uamy_ex4-3





  Exhibit 4.3







 






 


 


 


 


 


INDENTURE


 


Dated
as of ____________, 20__


 


Between


 


United
States Antimony Corporation


as
Issuer


 


And


 


[__________________________],


as
Trustee


 


 


 


___________________


 


 


Debt
Securities


 


____________________


 


 


 


 


 


 






 




 








 






 


TABLE OF CONTENTS



 


	





	
 

	
 


	
 

	
 

	
 


	
 

	





	
 Page


	

ARTICLE
I

	

DEFINITIONS
AND INCORPORATION BY REFERENCE

	

1


	

SECTION
1.01.

	

Definitions

	

1


	

SECTION
1.02.

	

Other
Definitions

	

3


	

SECTION
1.03.

	

Incorporation by
Reference of Trust Indenture Act

	

3


	

SECTION
1.04.

	

Rules
of Construction

	

4




	

ARTICLE
II

	

THE
SECURITIES

	

4


	

SECTION
2.01.

	

Unlimited in
Amount, Issuable in Series, Form and Dating

	

4


	

SECTION
2.02.

	

Execution and
Authentication

	

6


	

SECTION
2.03.

	

Registrar and
Paying Agent

	

7




	

SECTION
2.04.

	

Paying
Agent to Hold Assets in Trust

	

7


	

SECTION
2.05.

	

Holder
Lists

	

7


	

SECTION
2.06.

	

Registration of
Transfer and Exchange

	

7


	

SECTION
2.07.

	

Replacement
Securities

	

8




	

SECTION
2.08.

	

Outstanding
Securities

	

8


	

SECTION
2.09.

	

Treasury
Securities

	

8


	

SECTION
2.10.

	

Temporary
Securities

	

8


	

SECTION
2.11.

	

Cancellation

	

9




	

SECTION
2.12.

	

CUSIP
Numbers

	

9




	

SECTION
2.13.

	

Defaulted
Interest

	

9




	

SECTION
2.14.

	

Special Record
Dates

	

9




	

ARTICLE
III

	

REDEMPTION

	

9




	

SECTION
3.01.

	

Notices to
Trustee

	

9


	

SECTION
3.02.

	

Selection of
Securities to Be Redeemed

	

9


	

SECTION
3.03.

	

Notice
of Redemption

	

10




	

SECTION
3.04.

	

Effect
of Notice of Redemption

	

10


	

SECTION
3.05.

	

Deposit of
Redemption Price

	

10


	

SECTION
3.06.

	

Securities
Redeemed in Part

	

10


	

ARTICLE
IV

	

COVENANTS

	

10


	

SECTION
4.01.

	

Payment of
Securities

	

10


	

SECTION
4.02.

	

Maintenance of
Office or Agency

	

11


	

SECTION
4.03.

	

SEC
Reports

	

11


	

SECTION
4.04.

	

Compliance
Certificate

	

11


	

SECTION
4.05.

	

Taxes

	

11


	

SECTION
4.06.

	

Corporate
Existence

	

11


	

ARTICLE
V

	

MERGER,
ETC.

	

11


	

SECTION
5.01.

	

When
Company May Merge, etc.

	

11


	

SECTION
5.02.

	

Successor
Corporation Substituted

	

12







 




 

i








 






 


	

ARTICLE
VI

	

DEFAULTS
AND REMEDIES

	

12


	

SECTION
6.01.

	

Events
of Default

	

12


	

SECTION
6.02.

	

Acceleration

	

13


	

SECTION
6.03.

	

Other
Remedies

	

13


	

SECTION
6.04.

	

Wavier
of Past Defaults

	

13


	

SECTION
6.05.

	

Control by
Majority

	

13


	

SECTION
6.06.

	

Limitation on
Suits

	

13


	

SECTION
6.07.

	

Rights
of Holders to Receive Payment

	

13


	

SECTION
6.08.

	

Collection Suit by
Trustee

	

14


	

SECTION
6.09.

	

Trustee May File
Proofs of Claim

	

14


	

SECTION
6.10.

	

Priorities

	

14


	

SECTION
6.11.

	

Undertaking for
Costs

	

14


	

ARTICLE
VII

	

TRUSTEE

	

14


	

SECTION
7.01.

	

Duties
of Trustee

	

14


	

SECTION
7.03.

	

Individual Rights
of Trustee

	

16


	

SECTION
7.04.

	

Trustee’s
Disclaimer

	

16


	

SECTION
7.05.

	

Notice
of Defaults

	

16


	

SECTION
7.06.

	

Reports by Trustee
to Holders

	

16


	

SECTION
7.07.

	

Compensation and
Indemnity

	

16


	

SECTION
7.08.

	

Replacement of
Trustee

	

17


	

SECTION
7.09.

	

Successor Trustee
by Merger, Etc.

	

18


	

SECTION
7.10.

	

Eligibility;
Disqualification

	

18


	

SECTION
7.11.

	

Preferential
Collection of Claims Against the Company

	

18


	

ARTICLE
VIII

	

DISCHARGE
OF INDENTURE

	

18


	

SECTION
8.01.

	

Satisfaction and
Discharge of Indenture

	

18


	

SECTION
8.02.

	

Application of
Trust Funds; Indemnification

	

19


	

SECTION
8.03.

	

Legal
Defeasance of Securities of any Series

	

19


	

SECTION
8.04.

	

Covenant
Defeasance

	

20


	

SECTION
8.05.

	

Repayment to
Company

	

21


	

ARTICLE
IX

	

AMENDMENTS,
SUPPLEMENTS AND WAIVERS

	

21


	

SECTION
9.01.

	

Without Consent of
Holders

	

21


	

SECTION
9.02.

	

With
Consent of Holders

	

21


	

SECTION
9.03.

	

Compliance with
Trust Indenture Act

	

21


	

SECTION
9.04.

	

Revocation and
Effect of Consents

	

22


	

SECTION
9.05.

	

Notation on or
Exchange of Securities

	

22


	

SECTION
9.06.

	

Trustee to Sign
Amendment, etc.

	

22







 




 

ii








 






 


	

ARTICLE
X

	

MISCELLANEOUS

	

22


	

SECTION
10.01.

	

Trust
Indenture Act Controls

	

22


	

SECTION
10.02.

	

Notices

	

22


	

SECTION
10.03.

	

Communication by
Holders with Other Holders

	

23


	

SECTION
10.04.

	

Certificate and
Opinion as to Conditions Precedent

	

23


	

SECTION
10.05.

	

Statements
Required in Certificate or Opinion

	

23


	

SECTION
10.06.

	

Rules
by Trustee and Agents

	

23


	

SECTION
10.07.

	

Legal
Holidays

	

24


	

SECTION
10.08.

	

Duplicate
Originals

	

24


	

SECTION
10.09.

	

Governing
Law

	

24


	

SECTION
10.10.

	

No
Adverse Interpretation of Other Agreements

	

24


	

SECTION
10.11.

	

Successors

	

24


	

SECTION
10.12.

	

Severability

	

24


	

SECTION
10.13.

	

Counterpart
Originals

	

24







 


 




 

iii








 





 



CROSS-REFERENCE TABLE


 


	
 

	
 

	


Indenture


	


TIA Section

	
 

	


Section


	
 

	
 

	
 


	

Section
310 (a)(1)  

	


7.1


	
 

	


(a)(2)

	


7.1


	
 

	


(a)(3)

	


N.A.


	
 

	


(a)(4)

	


N.A.


	
 

	


(a)(5)

	


7.1


	
 

	


(b)

	


7.08; 7.10


	
 

	


(c)

	


N.A.


	

Section
311 (a)  

	


7.11


	
 

	


(b)

	


7.11


	
 

	


(c)

	


N.A.


	

Section
312(a) 



	
 2.05


	
 

	


(b)(1)

	


N.A.


	
 

	


(b)(2)

	


7.06


	
 

	


(c)

	


7.06; 12.02


	
 

	


(d)

	


7.06


	

Section
314 (a)(1), (2), (3)  

	


4.03


	
 

	


(a)(4)

	


4.04


	
 

	


(b)

	


N.A.


