned from time to time by Persons entitled to vote at least a majority in principal amount of the outstanding Securities of such series (or, if applicable, of all Pari Passu Securities participating in the meeting (voting as a single class)) represented at the meeting; and the meeting may be held as so adjourned without further notice.
 
Section 11.06
Counting Votes and Recording Action of Meetings.
 
(a)       The vote upon any resolution submitted to any meeting of Holders of Securities of any one or more series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the outstanding Securities of such series held or represented by them.  The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting.  A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any one or more series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 11.02 and, if applicable, Section 11.04.  Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.  Any record so signed and verified shall be conclusive evidence of the matters therein stated.
 
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Section 11.07
Article Subject to Other Provisions.
 
Each provision of this Article 11 (whether or not expressly so stated) is subject to any other provision of this Indenture (or any Board Resolution, Officers’ Certificate or supplemental indenture establishing a series of Securities hereunder) that provides that Securities of different series constitute a single class.
 
ARTICLE 12
 
MISCELLANEOUS
 
Section 12.01
Trust Indenture Act Controls.
 
This Indenture is subject to the provisions of the TIA that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
 
Section 12.02
Notices.
 
Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the others’ address:
 
If to the Company:
 
Kulicke and Soffa Industries, Inc.
1005 Virginia Drive
Fort Washington, PA  19034
Attention:  David J. Anderson
Fax:  (215) 784-6001

If to the Trustee:

[________________]

The Company or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.
 
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged or confirmed, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
 
Any notice or communication to a Holder shall be mailed by first class mail or by overnight courier guaranteeing next day delivery to its address shown on the register kept by the Registrar.  Any notice or communication shall also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA.  Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
 
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If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
 
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
 
Section 12.03
Communication by Holders of Securities with Other Holders of  Securities.
 
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Securities.  The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
 
Section 12.04
Certificate and Opinion as to Conditions Precedent.
 
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
 
(a)       an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
 
(b)       an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
 
Section 12.05
Statements Required in Certificate or Opinion.
 
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
 
(a)       a statement that the Person making such certificate or opinion has read such covenant or condition;
 
(b)       a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
(c)       a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
 
(d)       a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
 
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Section 12.06
Rules by Trustee and Agents.
 
The Trustee may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
 
Section 12.07
No Personal Liability of Directors, Officers, Employees and  Stockholders.
 
No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, shall have any liability for any obligations of the Company under the Securities, this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.
 
Each Holder of Securities by accepting a Security waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Securities.
 
Section 12.08
Governing Law.
 
THE INTERNAL LAW OF THE STATE OF [NEW YORK] SHALL GOVERN AND BE USED TO CONSTRUE AND ENFORCE THIS INDENTURE AND THE SECURITIES.
 
Section 12.09
No Adverse Interpretation of Other Agreements.
 
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
 
Section 12.10
Successors.
 
All agreements of the Company in this Indenture and the Securities shall bind its successors.  All agreements of the Trustee in this Indenture shall bind its successors.
 
Section 12.11
Severability.
 
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 12.12
Counterpart Originals.
 
The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  This Indenture will be effective when each party shall have signed and delivered (including delivery by facsimile transmission), one or more counterparts to the other, but it shall not be necessary for both parties to sign the same counterpart.
 
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Section 12.13
Table of Contents, Headings, etc.
 
The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
 
[Signature Page Follows]
 
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SIGNATURES

IN WITNESS WHEREOF, the parties have executed this Indenture as of the date first written above.
 
KULICKE AND SOFFA INDUSTRIES,
INC.
 
