bkti_ex43





  










Exhibit 4.3



 



BK TECHNOLOGIES CORPORATION


 


And


 


                      ,
as Trustee



 



INDENTURE


 


Dated
as
of                    
,


 



 



TABLE OF CONTENTS


 


	
 

	
 

	


Page


	
 

	
 

	
 


	


ARTICLE 1

	
 

	

[_]


	
 

	
 

	
 


	

1.1

	


DEFINITIONS

	
 2


	

1.2

	


OTHER DEFINITIONS

	
 5


	

1.3

	


INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT

	
 6


	

1.4

	


RULES OF CONSTRUCTION

	
 6


	
 

	
 

	
 


	


ARTICLE 2

	
 

	
 


	
 

	
 

	
 


	

2.1

	


ISSUABLE IN SERIES

	
 6


	

2.2

	


ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES

	
 7


	

2.3

	


EXECUTION AND AUTHENTICATION

	
 8


	

2.4

	


REGISTRAR AND PAYING AGENT

	
 9


	

2.5

	


PAYING AGENT TO HOLD ASSETS IN TRUST

	
 9


	

2.6

	


SECURITYHOLDER LISTS

	
 10


	

2.7

	


TRANSFER AND EXCHANGE

	
 10


	

2.8

	


REPLACEMENT SECURITIES

	
 10


	

2.9

	


OUTSTANDING SECURITIES

	
 10


	

2.10

	


WHEN TREASURY SECURITIES DISREGARDED; DETERMINATION OF
HOLDERS’ ACTION

	
 11


	

2.11

	


TEMPORARY SECURITIES

	
 11


	

2.12

	


CANCELLATION

	
 11


	

2.13

	


PAYMENT OF INTEREST; DEFAULTED INTEREST; COMPUTATION OF
INTEREST

	
 11


	

2.14

	


CUSIP NUMBER

	
 12


	

2.15

	


PROVISIONS FOR GLOBAL SECURITIES

	
 12


	

2.16

	


PERSONS DEEMED OWNERS

	
 12


	
 

	
 

	
 






 



 







 





 


	


ARTICLE 3

	
 

	
 


	
 

	
 

	
 


	

3.1

	


NOTICES TO TRUSTEE

	
 13


	

3.2

	


SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED

	
 13


	

3.3

	


NOTICE OF REDEMPTION

	
 13


	

3.4

	


EFFECT OF NOTICE OF REDEMPTION

	
 14


	

3.5

	


DEPOSIT OF REDEMPTION PRICE

	
 14


	

3.6

	


SECURITIES REDEEMED IN PART

	
 14


	
 

	
 

	
 


	


ARTICLE 4

	
 

	
 


	
 

	
 

	
 


	

4.1

	


PAYMENT OF SECURITIES

	
 15


	

4.2

	


SEC REPORTS

	
 15


	

4.3

	


WAIVER OF STAY, EXTENSION OR USURY LAWS

	
 15


	

4.4

	


COMPLIANCE CERTIFICATE

	
 15


	

4.5

	


CORPORATE EXISTENCE

	
 15


	
 

	
 

	
 


	


ARTICLE 5

	
 

	
 


	
 

	
 

	
 


	

5.1

	


LIMITATION ON CONSOLIDATION, MERGER AND SALE OF ASSETS

	
 16


	

5.2

	


SUCCESSOR PERSON SUBSTITUTED

	
 16







  


	


ARTICLE 6

	
 

	
 


	
 

	
 

	
 


	

6.1

	


EVENTS OF DEFAULT

	
 16


	

6.2

	


ACCELERATION

	
 17


	

6.3

	


REMEDIES

	
 17


	

6.4

	


WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT

	
 17


	

6.5

	


CONTROL BY MAJORITY

	
 17


	

6.6

	


LIMITATION ON SUITS

	
 18


	

6.7

	


RIGHTS OF HOLDERS TO RECEIVE PAYMENT

	
 18


	

6.8

	


COLLECTION SUIT BY TRUSTEE

	
 18


	

6.9

	


TRUSTEE MAY FILE PROOFS OF CLAIM

	
 18


	

6.10

	


PRIORITIES

	
 19


	

6.11

	


UNDERTAKING FOR COSTS

	
 


	
 

	
 

	
 


	


ARTICLE 7

	
 

	
 


	
 

	
 

	
 


	

7.1

	


DUTIES OF TRUSTEE

	
 19


	

7.2

	


RIGHTS OF TRUSTEE

	
 20


	

7.3

	


INDIVIDUAL RIGHTS OF TRUSTEE

	
 20


	

7.4

	


TRUSTEE’S DISCLAIMER

	
 21


	

7.5

	


NOTICE OF DEFAULT

	
 21


	

7.6

	


REPORTS BY TRUSTEE TO HOLDERS

	
 21


	

7.7

	


COMPENSATION AND INDEMNITY

	
 21


	

7.8

	


REPLACEMENT OF TRUSTEE

	
 22


	

7.9

	


SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR
CONVERSION

	
 22


	

7.10

	


ELIGIBILITY; DISQUALIFICATION

	
 22


	

7.11

	


PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY

	
 23


	

7.12

	


PAYING AGENTS

	
 23


	
 

	
 

	
 






 



 







 





 


	


ARTICLE 8

	
 

	
 


	
 

	
 

	
 


	

8.1

	


WITHOUT CONSENT OF HOLDERS

	
 23


	

8.2

	


WITH CONSENT OF HOLDERS

	
 24


	

8.3

	


COMPLIANCE WITH TRUST INDENTURE ACT

	
 24


	

8.4

	


REVOCATION AND EFFECT OF CONSENTS

	
 24


	

8.5

	


NOTATION ON OR EXCHANGE OF SECURITIES

	
 25


	

8.6

	


TRUSTEE TO SIGN AMENDMENTS, ETC.

	
 25


	
 

	
 

	
 


	


ARTICLE 9

	
 

	
 


	
 

	
 

	
 


	

9.1

	


DISCHARGE OF INDENTURE

	
 25


	

9.2

	


LEGAL DEFEASANCE

	
 25


	

9.3

	


COVENANT DEFEASANCE

	
 26


	

9.4

	


CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE

	
 26


	

9.5

	


DEPOSITED MONEY AND U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS

	
 27


	

9.6

	


REINSTATEMENT

	
 27


	

9.7

	


MONEYS HELD BY PAYING AGENT

	
 27


	

9.8

	


MONEYS HELD BY TRUSTEE

	
 27


	
 

	
 

	
 


	


ARTICLE 10

	
 

	
 


	
 

	
 

	
 


	

10.1

	


TRUST INDENTURE ACT CONTROLS

	
 28


	

10.2

	


NOTICES

	
 28


	

10.3

	


COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS

	
 29


	

10.4

	


CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT

	
 29


	

10.5

	


STATEMENT REQUIRED IN CERTIFICATE AND OPINION

	
 29


	

10.6

	


RULES BY TRUSTEE AND AGENTS

	
 29


	

10.7

	


BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT

	
 29


	

10.8

	


GOVERNING LAW

	
 30


	

10.9

	


NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS

	
 30


	

10.10

	


NO RECOURSE AGAINST OTHERS

	
 30


	

10.11

	


SUCCESSORS

	
 30


	

10.12

	


MULTIPLE COUNTERPARTS

	
 30


	

10.13

	


TABLE OF CONTENTS, HEADINGS, ETC.

	
 30


	

10.14

	


SEVERABILITY

	
 30


	

10.15

	


SECURITIES IN A FOREIGN CURRENCY OR IN EUROS

	
 31


	

10.16

	


JUDGMENT CURRENCY

	
 31








 


 




 








 






 



CROSS-REFERENCE TABLE


 


	


TIA SECTION

	
 

	


INDENTURE SECTION


	

310(a)(1)(2)(5)

	
 

	

7.10


	

310(a)(3)(4)

	
 

	

Inapplicable


	

310(b)

	
 

	

7.8;
7.10


	

311(a)(b)

	
 

	

7.11


	

312(a)

	
 

	

2.6


	

312(b)(c)

	
 

	

10.3


	

313(a)(b)

	
 

	

7.6


	

313(c)

	
 

	

7.6;
10.2


	

313(d)

	
 

	

7.6


	

314(a)

	
 

	

4.2;
4.4; 10.2


	

314(b)

	
 

	

Inapplicable


	

314(c)(1)(2)

	
 

	

10.4;
10.5


	

314(c)(3)

	
 

	

Inapplicable


	

314(d)

	
 

	

Inapplicable


	

314(e)

	
 

	

10.5


	

314(f)

	
 

	

Inapplicable


	

315(a)

	
 

	

7.1,
7.2


	

315(b)

	
 

	

7.5;
10.2


	

315(c)

	
 

	

7.1


	

315(d)

	
 

	

6.5;
7.1; 7.2


	

315(e)

	
 

	

6.11


	

316(a)(last
sentence)

	
 

	

2.10


	

316(a)(1)(A)

	
 

	

6.5


	

316(a)(1)(B)

	
 

	

6.4


	

316(a)(2)

	
 

	

8.2


	

316(b)

	
 

	

6.7


	

316(c)

	
 

	

8.4


	

317(a)(1)

	
 

	

6.8


	

317(a)(2)

	
 

	

6.9


	

317(b)

	
 

	

2.5;
7.12


	

318(a)

	
 

	

10.1







 


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


 


 




 

1








 






INDENTURE, dated as
of
             ,
             ,
by and between BK Technologies Corporation, a Nevada corporation,
as Issuer (the “Company”)
and           
,
a                
organized under the laws of
            ,
as Trustee (the “Trustee”).



 



RECITALS OF THE COMPANY


 


The
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its
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.


 


All
things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms have been done, and the
execution and delivery thereof have been in all respects duly
authorized by the parties hereto.



 



NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


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



 



ARTICLE 1



 



DEFINITIONS AND INCORPORATION BY REFERENCE


 


1.1 DEFINITIONS.


 


“Affiliate” of any
specified Person means any other Person which, directly or
indirectly through one or more intermediaries, controls, or is
controlled by or is under common control with, such specified
Person. For the purposes of this definition, “control”
(including, with correlative meanings, the terms
“controlling,” “controlled by” and
“under common control with”), as used with respect to
any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.