	
 

	


(c)(1)

	


10.04


	
 

	


(c)(2)

	


10.04


	
 

	


(c)(3)

	


N.A.


	
 

	


(d)

	


N.A.


	
 

	


(e)

	


10.05


	
 

	


(f)

	


N.A.


	


Section 315 (a)

	
 

	


7.01(b)


	
 

	


(b)

	


7.05; 10.02


	
 

	


(c)

	


7.01(a)


	
 

	


(d)

	


7.01(c)


	
 

	


(e)

	


6.11


	

Section
316(a) (last sentence)  

	


2.09


	
 

	


(a)(1)(A)

	


6.05


	
 

	


(a)(1)(B)

	


6.04


	
 

	


(a)(2)

	


N.A.


	
 

	


(b)

	


6.07


	
 

	


(c)

	


9.04


	

Section
317 (a)(1)  

	


6.08


	
 

	


(a)(2)

	


6.09


	
 

	


(b)

	


2.04


	

Section
318 (a)  

	


10.01







 


N.A.
means Not Applicable


 


NOTE:
This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the indenture.


 




 

iv








 






 


INDENTURE dated as
of __________, 20___, between United States Antimony Corporation, a
Montana corporation (the “Company”), as issuer, and
[_______________], a [__________] banking corporation, as Trustee
(the “Trustee”).


 


The
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its
debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “Securities”), as herein
provided, up to such principal amount as may from time to time be
authorized in or pursuant to one or more resolutions of the Board
of Directors or by supplemental indenture.


 


Each
party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of each series of the
Securities:


 



ARTICLE I


 

 

.A DEFINITIONS
AND INCORPORATION BY REFERENCE


 


SECTION
1.01. Definitions.


 


“Affiliate” means, when
used with reference to the Company or another person, any person
directly or indirectly controlling, controlled by, or under direct
or indirect common control with, the Company or such other person,
as the case may be. For the purposes of this definition,
“control” when used with respect to any specified
person means the power to direct or cause the direction of
management or 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 of the
foregoing.


 


“Agent” means any
registrar, Paying Agent, authenticating agent or
co-registrar.


 


“Board of Directors”
means, with respect to any person, the Board of Directors of a
person or any duly authorized committee of such Board of
Directors.


 


“Board Resolution” means,
with respect to any person, a copy of a resolution certified by the
secretary or an assistant secretary of such person to have been
duly adopted by the Board of Directors of such person or any duly
authorized committee thereof and to be in full force and effect on
the date of such certification, and delivered to the
Trustee.


 


“Business Day” means a day
that is not a Legal Holiday as defined in Section 10.07.


 


“Company” means the party
named as such in this Indenture, or any other obligor under this
Indenture, until a successor replaces it pursuant to this Indenture
and thereafter means the successor.


 


“Consolidated” or
“consolidated” means, when
used with reference to any amount, such amount determined on a
consolidated basis in accordance with GAAP, after the elimination
of intercompany items.


 


“Consolidated Assets”
means, at a particular date, all amounts which would be included
under total assets on a consolidated balance sheet of the Company
and its Subsidiaries as at such date, determined in accordance with
GAAP.


 


“Corporate Trust
Office” means the office
of the Trustee at which at any particular time its corporate
services business shall be principally administered, which office
at the date of execution of this Indenture is located at
[__________________].


 


“Default” means any event
which is, or after notice or lapse of time or both would be, an
Event of Default.


 


“Event of Default” has the
meaning provided in Section 6.01.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended any successor
Statute.


 




 

1








 






 


“GAAP” means generally
accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by
a significant segment of the accounting profession, which are
applicable from time to time.


 


“Global Security” means a
Security issued to evidence all or a part of any series of
Securities that is executed by the Company and authenticated and
delivered by the Trustee to a depositary or pursuant to such
depositary’s instructions, all in accordance with this
Indenture and pursuant to Section 2.01, which shall be
registered as to principal and interest in the name of such
depositary or its nominee.


 


“Holder” means the person
in whose name a Security is registered on the registrar’s
books.


 


“Indebtedness” of a Person
means all obligations which would be treated as liabilities upon a
balance sheet of such Person prepared on a consolidated basis in
accordance with GAAP.


 


“Indenture” means this
Indenture, as amended, supplemented or modified from time to time,
and shall include the terms of a particular series of Securities
established as contemplated by Section 2.01.


 


“Lien” means any lien,
security interest, charge or encumbrance of any kind.


 


“Obligations” means all
obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any
Indebtedness.


 


“Officer” of any person
means the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer, the Secretary or the
Controller of such person.


 


“Officers’
Certificate” means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer, Assistant
Secretary or Assistant Controller of any person.


 


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


 


“Original Issue Discount
Security” means any Security which provides that an
amount less than its principal amount is due and payable upon
acceleration after an Event of Default.


 


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


 


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


 


“Redemption Price” has the
meaning provided in Section 3.03.


 


“SEC” means the Securities
and Exchange Commission and any government agency succeeding to its
functions.


 


“Securities” means the
means the securities authenticated and delivered under this
Indenture.


 


“Securities Act” means the
Securities Act of 1933, as amended.


 


“Series” means a series of
Securities established pursuant to this Indenture.


 




 

2








 






 


“Subsidiary” of any Person
means (i) a corporation a majority of whose capital stock with
voting power, under ordinary circumstances, to elect directors is
at the time, directly or indirectly, owned by such Person or by
such Person and a subsidiary or subsidiaries of such Person or by a
subsidiary or subsidiaries of such Person or (ii) any other Person
(other than a corporation) in which such Person or such Person and
a subsidiary or subsidiaries of such Person or a subsidiary or
subsidiaries of such Persons, at the time, directly or indirectly,
own at least a majority voting interest under ordinary
circumstances.


 


“TIA” means the Trust
Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb), as in
effect on the date of this Indenture; provided, however, that in the event the
TIA is amended after such date, “TIA” means, to the extent
required by such amendment, the Trust Indenture Act of 1939, as so
amended.


 


“Trustee” means the party
named as such above until a successor becomes such pursuant to this
Indenture and thereafter means or includes each party who is then a
trustee hereunder, and if at any time there is more than one such
party, “Trustee” as used with
respect to the Securities of any series means the Trustee with
respect to Securities of that series. If Trustees with respect to
different series of Securities are Trustees under this Indenture,
nothing herein shall constitute the Trustees co-Trustees of the
same trust, and each Trustee shall be the Trustee of a trust
separate and apart from any trust administered by any other Trustee
with respect to a different series of Securities.


 


“Trust Officer” means any
officer in the corporate trust department of the Trustee or any
other officer of the Trustee assigned by the Trustee to administer
this Indenture.


 


“U.S. Government
Obligations” means (i) direct obligations of the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged or (ii)
obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America and which in
either case, are non-callable at the option of the issuer
thereof.


 


SECTION
1.02. Other
Definitions.


 


	
 

	
 

	


Defined in


	


Term

	
 

	


Section


	
 

	
 

	
 


	


“Bankruptcy
Law”

	
 

	


6.01


	


“Custodian”

	
 

	


6.01


	


“Legal
Holiday”

	
 

	


10.07


	


“Paying
Agent”

	
 

	


2.03


	


“Registrar”

	
 

	


2.03







 


SECTION 1.03. Incorporation by
Reference of Trust Indenture Act. Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture.


 


The
following TIA terms used in this Indenture have the following
meanings:


 


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


 




 

3








 






 


All
other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such
definitions.


 


SECTION 1.04. Rules of
Construction. Unless
the context otherwise requires: (i) a term has the meaning assigned
to it; (ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP; (iii)
“or” is not exclusive; (iv) words in the singular
include the plural, and in the plural include the singular; (v)
provisions apply to successive events and transactions; and (vi)
statements relating to the payment of principal and interest shall
include the payment, premium (if any) and interest.


 



ARTICLE II



THE SECURITIES


 


SECTION
2.01. Unlimited in Amount,
Issuable in Series, Form and Dating.