By
  
Name:
Title:

 
[______________________________],
as Trustee

By
  
Name:
Title:

 
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TABLE OF CONTENTS

     
Page
       
ARTICLE 1       DEFINITIONS AND INCORPORATION BY REFERENCE
  
1
Section 1.01
Definitions
  
1
Section 1.02
Other Definitions
  
6
Section 1.03
Incorporation by Reference of Trust Indenture Act
  
6
Section 1.04
Rules of Construction
  
7
Section 1.05
Acts of Holders
  
7
       
ARTICLE 2       THE SECURITIES
  
8
Section 2.01
Form and Dating
  
8
Section 2.02
Amount Unlimited; Issuable in Series
  
9
Section 2.03
Denominations
  
12
Section 2.04
Execution and Authentication
  
12
Section 2.05
Registrar and Paying Agent; Appointment of Depositary
  
13
Section 2.06
Paying Agent to Hold Money in Trust
  
14
Section 2.07
Holder Lists
  
14
Section 2.08
Transfer and Exchange
  
14
Section 2.09
 Replacement Securities   17
Section 2.10
 Outstanding Securities   18
Section 2.11
 Treasury Securities   18
Section 2.12
 Temporary Securities   18
Section 2.13
 Cancellation   19
Section 2.14
 Defaulted Interest   19
       
ARTICLE 3       REDEMPTION AND PREPAYMENT
  
19
Section 3.01
Applicability of Article
  
19
Section 3.02
Selection of Securities to Be Redeemed
  
19
Section 3.03
Notice of Redemption
  
20
Section 3.04
Effect of Notice of Redemption
  
21
Section 3.05
Deposit of Redemption or Purchase Price
  
21
Section 3.06
Securities Redeemed or Purchased in Part
  
21
Section 3.07
Mandatory Redemption; Sinking Fund
  
21
       
ARTICLE 4       COVENANTS
  
23
Section 4.01
Payment of Securities
  
23
Section 4.02
Maintenance of Office or Agency
  
23
Section 4.03
Reports
  
24
Section 4.04
Compliance Certificate
  
24
Section 4.05
Continued Existence
  
25
Section 4.06
Stay, Extension and Usury Laws
  
25
       
ARTICLE 5       SUCCESSORS
  
26
Section 5.01
Merger, Consolidation, or Sale of Assets
  
26
Section 5.02
 Successor Person Substituted   26
       
ARTICLE 6       DEFAULTS AND REMEDIES
  
27
Section 6.01
Events of Default
  
27
Section 6.02
Acceleration
  
28
Section 6.03
Other Remedies
  
28
Section 6.04
Waiver of Past Defaults; Rescission of Acceleration
  
29
 
i
 
TABLE OF CONTENTS
(continued)
 
     
Page
       
Section 6.05
Control by Majority
  
29
Section 6.06
 Limitation on Suits   29
Section 6.07
Rights of Holders of Securities to Receive Payment
  
30
Section 6.08
Collection Suit by Trustee
  
30
Section 6.09
Trustee May File Proofs of Claim
  
30
Section 6.10
Priorities
  
31
Section 6.11
Undertaking for Costs
  
31
       
ARTICLE 7        TRUSTEE
  
32
Section 7.01
Duties of Trustee
  
32
Section 7.02
Rights of Trustee
  
33
Section 7.03
Individual Rights of Trustee
  
33
Section 7.04
Trustee’s Disclaimer
  
33
Section 7.05
Notice of Defaults
  
33
Section 7.06
Reports by Trustee to Holders of the Securities
  
34
Section 7.07
Compensation and Indemnity
  
34
Section 7.08
Replacement of Trustee
  
35
Section 7.09
Successor Trustee by Merger, etc.
  
36
Section 7.10
 Eligibility; Disqualification   36
Section 7.11
Preferential Collection of Claims Against Company
  
36
       
ARTICLE 8       LEGAL DEFEASANCE AND COVENANT DEFEASANCE;
                           SATISFACTION AND  DISCHARGE
  
37
Section 8.01
Option to Effect Legal Defeasance or Covenant Defeasance; Alternative Satisfaction and Discharge
  
37
Section 8.02
 Legal Defeasance and Discharge   38
Section 8.03
 Covenant Defeasance   39
Section 8.04
Conditions to Legal or Covenant Defeasance
  
