Exhibit 4.8


 


ALLIANT
TECHSYSTEMS INC.


 


AND


 


THE
BANK OF NEW YORK TRUST COMPANY, N.A.,


 


as
Trustee


 


Senior
Debt Securities


 


INDENTURE


 


Dated
as of               
    , 200  


 

















 


CROSS REFERENCE SHEET *


 


Provisions of
Sections 310 through 318(a) inclusive of the Trust Indenture Act of 1939,
as amended, and the Indenture dated as of                    ,
200     between Alliant Techsystems Inc. and The Bank of
New York Trust Company, N.A., as Trustee.


 




	
  Section

  of

  Trust Indenture Act

  	
   

  	
  Section

  of

  Indenture

  
	
  310(a)(1)

  	
   

  	
  6.10

  
	
  310(a)(2)

  	
   

  	
  6.10

  
	
  310(a)(3)

  	
   

  	
  N/A

  
	
  310(a)(4)

  	
   

  	
  N/A

  
	
  310(a)(5)

  	
   

  	
  6.10

  
	
  310(b)

  	
   

  	
  6.10

  
	
  310(c)

  	
   

  	
  N/A

  
	
  311(a)

  	
   

  	
  6.11

  
	
  311(b)

  	
   

  	
  6.11

  
	
  311(c)

  	
   

  	
  N/A

  
	
  312(a)

  	
   

  	
  4.01

  
	
  312(b)

  	
   

  	
  4.02(b)

  
	
  312(c)

  	
   

  	
  4.02(c)

  
	
  313(a)

  	
   

  	
  6.06

  
	
  313(b)

  	
   

  	
  6.06

  
	
  313(c)

  	
   

  	
  6.06

  
	
  313(d)

  	
   

  	
  6.06

  
	
  314(a)

  	
   

  	
  3.04 and 4.03

  
	
  314(b)

  	
   

  	
  N/A

  
	
  314(c)(1)

  	
   

  	
  2.04 and 13.05

  
	
  314(c)(2)

  	
   

  	
  2.04 and 13.05

  
	
  314(c)(3)

  	
   

  	
  N/A

  
	
  314(d)

  	
   

  	
  N/A

  
	
  314(e)

  	
   

  	
  13.05

  
	
  315(a)

  	
   

  	
  6.01(b)

  
	
  315(b)

  	
   

  	
  6.05

  
	
  315(c)

  	
   

  	
  6.01(a)

  
	
  315(d)

  	
   

  	
  6.01(c)

  
	
  315(e)

  	
   

  	
  5.10

  
	
  316(a)(1)(A)

  	
   

  	
  5.08

  
	
  316(a)(1)(B)

  	
   

  	
  5.09

  
	
  316(a)(2)

  	
   

  	
  N/A

  
	
  316(b)

  	
   

  	
  5.06

  
	
  316(c)

  	
   

  	
  2.07

  
	
  317(a)(1)

  	
   

  	
  5.02

  
	
  317(a)(2)

  	
   

  	
  5.02

  
	
  317(b)

  	
   

  	
  3.02 and 3.03

  
	
  318(a)

  	
   

  	
  13.07

  






 






*  This cross reference sheet shall not, for any
purpose, be deemed to be a part of the Indenture.


 

















 


Attention should also be
directed to Section 318(c) of the Trust Indenture Act of 1939, as amended,
which provides that the provisions of Sections 310 through 317 of such Act
are a part of and govern every qualified indenture, whether or not physically
contained therein.


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  1. DEFINITIONS

  	
  1

  
	
  SECTION 1.01.

  	
  Certain Terms Defined

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2. SECURITIES

  	
  5

  
	
  SECTION 2.01.

  	
  Forms Generally

  	
  5

  
	
  SECTION 2.02.

  	
  Form of Trustee’s Certificate of Authentication

  	
  6

  
	
  SECTION 2.03.

  	
  Amount Unlimited; Issuable in Series

  	
  6

  
	
  SECTION 2.04.

  	
  Authentication and Delivery of Securities

  	
  8

  
	
  SECTION 2.05.

  	
  Execution of Securities

  	
  9

  
	
  SECTION 2.06.

  	
  Certificate of Authentication

  	
  9

  
	
  SECTION 2.07.

  	
  Denomination and Date of Securities; Payments of Interest

  	
  9

  
	
  SECTION 2.08.

  	
  Registration, Registration of Transfer and Exchange

  	
  11

  
	
  SECTION 2.09.

  	
  Mutilated, Defaced, Destroyed, Lost and Stolen Securities

  	
  11

  
	
  SECTION 2.10.

  	
  Cancellation of Securities

  	
  12

  
	
  SECTION 2.11.

  	
  Temporary Securities

  	
  13

  
	
  SECTION 2.12.

  	
  Securities in Global Form

  	
  13

  
	
  SECTION 2.13.

  	
  CUSIP Numbers

  	
  14

  
	
   

  	
   

  	
   

  
	
   ARTICLE 3. COVENANTS OF THE COMPANY

  	
  14

  
	
  SECTION 3.01.

  	
  Payment of Principal and Interest

  	
  14

  
	
  SECTION 3.02.

  	
  Offices for Payment, Etc.

  	
  14

  
	
  SECTION 3.03.

  	
  Paying Agents

  	
  14

  
	
  SECTION 3.04.

  	
  Officers’ Certificate

  	
  15

  
	
  SECTION 3.05.

  	
  Calculation of Original Issue Discount

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4. HOLDERS’ LISTS AND REPORTS BY THE COMPANY

  	
  15

  
	
  SECTION 4.01.

  	
  Company to Furnish Trustee Information as to Names and
  Addresses of Holders

  	
  15

  
	
  SECTION 4.02.

  	
  Preservation and Disclosure of Holders’ Lists

  	
  16

  
	
  SECTION 4.03.

  	
  Reports by the Company

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5. REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT

  	
  17

  
	
   

  	
   

  
	
  SECTION 5.01.

  	
  Event of Default Defined; Acceleration of Maturity; Waiver
  of Default

  	
  17

  
	
  SECTION 5.02.

  	
  Collection of Indebtedness by Trustee; Trustee May Prove
  Debt

  	
  19

  
	
  SECTION 5.03.

  	
  Application of Proceeds

  	
  21

  
	
  SECTION 5.04.

  	
  Restoration of Rights on Abandonment of Proceedings

  	
  22

  
	
  SECTION 5.05.

  	
  Limitations on Suits by Holders

  	
  22

  
	
  SECTION 5.06.

  	
  Unconditional Right of Holders to Institute Certain Suits

  	
  22

  
	
  SECTION 5.07.

  	
  Powers and Remedies Cumulative; Delay or Omission Not
  Waiver of Default

  	
  22

  
	
  SECTION 5.08.

  	
  Control by Holders

  	
  23

  
	
  SECTION 5.09.

  	
  Waiver of Past Defaults

  	
  23

  
	
  SECTION 5.10.

  	
  Right of Court to Require Filing of Undertaking to Pay
  Costs

  	
  23

  
	
  SECTION 5.11.

  	
  Suits for Enforcement

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6. CONCERNING THE TRUSTEE

  	
  24

  
	
  SECTION 6.01.

  	
  Duties of Trustee

  	
  24

  
	
  SECTION 6.02.

  	
  Rights of Trustee

  	
  25

  
	
  SECTION 6.03.

  	
  Individual Rights of Trustee

  	
  26

  



 


i

















 


	
  SECTION 6.04.

  	
  Trustee’s Disclaimer

  	
  26

  
	
  SECTION 6.05.

  	
  Notice of Defaults

  	
  27

  
	
  SECTION 6.06.

  	
  Reports by Trustee to Holders

  	
  27

  
	
  SECTION 6.07.

