Exhibit 4(a)


 


INDENTURE


 


SENIOR SECURITIES


 


SEPTEMBER 20, 2010


 


HARSCO CORPORATION,

ISSUER


 


AND


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION,

TRUSTEE


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS AND OTHER PROVISIONS
  OF GENERAL APPLICATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.2

  	
  Compliance Certificates and
  Opinions

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 1.3

  	
  Form of Documents Delivered
  to Trustee

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 1.4

  	
  Acts of Holders; Record Dates

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 1.5

  	
  Notices, Etc., to Trustee and
  Company

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 1.6

  	
  Notice to Holders; Waiver

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 1.7

  	
  Conflict with Trust Indenture Act

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 1.8

  	
  Effect of Headings and Table of
  Contents

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 1.9

  	
  Successors and Assigns

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 1.10

  	
  Separability Clause

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 1.11

  	
  Benefits of Indenture

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 1.12

  	
  Governing Law

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 1.13

  	
  Legal Holidays

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 1.14

  	
  Waiver of Jury Trial

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 1.15

  	
  Force Majeure

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 1.16

  	
  USA
  PATRIOT Act

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  SECURITY FORMS

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Forms Generally

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 2.2

  	
  Form of Face of Security

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 2.3

  	
  Form of Reverse of Security

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 2.4

  	
  Form of Legend for Global
  Securities

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 2.5

  	
  Form of Trustee’s Certificate
  of Authentication

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  THE SECURITIES

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Amount Unlimited; Issuable in
  Series

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 3.2

  	
  Denominations

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 3.3

  	
  Execution, Authentication,
  Delivery and Dating

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Temporary Securities

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 3.5

  	
  Registration, Registration of
  Transfer and Exchange

  	
  24

  
				



 


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TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.6

  	
  Mutilated, Destroyed, Lost and
  Stolen Securities

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 3.7

  	
  Payment of Interest; Interest
  Rights Preserved

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 3.8

  	
  Persons Deemed Owners

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 3.9

  	
  Cancellation

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 3.10

  	
  Computation of Interest

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  CUSIP Numbers

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  SATISFACTION AND DISCHARGE

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Satisfaction and Discharge of Indenture

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  Application of Trust Money

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  REMEDIES

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Events of Default

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 5.2

  	
  Acceleration of Maturity;
  Rescission and Annulment

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 5.3

  	
  Collection and Suits for
  Enforcement by Trustee

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 5.4

  	
  Trustee May File Proofs of
  Claim

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 5.5

  	
  Trustee May Enforce Claims
  Without Possession of Securities

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 5.6

  	
  Application of Money Collected

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 5.7

  	
  Limitation on Suits

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 5.8

  	
  Unconditional Right of Holders to
  Receive Principal, Premium and Interest

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 5.9

  	
  Restoration of Rights and Remedies

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 5.10

  	
  Rights and Remedies Cumulative

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 5.11

  	
  Delay or Omission Not Waiver

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 5.12

  	
  Control by Holders

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.14

  	
  Undertaking for Costs

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.15

  	
  Waiver of Usury, Stay or Extension
  Laws

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  THE TRUSTEE

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Duties of Trustee

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 6.2

  	
  Rights of Trustee

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 6.3

  	
  Individual Rights of Trustee

  	
  39

  
				



 


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TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.4

  	
  Trustee’s Disclaimer

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 6.5

  	
  Notice of Default

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 6.6

  	
  Reports by Trustee to Holders

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 6.7

  	
  Compensation and Indemnity

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 6.8

  	
  Replacement of Trustee

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 6.9

  	
  Successor Trustee by
  Merger, Etc.

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.10

  	
  Eligibility; Disqualification

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.11

  	
  Preferential Collection of Claims
  against Company

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  HOLDERS’ LISTS AND REPORTS BY
  TRUSTEE AND COMPANY

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Company to Furnish Trustee Names
  and Addresses of Holders

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 7.2

  	
  Preservation of Information;
  Communications to Holders

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 7.3

  	
  Reports by Trustee

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 7.4

  	
  Reports by Company

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  CONSOLIDATION, MERGER, CONVEYANCE,
  TRANSFER OR LEASE

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  When Company
  May Merge, Etc.

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 8.2

  	
  Successor Substituted

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL INDENTURES

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Supplemental Indentures Without
  Consent of Holders

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 9.2

  	
  Supplemental Indentures with
  Consent of Holders

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 9.3

  	
  Execution of Supplemental
  Indentures

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 9.4

  	
  Effect of Supplemental Indentures

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 9.5

  	
  Conformity with Trust Indenture
  Act

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 9.6

  	
  Reference in Securities to
  Supplemental Indentures

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  COVENANTS

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Payment of Securities

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 10.2

  	
  Maintenance of Office or Agency

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.3

  	
  Money for Securities Payments to
  Be Held in Trust

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.4

  	
  Compliance Certificate; Notice of
  Default

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 10.5

  	
  Corporate Existence

  	
  50

  
				



 


iii

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.6

  	
  Waiver of Certain Covenants

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  REDEMPTION OF SECURITIES

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Applicability of Article

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.2

  	
  Election to Redeem; Notice to
  Trustee

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.3

  	
  Selection by Trustee of Securities
  to Be Redeemed

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.4

  	
  Notice of Redemption

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 11.5

  	
  Deposit of Redemption Price

  	
  53

  
	
   

  	
   

  	
   

  
	
  Section 11.6

  	
  Securities Payable on Redemption
  Date

  	
  53

  
	
   

  	
   

  	
   

  
	
  Section 11.7

  	
  Securities Redeemed in Part

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  SINKING FUNDS

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Applicability of Article

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 12.2

  	
  Satisfaction of Sinking Fund
  Payments with Securities

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 12.3

  	
  Redemption of Securities for
  Sinking Fund

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  DEFEASANCE AND COVENANT DEFEASANCE

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Company’s Option to Effect
  Defeasance or Covenant Defeasance

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 13.2

  	
  Defeasance and Discharge

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 13.3

  	
  Covenant Defeasance

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 13.4

  	
  Conditions to Defeasance or
  Covenant Defeasance

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 13.5

  	
  Deposited Money and U.S.
  Government Obligations to be Held in Trust; Other Miscellaneous Provisions

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 13.6

  	
  Reinstatement

  	
  58

  
				



 


iv
















 


INDENTURE, dated as of September 20, 2010,
between Harsco Corporation, a corporation duly organized and existing under the
laws of Delaware (herein called the “Company”), having its principal office at
350 Poplar Church Road, Camp Hill, Pennsylvania 17011, and Wells Fargo Bank,
National Association, a national banking association organized and existing
under the laws of the United States of America, as Trustee (herein called the “Trustee”).


 


RECITALS
OF THE COMPANY


 


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


 


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


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE I


DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION


 


Section 1.1                                      Definitions


 


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


 


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


 


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


 


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


 


(d)           the words “Article” and “Section” refer to an Article and
Section, respectively, of this Indenture;


 

















 


(e)           the words “herein,” “hereof” and “hereunder” and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and


 


(f)            Certain terms used principally in Articles III, V,
XII and XIII are defined in those Articles.


 


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


 


“Affiliate” of any specified Person means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.


 


“Bankruptcy Law” means Title 11, U.S. Code or
any similar Federal, state or foreign law for the relief of debtors.