 


“Agent” means any
Registrar, Paying Agent, co-registrar or agent for service of
notices and demands.


 


“Board of Directors” means
the Board of Directors of the Company or any committee duly
authorized to act therefor.


 


“Board Resolution” means a
copy of a resolution certified pursuant to an Officers’
Certificate to have been duly adopted by the Board of Directors of
the Company and to be in full force and effect on the date of such
certification which has been delivered to the Trustee.


 


“Capital Stock” means,
with respect to any Person, any and all shares or other equivalents
(however designated) of capital stock, partnership interests or any
other participation, right or other interest in the nature of an
equity interest in such Person or any option, warrant or other
security convertible into any of the foregoing.


 


“Company” means the party
named as such in the first paragraph of this Indenture until a
successor replaces such party pursuant to Article 5 of this
Indenture, and thereafter means the successor and any other primary
obligor on the Securities.


 



 

2







 






 


“Company Order” means a
written order signed in the name of the Company by two Officers,
one of whom must be its Chief Executive Officer or its Chief
Financial Officer.


 


“Company Request” means
any written request signed in the name of the Company by its Chief
Executive Officer, its President, any Vice President, its Chief
Financial Officer or its Treasurer and attested to by its Secretary
or any Assistant Secretary.


 


“Corporate Trust Office”
means the office of the Trustee at which at any particular time its
corporate trust business shall be principally
administered.


 


“Default” means any event
that is, or that with the passing of time or giving of notice or
both would be, an Event of Default.


 


“Depository” means, with
respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person
designated as Depository for such Series by the Company, which
Depository shall be a clearing agency registered under the Exchange
Act, until a successor Depository shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter
“Depository” shall mean
each Person who is then a Depository hereunder, and if at any time
there is more than one such Person, such Persons.


 


“Dollars” means the
currency of the United States of America.


 


“Euro” means the single
currency of participating member states of the economic and
monetary union as contemplated in the Treaty on European
Union.


 


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


 


“Foreign Currency” means
any currency or currency unit issued by a government other than the
government of the United States of America.


 


“Foreign Government
Obligations” means, with respect to Securities that
are denominated in a Foreign Currency, (i) direct obligations of
the government that issued or caused to be issued such currency for
the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised
by, or acting as an agency or instrumentality of, such government,
the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by such government, which, in either
case under clauses (i) and (ii), are not callable or redeemable at
the option of the issuer thereof.


 


“GAAP” means generally
accepted accounting principles consistently applied as in effect in
the United States of America from time to time.


 


“Global Security” or
“Global
Securities” means a Security or Securities, as the
case may be, in the form established pursuant to Section 2.2,
evidencing all or part of a Series of Securities issued to the
Depository for such Series or its nominee, and registered in the
name of such Depository or nominee, and bearing the legend set
forth in Section 2.15(c) (or such other legend(s) as may be applied
to such Securities in accordance with Section
2.2(24)).


 


“Holder” or
“Securityholder” means the
Person in whose name a Security is registered on the
Registrar’s books.


 


“Indebtedness” means
(without duplication), with respect to any Person, any indebtedness
at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only
to a portion thereof), or evidenced by bonds, notes, debentures or
similar instruments, or representing the balance deferred and
unpaid of the purchase price of any property (excluding any
balances that constitute accounts payable or trade payables, and
other accrued liabilities arising in the ordinary course of
business), if and to the extent any of the foregoing indebtedness
would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP.


 


“Indenture” means this
Indenture as amended, restated or supplemented from time to
time.


 


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


 



 

3







 






 


“Lien” means, with respect
to any property or assets of any Person, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien, charge, easement, encumbrance, preference,
priority or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property
or assets (including, without limitation, any capitalized lease
obligation, conditional sales or other title retention agreement
having substantially the same economic effect as any of the
foregoing).


 


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


 


“Officer” means the Chief
Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer or the Secretary of the Company,
or any other officer designated by the Board of Directors, as the
case may be.


 


“Officers’
Certificate” means, with respect to any Person, a
certificate signed by the Chairman, Chief Executive Officer,
President or any Senior or Executive Vice President and the Chief
Financial Officer or any Treasurer of such Person, that shall
comply with applicable provisions of this Indenture.


 


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


 


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


 


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


 


“Responsible Officer,”
when used with respect to the Trustee, means any officer within the
corporate trust department or division of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any
of the above designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with
the particular subject.


 


“SEC” means the United
States Securities and Exchange Commission as constituted from time
to time, or any successor performing substantially the same
functions.


 


“Securities” means the
securities that are issued under this Indenture, as amended or
supplemented from time to time pursuant to this
Indenture.


 


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


 


“Series” or
“Series of
Securities” means each series of debentures, notes or
other debt instruments of the Company created pursuant to Sections
2.1 and 2.2.


 


“Significant Subsidiary”
means (i) any direct or indirect Subsidiary of the Company that
would be a “significant subsidiary” as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the date hereof,
or (ii) any group of direct or indirect Subsidiaries of the Company
that, taken together as a group, would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such regulation
is in effect on the date hereof.


 


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


 



 

4







 






 


“Subsidiary” of any
specified Person means any corporation, limited liability company,
partnership, joint venture, association or other business entity,
whether now existing or hereafter organized or acquired, (i) in the
case of a corporation, of which more than 50% of the total voting
power of the Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors
thereof is held, directly or indirectly, by such Person or any of
its Subsidiaries; or (ii) in the case of a partnership, joint
venture, association or other business entity, with respect to
which such Person or any of its Subsidiaries has the power to
direct or cause the direction of the management and policies of
such entity by contract or otherwise, or if in accordance with GAAP
such entity is consolidated with such Person for financial
statement purposes.


 


“TIA” means the Trust
Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb) as in
effect on the date of this Indenture (except as provided in Section
8.3).


 


“Trustee” means the party
named as such in this Indenture until a successor replaces it
pursuant to this Indenture, and thereafter means the successor, and
if at any time there is more than one such Person,
“Trustee” as used with
respect to the Securities of any Series shall mean the Trustee with
respect to Securities of that Series.


 


“U.S. Government
Obligations” means direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full
faith and credit of the United States of America is
pledged.


 


1.2
OTHER DEFINITIONS.


 


The
definitions of the following terms may be found in the sections
indicated as follows:


 


	


TERM

	
 

	


DEFINED IN SECTION


	

“Bankruptcy
Law”

	
 

	

6.1


	

“Business
Day”

	
 

	

10.7


	

“Covenant
Defeasance”

	
 

	

9.3


	

“Custodian”

	
 

	

6.1


	

“Event
of Default”

	
 

	

6.1


	

“Journal”

	
 

	

10.15


	

“Judgment
Currency”

	
 

	

10.16


	

“Legal
Defeasance”

	
 

	

9.2


	

“Legal
Holiday”

	
 

	

10.7


	

“Market
Exchange Rate”

	
 

	

10.15


	

“New
York Paying Agent”

	
 

	

2.4


	

“Paying
Agent”

	
 

	

2.4


	

“Place
of Payment”

	
 

	

10.7


	

“Registrar”

	
 

	

2.4


	

“Required
Currency”

	
 

	

10.16


	

“Service
Agent”

	
 

	

2.4







 



 

5







 






 


1.3
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.


 


Whenever this
Indenture refers to a provision of the TIA, the portion of such
provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by
reference in and made a part of this Indenture. The following TIA
terms used in this Indenture have the following
meanings:


 


“Commission” means the
SEC.


 


“Indenture securities”
means the Securities.


 


“Indenture securityholder”
means a Holder or Securityholder.


 


“Indenture to be
qualified” means this Indenture.


 


“Indenture trustee” or
“institutional
trustee” means the Trustee.


 


“Obligor on the indenture
securities” means the Company.


 


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


 


1.4
RULES OF CONSTRUCTION.


 


Unless
the context otherwise requires:


 



1)


a term
has the meaning assigned to it herein, whether defined expressly or
by reference;






 







2)


an
accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;






 







3)


“or”
is not exclusive;






 







4)


words
in the singular include the plural, and in the plural include the
singular;






 







5)


words
used herein implying any gender shall apply to each gender;
and






 







6)


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






 



ARTICLE 2



 



THE SECURITIES


 


2.1
ISSUABLE IN SERIES.


 


The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is
$          ,
           ,                 
.. The Securities may be issued in one or more Series. All
Securities of a Series shall be identical except as may be set
forth in a Board Resolution, a supplemental indenture or an
Officers’ Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution.
In the case of Securities of a Series to be issued from time to
time, the Board Resolution, Officers’ Certificate or
supplemental indenture may provide for the method by which
specified terms (such as interest rate, Stated Maturity, record
date or date from which interest shall accrue) are to be
determined. Securities may differ between Series in respect of any
matters, PROVIDED, that all Series of Securities shall be equally
and ratably entitled to the benefits of the Indenture.


 



 

6







 






 


2.2
ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES.