39
Section 8.05
Deposited Money and U.S. Government Obligations to be Held in  Trust; Other Miscellaneous Provisions
  
40
Section 8.06
Repayment to Company
  
41
Section 8.07
Reinstatement
  
41
 
     
ARTICLE 9       AMENDMENT, SUPPLEMENT AND WAIVER
  
41
Section 9.01
Without Consent of Holders of Securities
  
41
Section 9.02
With Consent of Holders of Securities
  
43
Section 9.03
Compliance with Trust Indenture Act
  
44
Section 9.04
Revocation and Effect of Consents
  
44
Section 9.05
Notation on or Exchange of Securities
  
45
Section 9.06
Trustee to Sign Amendments, Etc.
  
45
       
ARTICLE 10     SUBORDINATION
  
45
Section 10.01
Agreement to Subordinate
  
45
Section 10.02
Certain Definitions
  
45
Section 10.03
Liquidation; Dissolution; Bankruptcy
  
46
Section 10.04
Default on Designated Senior Debt
  
46
Section 10.05
Acceleration of Securities
  
47
 
ii
 
TABLE OF CONTENTS
(continued)
 
     
Page
       
Section 10.06
When Distribution Must Be Paid Over
  
47
Section 10.07
Notice by Company
  
48
Section 10.08
Subrogation
  
48
Section 10.09
Relative Rights
  
48
Section 10.10
Subordination May Not Be Impaired By Company
  
48
Section 10.11
Distribution or Notice to Representative
  
49
Section 10.12
Rights of Trustee and Paying Agent
  
49
Section 10.13
Authorization to Effect Subordination
  
49
       
ARTICLE 11     MEETINGS OF HOLDERS
  
50
Section 11.01
Purposes for Which Meeting May Be Called
  
50
Section 11.02
 Call, Notice and Place of Meetings   50
Section 11.03
Persons Entitled to Vote at Meetings
  
50
Section 11.04
 Quorum; Action   50
Section 11.05
Determination of Voting Rights; Conduct and Adjournment of  Meetings
  
51
Section 11.06
Counting Votes and Recording Action of Meetings
  
52
Section 11.07
Article Subject to Other Provisions
  
53
 
     
ARTICLE 12     MISCELLANEOUS
  
53
Section 12.01
Trust Indenture Act Controls
  
53
Section 12.02
Notices
  
53
Section 12.03
Communication by Holders of Securities with Other Holders of  Securities
  
54
Section 12.04
Certificate and Opinion as to Conditions Precedent
  
54
Section 12.05
Statements Required in Certificate or Opinion
  
54
Section 12.06
Rules by Trustee and Agents
  
55
Section 12.07
No Personal Liability of Directors, Officers, Employees and  Stockholders
  
55
Section 12.08
Governing Law
  
55
Section 12.09
No Adverse Interpretation of Other Agreements
  
55
Section 12.10
Successors
  
55
Section 12.11
Severability
  
55
Section 12.12
Counterpart Originals
  
55
Section 12.13
Table of Contents, Headings, etc.
  
56

 
iii
 

EXHIBIT A-1
 
(Face of Note)
 
    % [Series    ] Subordinated Note due [               ]
 
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
 
CUSIP:
      
No:
  
$
______________

KULICKE AND SOFFA INDUSTRIES, INC.

promises to pay to ______________ or registered assigns, the principal sum of ______________
 
Dollars on _____________.
Interest Payment Dates: _____________.
Record Dates: _____________.

 
KULICKE AND SOFFA INDUSTRIES, INC.
   
 
By:
 
 
Name:
 
Title:
 
This is one of the
Notes referred to in the
within-mentioned Indenture:
 
________________________________,
as Trustee
 
By:
   
Authorized Officer
 
 
 
 

(Back of Note)
 
    % [Series     ] Subordinated Note due [            ]
 
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1. INTEREST. Kulicke and Soffa Industries, Inc., a Pennsylvania corporation (the “Company”), promises to pay interest on the principal amount of this Note at      % per annum from [           ] until maturity. The Company will pay interest [             ] on                    and                      of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be                 . The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
 
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the                 or                 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and interest at the office or agency of the Company maintained for such purpose within or without the [__________], provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
 
3. PAYING AGENT AND REGISTRAR. Initially,                                          , the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company may act in any such capacity.
 