 


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


 


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


 


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


 


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


 


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


 


“Corporate Trust Office” means the principal office
of the Trustee at which at any time its corporate trust business shall be
administered, which office at the date hereof is located at 45 Broadway, 14th
Floor, New York, New York 10006, Attention: Corporate Trust Services —
Administrator — Harsco Corporation, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as such successor Trustee may designate from time to time by notice to the
Holders and the Company).


 


2

















 


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


 


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


 


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


 


“Defeasance” has the meaning specified in
Section 13.2.


 


“Defeasible Series” has the meaning specified in
Section 13.1.


 


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


 


“Establishment Action” shall mean:


 


(a)           a resolution duly adopted by the Company’s Board of
Directors establishing one or more series of Securities, authorizing the
issuance of any Security and/or authorizing any other action that may be taken
by the Company in connection with this Indenture or the Securities, or


 


(b)           a resolution or action by a committee, officer or employee
of the Corporation, establishing one or more series of Securities, authorizing
the issuance of any Security and/or authorizing any other action that may be
taken by the Company in connection with this Indenture or the Securities, in
each case, pursuant to a resolution duly adopted by the Company’s Board of
Directors.


 


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


 


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


 


“GAAP” means generally accepted accounting
principles set forth in the opinions and pronouncements of the Financial
Accounting Standards Board, the Commission or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession.


 


“Global Security” means a Security that evidences
all or part of the Securities of any series and is authenticated and delivered
to, and registered in the name of, the Depositary for such Securities or a
nominee thereof.


 


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


 


“Indenture” means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be 


 


3

















 


a part of and govern this instrument and any such
supplemental indenture, respectively. The term “Indenture” shall also include
the terms of particular series of Securities established as contemplated by Section 3.1.


 


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


 


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


 


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


 


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


 


“Officers’ Certificate” means a certificate signed
by the Chairman of the Board, any Vice Chairman of the Board, the President,
the Chief Executive Officer, any Senior Vice President or any Vice President,
and by the Chief Financial Officer, the Controller, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary, of the Company,
and delivered to the Trustee.


 


“Opinion of Counsel” means a written opinion of
counsel, who may be counsel for the Company or any of its subsidiaries.


 


“Original Issue Discount Security” means any
Security which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.


 


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


 


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


 


(b)           Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;


 


(c)           Securities as to which Defeasance has been effected
pursuant to Section 13.2; and


 


(d)           Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been 


 


4

















 


presented to the Trustee
proof satisfactory to it that such Securities are held by a Protected Purchaser
in whose hands such Securities are valid obligations of the Company;


 


provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, (i) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof to such date pursuant to Section 5.2,
(ii) the principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent, determined in
the manner provided as contemplated by Section 3.1 on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in
Clause (i) above) of such Security, and (iii) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.


 


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


 


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


 


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


 


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


 


“Protected Purchaser” shall have the meaning set
forth in Section 8-303 of the Uniform Commercial Code as in effect in the
State of New York from time to time.


 


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


 


5

















 


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


 


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


 


“Responsible Officer” shall mean, when used with
respect to the Trustee, any officer within the corporate trust department of
the Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s knowledge of and
familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“U.S. Government Obligations” has the meaning
specified in Section 13.4.


 


“USA PATRIOT Act” has the meaning specified in
Section 1.16.


 


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


 


6

















 


Section 1.2                                      Compliance
Certificates and Opinions


 


Upon any application or request by the Company to
the Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers’ Certificate, if to be given by the
required officers of the Company, or an Opinion of Counsel in a form reasonably
satisfactory to the Trustee, if to be given by counsel, and shall comply with
the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.


 


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


 


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


 


(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 each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and


 


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


 


Section 1.3                                      Form of
Documents Delivered to Trustee


 


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


 


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


 


7

















 


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


 


Section 1.4                                      Acts of
Holders; Record Dates


 


Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this
Section.


 


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


 


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


 


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


 


The Company may, in the circumstances permitted by
the Trust Indenture Act, set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of Securities of such series. With regard to any record date
set pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date (or their duly appointed agents), and only such
Persons, shall be entitled to give or take the relevant action, whether or not
such Holders remain Holders after such record date. With regard to any action
that may be given or taken hereunder only by Holders of a requisite principal
amount of Outstanding Securities of any series (or their duly appointed agents)
and for which a record date is set pursuant to this paragraph, the Company may,
at its option, set an expiration date after which no such action purported to
be given or taken by any Holder shall be effective hereunder 


 


8

















 


unless given or taken on or prior to such
expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this paragraph, the Company
may, on one or more occasions at its option, extend such date to any later
date. Nothing in this paragraph shall prevent any Holder (or any duly appointed
agent thereof) from giving or taking, after any such expiration date, any
action identical to, or, at any time, contrary to or different from, the action
or purported action to which such expiration date relates, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Nothing in this paragraph shall be construed to render ineffective any action
taken at any time by the Holders (or their duly appointed agents) of the
requisite principal amount of Outstanding Securities of the relevant series on
the date such action is so taken. Notwithstanding the foregoing or the Trust
Indenture Act, the Company shall not set a record date for, and the provisions
of this paragraph shall not apply with respect to, any notice, declaration or
direction referred to in the next paragraph.


 


The Trustee may set any day as a record date for
the purpose of determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of Default,
(ii) any declaration of acceleration referred to in Section 5.2, if
an Event of Default with respect to Securities of such series has occurred and
is continuing and the Trustee shall not have given such a declaration to the
Company, (iii) any request to institute proceedings referred to in
Section 5.7(b) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series.
Promptly after any record date is set pursuant to this paragraph, the Trustee
shall notify the Company and the Holders of Outstanding Series of such
series of any such record date so fixed and the proposed action. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
notice, declaration or direction, whether or not such Holders remain Holders
after such record date; provided that, unless such notice, declaration or
direction shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or prior to the 90th
day after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this paragraph shall be construed to prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration or direction contrary
to or different from, or, after the expiration of such period, identical to,
the notice, declaration or direction to which such record date relates, in
which event a new record date in respect thereof shall be set pursuant to this
paragraph. Nothing in this paragraph shall be construed to render ineffective
any notice, declaration or direction of the type referred to in this paragraph
given at any time to the Trustee and the Company by Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities
of the relevant series on the date such notice, declaration or direction is so
given.


 


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


 


9

















 


Section 1.5                                      Notices, Etc.,
to Trustee and Company


 


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


 


(a)           the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing (which may be via facsimile) to or with the Trustee at its Corporate
Trust Office, or


 


(b)           the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.


 


Any
and all requests, demands, authorizations, directions, notices, consents or
otherwise delivered hereunder or in connection herewith, by any party, shall be
in writing.


 


Section 1.6                                      Notice to
Holders; Waiver


 


Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and sent via electronic transmission
(including through the Depositary), mailed, first-class postage prepaid, or
delivered by hand or overnight courier, to each Holder affected by such event,
at his address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is sent electronically, mailed or delivered by hand or overnight courier,
neither the failure to send, mail or deliver by hand or overnight courier any
notice, nor any defect in any notice so sent, mailed or delivered by hand or
overnight courier, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.