 


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
pursuant to a Board Resolution or an Officers’ Certificate
pursuant to authority granted under a Board Resolution or
established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:


 


(a)           The
title, ranking and authorized denominations of such
Securities;


 


(b)           The
aggregate principal amount of such Securities and any limit on such
aggregate principal amount;


 


(c)           The
price (expressed as a percentage of the principal amount thereof)
at which such Securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount
thereof payable upon declaration of acceleration of the maturity
thereof;


 


(d)           The
date or dates, or the method for determining such date or dates, on
which the principal of such Securities will be
payable;


 


(e)           The
rate or rates (which may be fixed or variable), or the method by
which such rate or rates shall be determined, at which such
Securities will bear interest, if any;


 


(f)           The
date or dates, or the method for determining such date or dates,
from which any such interest will accrue, the dates on which any
such interest will be payable, the record dates for such interest
payment dates, or the method by which such dates shall be
determined, the persons to whom such interest shall be payable, and
the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;


 


(g)           The
place or places where the principal of and interest, if any, on
such Securities will be payable, where such Securities may be
surrendered for registration of transfer or exchange and where
notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served;


 


(h)           The
period or periods, if any, within which, the price or prices at
which and the other terms and conditions upon which such Securities
may, pursuant to any optional or mandatory redemption provisions,
be redeemed, as a whole or in part, at the option of the
Company;


 


(i)           The
obligation, if any, of the Company to redeem, repay or purchase
such Securities pursuant to any sinking fund or analogous provision
or at the option of a holder thereof, and the period or periods
within which, the price or prices at which and the other terms and
conditions upon which such Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such
obligation;


 




 

4








 






 


(j)           If
other than U.S. dollars, the currency or currencies in which such
Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating
thereto;


 


(k)           Whether
the amount of payments of principal of (and premium, if any) or
interest, if any, on such Securities may be determined with
reference to an index, formula or other method (which index,
formula or method may, but need not be, based on the yield on or
trading price of other Securities, including United States Treasury
Securities, or on a currency, currencies, currency unit or units,
or composite currency or currencies) and the manner in which such
amounts shall be determined;


 


(l)           Whether
the principal of or interest on the Securities of the series is to
be payable, at the election of the Company or a holder thereof, in
a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may
be made, and the time and manner of, and identity of the exchange
rate agent with responsibility for, determining the exchange rate
between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are to be so payable;


 


(m)           Provisions,
if any, granting special rights to the holders of Securities of the
series upon the occurrence of such events as may be
specified;


 


(n)           Any
deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Securities of
the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants described
herein;


 


(o)           Whether
and under what circumstances the Company will pay any additional
amounts on such Securities in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Securities in lieu of making such
payment;


 


(p)           Whether
Securities of the series are to be issuable as registered
Securities, bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of
bearer Securities and the terms upon which bearer Securities of the
series may be exchanged for registered Securities of the series and
vice versa (if permitted by applicable laws and regulations),
whether any Securities of the series are to be issuable initially
in temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such
permanent Global Security may exchange such interests for
Securities of such series and of like tenor or any authorized form
and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in this
Indenture, and, if registered Securities of the series are to be
issuable as a Global Security, the identity of the depositary for
such series;


 


(q)           The
date as of which any bearer Securities of the series and any
temporary Global Security representing outstanding Securities of
the series shall be dated if other than the date of original
issuance of the first Security of the series to be
issued;


 


(r)           The
person to whom any interest on any registered 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, the manner in which, or the person to whom, any interest
on any bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary Global
Security on an interest payment date will be paid if other than in
the manner provided in this Indenture;


 


(s)           Whether
such Securities will be issued in certificated or book entry
form;


 


(t)           The
applicability, if any, of the legal defeasance and covenant
defeasance provisions of this Indenture to the Securities of the
series;


 




 

5








 






 


(u)           If
the Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the
form and/or terms of such certificates, documents or
conditions;


 


(v)           Whether
the Securities will be listed for trading on an exchange and the
identity of such exchange;


 


(w)           Whether
any underwriters will act as market makers for the
Securities;


 


(x)           Any
guarantees of such Securities by the Company’s Subsidiaries
or others;


 


(y)           The
date or dates, if any, after which the Securities may be converted
or exchanged into or for shares of the Company’s common stock
or another company’s securities or properties or cash and the
terms for any such conversion or exchange;


 


(z)           Any
other terms of the series.


 


The
Securities of any series shall be substantially of the tenor and
purport as set forth in one or more indentures supplemental hereto
or as provided in a written order of the Company, in each case with
such insertions, omission, substitutions and other variations as
are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which Securities of that series may be listed or of the
depository, or to conform to usage.


 


The
Trustee’s Certificate of Authentication shall be in
substantially the following form:


 


“This is one
of the Securities of the series designated in accordance with, and
referred to in the within-mentioned Indenture.


 


Dated:


 


[____________________],
as Trustee


 



By:                                                       






      Authorized
Signatory”


 


 


SECTION 2.02. Execution and
Authentication. Two
Officers shall sign the Securities for the Company by manual or
facsimile signature.


 


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


 


A
Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive
evidence that the Security has been authenticated under this
Indenture.


 


The
Trustee shall authenticate Securities for original issue upon a
written order of the Company signed by one Officer of the
Company.


 


The
Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the
Company.


 




 

6








 






 


If the
Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in the form of one or more
Global Securities, then the Company shall execute and the Trustee
shall authenticate and deliver one or more Global Securities that
(i) shall represent and shall be denominated in an amount equal to
the aggregate principal amount of all of the Securities of such
series to be issued in the form of Global Securities and not yet
canceled, (ii) shall be registered in the name of the depositary
for such Global Security or Securities or the nominee of such
depositary, (iii) shall be delivered by the Trustee to such
depositary or pursuant to such depositary’s instructions, and
(iv) shall bear a legend substantially to the following effect:
“Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be
transferred except as a whole by the depositary to the nominee of
the depositary or by a nominee of the depositary to the depositary
or another nominee of the depositary or by the depositary or any
such nominee to a successor depositary or a nominee of such
successor depositary.”


 


Each depositary designated pursuant to
Section
2.01 must, at the time of its
designation and at all times while it services as depositary, be a
clearing agency registered under the Exchange
Act.


 


SECTION 2.03. Registrar and
Paying Agent. The
Company shall maintain an office or agency where Securities of a
particular series may be presented for registration of transfer or
for exchange (the “Registrar”) and an office
or agency where Securities may be presented for payment (the
“Paying
Agent”). The registrar for a particular series of
Securities shall keep a register of the Securities of that series
and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional Paying Agents for
each series of Securities. The term “Paying Agent”
includes any additional paying agent and the term
“Registrar” includes any additional registrar. The
Company may change any Paying Agent or registrar without prior
notice to any Holder.


 


The
Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the
terms of the TIA and implement the terms of this Indenture which
relate to such Agent. The Company shall give prompt written notice
to the Trustee of the name and address of any Agent who is not a
party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any Affiliate of the Company may
act as Paying Agent or Registrar.


 


The
Company hereby initially appoints the Trustee as Registrar and
Paying Agent for each series of Securities unless another Registrar
or Paying Agent, as the case may be, is appointed prior to the time
the Securities of that series are first issued.


 


SECTION 2.04. Paying Agent to
Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all assets held by the Paying
Agent for the payment of principal of and interest on the
Securities (whether such money has been paid to it by the Company
or any other obligor on the Securities) and shall notify the
Trustee of any failure by the Company (or any other obligor on the
Securities) in making any such payment. While any such failure
continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed.
The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary of the
Company) shall have no further liability for the money so paid over
to the Trustee. If the Company or a Subsidiary of the Company acts
as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying
Agent.


 


SECTION 2.05. Holder
Lists. The Trustee
shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of
Holders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the registrar, the Company
shall furnish to the Trustee on or before each interest payment
date for the Securities and at such other times as the Trustee may
request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of
Holders, separately by series, relating to such interest payment
date or request, as the case may be.