 


At or
prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the
case of Subsection 2.2(1) and either as to such Securities within
the Series or as to the Series generally in the case of Subsections
2.2(2) through 2.2(24)) by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, in each case, pursuant
to authority granted under a Board Resolution:


 


(1) the
title of the Series (which shall distinguish the Securities of that
particular Series from the Securities of any other
Series);


 


(2) any
limit upon the aggregate principal amount of the Securities of the
Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the Series pursuant to Section 2.7, 2.8, 2.11,
3.6 or 8.5);


 


(3) the
price or prices (expressed as a percentage of the principal amount
thereof) at which the Securities of the Series will be
issued;


 


(4) the
date or dates on which the principal of the Securities of the
Series is payable;


 


(5) the
rate or rates (which may be fixed or variable) per annum or, if
applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index,
stock exchange index or financial index) at which the Securities of
the Series shall bear interest, if any, the date or dates from
which such interest, if any, shall accrue, the date or dates on
which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any Interest
Payment Date;


 


(6) the
place or places where the principal of, and interest and premium,
if any, on, the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other
means;


 


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


 


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


 


(9) the
dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the
option of the Holders thereof, and other detailed terms and
provisions of such repurchase obligations;


 


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


 


(11)
the forms of the Securities of the Series in bearer (if to be
issued outside of the United States of America) or fully registered
form (and, if in fully registered form, whether the Securities will
be issuable as Global Securities);


 


(12) if
other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.2;


 


(13)
the currency of denomination of the Securities of the Series, which
may be Dollars or any Foreign Currency, including, but not limited
to, the Euro, and, if such currency of denomination is a composite
currency other than the Euro, the agency or organization, if any,
responsible for overseeing such composite currency;


 


(14)
the designation of the currency, currencies or currency units in
which payment of the principal of, and interest and premium, if
any, on, the Securities of the Series will be made;


 



 

7







 






 


(15) if
payments of principal of, or interest or premium, if any, on, the
Securities of the Series are to be made in one or more currencies
or currency units other than that or those in which such Securities
are denominated, the manner in which the exchange rate with respect
to such payments will be determined;


 


(16)
the manner in which the amounts of payment of principal of, or
interest and premium, if any, on, the Securities of the Series will
be determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a
commodity, commodity index, stock exchange index or financial
index;


 


(17)
the provisions, if any, relating to any collateral provided for the
Securities of the Series;


 


(18)
any addition to or change in the covenants set forth in Articles 4
or 5 that applies to Securities of the Series;


 


(19)
any addition to or change in the Events of Default which applies to
any Securities of the Series, any provision for the payment of
additional interest or liquidated damages in connection with any
Event of Default, and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section
6.2;


 


(20)
the terms and conditions, if any, for conversion of the Securities
into or exchange of the Securities for shares of common stock,
preferred stock, other debt securities or warrants for common
stock, preferred stock or other securities of any kind of the
Company that apply to Securities of the Series;


 


(21)
any Trustees, depositories, interest rate calculation agents,
exchange rate calculation agents or other agents with respect to
Securities of such Series if other than those appointed
herein;


 


(22)
the terms and conditions, if any, upon which the Securities shall
be subordinated in right of payment to other Indebtedness of the
Company;


 


(23) if
applicable, that the Securities of the Series, in whole or any
specified part, shall be defeasible pursuant to Article 9;
and


 


(24)
any other terms of the Securities of the Series (which terms shall
not be inconsistent with the provisions of this Indenture, except
as permitted by Section 8.1, but which may modify or delete any
provision of this Indenture insofar as it applies to such
Series).


 


All
Securities of any one Series need not be issued at the same time,
and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture or Officers’ Certificate
referred to above, however, the authorized principal amount of any
Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers’
Certificate.


 


2.3
EXECUTION AND AUTHENTICATION.


 


The
Securities shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant Secretary of
the Company. Each such signature may be either manual or facsimile.
The Company’s seal may be impressed, affixed, imprinted or
reproduced on the Securities and may be in facsimile
form.


 


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


 


A
Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature
shall be conclusive evidence that the Security has been
authenticated under this Indenture. The Trustee shall at any time,
and from time to time, authenticate Securities for original issue
in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate, upon
receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized
agent or agents, which oral instructions shall be promptly
confirmed in writing. Each Security shall be dated the date of its
authentication.


 



 

8







 






 


The
aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate
delivered pursuant to Section 2.2, except as provided in Section
2.8.


 


Prior
to the issuance of Securities of any Series, the Trustee shall have
received and (subject to Section 7.1) shall be fully protected in
relying on: (a) the Board Resolution, supplemental indenture hereto
or Officers’ Certificate establishing the form of the
Securities of that Series or of Securities within that Series and
the terms of the Securities of that Series or of Securities within
that Series, (b) an Officers’ Certificate complying with
Section 10.4, and (c) an Opinion of Counsel complying with Section
10.4.


 


The
Trustee shall have the right to decline to authenticate and deliver
any Securities of any Series: (a) if the Trustee, being advised in
writing by outside counsel, determines that such action may not
lawfully be taken; or (b) if the Trustee in good faith by its board
of directors or trustees, executive committee or a trust committee
of directors and/or vice-presidents shall reasonably determine that
such action would expose the Trustee to personal liability, or
cause it to have a conflict of interest with respect to Holders of
any then outstanding Series of Securities.


 


The
Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Any
appointment shall be evidenced by an instrument signed by an
authorized officer of the Trustee, a copy of which shall be
furnished to the Company. 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.


 


2.4
REGISTRAR AND PAYING AGENT.


 


The
Company shall maintain in each Place of Payment for any Series of
Securities (i) an office or agency where such Securities may be
presented for registration of transfer or for exchange
(“Registrar”), (ii) an
office or agency where such Securities may be presented for payment
(“Paying
Agent”) (PROVIDED that the Company shall at all times
maintain a Paying Agent in the Borough of Manhattan, City of New
York, State of New York (the “New York Paying Agent”),
and PROVIDED, FURTHER, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the register for
the Securities maintained by the Registrar), and (iii) an office or
agency where notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served
(“Service
Agent”). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents.
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 to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the address of the Trustee as set forth in Section 10.2.
If the Company acts as Paying Agent, it shall segregate the money
held by it for the payment of principal of, and interest and
premium, if any, on, the Securities and hold it as a separate trust
fund. The Company may change any Paying Agent, Registrar,
co-registrar or any other Agent without notice to any
Securityholder.


 


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 each Place of
Payment for Securities of any Series for such purposes. The Company
hereby initially designates the Corporate Trust Office of the
Trustee as such office of the Company. The Company shall give
prompt written notice to the Trustee of such designation or
rescission, and of any change in the location of any such other
office or agency.


 


The
Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or agent for service of
notices and demands, or fails to give the foregoing notice, the
Trustee shall act as such. The Company hereby appoints the Trustee
as the initial Registrar, Paying Agent and Service Agent for each
Series unless another Registrar, Paying Agent or Service Agent, as
the case may be, is appointed prior to the time Securities of that
Series are first issued. The Company designates
               ,
as the New York Paying Agent, with offices at
           .


 


2.5
PAYING AGENT TO HOLD ASSETS IN TRUST.


 


The
Trustee as Paying Agent shall, and the Company shall require each
Paying Agent other than the Trustee to agree in writing that each
Paying Agent shall, hold in trust for the benefit of the Holders of
any Series of Securities or the Trustee all assets held by the
Paying Agent for the payment of principal of, or interest or
premium, if any, on, such Series of Securities (whether such assets
have been distributed to it by the Company or any other obligor on
such Series of Securities), and the Company and the Paying Agent
shall notify the Trustee in writing of any Default by the Company
(or any other obligor on such Series of Securities) in making any
such payment. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any
assets disbursed, and the Trustee may, at any time during the
continuance of any payment default with respect to any Series of
Securities, upon written request to a Paying Agent, require such
Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company
to the Paying Agent, the Paying Agent shall have no further
liability for such assets.


 



 

9







 






 


2.6
SECURITYHOLDER LISTS.


 


The
Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and
addresses of Securityholders of each Series of Securities. If the
Trustee is not the Registrar, the Company shall furnish to the
Trustee as of each regular record date for the payment of interest
on the Securities of a Series and before each related Interest
Payment Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of
each Series of Securities.


 


2.7
TRANSFER AND EXCHANGE.


 


When
Securities of a Series are presented to the Registrar with a
request to register the transfer thereof, the Registrar shall
register the transfer as requested if the requirements of
applicable law are met, and when such Securities of a Series are
presented to the Registrar with a request to exchange them for an
equal principal amount of other authorized denominations of
Securities of the same Series, the Registrar shall make the
exchange as requested. To permit transfers and exchanges, upon
surrender of any Security for registration of transfer at the
office or agency maintained pursuant to Section 2.4, the Company
shall execute and the Trustee shall authenticate Securities at the
Registrar’s request.


 


If
Securities are issued as Global Securities, the provisions of
Section 2.15 shall apply.


 


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


 


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


 


Any
exchange or transfer shall be without charge, except that the
Company may require payment by the Holder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to Section 2.11, 3.6 or 8.5. The
Trustee shall not be required to register transfers of Securities
of any Series, or to exchange Securities of any Series, for a
period of 15 days before the record date for selection for
redemption of such Securities. The Trustee shall not be required to
exchange or register transfers of Securities of any Series called
or being called for redemption in whole or in part, except the
unredeemed portion of such Security being redeemed in
part.


 


2.8
REPLACEMENT SECURITIES.


 


If a
mutilated Security is surrendered to the Trustee, or if the Holder
of a Security presents evidence to the satisfaction of the Company
and the Trustee 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 and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding. An indemnity bond may be required by
the Company or the Trustee that is sufficient in the reasonable
judgment of the Company or the Trustee, as the case may be, to
protect the Company, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced. The Company may
charge such Holder for the Company’s out-of-pocket expenses
in replacing a Security, including the fees and expenses of the
Trustee. Every replacement Security shall constitute an original
additional obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that
Series duly issued hereunder.


 


2.9
OUTSTANDING SECURITIES.


 


Securities
outstanding at any time are all Securities authenticated by the
Trustee, except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.9 as not
outstanding.


 


If a
Security is replaced pursuant to Section 2.8 (other than a
mutilated Security surrendered for replacement), it ceases to be
outstanding until the Company and the Trustee receive proof
satisfactory to each of them that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.8.


 



 

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If a
Paying Agent holds on a Redemption Date or the Stated Maturity
money sufficient to pay the principal of, premium, if any, and
accrued interest on, Securities payable on that date, and is not
prohibited from paying such money to the Holders thereof pursuant
to the terms of this Indenture (PROVIDED, that if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made), then on and after that date such
Securities cease to be outstanding and interest on them ceases to
accrue.


 


A
Security does not cease to be outstanding solely because the
Company or an Affiliate holds the Security.


 


2.10
WHEN TREASURY SECURITIES DISREGARDED; DETERMINATION OF
HOLDERS’ ACTION.


 


In
determining whether the Holders of the required aggregate principal
amount of the Securities of any Series have concurred in any
direction, waiver or consent, the Securities of any Series owned by
the Company or any other obligor on such Securities, or by any
Affiliate of any of them, shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities
of such Series which the Trustee actually knows are so owned shall
be so disregarded. Securities of such Series so owned which have
been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to the Securities of such Series and
that the pledgee is not the Company or any other obligor on the
Securities of such Series, or an Affiliate of any of
them.


 


2.11
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, and shall carry all rights, of definitive Securities, but may
have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall
prepare and execute, and the Trustee shall authenticate, definitive
Securities in exchange for temporary Securities without charge to
the Holder.