  	
  Compensation and Indemnity

  	
  27

  
	
  SECTION 6.08.

  	
  Replacement of Trustee

  	
  28

  
	
  SECTION 6.09.

  	
  Successor Trustee by Merger

  	
  29

  
	
  SECTION 6.10.

  	
  Eligibility; Disqualification

  	
  29

  
	
  SECTION 6.11.

  	
  Preferential Collection of Claims Against Company

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7. CONCERNING THE HOLDERS

  	
  29

  
	
  SECTION 7.01.

  	
  Evidence of Action Taken by Holders

  	
  29

  
	
  SECTION 7.02.

  	
  Proof of Execution of Instruments

  	
  29

  
	
  SECTION 7.03.

  	
  Holders to Be Treated as Owners

  	
  29

  
	
  SECTION 7.04.

  	
  Securities Owned by Company Deemed Not Outstanding

  	
  30

  
	
  SECTION 7.05.

  	
  Right of Revocation of Action Taken

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8. SUPPLEMENTAL INDENTURES

  	
  30

  
	
  SECTION 8.01.

  	
  Supplemental Indentures Without Consent of Holders

  	
  30

  
	
  SECTION 8.02.

  	
  Supplemental Indentures with Consent of Holders

  	
  31

  
	
  SECTION 8.03.

  	
  Effect of Supplemental Indenture

  	
  32

  
	
  SECTION 8.04.

  	
  Documents to Be Given to Trustee

  	
  32

  
	
  SECTION 8.05.

  	
  Notation on Securities in Respect of Supplemental Indentures

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9. CONSOLIDATION, MERGER, SALE OR CONVEYANCE

  	
  33

  
	
  SECTION 9.01.

  	
  Company May Consolidate, Etc. on Certain Terms

  	
  33

  
	
  SECTION 9.02.

  	
  Successor Corporation Substituted

  	
  33

  
	
  SECTION 9.03.

  	
  Opinion of Counsel to Trustee

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10. SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED FUNDS

  	
  34

  
	
  SECTION 10.01.

  	
  Satisfaction and Discharge of Indenture; Defeasance

  	
  34

  
	
  SECTION 10.02.

  	
  Application by Trustee of Funds Deposited for Payment of
  Securities

  	
  37

  
	
  SECTION 10.03.

  	
  Repayment of Funds Held by Paying Agent

  	
  37

  
	
  SECTION 10.04.

  	
  Return of Unclaimed Funds Held by Trustee and Paying Agent

  	
  37

  
	
  SECTION 10.05.

  	
  Reinstatement of Company’s Obligations

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11. REDEMPTION OF SECURITIES AND SINKING FUNDS

  	
   

  
	
  SECTION 11.01.

  	
  Applicability of Article

  	
   

  
	
  SECTION 11.02.

  	
  Notice of Redemption; Partial Redemptions

  	
   

  
	
  SECTION 11.03.

  	
  Payment of Securities Called for Redemption

  	
   

  
	
  SECTION 11.04.

  	
  Exclusion of Certain Securities from Eligibility for
  Selection for Redemption

  	
   

  
	
  SECTION 11.05.

  	
  Mandatory and Optional Sinking Funds

  	
   

  
	
  SECTION 11.06.

  	
  Repayment at the Option of the Holders

  	
   

  
	
  SECTION 11.07.

  	
  Conversion Arrangement on Call for Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12. CONVERSION OF SECURITIES

  	
   

  
	
  SECTION 12.01.

  	
  Applicability of Article

  	
   

  
	
  SECTION 12.02.

  	
  Right of Holders to Convert Securities into Common Shares

  	
   

  
	
  SECTION 12.03.

  	
  Issuance of Common Shares on Conversions

  	
   

  
	
  SECTION 12.04.

  	
  No Payment or Adjustment for Interest or Dividends

  	
   

  
	
  SECTION 12.05.

  	
  Adjustment of Conversion Price

  	
   

  
	
  SECTION 12.06.

  	
  No Fractional Shares to Be Issued

  	
   

  



 


ii

















 


 


	
  SECTION 12.07.

  	
  Preservation of Conversion Rights upon Consolidation,
  Merger, Sale or Conveyance

  	
   

  
	
  SECTION 12.08.

  	
  Notice to Holders of the Securities of a Series Prior to
  Taking Certain Types of Action

  	
   

  
	
  SECTION 12.09.

  	
  Covenant to Reserve Shares for Issuance on Conversion of
  Securities

  	
   

  
	
  SECTION 12.10.

  	
  Compliance with Governmental Requirements

  	
   

  
	
  SECTION 12.11.

  	
  Payment of Taxes upon Certificates for Shares Issued upon
  Conversion

  	
   

  
	
  SECTION 12.12.

  	
  Trustee’s Duties with Respect to Conversion Provisions

  	
   

  
	
  SECTION 12.13.

  	
  Conversion of Securities into Preferred Shares or Other
  Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  13. MISCELLANEOUS PROVISIONS

  	
   

  
	
  SECTION 13.01.

  	
  Incorporators, Shareholders, Officers and Directors of
  Company Exempt from Individual Liability

  	
   

  
	
  SECTION 13.02.

  	
  Provisions of Indenture for the Sole Benefit of Parties
  and Holders

  	
   

  
	
  SECTION 13.03.

  	
  Successors and Assigns of Company Bound by Indenture

  	
   

  
	
  SECTION 13.04.

  	
  Notices and Demands on Company, Trustee and Holders

  	
   

  
	
  SECTION 13.05.

  	
  Officers’ Certificates and Opinions of Counsel; Statements
  to Be Contained Therein

  	
   

  
	
  SECTION 13.06.

  	
  Payments Due on Saturdays, Sundays and Holidays

  	
   

  
	
  SECTION 13.07.

  	
  Conflict of Any Provision of Indenture with Trust
  Indenture Act of 1939

  	
   

  
	
  SECTION 13.08.

  	
  New York Law to Govern

  	
   

  
	
  SECTION 13.09.

  	
  Counterparts

  	
   

  
	
  SECTION 13.10.

  	
  Effect of Headings; Gender

  	
   

  
	
  SECTION 13.11.

  	
  Waiver of Jury Trial

  	
   

  
	
  SECTION 13.12.

  	
  Force Majeure

  	
   

  



 


iii

















 


INDENTURE


 


This INDENTURE (this “Indenture”), dated as of                 
    , 200    , is by and between
ALLIANT TECHSYSTEMS INC., a Delaware corporation (the “Company”), and THE BANK OF NEW YORK TRUST
COMPANY, N.A., a national banking association, as trustee (the “Trustee”).


 


RECITALS


 


A.            The Company has duly authorized the issue from time to
time of its debentures, notes or other evidences of indebtedness (the “Securities”) to be issued in one or more
Series.


 


B.            All things necessary to make this Indenture a valid,
legally binding indenture and agreement according to its terms have been done.


 


NOW, THEREFORE, in
consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed for the equal and ratable benefit of the Holders
from time to time of the Securities or of Series thereof as follows.


 


ARTICLE 1

DEFINITIONS


 


SECTION 1.01.  Certain Terms Defined.  Unless
otherwise specified as contemplated by Section 2.03 for the Securities of
any Series, the following terms (except as otherwise expressly provided or
unless the context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.01. All other terms (except as herein
otherwise expressly provided or unless the context otherwise clearly requires)
used in this Indenture that are defined in the Trust Indenture Act or the
definitions of which in the Securities Act are referred to in the Trust
Indenture Act, including terms defined therein by reference to the Securities
Act, shall have the meanings assigned to such terms in the Trust Indenture Act
and the Securities Act as in force at the date of this Indenture. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with GAAP. The words “herein”, “hereof”
and “hereunder” and other words of
similar import refer to this Indenture as a whole, as supplemented and amended
from time to time, and not to any particular Article, Section or other
subdivision. The terms defined in this Article 1 have the meanings assigned to
them in this Article 1 and include the plural as well as the singular.