 


SECTION 2.06. Registration of
Transfer and Exchange. When Securities of a series are
presented to the registrar or a co-registrar with a request to
register their transfer or to exchange them for an equal principal
amount of Securities of other denominations, the registrar or
co-registrar shall register the transfer or make the exchange if
its requirements for such transaction are met. To permit
registrations of transfer and exchanges, the Company shall issue
and the Trustee shall authenticate Securities at the
registrar’s or co-registrar’s request. No service
charge shall be made for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with registration, transfer or exchange of Securities
other than exchanges pursuant to Section 2.10, 3.06 or 9.05 not involving any
transfer.


 




 

7








 






 


The
registrar or co-registrar shall not be required to register the
transfer or exchange of (i) any Security of a particular series
selected for redemption in whole or in part, except the unredeemed
portion of any Security of that series being redeemed in part, or
(ii) any Security of a particular series during a period beginning
at the opening of business 15 days before the day of any selection
of Securities of that series for redemption under Section 3.02 and ending at the
close of business on the date of selection.


 


Any
Holder of a beneficial interest in a Global Security shall, by
acceptance of such beneficial interest, agree that transfers of
beneficial interest in such Global Security may be effected only
through a book entry system maintained by the holder of such Global
Security (or its agent), and that ownership of a beneficial
interest in the Security shall be required to be reflected in a
book entry system.


 


SECTION 2.07. Replacement
Securities. If a
mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security of the same series if the
requirements of the Trustee and the Company are met; provided that, if any such
Security has been called for redemption in accordance with the
terms thereof, the Trustee may pay the Redemption Price thereof on
the Redemption Date without authenticating or replacing such
Security. The Trustee or the Company may, in either case, require
the Holder to provide an indemnity bond sufficient in the judgment
of each of the Trustee and the Company to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced or if the Redemption Price therefor is paid
pursuant to this Section. The Company may charge the Holder who has
lost a Security for its expenses in replacing a
Security.


 


Every
replacement Security is an obligation of the Company and shall be
entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of the same
series.


 


SECTION 2.08. Outstanding
Securities. The
Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation and
those described in this Section as not outstanding.


 


If a
Security is replaced pursuant to Section 2.07, it ceases to be
outstanding and interest ceases to accrue unless the Trustee
receives proof satisfactory to it that the replaced Security is
held by a bona fide purchaser.


 


If all
principal of and interest on any of the Securities are considered
paid under Section
4.01, such Securities shall cease to be outstanding and
interest on them shall cease to accrue.


 


Except
as provided in Section
2.09, a Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds such
Security.


 


For
each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding
and used to determine whether the necessary Holders have given any
request, demand, authorization, direction, notice, consent or
waiver, shall be the principal amount of such Securities that could
be declared to be due and payable upon acceleration upon an Event
of Default as of the date of such determination. When requested by
the Trustee, the Company will advise the Trustee of such amount,
showing its computations in reasonable detail.


 


SECTION 2.09. Treasury
Securities. In
determining whether the Holders of the required principal amount of
Securities of any series have concurred in any direction, waiver or
consent, Securities owned by the Company or an Affiliate of the
Company shall be considered as though they are not outstanding,
except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or
consent, only Securities which such Trustee actually knows are so
owned shall be so disregarded.


 


SECTION 2.10. Temporary
Securities. Until
definitive Securities are ready for delivery, the Company may
prepare and execute and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary
Securities. Holders of temporary Securities shall be entitled to
all of the benefits of this Indenture.


 




 

8








 






 


SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of
transfer, exchange, payment or repurchase. The Trustee shall cancel
all Securities surrendered for registration of transfer, exchange,
payment, repurchase, redemption, replacement or cancellation and
shall destroy such Securities (subject to the record retention
requirements of the Exchange Act). Certification of the destruction
of all cancelled Securities shall be promptly delivered to the
Company. The Company may not issue new Securities to replace
Securities that it has paid or that have been delivered to the
Trustee for cancellation.


 


SECTION 2.12. CUSIP
Numbers. The Company
in issuing the Securities may use “CUSIP” numbers (if
then generally in use), and the Trustee shall use CUSIP numbers in
notices of redemption or exchange as a convenience to Holders;
provided that any
such notice shall state that no representation is made as to the
correctness of such numbers either as printed on the Securities or
as contained in any such notice 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 shall promptly notify the
Trustee of any change in the CUSIP numbers.


 


SECTION 2.13. Defaulted
Interest. If the
Company fails to make a payment of interest on any series of
Securities, it shall pay such defaulted interest plus (to the
extent lawful) any interest payable on the defaulted interest, in
any lawful manner. It may elect to pay such defaulted interest,
plus any such interest payable on it, to the Persons who are
Holders of such Securities on which the interest is due on a
subsequent special record date. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to
be paid on each such Security. The Company shall fix any such
record date and payment date for such payment. At least 15 days
before any such record date, the Company shall mail to Holders
affected thereby a notice that states the record date, payment
date, and amount of such interest to be paid.


 


SECTION 2.14. Special Record
Dates. The Company
may, but shall not be obligated to, set a record date for the
purpose of determining the identity of Holders entitled to consent
to any supplement, amendment or waiver permitted by this Indenture.
If a record date is fixed, the Holders of Securities of that series
outstanding on such record date, and no other Holders, shall be
entitled to consent to such supplement, amendment or waiver or
revoke any consent previously given, whether or not such Holders
remain Holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless
consents from Holders of the principal amount of Securities of that
series required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such
90-day period.


 



ARTICLE III



REDEMPTION


 


SECTION 3.01. Notices to
Trustee. If the
Company elects to redeem Securities of any series pursuant to any
optional redemption provisions thereof, it shall notify the Trustee
of the intended Redemption Date and the principal amount of
Securities of that series to be redeemed.


 


The
Company shall give each notice provided for in this Section and an
Officers’ Certificate at least 45 days before the Redemption
Date (unless a shorter period shall be satisfactory to the
Trustee).


 


SECTION 3.02. Selection of
Securities to Be Redeemed. If fewer than all the Securities of
any series are to be redeemed, the Trustee shall select the
Securities of that series to be redeemed from the outstanding
Securities of that series to be redeemed by a method that complies
with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are
not listed on an exchange, on a pro rata basis or by lot, which in
any case shall be in accordance with a method the Trustee considers
fair and appropriate.


 


Except
as otherwise provided as to any particular series of Securities,
Securities and portions thereof that the Trustee selects shall be
in amounts equal to the minimum authorized denomination for
Securities of the series to be redeemed or any integral multiple
thereof. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called
for redemption. The Trustee shall notify the Company promptly in
writing of the Securities or portions of Securities to be called
for redemption.


 




 

9








 






 


SECTION 3.03. Notice of
Redemption. At least
30 days but not more than 60 days before the Redemption Date, the
Company shall mail a notice of redemption by first-class mail to
each Holder whose Securities are to be redeemed at the address of
such Holder appearing in the register.


 


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


 


(1)           the
Redemption Date;


 


(2)           the
redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if
any, to the date fixed for redemption (the “Redemption
Price”);


 



(3)           if
any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after
the Redemption Date, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed
portion will be issued;


 


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


 


(5)           that
Securities called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;


 


(6)           that,
unless the Company defaults in payment of the Redemption Price,
interest on Securities called for redemption ceases to accrue on
and after the Redemption Date; and


 


(7)           the
CUSIP number, if any, of the Securities to be
redeemed.


 


At the
Company’s written request, the Trustee shall give the notice
of redemption in the Company’s name and at its expense. The
notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or
any defect in the notice to the Holder of any Security shall not
affect the validity of the proceeding for the redemption of any
other Security.


 


SECTION 3.04. Effect of Notice of
Redemption. Once
notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to the Paying Agent, such Securities shall be
paid at the Redemption Price.


 


SECTION 3.05. Deposit of
Redemption Price. On
or before the Redemption Date, the Company shall deposit with the
Trustee or with the Paying Agent (or if the Company or any
Subsidiary of the Company is acting as its own Paying Agent, the
Company or such Subsidiary shall segregate and hold in trust) money
sufficient to pay the Redemption Price on all Securities to be
redeemed on that date other than Securities or portions thereof
called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation. The Paying Agent shall
promptly return to the Company any money not required for that
purpose.