 


Section 1.7                                      Conflict with
Trust Indenture Act


 


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


 


The following Trust Indenture Act terms used in
this Indenture have the following meanings:


 


10
















 


“Commission” means the United States Securities and
Exchange Commission;


 


“indenture securities” means the Securities;


 


“indenture security holder” means a Holder;


 


“indenture to be qualified” means this Indenture;


 


“indenture trustee” or “institutional trustee”
means the Trustee; and


 


“obligor on the indenture securities” means the
Company and any other obligor on the Securities.


 


All other Trust Indenture Act terms used in this
Indenture that are defined by the Trust Indenture Act, defined by the Trust Indenture
Act referenced to another statute or defined by any Commission Rule and
not otherwise defined herein have the meanings defined to them thereby.


 


Section 1.8                                      Effect of
Headings and Table of Contents


 


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


 


Section 1.9                                      Successors and
Assigns


 


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


 


Section 1.10                                Separability
Clause


 


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


 


Section 1.11                                Benefits of
Indenture


 


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


 


Section 1.12                                Governing Law


 


This Indenture and the Securities shall be governed
by, and construed in accordance with, the laws of the State of New York,
without regard to conflicts of laws principles thereof.


 


Section 1.13                                Legal Holidays


 


In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security, the last date on which a
Holder has the right to convert his Securities or any other date requiring
action hereunder shall not be a Business Day at any Place of Payment, then 


 


11

















 


(notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of the Securities of any
series which specifically states that such provision shall apply in lieu of
this Section)) payment of interest or principal (and premium, if any) or
conversion of the Securities need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, or on such last day for
conversion or any other date requiring action hereunder, provided that no
interest shall accrue for the intervening period.


 


Section 1.14                                Waiver of Jury
Trial


 


EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 1.15                                Force Majeure


 


In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances.


 


Section 1.16                                USA PATRIOT Act


 


The parties hereto acknowledge that in accordance
with Section 326 of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the
“USA PATRIOT Act”), the Trustee is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a
relationship or opens an account with the Trustee.  The parties to this Indenture agree that they
will provide the Trustee with such information as it may reasonably request in
order for the Trustee to satisfy the requirements of the USA PATRIOT Act.


 


ARTICLE II


SECURITY FORMS


 


Section 2.1                                      Forms Generally


 


The Securities of each series shall be in
substantially the form set forth in this Article, or in such other form as
shall be established by or pursuant to an Establishment Action, reasonably
satisfactory to the Trustee, 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 


 


12

















 


and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form of
Securities of any series is established by action taken pursuant to an
Establishment Action, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.


 


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


 


Section 2.2                                      Form of
Face of Security


 


[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]


 


HARSCO CORPORATION


 


No. [·]$[·]


 


Harsco Corporation, a corporation duly organized
and existing under the laws of Delaware (herein called the “Company,” which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to [·],
or registered assigns, the principal sum of [·]
Dollars on [·] [if the Security is to bear interest prior to Maturity, insert
—, and to pay interest thereon from [·] or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on [·] (or the first
Business Day thereafter if [·] is not a
Business Day) and [·] (or the first
Business Day thereafter if [·] is not a
Business Day) in each year, commencing [·], at the rate of
[·]% per annum on the basis of a 360-day year consisting of twelve 30-day
months, until the principal hereof is paid or made available for payment [if
applicable, insert —, and at the rate of [·]%
per annum on any overdue principal and premium and on any overdue installment
of interest]. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the [·] or [·]
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].


 


[If the Security is not to bear interest prior
to Maturity, insert — The principal of this Security shall not bear
interest except in the case of a default in payment of principal upon


 


13

















 


acceleration, upon redemption or at Stated Maturity
and in such case the overdue principal of this Security shall bear interest at
the rate of [·]% per annum, which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of [·]% per annum,
which shall accrue from the date of such demand for payment to the date payment
of such interest has been made or duly provided for, and such interest shall
also be payable on demand.]


 


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


 


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


 


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


 


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


 


Dated: [·]


 


	
   

  	
   

  	
  HARSCO CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 


14

















 


Section 2.3             Form of
Reverse of Security


 


This Security is one of a duly authorized issue of
securities of the Company (herein called the “Securities”), issued and to be
issued in one or more series under an Indenture, dated as of [·],
2010 (herein called the “Indenture”), between the Company and Wells Fargo Bank,
National Association, as Trustee (herein called the “Trustee,” which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert —, limited in aggregate principal amount to $[·]].


 


[If applicable, insert — Subject to and upon
compliance with the provisions of the Indenture, the Holder of this Security is
entitled, at the Holder’s option, at any time on or before the close of
business on [·], or in case this Security or a portion hereof is called for
redemption, then in respect of this Security or such portion hereof until and
including, but (unless the Company defaults in making the payment due upon
redemption) not after, the close of business on the 10th calendar day before
the Redemption Date, to convert this Security (or any portion of the principal
amount hereof which is $1,000 or an integral multiple thereof), at the
principal amount hereof, or of such portion, into fully paid and non-assessable
shares (calculated as to each conversion to the nearest 1/100 of a share) of
Common Stock of the Company at a conversion price per share of Common Stock
equal to $[·] per each share of Common Stock (or at the current adjusted conversion
price if an adjustment has been made as provided in the Indenture) by surrender
of this Security, duly endorsed or assigned to the Company or in blank, to the
Company at its office or agency in [·], accompanied by
written notice to the Company that the Holder hereof elects to convert this
Security, or if less than the entire principal amount hereof is to be
converted, the portion hereof to be converted, and, in case such surrender shall
be made during the period from the close of business on any Regular Record Date
next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption on a Redemption Date within such
period), also accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject to the
aforesaid requirement for payment and, in the case of a conversion after the
Regular Record Date next preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (with certain exceptions provided in the Indenture), no
payment or adjustment is to be made on conversion for interest accrued hereon
or for dividends on the Common Stock issued on conversion. No fractions of
shares or scrip representing fractions of shares will be issued on conversion,
but instead of any fractional interest the Company shall pay a cash adjustment
as provided in the Indenture. The conversion price is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the Indenture shall
be amended, without the consent of any Holders of Securities, so that this
Security, if then outstanding, will be convertible thereafter, during the
period this Security shall be convertible as specified above, only into the
kind and amount of securities, cash and other


 


15

















 


property receivable upon the consolidation, merger
or transfer by a holder of the number of shares of Common Stock into which this
Security might have been converted immediately prior to such consolidation,
merger or transfer (assuming such holder of Common Stock failed to exercise any
rights of election and received per share the kind and amount received per
share by a plurality of non-electing shares).]


 


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


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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


 


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


 


	
  Year

  	
   

  	
  Redemption Price For

  Redemption Through

  Operation of the Sinking

  Fund

  	
   

  	
  Redemption Price For

  Redemption Otherwise Than

  Through Operation of the

  Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


16

















 


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


 


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


 


[If the Security is subject to redemption of any
kind, insert — In the event of redemption or conversion of this Security in
part only, a new Security or Securities of this series and of like tenor for
the unredeemed or unconverted portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]


 


[If applicable, insert — The Indenture
contains provisions for defeasance at any time of [(1) the entire
indebtedness of this Security or (2)] certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.]


 


[If the Security is not an Original Issue
Discount Security, insert — If an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture.]


 


[If the Security is an Original Issue Discount
Security, insert — If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture. Such amount shall be equal to —
insert formula for determining the amount. Upon payment (i) of the amount
of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest all of the Company’s obligations in
respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.]


 


The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to 


 


17

















 


waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.