 


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


 


“Business Day”, except as may otherwise be
provided in the form of Securities of any particular Series, with respect to
any Place of Payment or place of publication means any day, other than a
Saturday, Sunday or day on which banking institutions are authorized or
required by law or regulation to close in that Place of Payment or place of
publication.


 


“Commission” means the Securities and
Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act, or if at any time after the execution and 


 

















 


delivery of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties on such date.


 


“Common Shares” means the shares of common
stock, par value $0.01 per share, of the Company as they exist on the date of
this Indenture, or any other shares of capital stock of the Company into which
such shares shall be reclassified or changed.


 


“Company” means the Person identified as the
“Company” in the first paragraph hereof until a successor corporation shall
have become such pursuant to the applicable provisions hereof, and thereafter “Company”
shall mean such successor corporation.


 


“Corporate Trust Office” means the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at 2 North LaSalle Street, Suite
1020 Chicago, IL 60602 Attn: Corporate Trust Administration.


 


“covenant defeasance option” has the meaning
specified in Section 10.01(b).


 


“defaulted interest” has the meaning
specified in Section 2.07.


 


“Depository”, with respect to Securities of
any Series for which the Company shall determine that such Securities will be
issued as a Depository Security, means The Depository Trust Company or another
clearing agency or any successor registered under the Securities Exchange Act
or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to Sections 2.03 and 2.12.


 


“Depository Security”, with respect to any
Series of Securities, means a Security executed by the Company and
authenticated and delivered by the Trustee to the Depository or pursuant to the
Depository’s instruction, all in accordance with this Indenture and pursuant to
a resolution of the Board of Directors or an indenture supplemental hereto as contemplated
by Section 2.03, which shall be registered as to principal and interest in
the name of the Depository or its nominee and shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, all of the
Outstanding Securities of such Series.


 


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


 


“GAAP” means such accounting principles as
are generally accepted at the time of any computation hereunder.


 


2

















 


“Holder”, “Holder
of Securities”, “Registered Holder”,
or other similar terms mean the Person in whose name at the time a particular
Security is registered in the Security register.


 


“Indenture” means this instrument as
originally executed or as it may from time to time be amended or supplemented
as herein provided, as so amended or supplemented or both, and shall include
the forms and terms of particular Series of Securities established as
contemplated by Section 2.03.


 


“legal defeasance option” has the meaning
specified in Section 10.01(b).


 


“Officers’ Certificate” means a certificate
signed on behalf of the Company by the chairman of the Board of Directors or
the president or any vice president and by the treasurer, the controller, any
assistant treasurer, the secretary or any assistant secretary of the Company
and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 13.05.


 


“Opinion of Counsel” means a written opinion
of legal counsel who may be an employee of or counsel to the Company. Each
Opinion of Counsel shall include the statements provided for in
Section 13.05, if and to the extent required hereby.


 


“original issue date” of any Security means
the date set forth as such on such Security.


 


“Original Issue Discount Security” means any
Security that provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.01.


 


“Outstanding”, when used with reference to
Securities of any Series as of any particular time, subject to the provisions
of Section 7.04, means all Securities of that Series authenticated and
delivered under this Indenture, except:


 


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


 


(b)           Securities, or portions thereof, for
the payment or redemption of which the necessary funds in the required currency
shall have been deposited in trust with the Trustee or with any Paying Agent
other than the Company, or shall have been set aside, segregated and held in
trust by the Company for the holders of such Securities if the Company shall
act as its own Paying Agent, provided that if such securities, or portions
thereof, are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provision satisfactory
to the Trustee shall have been made for giving such notice;


 


(c)           Securities in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.09, except with respect to any such Security as to
which proof satisfactory to the Trustee and the Company is presented that such
Security is held by a person in whose hands such Security is a legal, valid and
binding obligation of the Company;


 


3

















 


(d)           Securities converted into Common
Shares or Preferred Shares in accordance with or as contemplated by this
Indenture; and


 


(e)           Securities with respect to which the
Company has effected defeasance as provided in Article 10.


 


“Paying Agent” means any Person, which may
include the Company, authorized by the Company to pay the principal of or
interest, if any, on any Security of any Series on behalf of the Company.


 


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


 


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


 


“Preferred Shares” means any shares of
capital stock issued by the Company that are entitled to a preference or
priority over the Common Shares upon any distribution of the Company’s assets,
whether by dividend or upon liquidation.


 


“principal” whenever used with reference to
the Securities or any Security or any portion thereof shall be deemed to
include “and premium, if any.”


 


“Responsible Officer”, when used with
respect to the Trustee, means any officer within the corporate trust department
of the Trustee including any vice president, assistant vice president, senior
trust officer, trust officer or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
individuals who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred at the Corporate Trust Office because of
his or her knowledge of and familiarity with the particular subject, and who
shall have direct responsibility for the administration of this Indenture.


 


“Securities Act” means the Securities Act of
1933, as amended, as in force at the date as of which this Indenture was
originally executed.


 


“Securities Exchange Act” means the
Securities Exchange Act of 1934, as amended, as in force at the date as of
which this Indenture was originally executed.


 


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


 


“Series” or “Series of Securities” means all Securities of a similar tenor
authorized by a particular resolution of the Board of Directors or in one or
more indentures supplemental hereto.


 


“Subsidiary” means:  (i) a corporation in which the Company
and/or one or more Subsidiaries of the Company directly or indirectly owns, at
the date of determination, a majority of the capital stock with voting power
under ordinary circumstances to elect directors; (ii) a 


 


4

















 


partnership,
limited liability company, joint venture or similar entity in which the Company
and/or one or more Subsidiaries of the Company directly or indirectly holds, at
the date of determination, a majority interest in the equity capital or profits
or other similar interests of such entity; or (iii) any other
unincorporated Person in which the Company and/or one or more Subsidiaries of
the Company directly or indirectly owns at the date of determination
(x) at least a majority ownership interest or (y) the power to elect
or direct the election of a majority of the directors or other governing body
of such Person.


 


“Trust Indenture Act of 1939”, except as
otherwise provided in Sections 8.01 and 8.02, means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this Indenture was
originally executed.


 


“Trustee” means the Person identified as the
“Trustee” in the first paragraph hereof until a successor Trustee shall have
become such pursuant to the applicable provisions hereof, and thereafter “Trustee”
shall mean each Person who is then a Trustee hereunder. If at any time there is
more than one such Person, “Trustee” as used with respect to the Securities of
any Series means the Trustee with respect to Securities of that Series.


 


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


 


“U.S. Government Obligations” means direct
obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable or
redeemable at the issuer’s option.


 


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


 


ARTICLE 2

SECURITIES


 


SECTION 2.01.  Forms Generally.  The
Securities of each Series shall be substantially in such form, including
temporary or definitive global form, as shall be established by or pursuant to
a resolution of the Board of Directors or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have imprinted or otherwise reproduced thereon such legend
or legends, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations, or with any
rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities as evidenced by their
execution of the Securities.


 


The definitive Securities
may be printed or reproduced in any other manner, all as determined by the
officers executing such Securities as evidenced by their execution of such
Securities.


 


5

















 


SECTION 2.02.  Form of Trustee’s Certificate of
Authentication.  The Trustee’s certificate of
authentication on all Securities shall be in substantially the following form:


 


This is one of the
Securities of the Series designated herein and referred to in the
within-mentioned Indenture.


 


	
   

  	
   

  	
  , as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  — or
  —

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  , as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  , as

  
	
   

  	
  Authentication
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
								



 


SECTION 2.03.  Amount Unlimited; Issuable in Series.  The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.