 


2.12
CANCELLATION.


 


All
Securities surrendered for payment, redemption or registration of
transfer or exchange, or for credit against any sinking fund
payment, shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation. The Company
may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar
and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee
or, at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel, and at the written request of
the Company shall dispose of, all Securities surrendered for
transfer, exchange, payment or cancellation. If the Company shall
acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness represented by
such Securities unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.12. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 2.12, except as
expressly permitted by this Indenture.


 


2.13
PAYMENT OF INTEREST; DEFAULTED INTEREST; COMPUTATION OF
INTEREST.


 


Except
as otherwise provided as contemplated by Section 2.2 with respect
to any Series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security is registered at the close of business on the regular
record date for such interest, as provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate
establishing the terms of such Series.


 


If the
Company defaults in a payment of interest on the Securities, it
shall pay the defaulted amounts, plus any interest payable on
defaulted amounts pursuant to Section 4.1, to the Persons who are
Securityholders on a subsequent special record date, which date
shall be the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, or the next succeeding
Business Day if such date is not a Business Day. At least 15 days
before the special record date, the Company shall mail or cause to
be mailed to each Securityholder, with a copy to the Trustee, a
notice that states the special record date, the payment date and
the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.


 


Except
as otherwise specified as contemplated by Section 2.2 for
Securities of any Series, interest on the Securities of each Series
shall be computed on the basis of a 360-day year of twelve 30-day
months.


 



 

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2.14
CUSIP NUMBER.


 


The
Company in issuing the Securities may use one or more
“CUSIP” numbers, and, if the Company does so, the
Trustee shall use the CUSIP number(s) in notices of redemption or
exchange as a convenience to Holders, PROVIDED, that any such
notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number(s) printed in the
notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities, and
that any such redemption or exchange shall not be affected by any
defect in or omission of any such numbers.


 


2.15
PROVISIONS FOR GLOBAL SECURITIES.


 


(1) A
Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate shall establish whether the Securities
of a Series shall be issued in whole or in part in the form of one
or more Global Securities, and the Depository for such Global
Securities or Securities.


 


(2)
Notwithstanding any provisions to the contrary contained in Section
2.7 and in addition thereto, if, and only if the Depository (i) at
any time is unwilling or unable to continue as Depository for such
Global Security or ceases to be a clearing agency registered under
the Exchange Act and (ii) a successor Depository is not appointed
by the Company within 90 days after the date the Company is so
informed in writing or becomes aware of the same, the Company
promptly will execute and deliver to the Trustee definitive
Securities, and the Trustee, upon receipt of a Company Request for
the authentication and delivery of such definitive Securities
(which the Company will promptly execute and deliver to the
Trustee) and an Officers’ Certificate to the effect that such
Global Security shall be so exchangeable, will authenticate and
deliver definitive Securities, without charge, registered in such
names and in such authorized denominations as the Depository shall
direct in writing (pursuant to instructions from its direct and
indirect participants or otherwise) in an aggregate principal
amount equal to the principal amount of the Global Security with
like tenor and terms. Upon the exchange of a Global Security for
definitive Securities, such Global Security shall be canceled by
the Trustee. Unless and until it is exchanged in whole or in part
for definitive Securities, as provided in this Section 2.15(b), a
Global Security may not be transferred except as a whole by the
Depository with respect to such Global Security to a nominee of
such Depository, by a nominee of such Depository to such Depository
or another nominee of such Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such a
successor Depository.


 


(3) Any
Global Security issued hereunder shall bear a legend in
substantially the following form:


 


“This
Security is a Global Security within the meaning of the Indenture
hereinafter referred to, and is registered in the name of the
Depository or a nominee of the Depository. This Security is
exchangeable for Securities registered in the name of a Person
other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor
Depository.”


 


(4) The
Depository, as a Holder, may appoint agents and otherwise authorize
participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.


 


(5)
Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the
principal of, and interest and premium, if any, on, any Global
Security shall be made to the Depository or its nominee in its
capacity as the Holder thereof.


 


(6)
Except as provided in Section 2.15(5) above, the Company, the
Trustee and any Agent shall treat a Person as the Holder of such
principal amount of outstanding Securities of any Series
represented by a Global Security as shall be specified in a written
statement of the Depository (which may be in the form of a
participants’ list for such Series) with respect to such
Global Security, for purposes of obtaining any consents,
declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture, PROVIDED, that until the
Trustee is so provided with a written statement, it may treat the
Depository or any other Person in whose name a Global Security is
registered as the owner of such Global Security for the purpose of
receiving payment of the principal of, and any premium and (subject
to Section 2.13) any interest on, such Global Security and for all
other purposes whatsoever, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice
to the contrary.


 


2.16
PERSONS DEEMED OWNERS.


 


Prior
to due presentment of a Security for registration of transfer, the
Company, the Trustee, the Registrar and any agent of the Company,
the Registrar or the Trustee may treat the Person in whose name
such Security is registered as the owner of such Security for the
purpose of receiving payment of the principal of, and any premium
and (subject to Section 2.13) any interest on, such Security and
for all other purposes whatsoever, and none of the Company, the
Trustee, the Registrar or any agent of the Company, the Trustee or
the Registrar shall be affected by notice to the
contrary.






 



 

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ARTICLE 3



 



REDEMPTION


 


3.1
NOTICES TO TRUSTEE.


 


The
Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities, or may covenant
to redeem and pay the Series of Securities or any part thereof,
prior to the Stated Maturity thereof at such time and on such terms
as provided for in such Securities or the related Board Resolution,
supplemental indenture or Officers’ Certificate. If a Series
of Securities is redeemable and the Company elects to redeem all or
part of such Series of Securities, it shall notify the Trustee of
the Redemption Date and the principal amount of Securities to be
redeemed at least 45 days (unless a shorter notice shall be
satisfactory to the Trustee) before the Redemption Date. Any such
notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder, and shall thereby be void
and of no effect.


 


3.2
SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.


 


Unless
otherwise indicated for a particular Series of Securities by a
Board Resolution, a supplemental indenture or an Officers’
Certificate, if fewer than all of the Securities of a Series are to
be redeemed, the Trustee shall select the Securities of a Series to
be redeemed pro rata, by lot or by any other method that the
Trustee considers fair and appropriate (unless the Company
specifically directs the Trustee otherwise) and, if such Securities
are listed on any securities exchange, by a method that complies
with the requirements of such exchange.


 


The
Trustee shall make the selection from Securities of a Series
outstanding and not previously called for redemption, and shall
promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed at
least 35 but not more than 60 days before the Redemption Date.
Securities of a Series in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions of
the principal of Securities of a Series that have denominations
larger than $1,000. Securities of a Series and portions of them it
selects shall be in amounts of $1,000 or, with respect to
Securities of any Series issuable in other denominations pursuant
to Section 2.2(10), the minimum principal denomination for each
Series and integral multiples thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to
portions of Securities called for redemption.


 


3.3
NOTICE OF REDEMPTION.


 


Unless
otherwise indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate, at
least 30 days, and no more than 60 days, before a Redemption Date,
the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Securities to be
redeemed at his or her last address as the same appears on the
registry books maintained by the Registrar. The notice shall
identify the Securities to be redeemed and shall
state:


 


(1) the
Redemption Date;


 


(2) the
redemption price, and that such redemption price shall become due
and payable on the Redemption Date;


 


(3) if
any Security of a Series is being redeemed in part, the portion of
the principal amount of such Security of a Series to be redeemed
and that, after the Redemption Date and upon surrender of such
Security of a Series, 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;


 



 

13







 






 


(5)
that Securities of a Series called for redemption must be
surrendered to the Paying Agent to collect the redemption price,
and the place or places where each such Security is to be
surrendered for such payment;


 



(6)
that, unless the Company defaults in making the redemption payment,
interest on the Securities of a Series called for redemption ceases
to accrue on the Redemption Date, and the only remaining right of
the Holders of such Securities is to receive payment of the
redemption price upon surrender to the Paying Agent of the
Securities redeemed;


 


(7) if
fewer than all of the Securities of a Series are to be redeemed,
the identification of the particular Securities of a Series (or
portion thereof) to be redeemed, as well as the aggregate principal
amount of Securities of a Series to be redeemed and the aggregate
principal amount of Securities of a Series to be outstanding after
such partial redemption.


 


(8) the
CUSIP number, if any, printed on the Securities being redeemed;
and


 


(9)
that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the
Securities.


 


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


 


3.4
EFFECT OF NOTICE OF REDEMPTION.


 


Once
the notice of redemption described in Section 3.3 is mailed,
Securities of a Series called for redemption become due and payable
on the Redemption Date and at the redemption price, plus interest,
if any, accrued to the Redemption Date. Upon surrender to the
Trustee or Paying Agent, such Securities of a Series shall be paid
at the redemption price, plus accrued interest, if any, to the
Redemption Date; PROVIDED, that if the Redemption Date is after a
regular interest payment record date and on or prior to the next
Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Securities registered on the relevant record
date, as specified by the Company in the notice to the Trustee
pursuant to Section 3.1.


 


3.5
DEPOSIT OF REDEMPTION PRICE.


 


On or
prior to the Redemption Date (but no later than 11:00 A.M. Eastern
Time on such date), the Company shall deposit with the Paying Agent
money sufficient to pay the redemption price of and accrued
interest, if any, 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.


 


On and
after any Redemption Date, if money sufficient to pay the
redemption price of, and accrued interest on, Securities called for
redemption shall have been made available in accordance with the
preceding paragraph and the Company and the Paying Agent are not
prohibited from paying such moneys to Holders, the Securities
called for redemption will cease to accrue interest and the only
right of the Holders of such Securities will be to receive payment
of the redemption price of and, subject to the proviso in Section
3.4, accrued and unpaid interest on such Securities to the
Redemption Date. If any Security called for redemption shall not be
so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Security
and any interest or premium, if any, not paid on such unpaid
principal, in each case, at the rate and in the manner provided in
the Securities.


 


3.6
SECURITIES REDEEMED IN PART.


 


Upon
surrender of a Security of a Series that is redeemed in part, the
Company shall execute, and the Trustee shall authenticate, for a
Holder a new Security of the same Series equal in principal amount
to the unredeemed portion of the Security surrendered.