 


As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right to institute
any proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of not less
than 25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity reasonably satisfactory to the Trustee and the Trustee shall
not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.


 


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


 


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


 


The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.


 


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


 


18

















 


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


 


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


 


Section 2.4                                      Form of
Legend for Global Securities


 


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


 


This Security is a Global Security within the
meaning of the Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee thereof. This Security may not be transferred to,
or registered or exchanged for Securities registered in the name of, any Person
other than the Depositary or a nominee thereof and no such transfer may be
registered, except in the limited circumstances described in the Indenture.
Every Security authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, this Security shall be a Global Security subject
to the foregoing, except in such limited circumstances.


 


Section 2.5                                      Form of
Trustee’s Certificate of Authentication


 


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


 


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


 


Wells Fargo Bank, National Association, as Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  



 


19

















 


ARTICLE III


THE SECURITIES


 


Section 3.1                                      Amount Unlimited;
Issuable in Series


 


The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited.


 


The Securities may be issued in one or more series.
There shall be established in or pursuant to an Establishment Action and,
subject to Section 3.3, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,


 


(a)           the title of the Securities of the series, including CUSIP
Numbers (which shall distinguish the Securities of the series from Securities
of any other series);


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


(n)           if applicable, that the Securities of the series shall be
subject to either or both of Defeasance or Covenant Defeasance as provided in Article XIII;
provided that no series of Securities that is convertible into or exchangeable
for any other securities pursuant to Section 3.1(p) shall be subject
to Defeasance pursuant to Section 13.2;


 


(o)           if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such Global
Security or Global Securities and any circumstances other than those set forth
in Section 3.5 in which any such Global Security may be transferred to,
and registered and exchanged for Securities registered in the name of, a Person
other than the Depositary for such Global Security or a nominee thereof and in
which any such transfer may be registered;


 


(p)           the terms and conditions, if any, pursuant to which the
Securities are convertible into or exchangeable for any other securities;


 


(q)           any addition to or change in the covenants set forth in Article X
which applies to Securities of the series; and


 


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


 


21
















 


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


 


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


 


The Company may, from time to time, by an Establishment
Action reasonably satisfactory to the Trustee and subject to compliance with
any other applicable provisions of this Indenture, without the consent of the
Holders, create and issue pursuant to this Indenture additional securities of
any series of Securities (“Add On Securities”) having terms and conditions
identical to those of such series of Outstanding Securities, except that such
Add On Securities:


 


(a)                                  may have a
different issue date from such series of Outstanding Securities;


 


(b)                                 may have a different
amount of interest payable on the first Interest Payment Date after issuance
than is payable on such series of Outstanding Securities; and


 


(c)                                  may have terms
specified in such Establishment Action for such Add On Securities making
appropriate adjustments to this Article III applicable to such Add On
Securities in order to conform to and ensure compliance with the Securities Act
(or applicable securities laws) which are not adverse in any material respect
to the Holder of any Outstanding Securities (other than such Add On Securities)
and which shall not affect the rights or duties of the Trustee.


 


Section 3.2                                      Denominations


 


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


 


Section 3.3                                      Execution,
Authentication, Delivery and Dating


 


The Securities shall be executed on behalf of the
Company by its Chairman of the Board, any Vice Chairman of the Board, its
President, its Chief Executive Officer, any Senior Vice President or any Vice
President, and attested by its Chief Financial Officer, its Controller, its
Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary.
The signature of any of these officers on the Securities may be manual or
facsimile.


 


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


 


22

















 


At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any Series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Establishment Actions as permitted by Sections 2.1 and 3.1, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be provided with,
and (subject to Section 6.1) shall be fully protected in conclusively
relying upon, an Opinion of Counsel stating,


 


(a)                                  if the form of
such Securities has been established by an Establishment Action as permitted by
Section 2.1, that such form has been established in conformity with the
provisions of this Indenture;


 


(b)                                 if the terms of
such Securities have been established by an Establishment Action as permitted
by Section 3.1, that such terms have been established in conformity with
the provisions of this Indenture; and


 


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


 


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


 


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


 


The Trustee shall have the right to decline to
authenticate and deliver any Add On Securities under this Section 3.3 if
the Trustee determines that such action may not lawfully be taken by the
Company or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability.


 


Each Security shall be dated the date of its
authentication.


 


No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially 


 


23

















 


in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.


 


Section 3.4                                      Temporary
Securities


 


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


 


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


 


Section 3.5                                      Registration,
Registration of Transfer and Exchange


 


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


 


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


 


24

















 


At the option of the Holder, Securities of any
series may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
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.


 


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


 


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


 


Each Holder of a Security agrees to indemnify the
Company and the Trustee against any and all liability that may result from the
transfer, exchange or assignment of such Holder’s Security in violation of any
provision of this Indenture and/or applicable United States federal or state
securities laws.


 


The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers between
or among participants of the Depositary or beneficial owners of interests in
any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.


 


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


 


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


 


Notwithstanding any other provision in this
Indenture, no Global Security may be transferred to, or registered or exchanged
for Securities registered in the name of, any Person other than the Depositary
for such Global Security or any nominee thereof, and no such transfer may be
registered, unless (w) such Depositary (i) notifies the Company that
it is unwilling or 


 


25

















 


unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (x) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so transferable, registrable
and exchangeable, and such transfers shall be registrable, (y) there shall
have occurred and be continuing an Event of Default with respect to the
Securities evidenced by such Global Security or (z) there shall exist such
other circumstances, if any, as have been specified for this purpose as
contemplated by Section 3.1. Notwithstanding any other provision in this
Indenture, a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be transferred only to, and
may be registered and exchanged for Securities registered only in the name or
names of, such Person or Persons as the Depositary for such Global Security
shall have directed and no transfer thereof other than such a transfer may be
registered.


 


Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security to which the restriction set forth in the first sentence of the
preceding paragraph shall apply, whether pursuant to this Section,
Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security. The Trustee shall
not have any liability for any actions taken or not taken by the Depositary.


 


Section 3.6                                      Mutilated,
Destroyed, Lost and Stolen Securities


 


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


 


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


 


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


 


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


 


Every new Security of any series issued pursuant to
this Section in exchange for any mutilated Security or in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits 


 


26

















 


of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.


 


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


 


Section 3.7                                      Payment of
Interest; Interest Rights Preserved


 


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


 


Any amounts to be delivered to the Trustee or the
Paying Agent in connection with any payment of interest, shall be deposited
with the Trustee or the Paying Agent prior to 11:00 a.m., New York City
time, on such Interest Payment Date by the Company in immediately available
funds.


 


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


 


(a)                                  The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at his
address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the 


 


27

















 


Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (b).


 


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


 


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


 


In the case of any Security which is converted
after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date, interest whose Stated Maturity is on such Interest Payment Date
shall be payable on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided for) shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence in
the case of any Security which is converted, interest whose Stated Maturity is
after the date of conversion of such Security, shall not be payable.


 


Section 3.8                                      Persons Deemed
Owners


 


Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Section 3.7) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.


 


Section 3.9                                      Cancellation


 


All Securities surrendered for payment, redemption,
registration of transfer or exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as 


 


28

















 


provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of by the Trustee in its customary manner.


 


Section 3.10                                Computation of
Interest


 


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


 


Section 3.11                                CUSIP Numbers


 


The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any changes in the “CUSIP” numbers.