 


The Securities may be
issued in one or more Series. There shall be established in or pursuant to a
resolution of the Board of Directors and set forth in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any Series:


 


(a)           the title of the Securities of the
Series (including CUSIP numbers), which shall distinguish the Securities of the
Series from all other Securities issued by the Company;


 


(b)           any limit upon the aggregate
principal amount of the Securities of the Series that 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 2.08, 2.09, 2.11, 8.05
or 11.03;


 


(c)           the price at which the Securities of
the Series will be issued;


 


(d)           if other than 100% of their principal
amount, the portion of the principal amount payable upon the maturity of the
Securities of the Series;


 


6

















 


(e)           the date or dates on which the
principal of the Securities of the Series is payable or the method of
determination thereof;


 


(f)            the rate or rates, which may be
fixed or variable, or the method or methods of determination thereof, at which
the Securities of the Series shall bear interest (including any interest rates
applicable to overdue payments), if any, the date or dates from which such
interest shall accrue, the interest payment dates on which such interest shall
be payable, the record dates for the determination of Holders to whom interest
is payable and the dates on which any other amounts, if any, will be payable;


 


(g)           the place or places where the
principal of, premium and other amounts, if any, and interest, if any, on
Securities of the Series shall be payable if other than as provided in
Section 3.02;


 


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


 


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


 


(j)            the denominations in which
Securities of the Series shall be issuable;


 


(k)           the form of the Securities, including
such legends as required by law or as the Company deems necessary or
appropriate and the form of any temporary global security that may be issued;


 


(l)            whether, and under what
circumstances, the Securities of any Series shall be convertible into other
securities of the Company and, if so, the terms and conditions upon which such
conversion will be effected, including the initial conversion price or rate,
the conversion period and other provisions in addition to or in lieu of those
described herein;


 


(m)          whether there are any authentication
agents, Paying Agents, transfer agents or registrars with respect to the
Securities of such Series;


 


(n)           whether the Securities of such Series
are to be issuable in whole or in part by one or more global notes registered
in the name of a Depository or its nominee;


 


(o)           the ranking of the Securities of such
Series as senior debt securities or subordinated debt securities;


 


(p)           if other than U.S. dollars, the
currency or currencies (including composite currencies or currency units) in
which the Securities of any Series may be purchased and 


 


7

















 


in
which payments on the the Securities of such Series will be made (which
currencies may be different for payments of principal, premium or other
amounts, if any, and/or interest, if any);


 


(q)           if the Securities of any Series will
be secured by any collateral, a description of the collateral and the terms and
conditions of the security and realization provisions;


 


(r)            the provisions relating to any
guarantee of the Securities of any Series, including the ranking thereof;


 


(s)           the ability, if any, to defer
payments of principal, interest, or other amounts; and


 


(t)            any other specific terms or
conditions of the Securities of any Series, including any additional Events of
Default or covenants provided for with respect to the Securities of such
Series, and any terms that may be required by or advisable under applicable
laws or regulations.


 


All Securities of any one
Series shall be substantially identical except as to denomination and except as
otherwise may be provided in or pursuant to such resolution of the Board of
Directors or in any such indenture supplemental hereto. All Securities of any
one Series need not be issued at the same time, and unless otherwise provided,
a Series may be reopened for issuances of additional Securities of such Series.


 


SECTION 2.04.  Authentication and Delivery of
Securities.  At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any Series executed by the Company to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery such
Securities to or upon the written order of the Company, signed by both (a) the
chairman of its Board of Directors, or its president or any vice president, and
(b) its treasurer or any assistant treasurer or its secretary or any
assistant secretary. At the time of the first authentication of Securities of a
Series that provides for the issuance of Securities of that Series from time to
time, and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be provided with and subject to
Section 6.01 shall be fully protected in relying upon:


 


(a)           a copy of any resolution or
resolutions of the Board of Directors relating to such Series, in each case
certified by the secretary or an assistant secretary of the Company;


 


(b)           a supplemental indenture, if any;


 


(c)           an Officers’ Certificate setting
forth the form and terms of the Securities of such Series as required pursuant
to Sections 2.01 and 2.03, respectively, and prepared in accordance with
Section 13.05; and


 


8

















 


(d)           an Opinion of Counsel, prepared in
accordance with Section 13.05, which shall state:


 


(i)            that the form or forms and terms of
such Securities have been established by or pursuant to a resolution of the
Board of Directors or by a supplemental indenture as permitted by Sections 2.01
and 2.03 in conformity with the provisions of this Indenture; and


 


(ii)           that such Securities have been duly
authorized and, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such
opinion of counsel, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or other laws
relating to or affecting the enforcement of creditors’ rights generally and by
general equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law.


 


The Trustee shall have
the right to decline to authenticate and deliver any Securities under this
Section 2.04 if the issue of such Securities pursuant to this Indenture
will affect the Trustee’s own rights, duties or immunities under this Indenture
in a manner not reasonably acceptable to the Trustee.


 


SECTION 2.05.  Execution of Securities.  The
Securities shall be signed on behalf of the Company by both (a) the
chairman of its Board of Directors or its president or any vice president and
(b) its treasurer or any assistant treasurer or its secretary or any
assistant secretary, under its corporate seal. Such signatures may be the
manual or facsimile signatures of such officers. The seal of the Company may be
in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.


 


In case any officer of the
Company who shall have signed any of the Securities shall cease to be such
officer before the Security so signed shall be authenticated and delivered by
the Trustee or disposed of by the Company, such Security nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Security had not ceased to be such officer of the Company. Any Security may be
signed on behalf of the Company by such individuals as, at the actual date of
the execution of such Security, shall be the proper officers of the Company,
although at the date of the execution and delivery of this Indenture any such
individual was not such an officer.


 


SECTION 2.06.  Certificate of Authentication.  Only
such Securities as shall bear thereon a certificate of authentication
substantially in the form set forth in Section 2.02 and executed by the
Trustee by the manual signature of one of its authorized signatories shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the 


 


9

















 


Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.


 


SECTION 2.07.  Denomination and Date of Securities;
Payments of Interest.  The Securities shall be issuable in
denominations as shall be specified as contemplated by Section 2.03. In
the absence of any such specification with respect to the Securities of any
Series, Securities shall be issuable in denominations of $1,000 and any
integral multiple thereof, and interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Securities shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Company executing the same may determine with the
approval of the Trustee as evidenced by its execution and authentication thereof.


 


Each Security shall be
dated the date of its authentication.


 


Unless otherwise provided
as contemplated by Section 2.03, interest on any Security that is payable,
and is punctually paid or duly provided for, on any interest payment date shall
be paid to the person in whose name that Security (or one or more predecessor
securities) is registered at the close of business on the regular record date
for the payment of such interest.


 


The term “record date” as used with respect to any
interest payment date (except for a date for payment of defaulted interest)
means the date specified as such in the terms of the Securities of any
particular Series or, if no such date is so specified, the close of business on
the fifteenth day preceding such interest payment date, whether or not such
record date is a Business Day.