4. INDENTURE. The Company issued the Notes under an Indenture dated as of                             (the “Indenture”) between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and in [a Supplemental Indenture] [resolutions of [the [             ] Committee of ] [the Company’s Board of Directors] [an Officers’ Certificate] dated                       , and those terms made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”). The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. The Notes are general obligations of the Company. “Notes” means this Note and all other Notes of the series of which this Note is a part. The Notes are “Securities” within the meaning of the Indenture, and references in the Indenture to “Securities” (including terms such as “Global Securities”) include the Notes (and any “Global Notes” as used herein).
 
5. OPTIONAL REDEMPTION.
 
[(a)] The Notes will not be redeemable at the Company’s option prior to                  . The Notes may be redeemed, in whole or in part, at the option of the Company on or after                  , at the redemption prices specified below (expressed as percentages of the principal amount thereof), in each case, together with accrued and unpaid interest thereon to the date of redemption, upon not less than 30 nor more than 60 days’ notice, if redeemed during the twelve-month period beginning on              of the years indicated below:
 
 
- 2 - -
 
 
Year
  
Redemption
Price
  
         
         
         

[(b) Notwithstanding the foregoing, prior to                  , the Company may, on any one or more occasions, use the net proceeds of one or more offerings of its capital stock to redeem up to      % of the aggregate principal amount of all notes that had been issued under the Indenture up to the time of redemption at a redemption price of      % the principal amount of the Notes redeemed, plus accrued and unpaid interest, to the date of redemption; provided that, after any such redemption, the aggregate principal amount of the Notes outstanding (excluding Notes held by the Company and its Subsidiaries) must equal at least  % of the Notes that had been issued under the Indenture up to the time of redemption; and provided further, that any such redemption shall occur within 90 days of the date of closing of such offering of Capital Stock of the Company.]
 
6. MANDATORY REDEMPTION. [The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.] or [Describe mandatory redemption or sinking fund provisions.]
 
7. NOTICE OF REDEMPTION. Notice of Redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption.
 
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in all appropriate denominations. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes, fees or expenses required by law or permitted by the Indenture. The Company need not transfer or exchange any Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, it need not transfer or exchange any Note for a period of 15 days before a selection of Notes to be redeemed.
 
9. PERSONS DEEMED OWNERS. The registered Holder of a Note will be treated as its owner for all purposes.
 
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of a majority in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class), and any existing default or compliance with any provision of the Indenture, the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class). Without the consent of any Holder of a Note, the Indenture or the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for Notes in coupon form, to provide for a successor Trustee to provide for the assumption of the Company’s obligations to Holders of the Notes in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the rights under the Indenture of any such Holder, or to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA.

 
- 3 - -
 
 
11. DEFAULTS AND REMEDIES. Each of the following constitutes an Event of Default: (i) default by the Company in the payment of interest on the Notes when the same becomes due and payable and default continues for a period of 30 days; (ii) default by the Company in the payment of the principal of or premium, if any, on the Notes when the same becomes due and payable at maturity, upon redemption or otherwise; (iii) failure by the Company for 90 days after notice to comply with any of its other agreements in the Indenture or the Notes other than any agreements with respect to which a failure to observe or perform is dealt with otherwise in the Indenture or Notes or is expressly included in the Indenture or Notes solely for the benefit of a series of notes other than these Notes and (iv) certain events of bankruptcy or insolvency with respect to the Company.  Notwithstanding the foregoing, no Event of Default will have occurred under the Notes if the Company fails to file timely any annual report or information, document or other report that it is required to be filed with the SEC.  If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class) may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Company, all outstanding Notes will become due and payable without further action or notice. Holders of the Notes may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes and other series of Securities affected (treating the Notes and such other series as a single class) may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes and other series of Securities affected (treating the Notes and such other series as a single class) then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of principal, interest or premium on the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
 
12. SUBORDINATION. Each Holder by accepting a Note agrees that the payment of principal of, premium and interest on each Note is subordinated in right of payment, to the extent and in the manner provided in the Indenture, to the prior payment in full of all Senior Debt (whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt.
 
13. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
 
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or stockholder of the Company shall have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.
 
15. AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
 
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
 
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

 
- 4 - -
 
 
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
 
 
Kulicke and Soffa Industries, Inc.
  