 



 

14







 







 



ARTICLE 4



 



COVENANTS


 


4.1
PAYMENT OF SECURITIES.


 


The
Company shall pay the principal of, and interest and premium, if
any, on, each Series of Securities on the dates and in the manner
provided in such Securities and this Indenture.


 


An
installment of principal or interest shall be considered paid on
the date it is due if the Trustee or Paying Agent holds on that
date money designated for and sufficient to pay such installment
and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture or otherwise.


 


The
Company shall pay interest on overdue principal, and overdue
interest, to the extent lawful, at the rate specified in the Series
of Securities.


 


4.2
SEC REPORTS.


 


The
Company will deliver to the Trustee within 15 days after the filing
of the same with the SEC, copies of the quarterly and annual
reports and of the information, documents and other reports, if
any, which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act; PROVIDED, HOWEVER, that
each such report or document will be deemed to be so delivered to
the Trustee if the Company files such report or document with the
SEC through the SEC’s EDGAR database no later than the time
such report or document is required to be filed with the SEC
pursuant to the Exchange Act. Notwithstanding that the Company may
not be subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Company will file with the SEC, to the
extent permitted, and provide the Trustee with, such quarterly and
annual reports and such information, documents and other reports
specified in Sections 13 and 15(d) of the Exchange Act. The Company
will also comply with the other provisions of TIA Section
314(a).


 


4.3
WAIVER OF STAY, EXTENSION OR USURY LAWS.


 


The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension, usury or other law which would
prohibit or forgive the Company from paying all or any portion of
the principal of, and/or interest and premium, if any, on, the
Securities as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and the Company hereby expressly
waives (to the extent that they may lawfully do so) all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.


 


4.4
COMPLIANCE CERTIFICATE.


 


(1) The
Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, an Officers’ Certificate
which complies with TIA Section 314(a)(4) stating that a review of
the activities of the Company and its Subsidiaries during such
fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge the
Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and that there is no default
in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the
best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal
of, or interest or premium, if any, on, the Securities is
prohibited, or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take
with respect thereto.


 


(2) (i)
If any Default or Event of Default has occurred and is continuing
or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the
Securities, within five Business Days after the Company becoming
aware of such occurrence the Company shall deliver to the Trustee
an Officers’ Certificate specifying such event, notice or
other action and what action the Company is taking or proposes to
take with respect thereto.


 


4.5
CORPORATE EXISTENCE.


 


Subject
to Article 5, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence, in accordance with the organizational
documents (as the same may be amended from time to time) of the
Company and the rights (charter and statutory), licenses and
franchises of the Company; PROVIDED, HOWEVER, that the Company
shall not be required to preserve any such right, license or
franchise, or its corporate existence, if the Board of Directors
shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that
the loss thereof is not adverse in any material respect to the
Holders.






 



 

15







 







 



ARTICLE 5



 



SUCCESSOR CORPORATION


 


5.1
LIMITATION ON CONSOLIDATION, MERGER AND SALE OF
ASSETS.


 


(1) The
Company will not, in any transaction or series of transactions,
merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of
its properties and assets (as an entirety or substantially as an
entirety in one transaction or a series of related transactions),
to any Person or Persons, unless at the time of and after giving
effect thereto (i) either (A) if the transaction or series of
transactions is a merger or consolidation, the Company shall be the
surviving Person of such merger or consolidation, or (B) the Person
formed by such consolidation or into which the Company is merged or
to which the properties and assets of the Company are transferred
(any such surviving Person or transferee Person being the
“Surviving
Entity”) shall be a corporation organized and existing
under the laws of the United States of America, any state thereof
or the District of Columbia, or a corporation or comparable legal
entity organized under the laws of a foreign jurisdiction and shall
expressly assume by a supplemental indenture executed and delivered
to the Trustee, in form reasonably satisfactory to the Trustee, all
of the obligations of the Company (including, without limitation,
the obligation to pay the principal of, and premium and interest,
if any, on, the Securities and the performance of the other
covenants) under the Securities of each Series and this Indenture,
and in each case, this Indenture shall remain in full force and
effect; and (ii) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro forma
basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), no Default or Event of
Default shall have occurred and be continuing.


 


(2) In
connection with any consolidation, merger or transfer of assets
contemplated by this Section 5.1, 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 or transfer, and the supplemental indenture
in respect thereto, comply with this Section 5.1, and that all
conditions precedent herein provided for relating to such
transaction or transactions have been complied with.


 


5.2
SUCCESSOR PERSON SUBSTITUTED.


 


Upon
any consolidation, merger or transfer of all or substantially all
of the assets of the Company in accordance with Section 5.1 above,
the successor corporation formed by such consolidation, or into
which the Company is merged or to which such transfer is made,
shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same
effect as if such successor corporation had been named as the
Company herein, and thereafter (except with respect to any such
transfer which is a lease) the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and
the Securities.



 



ARTICLE 6



 



DEFAULTS AND REMEDIES


 


6.1
EVENTS OF DEFAULT.


 


“Events of Default,”
wherever used herein with respect to Securities of any Series,
means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officers’
Certificate, it is provided that such Series shall not have the
benefit of said Event of Default:


 


(1)
there is a default in the payment of any principal of, or premium,
if any, on, the Securities when the same becomes due and payable at
Maturity, upon acceleration, redemption or otherwise;


 


(2)
there is a default in the payment of any interest on any Security
of a Series when the same becomes due and payable, and the Default
continues for a period of 30 days;


 


(3) the
Company defaults in the observance or performance of any other
covenant in the Securities of a Series or in this Indenture for 60
days after written notice from the Trustee or the Holders of not
less than 25% in the aggregate principal amount of the Securities
of such Series then outstanding, which notice must specify the
Default, demand that it be remedied and state that the notice is a
“Notice of
Default”;


 


(4) the
Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:


 



(A)


commences
a voluntary case,






 



(B)


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






 



(C)


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






 



(D)


makes a
general assignment for the benefit of its creditors,
or






 



(E)


generally
is not paying its debts as they become due;






 



 

16







 






 


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


 



(A)


is for
relief against the Company or any Significant Subsidiary in an
involuntary case;






 



(B)


appoints
a Custodian of the Company or any Significant Subsidiary, or for
all or substantially all of the property of the Company or any
Significant Subsidiary; or






 



(C)


orders
the liquidation of the Company or any Significant Subsidiary, and
the order or decree remains unstayed and in effect for 90
consecutive days; or






 


(6) any
other Event of Default provided with respect to Securities of that
Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, in accordance
with Section 2.2(19).


 


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


 


The
Trustee may withhold notice of any Default (except in the payment
of the principal of, or interest or premium, if any, on, the
Securities) to the Holders of the Securities of any Series in
accordance with Section 7.5. When a Default is cured, it ceases to
exist.


 


6.2
ACCELERATION.


 


If an
Event of Default with respect to Securities of any Series at the
time outstanding (other than an Event of Default arising under
Section 6.1(4) or (5)) occurs and is continuing, the Trustee by
written notice to the Company, or the Holders of not less than 25%
in aggregate principal amount of the Securities of that Series then
outstanding by written notice to the Company and the Trustee, may
declare that the entire principal amount of all the Securities of
that Series then outstanding plus accrued and unpaid interest to
the date of acceleration are immediately due and payable, in which
case such amounts shall become immediately due and payable;
PROVIDED, HOWEVER, that after such acceleration but before a
judgment or decree based on such acceleration is obtained by the
Trustee, the Holders of a majority in aggregate principal amount of
the outstanding Securities of that Series may rescind and annul
such acceleration and its consequences if (i) all existing Events
of Default, other than the nonpayment of accelerated principal,
interest or premium, if any, that has become due solely because of
the acceleration, have been cured or waived, (ii) to the extent the
payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been
paid and (iii) the rescission would not conflict with any judgment
or decree. No such rescission shall affect any subsequent Default
or impair any right consequent thereto. In case an Event of Default
specified in Section 6.1(4) or (5) with respect to the Company
occurs, such principal, premium, if any, and interest amount with
respect to all of the Securities of that Series shall be due and
payable immediately without any declaration or other act on the
part of the Trustee or the Holders of the Securities of that
Series.


 


6.3
REMEDIES.


 


If an
Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect
the payment of the principal of, or interest and premium, if any,
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 of that Series or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute
a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.


 


6.4
WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT.


 


Subject
to Sections 6.2, 6.7 and 8.2, the Holders of a majority in
principal amount of the Securities of any Series then outstanding
have the right to waive any existing Default or Event of Default
with respect to such Series or compliance with any provision of
this Indenture (with respect to such Series) or the Securities of
such Series. Upon any such waiver, such Default with respect to
such Series shall cease to exist, and any Event of Default with
respect to such Series arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto. This Section 6.4 shall be
in lieu of TIA Section 316(a)(1)(B), and TIA Section 316(a)(1)(B)
is hereby expressly excluded from this Indenture and Section as
permitted by the TIA.


 


6.5
CONTROL BY MAJORITY.


 


Subject
to Sections 6.2, 6.7 and 8.2, the Holders of a majority in
principal amount of the Securities of any Series then outstanding
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 the Trustee by this Indenture with respect to
such Series. The Trustee, however, may refuse to follow any
direction that conflicts with law or this Indenture, or that the
Trustee determines may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal
liability; PROVIDED, that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such
direction. This Section 6.5 shall be in lieu of TIA Section
316(a)(1)(A), and TIA Section 316(a)(1)(A) is hereby expressly
excluded from this Indenture and Section as permitted by the
TIA.


 



 

17







 






 


6.6
LIMITATION ON SUITS.


 


Subject
to Section 6.7, a Securityholder may not institute any proceeding
or pursue any remedy with respect to this Indenture or the
Securities of a Series unless:


 


(1) the
Holder gives to the Trustee written notice of a continuing Event of
Default with respect to the Securities of that Series;


 


(2) the
Holders of at least 25% in aggregate principal amount of the
Securities of such Series then outstanding make a written request
to the Trustee to pursue the remedy;


 


(3)
such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense
to be incurred in compliance with such request;


 


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


 


(5) no
direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Securities of such Series then
outstanding.