 


Any interest on any
Security of any Series that is payable but not punctually paid or duly provided
for (“defaulted interest”) on any
interest payment date shall forthwith cease to be payable to the Registered
Holder on the relevant record date by virtue of such Holder having been a
Holder on such record date. Such defaulted interest may be paid by the Company,
at its election in each case, as provided in clause (a) or clause (b)
below:


 


(a)           The Company may elect to make payment
of any defaulted interest to the persons in whose names any such Securities (or
their respective predecessor Securities) are registered at the close of
business on a special record date for the payment of such defaulted interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each
Security of such Series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee funds equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment. Such funds when deposited shall be held in trust for the
benefit of the Persons entitled to such defaulted interest as provided in this
clause (a). Thereupon the Trustee shall fix a special record date for the
payment of such defaulted interest in respect of Securities of such Series,
which shall be not more than 15 nor less than ten days prior to the date of the
proposed payment and not less than ten days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee promptly shall notify the
Company of such special record date and, in the name and at the expense of the
Company, shall cause notice of the 


 


10

















 


proposed
payment of such defaulted interest and the special record date thereof to be
mailed, first class postage prepaid, to each Registered Holder at his address
as it appears in the Security register, not less than ten days prior to such
special record date. Notice of the proposed payment of such defaulted interest
and the special record date therefor having been mailed as aforesaid, such
defaulted interest in respect of Securities of such Series shall be paid to the
persons in whose names such Securities (or their respective predecessor
Securities) are registered on such special record date and such defaulted
interest shall no longer be payable pursuant to the following clause (b).


 


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


 


Subject to the foregoing
provisions of this Section 2.07, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Security.


 


SECTION 2.08.  Registration, Registration of Transfer
and Exchange.  The Company will cause to be kept at each
office or agency to be maintained for the purpose as provided in Section 3.02
a register or registers (the “Security
register”) in which, subject to such reasonable regulations as it
may prescribe, the Company will provide for the registration and the
registration of transfer of the Securities. The Trustee is hereby appointed
Security registrar for purposes of registering, and registering transfers of,
the Securities.


 


Upon surrender for
registration of transfer of any Security of any Series at any such office or
agency to be maintained for the purpose as provided in Section 3.02, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery in the name of the transferee or transferees, a new Security or
Securities of the same Series and of like tenor and containing the same terms
(other than the principal amount thereof, if more than one Security is
executed, authenticated and delivered with respect to any security so
presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Securities shall equal the principal amount of the
Security presented in respect thereof) and conditions.


 


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 exchange, if so required by the
Company or the Trustee, shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee,
duly executed by the Holder thereof or his attorney and duly authorized in
writing.


 


11

















 


No service charge shall
be made for any registration of transfer or exchange of Securities, but the
Company may require payment of an amount sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
2.11, 8.05 or 11.03 not involving any transfer (and other than exchanges or
transfers specified as contemplated by Section 2.03).


 


The Company shall not be
required (i) to issue, register the transfer of or exchange any Security
during a 15-day period prior to the day of mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any
Security to be redeemed in part, the portion thereof not redeemed.


 


SECTION 2.09.  Mutilated, Defaced, Destroyed, Lost and
Stolen Securities.  Unless otherwise specified as
contemplated by Section 2.03 of any Series, in case any temporary or definitive
Security shall become mutilated or defaced or be destroyed, lost or stolen, the
Company shall execute, and upon the written request of any officer of the
Company, the Trustee shall authenticate and make available for delivery a new
Security of the same Series and of like tenor and principal amount and with the
same terms and conditions, bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated or defaced Security or in lieu
of and substitution for the Security so destroyed, lost or stolen. In every
case the applicant for a substitute Security shall furnish to the Company and
to the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.


 


Upon the issuance of any
substitute Security, the Company may require the payment of an amount sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses, including the reasonable fees and expenses of
the Trustee, connected therewith. In case any Security which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Company, instead of
issuing a substitute Security, may pay or authorize the payment of the same
without surrender thereof except in the case of a mutilated or defaced Security.
The applicant for such payment shall furnish to the Company and to the Trustee
such security or indemnity as any of them may require to save each of them
harmless. In every case of destruction, loss or theft, the applicant also shall
furnish to the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.


 


Every substitute Security
of any Series issued pursuant to the provisions of this Section 2.09 by
virtue of the fact that any Security is destroyed, lost or stolen shall
constitute an additional contractual 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 and shall be subject to all
the limitations of rights set forth in this Indenture equally and
proportionately with any and all other Securities of such Series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or 


 


12

















 


payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies, notwithstanding any law or statute to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.


 


SECTION 2.10.  Cancellation of Securities. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Company or any agent of the Company or
the Trustee shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled by it; and no Securities shall
be issued in lieu thereof except as expressly permitted by the provisions of
this Indenture. The Company at any time may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold and all Securities so delivered shall be
promptly cancelled by the Trustee. The Trustee shall return cancelled
Securities held by it to the Company. 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 the same are
delivered to the Trustee for cancellation.


 


SECTION 2.11.  Temporary Securities.  Pending
the preparation of definitive Securities for any Series, the Company may
execute and the Trustee shall authenticate and make available for delivery
temporary Securities for such Series, which may be printed, typewritten or
otherwise reproduced, in each case in form reasonably acceptable to the Trustee.
Temporary Securities of any Series may be issued in any authorized denomination
and substantially in the form of the definitive Securities of such Series but
with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company with the
reasonable concurrence of the Trustee. Temporary Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the
Company shall execute and shall furnish definitive securities of such Series
and thereupon temporary Securities of such Series may be surrendered in
exchange therefor without charge at each office or agency to be maintained by
the Company for that purpose pursuant to Section 3.02, and the Trustee
shall authenticate and make available for delivery in exchange for such
temporary Securities of such Series a like aggregate principal amount of
definitive Securities of the same Series of authorized denominations. Until so
exchanged, the temporary Securities of any Series shall be entitled to the same
benefits under this Indenture as definitive Securities of such Series.


 


SECTION 2.12.  Securities in Global Form.  If
Securities of a Series are issuable in global form, as specified as
contemplated by Section 2.03, then, notwithstanding the provisions of
Section 2.03(j) and Section 2.07, such Security shall represent such
of the Outstanding Securities of such Series as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby may be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in the Company order to be delivered to the Trustee 


 


13

















 


pursuant to
Section 2.04. Subject to the provisions of Section 2.04, the Trustee
shall deliver and redeliver any Security in definitive global form in the
manner and upon written instructions given by the Person or Persons specified
therein or in the applicable Company order. If a Company order pursuant to
Section 2.04 has been, or simultaneously is, delivered, any instructions
by the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with
Section 13.05 and need not be accompanied by an Opinion of Counsel.


 


Unless otherwise
specified as contemplated by Section 2.03, payment of principal of and any
interest on any Security in definitive global form shall be made to the Person
or Persons specified therein.


 


Except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat a Person as the Holder of such principal amount of
outstanding Securities represented by a definitive global Security as shall be
specified in a written statement of the Holder of such definitive global
Security.


 


If The Depository Trust
Company is at any time unwilling or unable to continue as Depository or if at
any time The Depository Trust Company ceases to be a clearing agency registered
under the Securities Exchange Act if so required by applicable law or regulation,
and, in either case, a successor Depository is not appointed within 90 days,
certificated Securities will be issued in exchange for the global
Securities.  In addition, the Company may
determine, at any time and subject to the procedures of The Depository Trust
Company, not to have any Securities represented by one or more global
Securities, and, in such event, shall issue individual Securities in
certificated form in exchange for the relevant global Securities.  Beneficial interests in global Securities
will also be exchangeable for individual Securities in certificated form in the
event of a default or an Event of Default, upon prior written notice to the
Trustee by or on behalf of The Depository Trust Company or at the written
request of the owner of such beneficial interests, in each case, in accordance
with the terms hereof.  In any of the
foregoing circumstances, an owner of a beneficial interest in a global Security
shall be entitled to physical delivery of individual Securities in certificated
form of like tenor and rank, equal in principal amount to such beneficial
interest, and to have such Securities in certificated form registered in its
name.


 


SECTION 2.13.  CUSIP Numbers.  The
Company in issuing the Securities may use “CUSIP” numbers if then generally in
use and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
as a convenience to Holders. Any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Securities. No
such redemption shall be affected by any defect in or omission of such numbers.
The Company promptly will notify the Trustee of any change in the CUSIP
numbers.