 


ARTICLE IV


SATISFACTION AND DISCHARGE


 


Section 4.1                                      Satisfaction
and Discharge of Indenture


 


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


 


(a)                                  either


 


(i)            all Securities
theretofore authenticated and delivered (other than (A) Securities which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6 and (B) Securities for whose payment money
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)
have been delivered to the Trustee for cancellation; or


 


(ii)           all such
Securities not theretofore delivered to the Trustee for cancellation


 


(A)                              have become due
and payable, or


 


(B)                                will become due
and payable at their Stated Maturity within one year, or


 


29

















 


(C)                                are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,


 


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


 


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


 


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


 


Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the Trustee under
Section 6.7, and, if money shall have been deposited with the Trustee
pursuant to subclause (i) of Clause (a) of this Section,
the obligations of the Trustee under Section 4.2 shall survive such
satisfaction and discharge.


 


Section 4.2                                      Application of
Trust Money


 


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


 


ARTICLE V


REMEDIES


 


Section 5.1                                      Events of
Default


 


“Event of Default,” wherever used herein with
respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):


 


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


 


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


 


30
















 


(c)                                  default in the
deposit of any sinking fund payment, when and as due by the terms of a Security
of that series, and continuance of such default for a period of 30 days;


 


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


 


(e)                                  the entry by a
court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (ii) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under
any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days;


 


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


 


(g)                                 any other Event
of Default provided with respect to Securities of that series.


 


Section 5.2                                      Acceleration of
Maturity; Rescission and Annulment


 


If an Event of Default with respect to Securities
of any series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series may declare the principal amount 


 


31

















 


(or, if any of the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 5.3                                      Collection and
Suits for Enforcement by Trustee


 


The Company covenants that if:


 


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


 


(b)                                 default is made
in the payment of the principal of (or premium, if any, on) any Security at the
Maturity thereof,


 


the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and any premium and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at
the rate or rates 


 


32

















 


prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.


 


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


 


Section 5.4                                      Trustee May File
Proofs of Claim


 


In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
this Indenture.


 


No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors’ or other similar committee.


 


Section 5.5                                      Trustee May Enforce
Claims Without Possession of Securities


 


All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.


 


Section 5.6                                      Application of
Money Collected


 


Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such 


 


33

















 


money on account of principal or any premium or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:


 


FIRST: To the payment of all amounts due the
Trustee under this Indenture;


 


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


 


THIRD: To the Company.


 


Section 5.7                                      Limitation on
Suits


 


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


 


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


 


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


 


(c)                                  such Holder or
Holders have offered to the Trustee such security and indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;


 


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


 


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


 


it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders (it being understood that the
Trustee shall have no affirmative duty to ascertain whether or not such actions
or forbearances are unduly prejudicial to any such Holder).


 


34

















 


Section 5.8                                      Unconditional
Right of Holders to Receive Principal, Premium and Interest


 


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


 


Section 5.9                                      Restoration of
Rights and Remedies


 


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


 


Section 5.10                                Rights and
Remedies Cumulative


 


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


 


Section 5.11                                Delay or
Omission Not Waiver


 


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


 


Section 5.12                                Control by
Holders


 


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


 


(a)                                  such direction
shall not be in conflict with any rule of law or with this Indenture,


 


35

















 


(b)                                 the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction, and


 


(c)                                  subject to the
provisions of Section 6.1, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall determine that the
proceedings so directed would involve the Trustee in personal liability.


 


Section 5.13                                Waiver of Past
Defaults


 


Subject to Section 5.2, the Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default


 


(a)                                  in the payment
of the principal of or any premium or interest on any Security of such series,
or


 


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


 


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


 


Section 5.14                                Undertaking for
Costs


 


In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit, and
may assess costs against any such party litigant, including reasonable attorney’s
fees and expenses, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture
Act shall apply to any suit instituted by the Trustee, to any suit instituted
by any Holders of the Securities, or group of Holders of the Securities,
holding in the aggregate more than 10% of principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder of the
Outstanding Securities for the enforcement of the payment of principal of or
interest on any Outstanding Securities held by such Holder, on or after the
respective due dates expressed in such Outstanding Securities; and provided,
further, that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.


 


Section 5.15                                Waiver of
Usury, Stay or Extension Laws


 


The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and 


 


36

















 


covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.


 


ARTICLE VI


THE TRUSTEE


 


The Trustee hereby accepts the trust imposed upon
it by this Indenture and covenants and agrees to perform the same, as herein
expressed.


 


Section 6.1                                      Duties of
Trustee


 


(a)                                  If an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs.


 


(b)                                 Except during
the continuance of an Event of Default:


 


(i)                                     The Trustee
need perform only those duties as are specifically set forth in this Indenture
and no others, and no covenants, duties or obligations shall be implied in or
read into this Indenture.


 


(ii)                                  In the absence
of willful misconduct 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, in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they substantially conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).


 


(c)                                  The Trustee may
not be relieved from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:


 


(i)                                     This paragraph
does not limit the effect of paragraph (b) of this Section 6.1.


 


(ii)                                  The Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.


 


(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 under this Indenture.


 


37

















 


(d)                                 No provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder or to take or omit to take any action under this Indenture if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it.


 


(e)                                  Every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (d) and (f) of this Section 6.1.


 


(f)                                    The Trustee
shall not be liable for interest on any assets received by it except as the
Trustee may agree in writing with the Company. Assets held in trust by the
Trustee need not be segregated from other assets except to the extent required
by law.


 


Section 6.2                                      Rights of
Trustee


 


Subject to Section 6.1:


 


(a)                                  The Trustee may
conclusively rely on and shall be fully protected, absent its own negligence or
willful misconduct, in acting upon or refraining from acting upon any document
(whether in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in any document.


 


(b)                                 Before the
Trustee acts or refrains from acting, it may require an Officers’ Certificate
and/or an Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion.


 


(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
which it believes to be authorized or within its rights or powers.


 


(e)                                  The Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, notice,
request, direction, consent, order, bond, debenture, or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such investigation.


 


(f)                                    The Trustee may
consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection of
any action taken, suffered or omitted by in hereunder in good faith and in
reliance thereon.


 


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(g)                                 The rights,
privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act hereunder on behalf
of the Trustee.


 


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


 


(i)                                     The Trustee
shall not be deemed to have notice of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the particular Securities and this Indenture.


 


(j)                                     In no event
shall the Trustee be responsible or liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 


(k)                                  The Trustee may
request that the Company deliver an Officers’ Certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers’ Certificate may
be signed by any person authorized to sign an Officers’ Certificate, including
any person specified as so authorized in any such certificate previously
delivered and not suspended.


 


(l)                                     The Trustee
shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder.


 


(m)                               Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company will be sufficient if in the form of a
Company Order or Company Request pursuant to the terms hereof.


 


(n)                                 The permissive
rights of the Trustee enumerated herein shall not be construed as duties.


 


Section 6.3                                      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 its Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent or Security Registrar may do the same with like
rights. However, the Trustee must comply with Sections 6.8, 6.9 and 6.10.


 


39
















 


Section 6.4                                      Trustee’s
Disclaimer


 


The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities and it shall not be
accountable for the Company’s use of the proceeds from the Securities, and it
shall not be responsible for any statement in the Securities, other than the
Trustee’s certificate of authentication, or the use or application of any funds
received by a Paying Agent other than the Trustee acting in such capacity.