 


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


 


 



ARTICLE IV



COVENANTS


 


SECTION 4.01. Payment of
Securities. The
Company shall pay or cause to be paid the principal of and interest
on the Securities on the dates and in the manner provided in this
Indenture and the Securities. Principal and interest shall be
considered paid on the date due if the Paying Agent, if other than
the Company or an Affiliate, holds as of 11:00 a.m. New York time
on that date immediately available funds designated for and
sufficient to pay all principal and interest then due. To the
extent lawful, the Company shall pay interest on overdue principal
and overdue installments of interest at the rate per annum borne by
the applicable series of Securities.


 




 

10








 






 


SECTION 4.02. Maintenance of
Office or Agency. The
Company shall maintain in the Borough of Manhattan, the City of New
York, or in [_______________], an office or agency (which may be an
office of the Trustee or an affiliate of the Trustee or registrar)
where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee.


 


The
Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of
[___________], the City of [___________], or [___________], 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 designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with
Section
2.03.


 


SECTION 4.03. SEC
Reports. The Company
shall deliver to the Trustee within 15 days after it files them
with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act; provided, however, the
Company shall not be required to deliver to the Trustee any
materials for which the Company has sought and received
confidential treatment by the SEC. The Company also shall comply
with the other provisions of TIA Section 314 (a).


 


SECTION 4.04. Compliance
Certificate. The
Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, an Officers’ Certificate
stating that in the course of the performance by the signers of
their duties as officers of the Company, they would normally have
knowledge of any failure by the Company to comply with all
conditions, or default by the Company with respect to any
covenants, under this Indenture, and further stating whether or not
they have knowledge of any such failure or default and, if so,
specifying each such failure or default and the nature thereof. For
purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice
provided for in this Indenture. The certificate need not comply
with Section
10.04.


 


SECTION 4.05. Taxes.
The Company shall pay prior to delinquency, all material taxes,
assessments, and governmental levies except as contested in good
faith by appropriate proceedings.


 


SECTION 4.06. Corporate
Existence. Subject to
Article V hereof,
the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate
existence and (ii) the material rights (charter and statutory),
licenses and franchises of the Company and its Subsidiaries taken
as a whole; provided, however, that the Company shall
not be required to preserve any such right, license or franchise if
the Board of Directors or management of the Company shall determine
that the preservation thereof is no longer in the best interests of
the Company, and that the loss thereof is not adverse in any
material respect to the Holders.


 



ARTICLE V



MERGER, ETC.


 


SECTION 5.01. When Company May
Merge, etc. (a) The
Company shall not consolidate or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets to, any Person unless: (i) the
Person formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, assignment,
transfer, lease, conveyance or disposition has been made, is a
corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or disposition has been
made, assumes by supplemental indenture satisfactory in form to the
Trustee all the obligations of the Company under the Securities and
this Indenture; and (iii) immediately after such transaction, and
giving effect thereto, no Default or Event of Default shall have
occurred and be continuing. Notwithstanding the foregoing, the
Company may merge with another Person or acquire by purchase or
otherwise all or any part of the property or assets of any other
corporation or Person in a transaction in which the surviving
entity is the Company.


 




 

11








 






 


(b)           In
connection with any consolidation, merger, sale, assignment,
transfer or lease contemplated by this Section 5.01, the Company
shall deliver, or cause to be delivered, to the Trustee, in form
and substance reasonably satisfactory to the Trustee, an
Officers’ Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer or
lease and the supplemental indenture in respect thereof comply with
Article V and the
TIA and that all conditions precedent herein provided for relating
to such transaction have been complied with.


 


SECTION 5.02. Successor
Corporation Substituted. Upon any consolidation or merger, or
any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all the assets of the Company
in accordance with Section
5.01, the successor corporation formed by such consolidation
or into which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the
Company herein. In the event of any such sale or conveyance, but
not any such lease, the Company or any successor corporation which
thereafter shall have become such in the manner described in this
Article V shall be
discharged from all obligations and covenants under this Indenture
and the Securities and may be dissolved, wound up or
liquidated.


 



ARTICLE VI



DEFAULTS AND REMEDIES


 


SECTION 6.01. Events of
Default. An
“Event of Default” occurs with respect to Securities of
any particular series, unless in the establishing Board
Resolutions, Officers’ Certificate or supplemental indenture
hereto, it is provided that such series shall not have the benefit
of any such Event of Default, when any of the following
occurs:


 


(i)           the
Company defaults in the payment of interest on any Security of that
series when it becomes due and payable and such default continues
for a period of 30 days;


 


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


 


(iii)           the
Company fails to comply with any of its other agreements or
covenants in, or provisions of, the Securities of that series or
this Indenture and the Default continues for the period and after
the notice specified below;


 



(iv)           the
Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding, (B) consents to the
entry of an order for relief against it in an involuntary case or
proceeding, (C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or (D) makes a
general assignment for the benefit of its creditors;
or


 



(v)           a
court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (A) is for relief against the Company in an
involuntary case or proceeding, (B) appoints a Custodian for the
Company or for all or substantially all of the Company’s
property, or (C) orders the liquidation of the
Company;


 


and in
case of (v) the order or decree remains unstayed and in effect for
60 days.


 


The
term “Bankruptcy
Law” means Title 11 of the U.S. Code or any similar
Federal or state law for the relief of debtors. The term
“Custodian” means any
receiver, Trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.


 


A
Default under clause (iii) of this Section 6.01 is not an Event of
Default with respect to a particular series of Securities until the
Trustee notifies the Company in writing, or the Holders of at least
25% in principal amount of the outstanding Securities of that
series notify the Company and the Trustee, in writing, of the
Default, and the Company does not cure the Default within 30 days
after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a
“Notice of Default”.


 




 

12








 






 


SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (iv) or (v) of Section 6.01) occurs and is continuing, the
Trustee or the Holders of at least 25% of the principal amount of
the outstanding Securities of that series, by written notice to the
Company may declare due and payable 100% of the principal amount
(or, in the case of Original Issue Discount Securities, such lesser
amount as may be provided for in such Securities) of the Securities
of that series plus any accrued interest to the date of payment.
Upon a declaration of acceleration, such principal (or such lesser
amount) and accrued interest to the date of payment shall be due
and payable. If an Event of Default specified in clause (iv) or (v)
of Section 6.01 occurs, all unpaid principal and accrued interest
on the Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or
any Holder.


 


The
Holders of a majority of the outstanding principal amount of the
Securities of that series by written notice to the Trustee may
rescind an acceleration and its consequences if (i) all existing
Events of Default other than the nonpayment of principal (or such
lesser amount) of or interest on the Securities of that series
which have become due solely because of the acceleration, have been
cured or waived and (ii) the rescission would not conflict with any
judgment or decree of a court of competent
jurisdiction.


 


SECTION 6.03. Other
Remedies. If an Event
of Default occurs and is continuing with respect to any series of
Securities, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect the payment of principal
of or interest on the Securities of that series or to enforce the
performance of any provision of the Securities of that series or
this Indenture.


 


The
Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon the Event of Default
shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All remedies are cumulative to the extent permitted
by law.


 


SECTION 6.04. Waiver of Past
Defaults. Subject to
Sections 6.07 and
9.02, the Holders
of at least a majority in principal amount of the outstanding
Securities of any series by notice to the Trustee may waive an
existing Default or Event of Default and its consequences with
respect to that series, except a Default in the nonpayment of the
principal of or interest on any Security of that series
(provided,
however, that the
Holders of a majority in principal amount of the then outstanding
Securities of any series may rescind an acceleration and its
consequences, including any related payment default that resulted
from such acceleration) . When a Default or Event of Default is
waived, it is cured and ceases.


 


SECTION 6.05. Control by
Majority. The Holders
of at least a majority in principal amount of the outstanding
Securities of any series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law
or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders or that may involve the
Trustee in personal liability. The Trustee may take any other
action which it deems proper which is not inconsistent with any
such direction.


 


SECTION 6.06. Limitation on
Suits. A Holder of
Securities of any series may not pursue a remedy with respect to
this Indenture or the Securities of that series unless: (i) the
Holder gives to the Trustee written notice of a continuing Event of
Default with respect to such series; (ii) the Holders of at least
25% in principal amount of the outstanding Securities of that
series make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability, cost or
expense; (iv) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity;
and (v) during such 60-day period the Holders of at least a
majority in principal amount of the outstanding Securities of that
series do not give the Trustee a direction inconsistent with the
request.