 


ARTICLE 3

COVENANTS OF THE COMPANY


 


SECTION 3.01.  Payment of Principal and Interest.  The
Company covenants and agrees for the benefit of each particular Series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities of such Series in
accordance with the terms of the Securities of such Series and this Indenture.


 


SECTION 3.02.  Offices for Payment, Etc.  So
long as any of the Securities remain outstanding, the Company will maintain the
following for each Series:  an office or
agency where the Securities may be presented for payment or conversion; where
the Securities may be presented for registration of transfer and for exchange;
and where notices and demands to or upon the Company in respect of the
Securities or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. In case the Company shall fail to so designate or
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands
may be made and notices may be served at the Corporate Trust Office. Unless
otherwise specified pursuant to Section 2.03, the Trustee is hereby
appointed Paying Agent.


 


14

















 


SECTION 3.03.  Paying Agents.  Whenever
the Company shall appoint a Paying Agent other than the Trustee with respect to
the Securities of any Series, it will cause such Paying Agent to execute and
deliver to the Trustee an instrument in which such Agent shall agree with the
Trustee, subject to the provisions of this Section 3.03:


 


(a)           that it will hold all amounts
received by it as such Paying Agent for the payment of the principal of or
interest on the Securities of such Series in trust for the benefit of the
Holders of the Securities of such Series and, upon the occurrence of an Event
of Default and upon the written request of the Trustee, pay over all such sums
received by it to the Trustee; and


 


(b)           that it will give the Trustee notice
of any failure by the Company or by any other obligor on the Securities of such
Series to make any payment of the principal of or interest on the Securities of
such Series when the same shall be due and payable.


 


On or prior to each due
date of the principal of or interest on the Securities of such Series, the
Company will deposit with the Paying Agent sufficient funds to pay such
principal or interest so becoming due and, unless such Paying Agent is the
Trustee, notify the Trustee of any failure to take such action.


 


If the Company shall act
as its own Paying Agent with respect to the Securities of any Series, on or
before each due date of the principal of or interest on the Securities of such
Series it will set aside, segregate and hold in trust for the benefit of the
Holders of the Securities of such Series sufficient funds to pay such principal
or interest so becoming due. The Company will promptly notify the Trustee of
any failure to take such action.


 


At any time, for the
purpose of obtaining a satisfaction and discharge with respect to one or more
or all Series of Securities or for any other reason, the Company may pay or
cause to be paid to the Trustee all amounts held in trust for any such Series
by the Company or any Paying Agent, such amounts to be held by the Trustee in
trust pursuant to this Indenture.


 


The agreement to hold
amounts in trust as provided in this Section 3.03 is subject to the provisions
of Sections 10.03 and 10.04.


 


SECTION 3.04.  Officers’ Certificate.  The
Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, an Officers’ Certificate indicating whether the officers
signing such Officers’ Certificate on behalf of the Company know of any default
with respect to the Securities of any Series that occurred during the previous
year. The Company shall also deliver to the Trustee, within 30 days after
the occurrence thereof, written notice of any Event of Default with respect to
the Securities of any Series, the status and what action the Company is taking
or proposes to take in respect thereof.


 


SECTION 3.05.  Calculation of Original Issue Discount.  The
Company shall file with the Trustee, within 60 days after the end of each
calendar year, a written notice specifying the amount of original issue
discount, if any, including daily rates and accrual periods, accrued on each
Series of Outstanding Original Issue Discount Securities as of the end of such
year.


 


15

















 


ARTICLE 4

HOLDERS’ LISTS AND REPORTS BY THE COMPANY


 


SECTION 4.01.  Company to Furnish Trustee Information as
to Names and Addresses of Holders.  If specified as
contemplated by Section 2.03 for the Securities of any Series, the Company
will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee reasonably may require of the names and addresses of the Holders of the
Securities of each Series:


 


(a)           semiannually, and not more than
15 days after each record date for the payment of interest on such
Securities, as of such record date; and


 


(b)           at such other times as the Trustee
reasonably may request in writing, within 30 days after receipt by the
Company of any such request, such list to be as of a date not more than
15 days prior to the time such information is furnished; provided that, if
the Trustee shall be the Security registrar for such Series, such list shall
not be required to be furnished.


 


SECTION 4.02.  Preservation and Disclosure of Holders’ Lists.


 


(a)           The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names
and addresses of the Holders of each Series of Securities contained in the most
recent list furnished to it as provided in Section 4.01 or maintained by
the Trustee in its capacity as Security registrar for such Series. The Trustee
may destroy any list furnished to it as provided in Section 4.01 upon
receipt of a new list so furnished.


 


(b)           In case three or more Holders of
Securities of any Series (“applicants”)
apply in writing to the Trustee and furnish to the Trustee reasonable proof
that each such applicant has owned a Security of such Series for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of such Series or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee, within five Business Days
after the receipt of such application, at its election, either:


 


(i)            shall afford to such applicants
access to the information preserved at the time by the Trustee in accordance
with the provisions of Section 4.02(a); or


 


(ii)           shall inform such applicants as to
the approximate number of Holders of Securities of such Series or all
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance with the
provisions of Section 4.02(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if any, specified in
such application.


 


16

















 


If the Trustee shall
elect not to afford to such applicants access to such information, the Trustee,
upon the written request of such applicants, shall mail to each Holder of such
Series or all Securities, as the case may be, whose name and address appear in
the information preserved at the time by the Trustee in accordance with the
provisions of Section 4.02(a), a copy of the form of proxy or other
communication that is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender, the Trustee shall mail to such applicants and file
with the Commission together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Securities of
such Series or all Securities, as the case may be, or could be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of such order sustaining
one or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met,
and shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved
of any obligation or duty to such applicants respecting their application.


 


(c)           Each and every Holder of Securities,
by receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders of Securities in accordance with
the provisions of Section 4.02(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
such Section 4.02(b).


 


(d)           This section 4.02 shall not apply to
any Series unless so specified as contemplated by Section 2.03 for the
Securities of such Series.


 


SECTION
4.03.  Reports by the Company.  Unless
otherwise specified as contemplated by Section 2.03 for the Securities of
any Series, whether or not required by the Commission’s rules and regulations,
the Company shall file with the Commission within the time periods specified in
the Commission’s rules and regulations, and provide the Trustee and Holders and
prospective Holders (upon request) within 15 days after it files them with the
Commission, copies of its annual report and the information, documents and
other reports that are specified in Sections 13 and 15(d) of the Securities
Exchange Act, provided that for
purposes of this covenant, such information, documents and other reports shall
be deemed to have been furnished to the Trustee and Holders if they are
electronically available via the Commission’s EDGAR System. Even if the Company
is entitled under the Securities Exchange Act not to furnish such information
to the Commission, the Company shall nonetheless continue to furnish
information that would be required to be furnished by the Company by Section 13
or 15(d) of the Securities Exchange Act (excluding exhibits) to the Trustee and
the Holders of the Securities of any Series 


 


17

















 


as if it were
subject to such periodic reporting requirements. The Company shall also comply
with the other provisions of Section 314(a) of the Trust Indenture Act of 1939.


 


Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).