 


Section 6.5                                      Notice of
Default


 


If an Event of Default with respect to Securities
of any series occurs and is continuing and if it is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Holder of Securities of
such series notice of the uncured Event of Default within 90 days after such
Event of Default occurs. Except in the case of an Event of Default in payment
of principal (or premium, if any) of, or interest on, any Security, the Trustee
may withhold the notice if and so long as a Responsible Officer in good faith
determines that withholding the notice is in the interest of the Holders of
Securities of such series.


 


Section 6.6                                      Reports by
Trustee to Holders


 


Within 60 days after each September 15 beginning
with the September 15 in the year following the date of this Indenture, the
Trustee shall mail to each Holder a brief report dated as of such September 15
that complies with Trust Indenture Act Section 313(a) if such report is
required by such Trust Indenture Act Section 313(a). The Trustee also
shall comply with Trust Indenture Act Sections 313(b) and 313(c).


 


The Company shall promptly notify the Trustee in
writing if the Securities of any series become listed on any stock exchange or
automatic quotation system and/or any delisting therefrom.


 


A copy of each report at the time of its mailing to
Holders shall be mailed to the Company and filed with the Commission and each
stock exchange, if any, on which the Securities are listed.


 


Section 6.7                                      Compensation
and Indemnity


 


The Company shall pay to the Trustee from time to
time such compensation for its services as the Company and the Trustee shall
from time to time agree in writing. 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 upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee’s agents, accountants, experts and counsel.


 


The Company shall indemnify each of the Trustee (in
its capacity as Trustee) and any predecessor Trustee and each of their
respective officers, directors, attorneys-in-fact and agents for, and hold it
harmless against, any claim, damage, demand, expense (including but not limited
to reasonable compensation, disbursements and expenses of the Trustee’s agents
and counsel), 


 


40

















 


loss, charges (including taxes (other than taxes
based upon the income of the Trustee)) or liability incurred by them without
negligence or willful misconduct on either of their parts, arising out of or in
connection with the acceptance or administration of this trust and their rights
or duties hereunder including the reasonable costs and expenses of defending
themselves against any claim (whether asserted by the Company, a Holder or any
other Person), liability in connection with the exercise or performance of any
of its powers or duties hereunder, or the action or inaction of any Paying
Agent or Security Register (that is not the Trustee). The Trustee shall notify
the Company promptly of any claim asserted against the Trustee for which it may
seek indemnity. The Company shall defend the claim and the Trustee shall
provide reasonable cooperation at the Company’s expense 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 written consent which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee as determined by a court of
competent jurisdiction to have been caused by its own negligence or willful
misconduct.


 


To secure the Company’s payment obligations in this
Section 6.7, the Trustee shall have a lien prior to the Securities on all
assets held or collected by the Trustee, in its capacity as Trustee, except
assets held in trust to pay principal and premium, if any, of or interest on
particular Securities.


 


When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 5.1(e) or (f) occurs,
the expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.


 


The Company’s obligations under this Section 6.7
and any lien arising hereunder shall survive the resignation or removal of the
Trustee, the discharge of the Company’s obligations pursuant to Article IV of
this Indenture and any rejection or termination of this Indenture under any Bankruptcy
Law.


 


Section 6.8                                      Replacement of
Trustee


 


The Trustee may resign at any time with respect to
the Securities of one or more series by so notifying the Company in writing.
The Holder or Holders of a majority in principal amount of the outstanding
Securities of a series may remove the Trustee with respect to Securities of
such series by so notifying the Company and the Trustee in writing not less
than 20 days prior to the effective date of such removal and may appoint a
successor trustee with respect to Securities of such series with the Company’s
consent. The Company may remove the Trustee if:


 


(a)                                  the Trustee
fails to comply with Section 6.10;


 


(b)                                 the Trustee is
adjudged bankrupt or insolvent;


 


(c)                                  a receiver,
custodian, or other public officer takes charge of the Trustee or its property;
or


 


(d)                                 the Trustee
becomes incapable of acting.


 


41

















 


If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee, with respect to the Securities of one
or more series, for any reason, the Company shall promptly appoint a successor
Trustee, with respect to Securities of that or those series. Within one year
after the successor Trustee with respect to a series of Securities takes
office, the Holder or Holders of a majority in principal amount of the
Securities of such series may appoint a successor Trustee with respect to such
series to replace the successor Trustee appointed by the Company.


 


A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Immediately after that and provided that all sums owing to the Trustee provided
for hereunder have been paid, the retiring Trustee shall transfer all property
held by it as Trustee with respect to such series of Securities to the
successor Trustee, subject to the lien provided in Section 6.7, the
resignation or removal of the retiring Trustee shall become effective, the
Trustee with respect to such series of Securities shall cease to be Trustee
under this Indenture, and subject to the provisions of Section 6.10 and
this Section 6.8, the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture and, subject to any negligence
or willful misconduct by the Trustee, the Trustee shall have no liability for
the action or inaction of any successor Trustee. A successor Trustee with
respect to one or more series of Securities shall mail notice of its succession
to each Holder of Securities of that or those series.


 


If a successor Trustee with respect to a series of
Securities does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holder or
Holders of at least 10% in principal amount of the outstanding Securities of
that series may petition at the expense of the Company any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such series.


 


If the Trustee fails to comply with Section 6.10,
any Holder of Securities of a series may petition any court of competent
jurisdiction for the removal of the Trustee with respect to such series and the
appointment of a successor Trustee with respect to such series.


 


Notwithstanding replacement of the Trustee pursuant
to this Section 6.8, the Company’s obligations under Section 6.7 shall continue
for the benefit of the retiring Trustee.


 


Section 6.9                                      Successor
Trustee by Merger, Etc.


 


If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting, surviving or transferee
corporation is otherwise eligible hereunder, be the successor Trustee.


 


Section 6.10                                Eligibility;
Disqualification


 


The Trustee shall at all times satisfy the
requirements of Trust Indenture Act Section 310(a)(1) and Trust Indenture
Act Section 310(a)(5). The Trustee shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Trust Indenture Act Section 310(b).


 


42

















 


Section 6.11                                Preferential
Collection of Claims against Company


 


The Trustee shall comply with Trust Indenture Act
Section 311(a), excluding any creditor relationship listed in Trust Indenture
Act Section 311(b). A Trustee who has resigned or been removed shall be subject
to Trust Indenture Act Section 311(a) to the extent indicated.


 


ARTICLE VII


HOLDERS’ LISTS AND REPORTS
BY TRUSTEE AND COMPANY


 


Section 7.1                                      Company to
Furnish Trustee Names and Addresses of Holders


 


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


 


(a)                                  semi-annually,
not more than 15 days after each Regular Record Date, a list for each series of
Securities, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of such series as of the Regular
Record Date, as the case may be, and


 


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


 


excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.


 


Section 7.2                                      Preservation of
Information; Communications to Holders


 


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


 


The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.


 


Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable or have any liability by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the Trust Indenture Act.