 
1005 Virginia Drive
  
 
Fort Washington, PA 19034
  
 
Attention:  David J. Anderson
  

 
- 5 - -
 

Assignment Form
 
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
 
(Insert assignee’s soc. sec. or tax I.D. no.)
 
 
 
 
(Print or type assignee’s name, address and zip code)
 
and irrevocably appoint _________________________________________________________ to transfer this Note on the books of the Company.  The agent may substitute another to act for him.
  
 
Date: ________________

Your Signature:
  
(Sign exactly as your name appears on the  face of this Note)
Signature Guarantee.

 
- 6 - -
 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
 
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Certificated Note, or exchanges of a part of another Global Note or Certificated Note for an interest in this Global Note, have been made:
 
Date of Exchange
  
Amount of decrease
in Principal Amount
of this Global Note
  
Amount of increase in
Principal 
Amount of this Global
Note
  
Principal Amount
of 
this Global Note
following such
decrease 
(or increase)
  
Signature of
authorized officer
of Trustee or 
Note Custodian
                   
                   
 
 
- 7 - -
 
EX-5 6 v153715_ex5.htm
 
 
Exhibit 5

 
[Drinker Biddle & Reath LLP Letterhead]
 
July 2, 2009
 
Kulicke and Soffa Industries, Inc.
1005 Virginia Drive
Fort Washington, Pennsylvania 19034

Re: Registration Statement on Form S-3 (the “Registration Statement”)
 
Ladies and Gentlemen:
 
We have acted as counsel to Kulicke and Soffa Industries, Inc., a Pennsylvania corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-3 (the “Registration Statement”), and the filing of the Registration Statement with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”).  The Registration Statement relates to the contemplated offering by the Company from time to time of up to $100,000,000 aggregate public offering price of (i) common stock of the Company, no par value (the “Shares”), (ii) preferred stock of the Company (the “Preferred Shares”), (iii) senior debt securities of the Company (the “Senior Debt Securities”), (iv) senior subordinated debt securities of the Company (the “Senior Subordinated Debt Securities”), (v) subordinated debt securities of the Company (the “Subordinated Debt Securities” and, together with the Senior Debt Securities and the Senior Subordinated Debt Securities, the “Debt Securities,” each of which is to be issued pursuant to respective indentures between the Company and an indenture trustee (the “Indentures”)), (vi) warrants to purchase Shares, Preferred Shares or Debt Securities as may be designated by the Company at the time of the offering (the “Warrants”) and to be issued pursuant to the terms of one or more warrant agreements (the “Warrant Agreements”), and (vii) units consisting of Shares, Preferred Shares, Debt Securities, Warrants or any combination of those securities (the “Units”) and to be issued pursuant to the terms of one or more unit agreements (the “Unit Agreements”).

In this capacity, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Company’s Amended and Restated Articles of Incorporation, the Company’s Amended and Restated By-Laws, resolutions of the Company’s Board of Directors, and such other documents and corporate records relating to the Company and the issuance and sale of the Shares, the Preferred Shares, the Debt Securities, the Warrants and the Units as we have deemed appropriate.

In all cases, we have assumed the legal capacity of each natural person signing any of the documents and corporate records examined by us, the genuineness of signatures, the authenticity of documents submitted to us as originals, the conformity to authentic original documents of documents submitted to us as copies and the accuracy and completeness of all corporate records and other information made available to us by the Company.

On the basis of the foregoing and subject to the qualifications and assumptions expressed below, we are of the opinion that:

1.           The Shares, when the terms of the issuance and sale thereof have been duly approved by the Board of Directors of the Company in conformity with the Company’s Amended and Restated Articles of Incorporation, and when issued and delivered against payment therefor, and if issued upon the exercise or conversion of any Preferred Shares, Debt Securities, Warrants or Units, when issued and delivered as contemplated by the terms thereof and of the applicable Preferred Share designation, Indenture, Warrant Agreement or Unit Agreement, respectively, relating thereto, will be validly issued, fully paid and non-assessable by the Company.
 