 


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


 


6.7
RIGHTS OF HOLDERS TO RECEIVE PAYMENT.


 


Notwithstanding any
other provision of this Indenture, the right of any Holder of a
Security of a Series to receive payment of the principal of, and
interest and premium, if any, on, the Security of such Series on or
after the respective due dates expressed in the Security of such
Series, or to bring suit for the enforcement of any such payment on
or after such respective dates, is absolute and unconditional, and
shall not be impaired or affected without the consent of the
Holder.


 


6.8
COLLECTION SUIT BY TRUSTEE.


 


If an
Event of Default in payment of principal, interest or premium, if
any, specified in Section 6.1(1) or (2) with respect to Securities
of any Series at the time outstanding occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an
express trust against the Company (or any other obligor on the
Securities of that Series) for the whole amount of unpaid principal
and premium, if any, and accrued interest remaining unpaid,
together with interest on overdue principal and premium, if any,
and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the
rate then borne by the Securities of that Series, and such further
amounts as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
as set forth in Section 7.7.


 


6.9
TRUSTEE MAY FILE PROOFS OF CLAIM.


 


The
Trustee may file such proofs of claim and other papers or
documents, and take other actions (including sitting on a committee
of creditors), as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Securityholders allowed in any
judicial proceedings relative to the Company (or any other obligor
on the Securities), any of their respective creditors or any of
their respective property, and the Trustee shall be entitled and
empowered to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute the
same after deduction of its charges and expenses to the extent that
any such charges and expenses are not paid out of the estate in any
such proceedings, and any custodian in any such judicial proceeding
is hereby authorized by each Securityholder 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 Securityholders, 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 7.7.


 


Nothing
herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or accept or adopt on behalf of any
Securityholder, any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of a Series or the rights
of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such
proceedings.


 



 

18







 






 


6.10
PRIORITIES.


 


If the
Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:


 


FIRST:
to the Trustee for amounts due under Section 7.7;


 


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


 


THIRD:
to the Company.


 


The
Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Trustee shall mail to each
Securityholder a notice that states the record date, the payment
date and amount to be paid.


 


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 Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by
Holders of more than 10% in principal amount of the Securities of a
Series then outstanding.



 



ARTICLE 7



 



TRUSTEE


 


7.1
DUTIES OF TRUSTEE.


 


(1) 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 same
circumstances in the conduct of his own affairs.


 


(2)
Except during the continuance of an Event of Default:


 


(A) The
Trustee need perform only those duties that are specifically set
forth in this Indenture, and no covenants or obligations shall be
implied in this Indenture against the Trustee.


 


(B) 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, but, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.


 


(3) 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:


 


(A)
This paragraph does not limit the effect of paragraph (2) of this
Section 7.1.


 


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


 


(C) 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 Sections 6.2 and 6.5.


 



 

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(4) No
provision of this Indenture shall require the Trustee to expend or
risk its own funds, or otherwise incur any financial liability, in
the performance of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.


 


(5)
Whether or not therein expressly so provided, paragraphs (1), (2),
(3) and (4) of this Section 7.1 shall govern every provision of
this Indenture that in any way relates to the Trustee.


 


(6) The
Trustee and Paying Agent shall not be liable for interest on any
money received by either of them, except as the Trustee and Paying
Agent may agree in writing with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the
extent required by the law.


 


(7) The
Paying Agent, the Registrar and any authenticating agent shall be
entitled to the protections, immunities and standard of care set
forth in paragraphs (1), (2), (3), (4) and (6) of this Section 7.1
and in Section 7.2 with respect to the Trustee.


 


7.2
RIGHTS OF TRUSTEE.


 


(1)
Subject to Section 7.1:


 


(A) The
Trustee may rely on, and shall be protected in acting or refraining
from acting upon, any document 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.


 


(B)
Before the Trustee acts or refrains from acting, it may require an
Officers’ Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 10.5. The Trustee
shall be protected and shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or
opinion.


 


(C) The
Trustee may act through agents and attorneys, and shall not be
responsible for the misconduct or negligence of any agent appointed
by it with due care.


 


(D) The
Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or
within its rights or powers.


 


(E) The
Trustee may consult with counsel reasonably acceptable to the
Trustee, which may be counsel to the Company, and the advice or
opinion of such counsel as to matters of law 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 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.


 


(G) The
Trustee shall not be deemed to have knowledge of any fact or matter
(including, without limitation, a Default or Event of Default)
unless such fact or matter is known to a Responsible Officer of the
Trustee.


 


(H)
Unless otherwise expressly provided herein or in the Securities of
a Series or the related Board Resolution, supplemental indenture or
Officers’ Certificate, the Trustee shall not have any
responsibility with respect to reports, notices, certificates or
other documents filed with it hereunder, except to make them
available for inspection, at reasonable times, by Securityholders,
it being understood that delivery of such reports, information and
documents to the Trustee is for informational purposes only and the
Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from
information contained therein, including the Company’s
compliance with any of its covenants hereunder (except as set forth
in Section 4.4).


 


7.3
INDIVIDUAL RIGHTS OF TRUSTEE.


 


The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities, and may make loans to, accept
deposits from, perform services for or otherwise deal with the
Company, or any Affiliate thereof, with the same rights it would
have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11.


 



 

20







 






 


7.4
TRUSTEE’S DISCLAIMER.


 


The
Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities (except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture and authenticate the Securities and perform its
obligations hereunder), and the Trustee shall not be accountable
for the Company’s use of the proceeds from the sale of
Securities or any money paid to the Company pursuant to the terms
of this Indenture, and the Trustee shall not be responsible for any
statement in the Securities other than its certificates of
authentication.


 


7.5
NOTICE OF DEFAULT.


 


If a
Default or an Event of Default occurs and is continuing with
respect to the Securities of any Series, and if it is known to the
Trustee, the Trustee shall mail to each Securityholder of the
Securities of that Series notice of the Default or the Event of
Default, as the case may be, within 90 days after it occurs or, if
later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default (except if such Default or Event
of Default has been validly cured or waived before the giving of
such notice). Except in the case of a Default or an Event of
Default in payment of the principal of, or interest or premium, if
any, on, any Security of any Series, the Trustee may withhold the
notice if and so long as the Board of Directors of the Trustee, the
executive committee or any trust committee of such board and/or its
Responsible Officers in good faith determine(s) that withholding
the notice is in the interests of the Securityholders of that
Series.


 


7.6
REPORTS BY TRUSTEE TO HOLDERS.


 


If and
to the extent required by the TIA, within 60 days after April 1 of
each year, commencing the April 1 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such April 1 that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).


 


A copy
of each report at the time of its mailing to Securityholders shall
be filed with the SEC and any stock exchange on which the
Securities of that Series are listed. The Company shall promptly
notify the Trustee when the Securities of any Series are listed on
any stock exchange or any delisting thereof, and the Trustee shall
comply with TIA Section 313(d).


 


7.7
COMPENSATION AND INDEMNITY.


 


The
Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee’s compensation
shall not be limited by any provision of law on compensation of a
trustee of an express trust. The Company shall reimburse the
Trustee within 45 days after receipt of request for all reasonable
out-of-pocket disbursements and expenses incurred or made by it in
connection with its duties under this Indenture, including the
reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.


 


The
Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss or liability incurred by it in connection
with the acceptance or performance of its duties under this
Indenture including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity.


 


The
failure by the Trustee to so notify the Company shall not however
relieve the Company of its obligations. Notwithstanding the
foregoing, the Company need not reimburse the Trustee for any
expense or indemnify it against any loss or liability incurred by
the Trustee through its negligence or bad faith. To secure the
payment obligations of the Company in this Section 7.7, the Trustee
shall have a lien prior to the Securities of any Series on all
money or property held or collected by the Trustee except such
money or property held in trust to pay the principal of, interest
and premium, if any, on particular Securities of that
Series.


 


When
the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.


 


For
purposes of this Section 7.7, the term “Trustee” shall include
any trustee appointed pursuant to this Article 7.


 



 

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7.8
REPLACEMENT OF TRUSTEE.


 


The
Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company in writing at least 90 days in
advance of such resignation.


 


The
Holders of a majority in principal amount of the outstanding
Securities of any Series may remove the Trustee with respect to
that Series by notifying the removed Trustee in writing and may
appoint a successor Trustee with respect to that Series with the
consent of the Company, which consent shall not be unreasonably
withheld. The Company may remove the Trustee with respect to that
Series at its election if:


 


(1) the
Trustee fails to comply with, or ceases to be eligible under,
Section 7.10;


 


(2) 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;


 


(3) a
Custodian or other public officer takes charge of the Trustee or
its property; or


 


(4) the
Trustee otherwise becomes incapable of acting.


 


If the
Trustee resigns or is removed, or if a vacancy exists in the office
of Trustee, with respect to any Series of Securities for any
reason, the Company shall promptly appoint, by Board Resolution, a
successor Trustee.


 


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


 


If the
Trustee with respect to the Securities of one or more Series fails
to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
Trustee.


 


A
successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
following such delivery, (i) the retiring Trustee with respect to
one or more Series shall, subject to its rights under Section 7.7,
transfer all property held by it as Trustee with respect to such
Series to the successor Trustee, (ii) the resignation or removal of
the retiring Trustee shall become effective and (iii) the successor
Trustee with respect to such Series shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor
Trustee with respect to the Securities of one or more Series shall
mail notice of its succession to each Securityholder of such
Series.


 


7.9
SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR
CONVERSION.


 


If the
Trustee, or any Agent, consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust assets
to, another corporation, subject to Section 7.10, the successor
corporation without any further act shall be the successor Trustee
or Agent, as the case may be.


 


7.10
ELIGIBILITY; DISQUALIFICATION.


 


This
Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5) in every
respect. The Trustee (or in the case of a Trustee that is a Person
included in a bank holding company system, the related bank holding
company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section
310(b), including the provision in Section 310(b)(1). In addition,
if the Trustee is a Person included in a bank holding company
system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA Section 310(a)(2). If at
any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 7.10, it shall resign immediately in
the manner and with the effect specified in this Article
7.


 



 

22







 






 


7.11
PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.


 


The
Trustee shall comply with 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.