 


Section 7.3                                      Reports by
Trustee


 


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


 


43

















 


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


 


Section 7.4                                      Reports by
Company


 


The Company shall:


 


(a)                                  file with the
Trustee and the Commission such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
Commission. 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); provided further that
the filing of information, documents or reports with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act by an entity that is the direct or
indirect parent of the Company will satisfy the requirements of this
Section 7.4 so long as such entity is an obligor or guarantor on the
Securities; and provided further that the reports of such entity shall not be
required to include condensed consolidated financial information for the Company
in a footnote to the financial statements of such entity unless so required
under the rules and regulations promulgated by the Commission; and


 


(b)                                 transmit to all
Holders, in the manner and to the extent provided in Trust Indenture Act
Section 313(c), within 30 days after the filing thereof with the Trustee,
such summaries of any information, documents and reports required to be filed
by the Company pursuant to Clause (a) of this Section 7.4 as may be
required by rules and regulations prescribed from time to time by the
Commission.


 


The
Trustee shall have no liability for any report required to be filed by the
Company pursuant to Clause (a) of this Section 7.4, the filing
thereof, the information contained therein or the timeliness of any such
filing.


 


ARTICLE VIII


CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE


 


Section 8.1                                      When Company
May Merge, Etc.


 


The Company may not, in a single transaction or
through a series of related transactions, consolidate with or merge with or
into any other person, or, directly or indirectly, sell or convey substantially
all of its assets to another person or group of affiliated persons, unless:


 


44

















 


(a)                                  the Company
shall be the continuing person, or the person (if other than the Company)
formed by such consolidation or into which the Company is merged or to which
all or substantially all of the properties and assets of the Company are
transferred as an entirety or substantially as an entirety (the Company or such
other person being hereinafter referred to as the “Surviving Person”), shall be
organized and validly existing under the laws of the United States, any State
thereof or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
and substance satisfactory to the Trustee, all the obligations of the Company
under the Securities and this Indenture and the Indenture, so supplemented,
shall remain in full force and effect;


 


(b)                                 immediately
after giving effect to such transaction and the assumption of the obligations
as set forth in Clause (a), above, no Event of Default shall have occurred and
be continuing; and


 


(c)                                  if a
supplemental indenture is required in connection with such transaction, the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, assignment, or transfer
and such supplemental indenture comply with this Article VIII and that all
conditions precedent herein provided relating to such transaction have been
satisfied.


 


Section 8.2                                      Successor
Substituted


 


Upon any consolidation or merger, or any transfer
of assets in accordance with Section 8.1, the Surviving Person formed by
such consolidation or into which the Company is merged or to which such
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such Surviving Person had been named as the Company herein. When a
Surviving Person duly assumes all of the obligations of the Company pursuant
hereto and pursuant to the Securities, the predecessor shall be relieved of the
performance and observance of all obligations and covenants of this Indenture and
the Securities, including but not limited to the obligation to make payment of
the principal of and interest, if any, on all the Securities then outstanding,
and the Company may thereupon or any time thereafter be liquidated and
dissolved.


 


ARTICLE IX


SUPPLEMENTAL INDENTURES


 


Section 9.1                                      Supplemental
Indentures Without Consent of Holders


 


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


 


(a)                                  to evidence the
succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities;


 


45

















 


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


 


(c)                                  to add any
additional Events of Default;


 


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


 


(e)                                  to add to,
change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities, provided that any such addition, change or
elimination (i) shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective only
when there is no such Security Outstanding;


 


(f)                                    to secure the
Securities pursuant to the requirements of Article X or otherwise;


 


(g)                                 to add
guarantors in respect of any series of Securities or to release guarantors from
their guarantees of Securities in accordance with the terms of the applicable
series of Securities;


 


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


 


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


 


(j)                                     to cure any
ambiguity, to correct or supplement any provision herein which may be defective
or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (i) shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect.


 


Section 9.2                                      Supplemental
Indentures with Consent of Holders


 


With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by an Establishment
Action, and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any 


 


46

















 


of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,


 


(a)                                  change the
Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate
of interest or the time of payment of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date),


 


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


 


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


 


(d)                                 change any
obligation of the Company to maintain an office or agency,


 


(e)                                  change any
obligation of the Company to pay additional amounts,


 


(f)                                    adversely
affect any right of repayment or repurchase at the option of the Holder, or


 


(g)                                 reduce or
postpone any sinking fund or similar provision.


 


A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series.


 


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


 


47

















 


Section 9.3                                      Execution of
Supplemental Indentures


 


In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be provided with, and (subject to Section 6.1) shall be fully
protected in conclusively relying upon, in addition to the documents required
by Section 1.2, an Opinion of Counsel and an Officers’ Certificate, each
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.


 


Section 9.4                                      Effect of
Supplemental Indentures


 


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


 


Section 9.5                                      Conformity with
Trust Indenture Act


 


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


 


Section 9.6                                      Reference in
Securities to Supplemental Indentures


 


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


 


ARTICLE X


COVENANTS


 


Section 10.1                                Payment of
Securities


 


The Company covenants and agrees for the benefit of
each series of Securities that it will pay the principal of and interest on the
Securities of that series on the dates and in the manner provided in the
Securities of that series and this Indenture. An installment of principal,
premium, if any, or interest on the Securities shall be considered paid on the
date it is due if the Trustee or Paying Agent (other than the Company or an
Affiliate of the Company) holds for the benefit of the Holders, on that date,
immediately available funds deposited and designated for and sufficient to pay
the installment. The Company shall pay interest on overdue principal and on
overdue installments of interest at the rate specified in the Securities
compounded semi-annually, to the extent lawful.


 


48
















 


Section 10.2                                Maintenance of
Office or Agency


 


The Company shall maintain in the Place of Payment
for any series of Securities, an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company 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 Corporate Trust Office.


 


The Company may also from time to time designate
one or more other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company 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. The Company hereby
initially designates the principal corporate trust office of the Trustee as
such office of the Company.


 


Section 10.3                                Money for
Securities Payments to Be Held in Trust


 


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


 


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


 


Whenever the Company shall enter into an agency
agreement with a Paying Agent that is not a party to this Indenture, it will
notify the Trustee in writing of the name and address of such Paying Agent.


 


The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will (a) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent and (b) during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any payment
in respect of the Securities of that series, upon the 


 


49

















 


written request of the Trustee, forthwith pay to
the Trustee all sums held in trust by such Paying Agent for payment in respect
of the Securities of that series.


 


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


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal
of or any premium or interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease, and any unclaimed balance of such
money then remaining will be repaid to the Company.


 


Section 10.4                                Compliance
Certificate; Notice of Default


 


The Company shall deliver to the Trustee within 120
days after the end of its fiscal year an Officers’ Certificate (one of the
signatories of which shall be the Company’s principal executive officer,
principal financial officer or principal accounting officer) complying with Section 314(a)(4) of
the Trust Indenture Act and stating that a review of its activities 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 (all without
regard to periods of grace, which shall be deemed fulfilled unless and until
the expiration of such periods or notice requirements) and further stating, as
to each such officer signing such certificate, whether or not the signer knows
of any failure by the Company to comply with any conditions or covenants in
this Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The Officers’
Certificate shall also notify the Trustee should the relevant fiscal year end
on any date other than the current fiscal year end date.


 


Section 10.5                                Corporate
Existence


 


Subject to Article VIII, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence in accordance with its organizational documents
and the rights (charter and statutory) and corporate franchises of the Company;
provided, however, that the Company shall not be required to preserve, with respect
to itself, any right or franchise, if (a) the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and (b) the loss thereof is not
disadvantageous in any material respect to the Holders.