 
 
 
 
2.           Upon the fixing of the designations and relative rights, preferences, privileges, qualifications, limitations and restrictions of any series of Preferred Shares by the Board of Directors of the Company and proper and valid filing with the Secretary of the Commonwealth of Pennsylvania of an amendment to the Company’s Amended and Restated Articles of Incorporation setting forth such designations and relative rights, preferences, privileges, qualifications, limitations and restrictions, if any, with respect to such series of Preferred Shares, all in conformity with the Company’s Amended and Restated Articles of Incorporation and upon the approval by the Board of Directors of the Company of the terms of the issuance and sale thereof, all necessary corporate action on the part of the Company will have been taken to authorize the issuance and sale of such series of Preferred Shares, and when such Preferred Shares are issued and delivered against payment therefor, and, if issued upon the exercise or conversion of any Debt Securities, Warrants or Units, issued and delivered as contemplated by the terms thereof and of the applicable Indenture, Warrant Agreement or Unit Agreement, respectively, relating thereto, such Preferred Shares will be validly issued, fully paid and non-assessable by the Company.
 
3.           When (a) the issuance, execution and delivery by the Company of the applicable Indenture and related Debt Securities shall have been duly approved by all necessary corporate action on the part of the Company, (b) the applicable Indenture, in the form filed as an exhibit to the Registration Statement, shall have been duly executed and delivered by the Company and duly authorized, executed and delivered by the trustee of such Indenture, (c) the terms of the Debt Securities and their issue and sale shall have been duly established in conformity with the applicable Indenture so as not to violate any applicable law or agreement or instrument then binding on the Company, and (d) the Debt Securities shall have been duly executed and authenticated in accordance with the terms of the applicable Indenture and issued and paid for as contemplated in the Registration Statement and the applicable supplement to the prospectus included in the Registration Statement, and, if issued upon the exercise or conversion of any Warrants or Units, when issued and delivered as contemplated by the terms thereof and of the applicable Warrant Agreement or Unit Agreement, respectively, relating thereto, the Debt Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other laws now or hereafter in effect affecting creditors’ rights generally and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding in equity or at law.

4.           When (a) the issuance, execution and delivery by the Company of any Warrants shall have been duly authorized by all necessary corporate action of the Company, (b) the Warrant Agreement relating thereto shall have been executed and delivered by the Company and duly authorized, executed and delivered by the other party or parties thereto and shall have been entered into in compliance with any applicable law or agreement binding on the Company, and (c) such Warrants shall have been duly executed and delivered by the Company and paid for as contemplated in the Registration Statement, the applicable supplement to the prospectus included in the Registration Statement and the Warrant Agreement relating thereto included in the Registration Statement or, pursuant to the applicable rules of the Commission, on a Form 8-K, such Warrants will be validly issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other laws now or hereafter in effect affecting creditors’ rights generally and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding in equity or at law.

5.           When (a) the issuance, execution and delivery by the Company of any Units shall have been duly authorized by all necessary corporate action of the Company, (b) the Unit Agreement relating thereto shall have been executed and delivered by the Company and duly authorized, executed and delivered by the other party or parties thereto and shall have been entered into in compliance with any applicable law or agreement binding on the Company and (c) such Units shall have been duly executed and delivered by the Company and paid for as contemplated in the Registration Statement, the applicable supplements to the prospectus included in the Registration Statement and the Unit Agreement relating thereto included in the Registration Statement or, pursuant to the applicable rules of the Commission, on a Form 8-K, such Units will be validly issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other laws now or hereafter in effect affecting creditors’ rights generally and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding in equity or at law.
 
 
2
 
 
In connection with the opinions expressed above, we have assumed that, at or before the time of the delivery of any such security, (i) the Registration Statement shall have been declared effective and such effectiveness shall not have been terminated or rescinded; and (ii) there shall not have occurred any change in law affecting the validity or enforceability of such security.  We have also assumed that none of the terms of any security to be established subsequent to the date hereof, the issuance and delivery of such security or the compliance by the Company with the terms of such security will violate any applicable law or will result in a violation of any provision of any instrument or agreement then binding upon the Company, or any restriction imposed by any court or governmental body having jurisdiction over the Company.  We express no opinion concerning the laws of any jurisdiction other than the law of the Commonwealth of Pennsylvania.  For the purposes of this opinion, we assume that the Indentures will be governed by Pennsylvania law.