 


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


 


SECTION 6.07. Rights of Holders
To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of or
interest, if any, on the Security on or after the respective due
dates expressed or provided for in the Security, or to bring suit
for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the
Holder.


 




 

13








 






 


SECTION 6.08. Collection Suit by
Trustee. If an Event
of Default specified in Section 6.01(i) or (ii) occurs and is continuing
with respect to Securities of any series, the Trustee may recover
judgment in its own name and as Trustee of an express trust against
the Company for the whole amount of principal (or such portion of
the principal as may be specified as due upon acceleration at that
time in the terms of that series of Securities) and accrued
interest, if any, remaining unpaid on the outstanding Securities of
that series, together with (to the extent lawful) interest on
overdue principal and interest, and such further amount as shall be
sufficient to cover the costs and, to the extent lawful, expenses
of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 7.07.


 


SECTION 6.09. Trustee May File
Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee and the Holders allowed in any judicial proceeding relative
to the Company (or any other obligor upon the Securities), its
creditors or its property and shall be entitled and empowered to
participate as a member, voting or otherwise, of any official
committee of creditors appointed in such matter and to collect and
receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, and any custodian in any
such judicial proceedings is hereby authorized by each Holder to
make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section
7.07. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall pay out
the money in the following order:


 


FIRST:                 
to the Trustee, its agents and attorneys for amounts due under
Section 7.07,
including payment of all compensation, expense and liabilities
incurred, and all advances made by the Trustee and the costs and
expenses of collection;


 



SECOND:         
to Holders of any particular series of
Securities for amounts due and unpaid on the Securities of such
series for principal and interest, if any, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Securities of such series for principal and
interest, respectively; and


 


THIRD:               
to the Company or any other obligors on the Securities of that
series, as their interests may appear, or as a court of competent
jurisdiction may direct.


 


The
Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this
Section 6.10. The Trustee shall notify the Company in writing
reasonably in advance of any such record date and payment
date.


 


SECTION 6.11. Undertaking for
Costs. In any suit
for the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in the suit, having due regard
to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to
a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the outstanding
Securities of that series.


 


 



ARTICLE VII



TRUSTEE


 


SECTION 7.01. Duties of
Trustee. (a) If an
Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture, 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 such person’s own
affairs.


 




 

14








 






 


(b)           Except
during the continuance of an Event of Default: (1) the Trustee need
perform only those duties that are specifically set forth in this
Indenture or the TIA, and no implied covenants or obligations shall
be read into this Indenture against the Trustee and (2) in the
absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture. However, 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 examine the
certificates and opinions to determine whether or not, on their
face, they conform to the requirements of this
Indenture.


 


(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: (1) this paragraph does not limit the
effect of paragraph (b) of this Section 7.01, (2) the Trustee
shall not be liable for any error of judgment made in good faith by
a Trust Officer or other officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts and (3)
the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.


 


(d)           Whether
or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (e) of this Section 7.01.


 


(e)           No
provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability,
cost or expense (including, without limitation, reasonable fees of
counsel).


 


(f)           The
Trustee shall not be obligated to pay interest on any money or
other assets received by it unless otherwise agreed in writing with
the Company. Assets held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.


 


SECTION 7.02. Rights of
Trustee. Subject to
Section
7.01:


 


(a)           The
Trustee may conclusively rely on any document (whether in its
original or facsimile form) reasonably believed by it to be genuine
and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the
document. The Trustee shall receive and retain financial reports
and statements of the Company as provided herein, but shall have no
duty to review or analyze such reports or statements to determine
compliance under covenants or other obligations of the
Company.


 


(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 an Officers’ Certificate or
Opinion of Counsel.


 


(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, unless the Trustee’s conduct constitutes
willful misconduct or negligence.


 


(e)           The
Trustee may consult with counsel of its selection, and the advice
or opinion of counsel with respect to legal matters relating to
this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and
in accordance with the advice or opinion of such
counsel.


 


(f)           The
Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Trust 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
Securities and this Indenture.


 


(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 to each agent,
custodian and other Person employed to act hereunder.


 




 

15








 






 


(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, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.


 


(i)           Whenever
in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may request, and
in the absence of bad faith or willful misconduct on its part, rely
upon an Officers’ Certificate and an Opinion of
Counsel.


 


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


 


SECTION 7.03. Individual Rights
of Trustee.


 


The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee is subject to Sections 7.10 and 7.11.


 


SECTION 7.04. Trustee’s
Disclaimer. The
Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities and it
shall not be responsible for any statement in the Securities other
than its certificate of authentication.


 


SECTION 7.05. Notice of
Defaults. If a
Default or Event of Default with respect to the Securities of any
series occurs and is continuing, and if it is known to the Trustee,
the Trustee shall mail to Holders a notice of the Default or Event
of Default within 90 days after the occurrence thereof. Except in
the case of a Default or Event of Default in payment of any such
Security, the Trustee may withhold the notice if and so long as it
in good faith determines that withholding the notice is in the
interests of the Holders.


 


SECTION 7.06. Reports by Trustee
to Holders. The
Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required by
TIA Section 3.13 at the times and in the manner provided by the
TIA, which shall initially be not less than every twelve months
commencing on and may be dated as of a date up to 75 days prior to
such transmission.


 


A copy
of each report at the time of its mailing to Holders shall be filed
with the SEC, if required, and each stock exchange, if any, on
which the Securities are listed. The Company shall promptly notify
the Trustee when the Securities of any series are listed on any
stock exchange.


 


SECTION 7.07. Compensation and
Indemnity. The
Company shall be liable for paying to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and
services hereunder 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 be liable for reimbursing the
Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, costs of
preparing and reviewing reports, certificates and other documents,
costs of preparation and mailing of notices to Securityholders and
reasonable costs of counsel retained by the Trustee in connection
with the delivery of an Opinion of Counsel or otherwise, in
addition to the compensation for its services. Such expenses shall
include the reasonable compensation and expenses, disbursements and
advances of the Trustee’s agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and
all loss, liability, damages, claims or expense (including
reasonable attorneys’ fees and expenses) incurred by it
without negligence, bad faith or willful misconduct on its part in
connection with the administration of this trust and the
performance of its duties hereunder, including the costs and
expense of enforcing this Indenture (including this Section 7.07) and of defending
itself against any claims (whether asserted by any Securityholder,
the Company or otherwise). Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder.
The Company shall defend the claim, and the Trustee shall provide
reasonable cooperation at the Company’s expense in the
defense. The Trustee may have separate counsel and the Company
shall pay the fees and expenses of such counsel, provided that the Company shall
not be required to pay such fees and expenses if it assumes the
Trustee’s defense, and, in the reasonable judgment of outside
counsel to the Trustee, there is no conflict of interest between
the Company and the Trustee in connection with such defense.
Notwithstanding the foregoing, the Company need not reimburse any
expense or indemnify against any loss, liability or expense which
is finally determined by a court of competent jurisdiction to have
been incurred by the Trustee through the Trustee’s own
willful misconduct, negligence or bad faith.


 




 

16








 






 


To
secure the Company’s payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee other than money or
property held in trust to pay principal of and interest on
particular Securities. Such lien shall survive the satisfaction and
discharge of this Indenture. The Trustee’s right to receive
payment of any amounts due under this Section 7.07 shall not be
subordinate to any other liability or Indebtedness of the
Company.


 


The
Company’s and the Subsidiary Guarantors’ payment
obligations pursuant to this Section shall survive the discharge of
this Indenture. When the Trustee incurs expenses after the
occurrence of an Event of Default specified in clause (iv) or
clause (v) of Section
6.01 with respect to the Company, the expenses are intended
to constitute expenses of administration under any Bankruptcy
Law.


 


SECTION 7.08. Replacement of
Trustee. A
resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this
Section
7.08.