 


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Section 10.6                                Waiver of
Certain Covenants


 


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


 


ARTICLE XI


REDEMPTION OF SECURITIES


 


Section 11.1                                Applicability
of Article


 


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


 


Section 11.2                                Election to
Redeem; Notice to Trustee


 


The election of the Company to redeem any
Securities shall be evidenced by an Establishment Action. In case of any
redemption at the election of the Company of less than all the Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount
of Securities of such series to be redeemed and, if applicable, of the tenor of
the Securities to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with
such restriction.


 


Section 11.3                                Selection by
Trustee of Securities to Be Redeemed


 


If less than all the Securities of any series are
to be redeemed (unless all of the Securities of such series and of a specified
tenor are to be redeemed), the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.


 


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


 


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


 


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


 


Section 11.4                                Notice of
Redemption


 


Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.


 


All notices of redemption shall state:


 


(a)           the Redemption Date;


 


(b)           the Redemption Price;


 


(c)           if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial redemption
of any Securities, the principal amounts) of the particular Securities to be
redeemed;


 


(d)           that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;


 


(e)           the place or places where such Securities are to be
surrendered for payment of the Redemption Price;


 


(f)            that the redemption is for a sinking fund, if such is the
case; and


 


(g)           applicable CUSIP Numbers.


 


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


 


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Section 11.5                                Deposit of
Redemption Price


 


On or before 10:00 a.m., New York City time on
the Redemption Date specified in the notice of redemption given as provided in Section 11.4,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date, other than any Securities called for redemption on that date
which have been converted prior to the date of such deposit.


 


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


 


Section 11.6                                Securities
Payable on Redemption Date


 


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


 


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


 


Section 11.7                                Securities
Redeemed in Part


 


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


 


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ARTICLE XII


SINKING FUNDS


 


Section 12.1                                Applicability
of Article


 


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


 


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”. If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12. 2. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.


 


Section 12.2                                Satisfaction of
Sinking Fund Payments with Securities


 


The Company (a) may deliver Outstanding
Securities of a series (other than any previously called for redemption) and (b) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.


 


Section 12.3                                Redemption of
Securities for Sinking Fund


 


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


 


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ARTICLE XIII


DEFEASANCE AND COVENANT
DEFEASANCE


 


Section 13.1                                Company’s
Option to Effect Defeasance or Covenant Defeasance


 


The Company may elect, at its option at any time,
to have either Section 13.2 or Section 13.3 applied to the
Outstanding Securities of any series designated pursuant to Section 3.1 as
being defeasible pursuant to this Article XIII (hereinafter called a “Defeasible
Series”), upon compliance with the conditions set forth below in this Article XIII;
provided that Section 13.2 shall not apply to any series of Securities
that is convertible into or exchangeable for any other securities pursuant to Section 3.1(p).
Any such election shall be evidenced by an Establishment Action or in another
manner specified as contemplated by Section 3.1 for such Securities.


 


Section 13.2                                Defeasance and
Discharge


 


Upon the Company’s exercise of the option provided
in Section 13.1 to have this Section 13.2 applied to the Outstanding
Securities of any Defeasible Series and subject to Section 13.1, the
Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series as provided in this Section on
and after the date the conditions set forth in Section 13.4 are satisfied
(hereinafter called “Defeasance”). For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this
Indenture insofar as the Securities of such series are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
Securities of such series to receive, solely from the trust fund described in Section 13.4
and as more fully set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities of such series
when payments are due, (b) the Company’s obligations with respect to the
Securities of such series under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this
Article XIII. Subject to compliance with this Article XIII, the
Company may exercise its option provided in Section 13.1 to have this Section 13.2
applied to the Outstanding Securities of any Defeasible Series notwithstanding
the prior exercise of its option provided in Section 13.1 to have Section 13.3
applied to the Outstanding Securities of such series.


 


Section 13.3                                Covenant
Defeasance


 


Upon the Company’s exercise of the option provided
in Section 13.1 to have this Section 13.3 applied to the Outstanding
Securities of any Defeasible Series, (a) the Company shall be released
from its obligations under Section 8.1 and any covenants provided pursuant
to Section 3.1(r), 9.1(b) or 9.1(h) for the benefit of the
Holders of such Securities, and (b) the occurrence of any event specified
in Sections 5.1(c), 5.1(d) (with respect to Section 8.1 and any such
covenants provided pursuant to Section 3.1(r), 9.1(b) or 9.1(h)) and
5.1(g) shall be deemed not to be or result in an Event of Default, in each
case with respect to the Outstanding Securities of such series as provided in
this Section on and after the date the conditions set forth in Section 13.4
are satisfied (hereinafter called “Covenant Defeasance”). For this purpose,
such Covenant 


 


55

















 


Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so
specified in the case of Section 5.1(d)), whether directly or indirectly
by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein
or in any other document, but the remainder of this Indenture and the
Securities of such series shall be unaffected thereby.


 


Section 13.4                                Conditions to
Defeasance or Covenant Defeasance


 


The following shall be the conditions to
application of either Section 13.2 or Section 13.3 to the Outstanding
Securities of any Defeasible Series:


 


(a)           The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article XIII applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Outstanding Securities of such series, (i) money in an amount, or (ii) U.S.
Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or (iii) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on the Securities
of such series on the respective Stated Maturities, in accordance with the
terms of this Indenture and the Securities of such series. As used herein, “U.S.
Government Obligation” means (x) any security that is (A) a direct
obligation of the United States of America for the payment of which full faith
and credit of the United States of America is pledged or (B) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
specified in Clause (x) and held by such custodian for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any such U.S. Government Obligation, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.


 


(b)           In the case of an election under Section 13.2, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date first set forth hereinabove, there
has been a change in the applicable Federal income tax law, in either case (i) or
(ii) to the effect that, and based thereon such opinion shall 


 


56

















 


confirm that, the Holders of
the Outstanding Securities of such series will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Securities of such series and will
be subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.


 


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


 


(d)           The Company shall have delivered to the Trustee an
Officers’ Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.


 


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


 


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


 


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


 


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


 


(i)            Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended, unless
such trust shall be qualified under such Act or exempt from regulation
thereunder.


 


Section 13.5                                Deposited Money
and U.S. Government Obligations to be Held in Trust; Other Miscellaneous
Provisions


 


All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 13.6, the
Trustee and any such other trustee are referred to collectively as the “Trustee”)
pursuant to 


 


57

















 


Section 13.4 in respect of the Securities of
any Defeasible Series shall be held in trust and applied by the Trustee,
in accordance with the provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.


 


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


 


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


 


Section 13.6           Reinstatement


 


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


 


This Indenture may be executed in two or more
counterparts, which when so executed shall constitute one and the same
agreement.  The exchange of copies of
this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all
purposes.  Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their original
signatures for all purposes.


 


(Signature Page to Follow)


 


58

















 


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


 


	
   

  	
  HARSCO CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Mark E. Kimmel

  
	
   

  	
  Name: 

  	
  Mark E. Kimmel

  
	
   

  	
  Title: 

  	
  Senior Vice President, Chief 

  
	
   

  	
   

  	
  Administrative Officer, General Counsel 

  
	
   

  	
   

  	
  and Corporate Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL 

  
	
   

  	
  ASSOCIATION, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Martin Reed

  
	
   

  	
  Name: 

  	
  Martin Reed

  
	
   

  	
  Title: 

  	
  Vice President

  



 


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