 


ARTICLE 5

REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT


 


SECTION 5.01.  Event of Default Defined; Acceleration of
Maturity; Waiver of Default.  “Event of Default”, with respect to Securities of any Series,
means, unless otherwise specified as contemplated by Section 2.03 for the
Securities of any Series, any one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless it is either
inapplicable to a particular Series or it is specifically deleted or modified
in or pursuant to the supplemental indenture or resolution of the Board of
Directors establishing such Series of Securities or in the form of Security for
such Series:


 


(a)           default in the payment of any
installment of interest upon any of the Securities of such Series as and when
the same shall become due and payable, and continuance of such default for a
period of 30 days;


 


(b)           default in the payment of all or any
part of the principal of any of the Securities of such Series as and when the
same shall become due and payable, either at maturity, upon any redemption or
repurchase, by declaration or otherwise;


 


(c)           the Company (i) pursuant to or within
the meaning of any bankruptcy law commences a voluntary case, consents to the
entry of an order for relief against it in an involuntary case, consents to the
appointment of a custodian of it or for any substantial part of its property,
or makes a general assignment for the benefit of its creditors or takes any
comparable action under any foreign laws relating to insolvency; or (ii) a
court of competent jurisdiction enters an order or decree under any bankruptcy
law that is for relief against the Company in an involuntary case, appoints a
custodian of the Company or for any substantial part of its property; or orders
the winding up or liquidation of the Company or any similar relief is granted
under any foreign laws and the order or decree remains unstayed and in effect
for 60 days; or


 


(d)           any other Event of Default (including
Events of Default replacing or supplementing the foregoing) provided with
respect to Securities of such Series in the supplemental indenture or
resolution of the Board of Directors establishing such Series.


 


18

















 


If an Event of Default occurs
under clause (c) above with respect to the Company, the principal of and
interest on all the Securities of such Series shall become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders of any Series.


 


Unless otherwise
specified as contemplated by Section 2.03 for the Securities of any
Series, if an Event of Default (other than an Event of Default occuring as a
result of clause (c)) with respect to the Securities of any Series shall have
occurred and be continuing, either the Trustee or the Holders of not less than
25% in aggregate principal amount of the Securities of such Series then
Outstanding by notice to the Company may declare the principal amount of all
the Securities of such Series and accrued and unpaid interest thereon to be due
and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. This provision, however, is subject
to the condition that if at any time after the principal of the Securities of
such Series shall have been so declared due and payable, and before any
judgment or decree for the payment of the amounts due shall have been obtained
or entered as hereinafter provided, the Company shall have paid or deposited
with the Trustee sufficient funds to pay all matured installments of interest,
if any, upon all the Securities of such Series and the principal of the
Securities of such Series that shall have become due other than by such
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, upon overdue installments
of interest, at the rate borne by the Securities of such Series to the date of
such payment or deposit) and all other defaults under this Indenture, other
than the nonpayment of the principal of Securities of such Series that shall
have become due by such acceleration, shall have been remedied, then and in
every such case the Holders of a majority in aggregate principal amount at
maturity of the Securities of such Series then Outstanding, by written notice
to the Company and to the Trustee for the Securities of such Series, may waive
all defaults and rescind and annul such declaration and its consequences; but
no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.


 


Subject to the provisions
of Article 6, in case an Event of Default with respect to the Securities of any
Series shall occur and be continuing, the Trustee shall not be under any
obligation to exercise any of the trusts or powers vested in it hereby at the
request or direction of any Holder of such Series, unless such Holder shall
have offered to such Trustee security or indemnity reasonably satisfactory to
it.


 


Additional terms and
conditions with respect to the rights of Holders of the Securities of a particular
Series (including as to rights to rescind an acceleration of the payment of
principal and interest) and the rights and obligations of the Trustee, in each
case, in connection with a default or Event of Default, may be specified as
contemplated by Section 2.03 for the Securities of any Series.


 


SECTION 5.02.  Collection of Indebtedness by Trustee;
Trustee May Prove Debt.  If the Company shall fail to pay
any installment of interest on any of the Securities of any Series when such
interest shall have become due and payable, and such default shall have
continued for a 


 


19

















 


period of
30 days or shall fail to pay the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity
of the Securities of such Series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee for the Securities of such Series,
the Company will pay to the Trustee for the Securities of such Series for the
benefit of the Holders of the Securities of such Series the whole amount that
then shall have become due and payable on all Securities of such Series for
principal of or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest specified in the Securities
of such Series) and such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to and
expenses incurred by the Trustee and each predecessor Trustee and their
respective agents, attorneys and counsel.


 


Until such demand is made
by the Trustee, the Company may pay the principal of and interest on the
Securities of any Series to the persons entitled thereto, whether or not the
principal of and interest on the Securities of such Series are overdue.


 


If the Company shall fail
to pay such amounts upon such demand, the Trustee for the Securities of such
Series, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for
the collection of the amounts so due and unpaid. In any such case, the Trustee
may prosecute any such action or proceedings to judgment or final decree and
may enforce any such judgment or final decree against the Company or other
obligor upon such Securities and collect in the manner provided by law out of
the property of the Company or other obligor upon such Securities, wherever
situated, the amounts adjudged or decreed to be payable.


 


If (i) there shall
be pending proceedings relative to the Company or any other obligor upon the
Securities under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or other similar law,
(ii) a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor or
(iii) any other comparable judicial proceedings relative to the Company or
other obligor under the Securities of any Series, or to the creditors or
property of the Company or such other obligor, shall be pending, and
irrespective of whether the principal of any Securities shall then be due and
payable or whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.02, the Trustee shall be entitled and
empowered, by intervention in such proceedings or otherwise:


 


(a)           to file and prove a claim or claims
for the whole amount of principal and interest owing and unpaid in respect of
the Securities of any Series and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to, and expenses incurred by, the Trustee
and each predecessor Trustee, and their respective agents, attorneys and counsel)
and of the Holders allowed in any judicial proceedings relative to the Company
or other obligor upon all Securities of any Series, or to the creditors or
property of the Company or such other obligor; and


 


20

















 


(b)           to collect and receive any funds or
other property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Holders and of the Trustee
on their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Holders to make payments
to the Trustee for the Securities of such Series, and, in the event that such
Trustee shall consent to the making of payments directly to the Holders, to pay
to such Trustee such amounts as shall be sufficient to cover reasonable
compensation to and expenses incurred by such Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel and all other amounts due to
such Trustee or any predecessor Trustee pursuant to Section 6.07.


 


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


 


All rights of action and
of asserting claims under this Indenture or under any of the Securities may be
enforced by the Trustee for the Securities of such Series without the
possession of any of the Securities of such Series or the production thereof at
any trial or other proceedings relative thereto. Any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust. Any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities in respect of which such action was
taken.


 


In any proceedings
brought by the Trustee for the Securities of such Series, the Trustee shall be
held to represent all the Holders of the Securities in respect of which such
action was taken, and it shall not be necessary to make any Holders of such
Securities parties to any such proceedings.


 


SECTION 5.03.  Application of Proceeds.  Any
amounts collected by the Trustee for the Securities of such Series pursuant to
this Article 5 in respect of the Securities of any Series shall be applied
in the following order at the date or dates fixed by such Trustee and, in case
of the distribution of such amounts on account of principal or interest, upon
presentation of the several Securities in respect of which amounts have been
collected and stamping or otherwise noting thereon the payment, or issuing
Securities of such Series in reduced principal amounts in exchange for the
presented Securities of like Series if only partially paid, or upon surrender
thereof if fully paid:


 


FIRST:  To the payment of costs and expenses
applicable to such Series in respect of which amounts have been collected,
including reasonable compensation to and expenses incurred by the Trustee and
each predecessor Trustee and their respective agents and attorneys and all
other amounts due to the Trustee or any predecessor Trustee pursuant to
Section 6.07;


 


21

















 


SECOND:  To the payment of the amounts then due and
unpaid for principal of and interest on the Securities of such Series (and any
debt pari passu to such Series of
Securities) in respect of which amounts have been collected, such payments to
be made ratably to the persons entitled thereto, without discrimination or
preference, according to the amounts then due and payable on such Securities
and any such debt for principal and interest; and


 


THIRD:  To the payment of the remainder, if any, to
the Company.