 


The
Trustee may resign and be discharged from the trust hereby created
with respect to one or more or all series of Securities by so
notifying the Company in writing. The Holders of a majority in
principal amount of the then outstanding Securities of any series
may remove the Trustee with respect to that series by so notifying
the Trustee and the Company in writing. The Company may remove the
Trustee with respect to one or more or all series of Securities if:
(i) the Trustee fails to comply with Section 7.10 or TIA Section
310; (ii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law; (iii) a Custodian or public officer takes charge of
the Trustee or its property; or (iv) the Trustee becomes incapable
of acting.


 


If, as
to any series of Securities, the Trustee resigns or is removed or
if a vacancy exists in the office of the Trustee for any reason,
the Company shall promptly appoint a successor Trustee for that
series of Securities. The Trustee shall be entitled to payment of
its fees and reimbursement of its expenses while acting as Trustee.
Within one year after the successor Trustee takes office, the
Holders of at least a majority in principal amount of then
outstanding Securities of that series may appoint a successor
Trustee to replace the successor Trustee appointed by the
Company.


 


Any
Holder of Securities of that series may petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee if the Trustee fails to comply
with Section
7.10.


 


A
successor Trustee as to any series of Securities shall deliver a
written acceptance of its appointment to the retiring Trustee and
to the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee under
this Indenture. The Company shall mail a notice of the successor
Trustee’s succession to the Holders. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the
Company’s obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee with respect to
expenses, losses and liabilities incurred by it prior to such
replacement.


 


In case
of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates, (2) shall contain such provisions as shall be
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary or desirable to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee; provided, however, that nothing herein or
in such supplemental indenture shall constitute such Trustees to be
co-Trustees of the same trust and that each such Trustee shall be
Trustee of a trust hereunder separate and apart from any trust
hereunder administered by any other such Trustee.


 


Upon
the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.


 




 

17








 






 


SECTION 7.09. Successor Trustee
by Merger, Etc.
 Subject to Section
7.10, if the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business
to, another corporation or national banking association, the
successor entity without any further act shall be the successor
Trustee as to that series of Securities.


 


SECTION 7.10. Eligibility;
Disqualification.
Each series of Securities shall always have a Trustee who satisfies
the requirements of TIA Section 310(a) (1), (2) and (5). The
Trustee as to any series of Securities shall always have a combined
capital and surplus of at least $100 million as set forth in its
most recent published annual report of condition. The Trustee is
subject to TIA Section 310(b).


 


SECTION 7.11. Preferential
Collection of Claims Against the Company. The Trustee is subject to TIA Section
311(a), excluding any creditor relationship listed in TIA Section
311 (b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated
therein.


 



ARTICLE VIII



DISCHARGE OF INDENTURE


 


SECTION 8.01. Satisfaction and
Discharge of Indenture. This Indenture shall cease to be of
further effect (except as to any surviving rights of 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 Securities that
have been destroyed, lost or stolen and that have been replaced or
paid) have been delivered to the Trustee for cancellation;
or






 



(ii)            

all such Securities
not theretofore delivered to the Trustee for
cancellation






 



(1)            

have become due and
payable, or






 



(2)            

will become due and
payable at their stated maturity within one year, or






 



(3)            

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, or






 



(4)            

are deemed paid and
discharged pursuant to Section 8.03, as applicable;






 


and the
Company, in the case of (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an
amount sufficient for the purpose of paying and discharging the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and interest to the
date of such deposit (in the case of Securities which have become
due and payable on or prior to the date of such deposit) 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 7.07, and, if money
shall have been deposited with the Trustee pursuant to clause (a)
of this Section or if money or obligations shall have been
deposited with or received by the Trustee pursuant to Section 8.03, the obligations
of the Trustee under Section 8.02 and Section 8.05 shall
survive.


 




 

18








 






 


SECTION
8.02. Application of Trust
Funds; Indemnification.


 


(a)           Subject
to the provisions of Section 8.05, all money
deposited with the Trustee pursuant to Section 8.01, all money and
U.S. Government Obligations deposited with the Trustee pursuant to
Section 8.03 or
8.04 and all money
received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 8.03 or 8.04, 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 interest for whose payment such money
has been deposited with or received by the Trustee or to make
mandatory sinking fund payments or analogous payments as
contemplated by Sections
8.03 and 8.04.


 


(b)           The
Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and
principal received in respect of such obligations other than any
payable by or on behalf of Holders.


 


(c)           The
Trustee shall deliver or pay to the Company from time to time upon
the request of the Company any U.S. Government Obligations or money
held by it as provided in Sections 8.03 or 8.04 which, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered
to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which
such U.S. Government Obligations or money were deposited or
received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations held under this
Indenture.


 


SECTION 8.03. Legal Defeasance of
Securities of any Series. Unless this Section 8.03 is otherwise
specified to be inapplicable to Securities of any series, the
Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of any such series
on the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, and the provisions of this Indenture, as
it relates to such outstanding Securities of such series, shall no
longer be in effect (and the Trustee, at the expense of the
Company, shall, upon the request of the Company, execute proper
instruments acknowledging the same), except as to:


 


(i)           the
rights of Holders of Securities of such series to receive, from the
trust funds described in subparagraph (d) hereof, (x) payment of
the principal of an each installment of principal of or interest on
the outstanding Securities of such series on the stated maturity of
such principal of or interest and (y) the benefit of any mandatory
sinking fund payments applicable to the Securities of such series
on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such
series;


 


(ii)           the
Company’s obligations with respect to such Securities of such
series under Sections
2.03, 2.06
and 2.07;
and


 


(iii)           the
rights, powers, trust and immunities of the Trustee hereunder and
the duties of the Trustee under Section 8.02 and the duty of
the Trustee to authenticate Securities of such series issued on
registration of transfer of exchange;


 


provided that, the
following conditions shall have been satisfied:


 


(a)           the
Company shall have deposited or caused to be deposited irrevocably
with the Trustee 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 such Securities,
cash in U.S. Dollars and/or U.S. Government Obligations which
through the payment of interest and principal in respect thereof,
in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment
of money, an amount in cash, 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 each installment of principal
(including mandatory sinking fund or analogous payments) of and
interest, if any, on all the Securities of such series on the dates
such installments of interest or principal are due;


 


(b)           such
deposit will not result in a breach or violation of, or constitute
a default under, this Indenture;


 




 

19








 






 


(c)           no
Default or Event of Default with respect to the Securities of such
series shall have occurred on the date of such deposit and 91 days
shall have passed after the deposit has been made, and, during such
91 day period, no Default specified in Section 6.0l(iv) or (v) with
respect to the Company occurs which is continuing at the end of
such period;


 


(d)           the
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit,
defeasance and discharge had not occurred;


 


(e)           the
Company shall have delivered to the Trustee an Officers’
Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such
series over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other creditors
of the Company;


 


(f)           such
deposit shall not result in the trust arising from such deposit
constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified
under such Act or exempt from regulation thereunder;
and


 


(g)           the
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the defeasance contemplated by
this Section have been complied with.


 


SECTION 8.04. Covenant
Defeasance. Unless
this Section 8.04
is otherwise inapplicable to Securities of any series, on and after
the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with any
term, provision or condition set forth under Sections 4.03, 4.04 and 4.05 as well as any additional
covenants contained in a supplemental indenture hereto for a
particular series of Securities or a Board Resolution or an
Officers’ Certificate delivered pursuant to Section 2.01 (and the failure
to comply with any such provisions shall not constitute a Default
or Event of Default under Section 6.01) and the
occurrence of any event described in clause (e) of Section 6.01 shall not
constitute a Default or Event of Default hereunder, with respect to
the Securities of such series, provided that the following
conditions shall have been satisfied:


 


(a)           With
reference to this Section
8.04, the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 8.03) with the Trustee
as trust funds in trust, specifically pledged as Security for, and
dedicated solely to, the benefit of the Holders of such Securities,
cash in U.S. Dollars and/or U.S. Government Obligations which
through the payment of interest and principal in respect thereof,
in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment
of money, an amount in cash, sufficient, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay principal and interest, if any, on and any
mandatory sinking fund in respect of the Securities of such series
on the dates such installments of interest or principal are
due;


 


(b)           Such
deposit will not result in a breach or violation of, or constitute
a default under, this Indenture;


 


(c)           No
Default or Event of Default with respect to the Securities of such
series shall have occurred on the date of such deposit and 91 days
shall have passed after the deposit has been made, and, during such
91 day period, no Default specified in Section 6.01(iv) or (v) with
respect to the Company occurs which is continuing at the end of
such period;


 


(d)           The
Company shall have delivered to the Trustee an Opinion of Counsel
confirming that Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a
result of such deposit and defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such deposit and
defeasance had not Occurred;


 


(e)           The
Company shall have delivered to the Trustee an Officers’
Certificate stating the deposit was not made by the Company with
the intent of preferring the Holders of the Securities of such
series over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other creditors
of the Company; and


 




 

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(f)           The
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.