 


7.12
PAYING AGENTS.


 


The
Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions
of this Section 7.12:


 


(1)
that it will hold all sums held by it as agent for the payment of
the principal of, or interest or premium, if any, on, the
Securities (whether such sums have been paid to it by the Company
or by any obligor on the Securities) in trust for the benefit of
Holders of the Securities or the Trustee;


 


(2)
that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full
accounting thereof; and


 


(3)
that it will give the Trustee written notice within three Business
Days after any failure of the Company (or by any obligor on the
Securities) in the payment of any installment of the principal of,
or interest or premium, if any, on, the Securities when the same
shall be due and payable.



 



ARTICLE 8



 



AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


8.1
WITHOUT CONSENT OF HOLDERS.


 


The
Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities of one or more
Series without notice to or consent of any
Securityholder:


 


(1) to
comply with Section 5.1;


 


(2) to
provide for certificated Securities in addition to uncertificated
Securities;


 


(3) to
comply with any requirements of the SEC under the TIA;


 


(4) to
cure any ambiguity, defect or inconsistency, or to make any other
change herein or in the Securities that does not materially and
adversely affect the rights of any Securityholder;


 


(5) to
provide for the issuance of, and establish the form and terms and
conditions of, Securities of any Series as permitted by this
Indenture; or


 


(6) to
evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more
Series, and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee.


 


The
Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture authorized or permitted by
the terms of this Indenture, and to make any further appropriate
agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects its own rights, duties or
immunities under this Indenture.


 



 

23







 






 


8.2
WITH CONSENT OF HOLDERS.


 


(1) The
Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities of one or more
Series with the written consent of the Holders of not less than a
majority in aggregate principal amount of the outstanding
Securities of such Series affected by such amendment or supplement
without notice to any Securityholder. The Holders of not less than
a majority in aggregate principal amount of the outstanding
Securities of each such Series affected by such amendment or
supplement may waive compliance by the Company in a particular
instance with any provision of this Indenture or the Securities of
such Series without notice to any Securityholder. Subject to
Section 8.4, without the consent of each Securityholder affected,
however, an amendment, supplement or waiver may not:


 



(A)


reduce
the amount of Securities whose Holders must consent to an
amendment, supplement or waiver to this Indenture or the
Securities;






 



(B)


reduce
the rate of, or change the time for payment of, interest on any
Security;






 



(C)


reduce
the principal, or change the Stated Maturity, of any Security, or
reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation;






 



(D)


make
any Security payable in money other than that stated in the
Security;






 



(E)


change
the amount or time of any payment required by the Securities, or
reduce the premium payable upon any redemption of the Securities,
or change the time before which no such redemption may be
made;






 



(F)


waive a
Default or Event of Default in the payment of the principal of, or
interest or premium, if any, on, any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of
at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that
resulted from such acceleration);






 



(G)


waive a
redemption payment with respect to any Security, or change any of
the provisions with respect to the redemption of any
Securities;






 



(H)


make
any changes in Section 6.6 or this Section 8.2, except to increase
any percentage of Securities the Holders of which must consent to
any matter; or






 



(I)


take
any other action otherwise prohibited by this Indenture to be taken
without the consent of each Holder affected thereby.






 


(2)
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory
to the Trustee of the consent of the Securityholders as aforesaid
and of the documents described in Section 8.6, the Trustee shall
join with the Company in the execution of such supplemental
indenture, unless such supplemental indenture affects the
Trustee’s own rights, duties or immunities under this
Indenture, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental
indenture.


 


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


 


After
an amendment or supplement under this Section becomes effective,
the Company shall mail to Securityholders a notice briefly
describing the amendment or supplement. Any failure of the Company
to mail any such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any supplemental
indenture.


 


8.3
COMPLIANCE WITH TRUST INDENTURE ACT.


 


Every
amendment to, or supplement of, this Indenture or the Securities
shall comply with the TIA as then in effect.

 







8.4
REVOCATION AND EFFECT OF CONSENTS.


 


Until
an amendment, supplement, waiver or other action becomes effective,
a consent to it by a Holder of a Security is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder
of the same Security or portion thereof, and of any Security issued
upon the transfer thereof or in exchange therefor or in place
thereof, even if notation of the consent is not made on any such
Security. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Security or portion of a Security, if the
Trustee receives the notice of revocation before the date the
amendment, supplement, waiver or other action becomes
effective.  






 



 

24







 






  


The
Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at
least 30 days prior to the first solicitation of such consent. If a
record date is fixed, then, notwithstanding the preceding
paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement or waiver, or to
revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date.


 


After
an amendment, supplement, waiver or other action becomes effective,
it shall bind every Securityholder, unless it makes a change
described in any of clauses (1) through (9) of Section 8.2. In that
case, the amendment, supplement, waiver or other action shall bind
each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security;
PROVIDED, that any such waiver shall not impair or affect the right
of any Holder to receive payment of the principal of, and interest
and premium, if any, on, a Security, on or after the respective due
dates expressed in such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates
without the consent of such Holder.


 


8.5
NOTATION ON OR EXCHANGE OF SECURITIES.


 


If an
amendment, supplement or waiver changes the terms of a Security of
any Series, the Trustee may request the Holder of such Security to
deliver it to the Trustee. In such case, the Trustee shall place an
appropriate notation on such Security about the changed terms and
return it to the Holder. Alternatively, the Company, in exchange
for such Security, may issue, and the Trustee shall authenticate, a
new security that reflects the changed terms. Failure to make the
appropriate notation or issue a new Security shall not affect the
validity and effect of such amendment, supplement or
waiver.


 


8.6
TRUSTEE TO SIGN AMENDMENTS, ETC.


 


The
Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver
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,
supplement or waiver the Trustee shall be entitled to receive and,
subject to Section 7.1, shall be fully protected in relying upon an
Officers’ Certificate and an Opinion of Counsel stating that
such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company may not sign an amendment or supplement
until the Board of Directors of the Company approves
it.



 



ARTICLE 9



 



DISCHARGE OF INDENTURE; DEFEASANCE


 


9.1
DISCHARGE OF INDENTURE.


 


The
Company may terminate its obligations under the Securities of any
Series and this Indenture with respect to such Series, except the
obligations referred to in the last paragraph of this Section 9.1,
if there shall have been canceled by the Trustee, or delivered to
the Trustee for cancellation, all Securities of such Series
theretofore authenticated and delivered (other than any Securities
of such Series that are asserted to have been destroyed, lost or
stolen and that shall have been replaced as provided in Section
2.8) and the Company has paid all sums payable by it hereunder or
deposited all required sums with the Trustee.


 


After
such delivery the Trustee upon request shall acknowledge in a
writing prepared by or on behalf of the Company the discharge of
the Company’s obligations under the Securities of such Series
and this Indenture, except for those surviving obligations
specified below.


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Company in Sections 7.7, 9.5 and 9.6 shall
survive.


 


9.2
LEGAL DEFEASANCE.


 


The
Company may at its option, by Board Resolution, be discharged from
its obligations with respect to the Securities of any Series on the
date upon which the conditions set forth in Section 9.4 below are
satisfied (hereinafter, “Legal Defeasance”). For
this purpose, such Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness
represented by the Securities of such Series and to have satisfied
all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall, subject to Section 9.6, execute
proper instruments acknowledging the same, as are delivered to it
by the Company), except for the following, which shall survive
until otherwise terminated or discharged hereunder: (A) the rights
of Holders of outstanding Securities of such Series to receive
solely from the trust funds described in Section 9.4 and as more
fully set forth in such section, payments in respect of the
principal of, and interest and premium, if any, on, the Securities
of such Series when such payments are due, (B) the Company’s
obligations with respect to the Securities of such Series under
Sections 2.4, 2.5, 2.6, 2.7, 2.8 and 2.9, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder (including
claims of, or payments to, the Trustee under or pursuant to Section
7.7) and (D) this Article 9. Subject to compliance with this
Article 9, the Company may exercise its option under this Section
9.2 with respect to the Securities of any Series notwithstanding
the prior exercise of its option under Section 9.3 below with
respect to the Securities of such Series.


 



 

25







 






 


9.3
COVENANT DEFEASANCE.


 


At the
option of the Company, pursuant to a Board Resolution, the Company
shall be released from its obligations with respect to the
outstanding Securities of any Series under Sections 4.2 through
4.5, inclusive, and Section 5.1, with respect to the outstanding
Securities of such Series, on and after the date the conditions set
forth in Section 9.4 are satisfied (hereinafter,
“Covenant
Defeasance”). For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such specified section or portion thereof, whether
directly or indirectly by reason of any reference elsewhere herein
to any such specified Section or portion thereof or by reason of
any reference in any such specified section or portion thereof to
any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of any Series shall
be unaffected thereby.


 


9.4
CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.


 


The
following shall be the conditions to application of Section 9.2 or
Section 9.3 to the outstanding Securities of a Series:


 


(1) the
Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this
Article 9 applicable to it) as 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 the
Securities, (A) money in an amount, or (B) U.S. Government
Obligations or Foreign Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due
date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, and
accrued interest and premium, if any, on, the outstanding
Securities of such Series at the Stated Maturity of such principal,
interest or premium, if any, or on dates for payment and redemption
of such principal, interest and premium, if any, selected in
accordance with the terms of this Indenture and of the Securities
of such Series;


 


(2) no
Event of Default or Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such
deposit, or shall have occurred and be continuing at any time
during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration
of the longest preference period under any Bankruptcy Law
applicable to the Company in respect of such deposit as specified
in the Opinion of Counsel identified in paragraph (8) below (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period);


 


(3)
such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the TIA with
respect to any securities of the Company;


 


(4)
such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute default under, any other
agreement or instrument to which the Company is a party or by which
it is bound;


 


(5) the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to
register as an investment company under the Investment Company Act
of 1940, as amended;


 


(6) in
the case of an election under Section 9.2, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling to the effect that or (ii) there
has been a change in any applicable Federal income tax law with the
effect that, and such opinion shall confirm that, the Holders of
the outstanding Securities of such Series or Persons in their
positions will not recognize income, gain or loss for Federal
income tax purposes solely as a result of such Legal Defeasance and
will be subject to Federal income tax on the same amounts, in the
same manner, including as a result of prepayment, and at the same
times as would have been the case if such Legal Defeasance had not
occurred;


 


(7) in
the case of an election under Section 9.3, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the outstanding Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such Covenant Defeasance, and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had
not occurred;


 


(8) the
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for in this Article 9 relating to
either the Legal Defeasance under Section 9.2 or the Covenant
Defeasance under Section 9.3 (as the case may be) have been
complied with;


 



 

26







 






 


(9) the
Company shall have delivered to the Trustee an Officers’
Certificate stating that the deposit under clause (1) was not made
by the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and


 


(10)
the Company shall have paid, or duly provided for payment under
terms mutually satisfactory to the Company and the Trustee, all
amounts then due to the Trustee pursuant to Section
7.7.