We hereby consent to the reference to our firm under the caption “Experts” in the prospectus included in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement.  In giving this consent, we do not admit that we come within the categories of persons whose consent is required under Section 7 of the Act or under the rules and regulations of the Securities and Exchange Commission issued thereunder.


 
 
 
Very truly yours,

/s/ DRINKER BIDDLE & REATH LLP
DRINKER BIDDLE & REATH LLP
 
 
 
3
 
 
 EX-12 7 v153715_ex12.htm
Exhibit 12

Kulicke and Soffa Industries, Inc.
Fixed Charge Coverage Ratio Calculation
Dollars in thousands
 
The ratio of earnings to fixed charges for each of the periods indicated is as follows:
 
                                 
For the six
 
   
Fiscal
    
Fiscal
    
Fiscal
    
Fiscal
    
Fiscal
    
months ended
  
   
2004
    
2005
    
2006
    
2007
    
2008
    
March 28, 2009
  
                                     
Pre-tax income (loss) from continuing operations (A)
     69,730       23,854       69,602       24,304       (23,229 )     (63,544 )
                                                 
Fixed charges:
                                                
                                                 
Interest expense including amortization of debt discount
     10,466       3,806       3,126       2,876       3,499       1,374  
                                                 
Rentals:
                                                
                                                 
Buildings - 33%
     1,976       1,755       1,906       2,226       2,068       1,276  
Office and other equipment - 33%
     617       489       196       252       607       256  
                                                 
Total Fixed Charges (A)
     13,059       6,050       5,228       5,354       6,174       2,906  
                                                 
Pre-tax income (loss) from continuing operations plus fixed charges
     82,789       29,904       74,830       29,658       (17,055 )     (60,638 )
                                                 
Ratio of earnings to fixed charges
     6.34x       4.94x       14.31x       5.54x    
(B)
    
(B)
  
 
(A) The registrant has no minority interests in consolidated subsidiaries, no income (loss) from equity investees, and no preferred stock dividend requirements of consolidated subsidiaries.
 
(B)  Due to the registrant’s net loss in fiscal 2008 and for the six months ended March 28, 2009, the ratio of coverage was less than 1:1. The registrant must generate additional earnings of $23,229 and $63,544 for the respective periods reported to achieve coverage of 1:1.
 
These computations include us and our consolidated subsidiaries.  These ratios are computed by dividing (a) income (loss) before taxes from continuing operations plus fixed charges and equity in loss of joint ventures, if applicable by (b) fixed charges, which includes interest expense plus the portion of rent expense under operating leases we deem to be representative of the interest factor and amortization of debt issuance costs.
 
 
 
 
EX-23.I 8 v153715_ex23i.htm
Exhibit 23(i)
 
 

 
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated December 10, 2008 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Kulicke and Soffa's Annual Report on Form 10-K for the year ended September 27, 2008. We also consent to the reference to us under the heading "Experts" in such Registration Statement.

 
 
/s/  PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
July 1, 2009
 

 
 
 
 EX-23.II 9 v153715_ex23ii.htm Unassociated Document
Exhibit 23(ii)
 
 
Consent of Independent Auditor

We consent to the incorporation by reference in this Registration Statement on Form S-3 of Kulicke and Soffa Industries, Inc. of our report dated September 15, 2008, relating to our audit of the consolidated financial statements of Orthodyne Electronics Corporation as of December 31, 2007 and 2006 and for each of the three years in the period ended December 31, 2007, which is included in the Current Reports on Form 8-K and Form 8-K/A filed by Kulicke and Soffa Industries, Inc. on July 2, 2009 and October 28, 2008, respectively.
 
We also consent to the reference of our firm under the caption “Experts” in such registration statement.
 

/s/ McGladrey & Pullen, LLP
McGladrey & Pullen, LLP
Irvine, California
July 1, 2009

 
 
 
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