 


SECTION 8.05. Repayment to
Company. The Trustee
and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company,
Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law
designates another Person.


 



ARTICLE IX



AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


SECTION 9.01. Without Consent of
Holders. The Company
and the Trustee may amend this Indenture or the Securities without
the consent of any Holder: (i) to cure any ambiguity, defect or
inconsistency or make any change required to qualify the indenture
under the TIA, provided that such change does not adversely affect
the rights hereunder of any Holder in any material respect; (ii) to
comply with Section
5.01; (iii) to provide for uncertificated Securities in
addition to certificated Securities; (iv) to make any change that
does not adversely affect in any material respect the rights
hereunder of any Holder; (v) to add to, change or eliminate any of
the provisions of this Indenture in respect of one or more series
of Securities, provided, however, that any such
addition, change or elimination (A) shall neither (i) 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 (ii) modify the rights of the holder of any such
Security with respect to such provision or (B) shall become
effective only when there is no outstanding Security of any series
created prior to the execution of such supplemental indenture and
entitled to the benefit of such provisions; or (vi) to establish
additional series of Securities as permitted by Section 2.01.


 


SECTION 9.02. With Consent of
Holders. The Company
and the Trustee as to any series of Securities may amend this
Indenture or the Securities of that series or waive compliance in
any particular instance with any provision of this Indenture or the
Securities of that series, in each case with the written consent of
the Holders of at least a majority in principal amount of the then
outstanding Securities of that series.


 


Without
the consent of each Holder affected, an amendment or waiver under
this Section may not: (i) reduce the principal amount of
Securities, whose Holders must consent to an amendment or waiver;
(ii) reduce the rate of or change the time for payment of interest
on any Security; (iii) change the date on which any Security may be
subject to redemption or repurchase, or reduce the redemption or
repurchase price therefor; (iv) make any Security payable in
currency other than that stated in the Security; or (v) make any
change in Section
6.04, 6.07
or this sentence.


 


It
shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the
substance thereof.


 


An
amendment or waiver under this Section which waives, 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.


 


The
Company will mail supplemental indentures to Holders upon request.
Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.


 


SECTION 9.03. Compliance with
Trust Indenture Act.
Every amendment to this Indenture or the Securities shall be set
forth in a supplemental indenture that complies with the TIA as
then in effect.


 




 

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SECTION 9.04. Revocation and
Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by
a Holder of a Security is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security,
even if notation of the consent is not made on any Security;
provided,
however, that
unless a record date shall have been established pursuant to
Section 2.14, any
such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives written
notice of revocation before the date the amendment or waiver
becomes effective. An amendment or waiver becomes effective on
receipt by the Trustee of consents from the Holders of the
requisite percentage principal amount of the outstanding Securities
of any series, and thereafter shall bind every Holder of Securities
of that series.


 


SECTION 9.05. Notation on or
Exchange of Securities. If an amendment or waiver changes the
terms of a Security: (a) the Trustee may require the Holder of the
Security to deliver such Security to the Trustee, the Trustee may
place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an
appropriate notation on any Security thereafter authenticated; or
(b) if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed
terms.


 


SECTION 9.06. Trustee to Sign
Amendment, etc. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment
does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need
not sign it. In signing or refusing to sign such amendment, the
Trustee shall be entitled to receive and shall be fully protected
in relying upon an Officers’ Certificate and an Opinion of
Counsel as conclusive evidence that such amendment is authorized or
permitted by this Indenture and that such amendment, supplement or
waiver is the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof
(including Section
9.03).


 



ARTICLE X



MISCELLANEOUS


 


SECTION 10.01. Trust Indenture Act
Controls. This
Indenture is subject to the provisions of the TIA which are
required to be part of this Indenture, and shall, to the extent
applicable, be governed by such provisions.


 


SECTION 10.02. Notices.
Any notice or communication to the Company or the Trustee is duly
given if in writing and delivered in person or mailed by
first-class mail to the address set forth below:


 


If to
the Company:


 


	

United
States Antimony Corporation


	

47
Cox Gulch


	

P.O.
Box 643


	

Thompson Falls,
Montana 59873


	

Attn:
Chief Executive Officer


406-827-3523







 


with a
copy to:


 


Pryor
Cashman LLP


7 Times
Square


New
York, New York 10036


Attention: Ali
Panjwani, Esq.


 




 

22








 






 


If to
the Trustee:


 


[____________________]


_____________________


_____________________


_____________________


Attention:
____________


 


With a
copy to:


 


_____________________


_____________________


_____________________


Attention:
____________


 


The
Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or
communications.


 


Any
notice or communication to a Holder shall be mailed by first-class
mail to his address shown on the register kept by the registrar.
Failure to mail a notice or communication to a Holder or any defect
in such notice or communication shall not affect its sufficiency
with respect to other Holders.


 


If a
notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given, whether or not
the addressee receives it, except that notice to the Trustee shall
only be effective upon receipt thereof by the Trustee.


 


If the
Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.


 


SECTION 10.03. Communication by
Holders with Other Holders. Holders may communicate pursuant to
TIA Section 312(b) with other Holders with respect to their rights
under this Indenture or the Securities. The Company, the Trustee,
the registrar and anyone else shall have the protection of TIA
Section 312 (c)


 


SECTION 10.04. Certificate and
Opinion as to Conditions Precedent. Upon any request or application by the
Company to the Trustee to take any action under this Indenture, the
Company shall furnish to the Trustee: (1) an Officers’
Certificate (which shall include the statements set forth in
Section 10.05) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and (ii) an Opinion of Counsel (which shall include the statements
set forth in Section 10.05) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
complied with.


 


SECTION 10.05. Statements Required
in Certificate or Opinion. Each certificate (other than
certificates provided pursuant to Section 4.04) or opinion with
respect to compliance with a condition or covenant provided for in
this Indenture shall include: (i) a statement that the person
making such certificate or opinion has read such covenant or
condition; (ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a
statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and (iv) a statement as to
whether or not, in the opinion of such person, such condition or
covenant has been complied with; provided, however, that with respect to
matters of fact, an Opinion of Counsel may rely on an
Officers’ Certificate or certificate of public
officials.


 


SECTION 10.06. Rules by Trustee
and Agents. The
Trustee may make reasonable rules for action by or for a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.


 




 

23








 






 


SECTION 10.07. Legal
Holidays. A
“Legal
Holiday” is a Saturday, a Sunday or a day on which
banking institutions in the City of New York are not required or
authorized to be open. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.


 


SECTION 10.08. Duplicate
Originals. The
parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.


 


SECTION 10.09. Governing
Law. The internal
laws of the State of [___________] shall govern this Indenture and
the Securities, without regard to the conflicts of Law rules
thereof.


 


SECTION 10.10. No Adverse
Interpretation of Other Agreements. This Indenture may not be used to
interpret another indenture, loan or debt agreement of the Company
or any subsidiary. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.


 


SECTION 10.11. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successor.


 


SECTION 10.12. Severability.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 


SECTION 10.13. Counterpart
Originals. This
Indenture may be signed in one or more counterparts. Each signed
copy shall be an original, but all of them together represent the
same agreement.


 


	
 

	
 

United
States Antimony Corporation


 


By:                                                       
      


Name:


Title:


 



Dated:                                                                






 


 

[                                                       
]


 


 



By:                                                       






Name:


Title:


 



Dated:                                                                












 



 

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