 


9.5
DEPOSITED MONEY AND U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.


 


All
money, U.S. Government Obligations and Foreign Government
Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 9.4 in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of
principal, accrued interest and premium, if any, but such money
need not be segregated from other funds except to the extent
required by law.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government
Obligations and Foreign Government Obligations deposited pursuant
to Section 9.4 or the principal, interest and premium, if any,
received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the
outstanding Securities.


 


Anything in this
Article 9 to the contrary notwithstanding, but subject to payment
of any of its outstanding fees and expenses, the Trustee shall
deliver or pay to the Company from time to time upon Company
Request any money, U.S. Government Obligations or Foreign
Government Obligations held by the Trustee as provided in Section
9.4 which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.


 


9.6
REINSTATEMENT.


 


If the
Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Foreign Government Obligations in
accordance with Section 9.1, 9.2, 9.3 or 9.4 by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s obligations under
this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply all
such money, U.S. Government Obligations or Foreign Government
Obligations, as the case may be, in accordance with Section 9.1,
9.2, 9.3 or 9.4; PROVIDED, HOWEVER, that if the Company has made
any payment of principal of, or accrued interest or premium, if
any, on, any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money,
U.S. Government Obligations or Foreign Government Obligations held
by the Trustee or Paying Agent.


 


9.7
MONEYS HELD BY PAYING AGENT.


 


In
connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the
Trustee, or, if sufficient moneys have been deposited pursuant to
Section 9.1, to the Company, and thereupon such Paying Agent shall
be released from all further liability with respect to such
moneys.


 


9.8
MONEYS HELD BY TRUSTEE.


 


Any
moneys deposited with the Trustee or any Paying Agent or then held
by the Company in trust for the payment of the principal of, or
interest or premium, if any, on, any Security that are not applied
but remain unclaimed by the Holder of such Security for two years
after the date upon which the principal of, or interest or premium,
if any, on, such Security shall have respectively become due and
payable shall be repaid to the Company upon Company Request, or if
such moneys are then held by the Company in trust, such moneys
shall be released from such trust; and the Holder of such Security
entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof,
and all liability of the Trustee or such Paying Agent with respect
to such trust money shall thereupon cease; PROVIDED, HOWEVER, that
the Trustee or any such Paying Agent, before being required to make
any such repayment, may, at the expense of the Company, either mail
to each Securityholder affected, at the address shown in the
register of the Securities maintained by the Registrar, or cause to
be published once a week for two successive weeks, in a newspaper
published in the English language, customarily published each
Business Day and of general circulation in the City of New York,
New York, a notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30
days from the date of such mailing or publication, any unclaimed
balance of such moneys then remaining will be repaid to the
Company. After payment to the Company or the release of any money
held in trust by the Company, Securityholders entitled to the money
must look only to the Company for payment as general creditors,
unless applicable abandoned property law designates another
Person.






 



 

27







 







 



ARTICLE 10



 



MISCELLANEOUS


 


10.1
TRUST INDENTURE ACT CONTROLS.


 


If any
provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this
Indenture by the TIA, the required provision shall control. If any
provision of this Indenture modifies or excludes any provision of
the TIA which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.


 


10.2
NOTICES.


 


Any
notice or communication shall be given in writing and delivered in
Person, sent by facsimile (and receipt confirmed by telephone or
electronic transmission report), delivered by commercial courier
service or mailed by first-class mail, postage prepaid, addressed
as follows:


 


If to
the Company:


 


BK
Technologies Corporation


7100
Technology Drive


West
Melbourne, FL 32904


Attention: Chief
Financial Officer


Telephone: (321)
984-1414


 


Copy
to:


 


Kirton
McConkie PC


50 E.
South Temple


Salt
Lake City, UT 84111


Attention:
Alexander N. Pearson


Fax:
(801) 212-2006


Telephone: (801)
328-3600


 


If to
the Trustee:


 


The
Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or
communications. Any notice or communication to the Company or the
Trustee shall be deemed to have been given or made as of the date
so delivered if personally delivered; on the next business day if
mailed via an overnight courier, when receipt is confirmed by
telephone or electronic transmission report if sent by facsimile;
and three Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually
received by the addressee).


 


Any
notice or communication mailed to a Securityholder shall be mailed
to such Securityholder by first-class mail, postage prepaid, at
such Securityholder’s address shown on the register kept by
the Registrar.


 


Failure
to mail, or any defect in, a notice or communication to a
Securityholder shall not affect its sufficiency with respect to
other Securityholders. If a notice or communication to a
Securityholder is mailed in the manner provided above, it shall be
deemed duly given, three Business Days after such mailing, whether
or not the addressee receives it.


 


In case
by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as
shall be made with the approval of the Trustee shall constitute a
sufficient mailing of such notice.


 



 

28







 






 


In the
case of Global Securities, notices or communications to be given to
Securityholders shall be given to the Depository, in accordance
with its applicable policies as in effect from time to
time.


 


In
addition to the manner provided for in the foregoing provisions,
notices or communications to Securityholders shall be given by the
Company by release made to Reuters Economic Services and Bloomberg
Business News.


 


10.3
COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.


 


Securityholders of
any Series may communicate pursuant to TIA Section 312(b) with
other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of
that Series or any other Series. The Company, the Trustee, the
Registrar and any other Person shall have the protection of TIA
Section 312(c).


 


10.4
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 10.5 below) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and


 


(2) an
Opinion of Counsel (which shall include the statements set forth in
Section 10.5 below) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.


 


10.5
STATEMENT REQUIRED IN CERTIFICATE AND OPINION.


 


Each
certificate and opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than pursuant to
Section 4.4) shall include:


 


(1) a
statement that the Person making such certificate or opinion has
read such covenant or condition;


 


(2) 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;


 


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


 


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


 


10.6
RULES BY TRUSTEE AND AGENTS.


 


The
Trustee may make reasonable rules for action by or at meetings of
Securityholders. The Registrar and Paying Agent may make reasonable
rules for their functions.


 


10.7
BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT.


 


A
“Business
Day” is a day that is not a Legal Holiday. A
“Legal
Holiday” is a Saturday, a Sunday, a
federally-recognized holiday or a day on which banking institutions
are not authorized or required by law, regulation or executive
order to be open in the State of New York.


 



 

29







 






 


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. “Place of
Payment” means the place or places where the principal
of, and interest and premium, if any, on, the Securities of a
Series are payable as specified as contemplated by Section 2.2. If
the regular record date is a Legal Holiday, the record date shall
not be affected.


 


10.8
GOVERNING LAW.


 


THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.


 


10.9
NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.


 


This
Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary
thereof. No such indenture, loan, security or debt agreement may be
used to interpret this Indenture.


 


10.10
NO RECOURSE AGAINST OTHERS.


 


A
director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of
the Company under the Securities or the Indenture. Each
Securityholder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration
for the issuance of the Securities.


 


10.11
SUCCESSORS.


 


All
covenants and agreements of the Company in this Indenture and the
Securities shall bind the Company’s successors and assigns,
whether so expressed or not. All agreements of the Trustee, any
additional trustee and any Paying Agents in this Indenture shall
bind their respective successors and assigns.


 


10.12
MULTIPLE COUNTERPARTS.


 


The
parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them
together represent one and the same agreement.


 


10.13
TABLE OF CONTENTS, HEADINGS, ETC.


 


The
table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.


 


10.14
SEVERABILITY.


 


Each
provision of this Indenture shall be considered separable, and if
for any reason any provision which is not essential to the
effectuation of the basic purpose of this Indenture or 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, and a Holder
shall have no claim therefor against any party hereto.


 



 

30







 






 


10.15
SECURITIES IN A FOREIGN CURRENCY OR IN EUROS.


 


Unless
otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate delivered pursuant to
Section 2.2 with respect to a particular Series of Securities,
whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount
of Securities of all Series or all Series affected by a particular
action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a
coin or currency other than Dollars (including Euros), then the
principal amount of Securities of such Series which shall be deemed
to be outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at
the Market Exchange Rate at such time. For purposes of this Section
10.15, “Market
Exchange Rate” shall mean the noon Dollar buying rate
in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; PROVIDED, HOWEVER, in the
case of Euros, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Union (or any
successor thereto) as published in the Official Journal of the
European Union (such publication or any successor publication, the
“Journal”). If such Market
Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank
of New York or, in the case of Euros, the rate of exchange as
published in the Journal, as of the most recent available date, or
quotations or, in the case of Euros, rates of exchange from one or
more major banks in New York City or in the country of issue of the
currency in question or, in the case of Euros, in Luxembourg or
such other quotations or, in the case of Euros, rates of exchange
as the Trustee, upon consultation with the Company, shall deem
appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of
Securities of a Series denominated in currency other than Dollars
in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture.


 


All
decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in the Trustee’s sole
discretion, and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.


 


10.16
JUDGMENT CURRENCY.


 


The
Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in
respect of the principal of, or interest or premium, if any, or
other amount on, the Securities of any Series (the
“Required
Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the
rate of exchange used shall be the rate at which, in accordance
with normal banking procedures, the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency
on the day on which final unappealable judgment is entered, unless
such day is not a Business Day, in which instance, the rate of
exchange used shall be the rate at which, in accordance with normal
banking procedures, the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment
is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or
satisfied by any tender or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)) in any
currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to
be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under
this Indenture.


 



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31








 






IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first
above written.


 


	
 

	


BK TECHNOLOGIES CORPORATION


	
 

	
 

	
 


	
 

	

By:

	

                 


	
 

	

Name:

	
 


	
 

	

Title:

	
 







 


	
 

	


[Name of Trustee]


	
 

	
 

	
 


	

  

	

By:

	

     


	
 

	

Name:

	
 


	
 

	

Title:

	
 


	
 

	
 

	
 


	
 

	

By:

	
 


	
 

	

Name:

	
 


	
 

	

Title:

	
 







 








 

32