 


SECTION 5.04.  Restoration of Rights on Abandonment of
Proceedings.  If the Trustee for the Securities of any
Series shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to the Trustee, the Company and the Trustee,
subject to the determination in any such proceeding, shall be restored to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the Holders shall continue as though no such
proceedings had been taken.


 


SECTION 5.05.  Limitations on Suits by Holders.  No
Holder of any Security of any Series shall have any right, by virtue or by
availing of any provision of this Indenture, to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise with respect to
this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof and the Holders of not less
than 25% in aggregate principal amount of the Securities of such Series then
Outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee security or indemnity reasonably satisfactory to it as
it may require, against the costs, expenses and liabilities to be incurred
therein or thereby and the Trustee for 60 days after its receipt of such
notice, request and offer of security or indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee during such 60-day period
by Holders of a majority in principal amount of the Securities of such Series
then Outstanding; it being understood and intended, and being expressly
covenanted by the Holder of every Security with every other Holder of a
Security and the Trustee, that no one or more Holders of Securities of any
Series shall have any right in any manner whatever, by virtue or by availing of
any provision of this Indenture, to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable Series.


 


SECTION 5.06.  Unconditional Right of Holders to
Institute Certain Suits. Notwithstanding any provision in this
Indenture and any provision of any Security of such Series, the right of any
Holder of any Security to receive payment of the principal of and (subject to
Section 2.07) interest on such Security at the respective rates, in the
respective amount on or after the respective due dates expressed in such
Security of such Series, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.


 


22

















 


SECTION 5.07.  Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default.  Except as provided in
Sections 2.09 and 5.05, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy, to the extent permitted by
law, shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


No delay or omission of
the Trustee or of any Holder to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of
Default or an acquiescence therein. Subject to Section 5.05, every power
and remedy given by this Indenture or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or the Holders.


 


SECTION 5.08.  Control by Holders.  The
Holders of a majority in aggregate principal amount of the Securities of each
Series affected at the time Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred by this Indenture on
the Trustee with respect to the Securities of such Series. The Trustee shall
have the right to decline to follow any such direction if (i) such direction
shall conflict with law or the provisions of this Indenture or any indenture
supplemental hereto, (ii) the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or
(iii) the Trustee in good faith shall so determine that the actions or
forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all Series so affected
not joining in the giving of said direction, it being understood that the
Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.


 


SECTION 5.09.  Waiver of Past Defaults.  The
Holders of a majority in aggregate principal amount of the Securities of such
Series at the time Outstanding, on behalf of the Holders of all the Securities
of such Series, may waive any past default hereunder or its consequences,
except a default in the payment of the principal of or interest on any of the
Securities of such Series.


 


Upon any such waiver,
such default shall cease to exist and be deemed to have been cured and not to
have occurred, and any Event of Default arising therefrom shall be deemed to have
been cured and not to have occurred for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.


 


SECTION 5.10.  Right of Court to Require Filing of Undertaking
to Pay Costs.  Any court in its discretion may require, in any
suit for the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit. Any such court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant. The provisions of 


 


23

















 


this Section 5.10
shall not apply, however, to any suit instituted by the Trustee, to any suit
instituted by any Holder or group of Holders of any Series holding in the
aggregate more than 10% in aggregate principal amount of the Securities of such
Series or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after the due
date expressed in such Security.


 


SECTION 5.11.  Suits for Enforcement.  If
an Event of Default has occurred, has not been waived and is continuing, the
Trustee in its discretion may proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.


 


ARTICLE 6

CONCERNING THE TRUSTEE


 


SECTION 6.01.  Duties of Trustee.


 


(a)           If an Event of Default has occurred
and is continuing with respect to the Securities of any Series, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own
affairs.


 


(b)           Except during the continuance of an
Event of Default with respect to the Securities of any Series:


 


(i)            the Trustee need perform only those
duties that are specifically set forth in this Indenture and the Trustee shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and


 


(ii)           in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.


 


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


 


(i)            this paragraph (c) does not
limit the effect of paragraph (b) of this Section 6.01;


 


24

















 


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


 


(iii)          the Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.08.


 


(d)           Every provision of this Indenture
that in any way relates to the Trustee is subject to paragraphs (a), (b),
(c) and (e) of this Section 6.01.


 


(e)           No provision of this Indenture shall
require the Trustee to extend or risk its own funds or otherwise incur any
financial liability unless it receives indemnity satisfactory to it against any
loss, liability or expense.


 


(f)            Amounts held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any amounts
received by it hereunder except as otherwise agreed in writing with the
Company.


 


SECTION 6.02.  Rights of Trustee.


 


(a)           The Trustee may conclusively rely on,
and shall be fully protected in relying upon, any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.


 


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


 


(c)           Subject to the provisions of
Section 6.01(c), the Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers.


 


(d)           Before the Trustee acts or refrains
from acting, the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel.


 


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


 


25

















 


(f)            The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.


 


(g)           Prior
to the occurrence of an Event of Default hereunder with respect to such Series
of Securities, and after the curing or waiving of all Events of Default with
respect to such Series of Securities, the Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, Officers’
Certificate or other certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security or other paper or document unless requested in writing so to
do by the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of each affected Series; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation, in
the opinion of the Trustee, is not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding.


 


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


 


(i)            The
Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions or agreements on the part of the
Company, except as otherwise set forth herein, but the Trustee may require of
the Company full information and advice as to the performance of the covenants,
conditions and agreements contained herein and shall be entitled in connection
herewith to examine the books, records and premises of the Company.


 


(j)            The
permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty and the Trustee shall not be answerable for
other than its negligence or willful default.


 


(k)           Except
for (i) a default under Section 5.01(a) or (b) or (ii) any other
event of which the Trustee has actual knowledge and which event, with the
giving of notice or the passage of time or both, would constitute an Event of
Default under this Indenture with respect to such Series of Securities, the
Trustee shall not be deemed to have notice of any default or event unless
specifically notified in writing of such event by the Company or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities
of each affected Series.


 


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


 


26

















 


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


 


SECTION 6.03.  Individual Rights of Trustee.  The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or its affiliates with
the same rights it would have if it were not Trustee. Any Paying Agent,
registrar or co-registrar may do the same with like rights. However, the
Trustee must comply with Sections 6.10 and 6.11.


 


SECTION 6.04.  Trustee’s Disclaimer.  The
Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities. The Trustee shall not be accountable for the
Company’s use of the proceeds from the Securities and shall not be responsible
for any statement in any registration statement for the Securities filed with
the Commission under the Securities Act (other than its Statement of
Eligibility on Form T-1) or in the Indenture (other than its eligibility
under Section 6.10) or the Securities (other than its certificate of
authentication).


 


SECTION 6.05.  Notice of Defaults.  If
a default occurs and is continuing with respect to the Securities of any Series
and is known to the Trustee, the Trustee shall mail to each Holder of the
Securities of such Series notice of such default within the earlier of
90 days after such default occurs or 30 days after such default is
known to a trust officer or written notice of such default is received by the
Trustee. Except in the case of a default in the payment of principal of,
premium, if any, or interest on the Securities of any Series, including
payments pursuant to the redemption provisions of the Securities of such
Series, the Trustee may withhold notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding such notice is
in the interests of Holders of such Series.


 


SECTION 6.06.  Reports by Trustee to Holders.  Within
60 days after each May 15 beginning with the May 15 following the date of
this Indenture, the Trustee shall mail to each Holder of any Series and each
other Person specified in Section 313(c) of the Trust Indenture Act a
brief report dated as of such May 15 that complies with Section 313(a) of
the Trust Indenture Act to the extent required thereby. The Trustee also shall
comply with Section 313(b) of the Trust Indenture Act.


 


The Trustee will file a
copy of each report, at the time of its mailing to Holders of any Series, with
the Commission and each securities exchange on which the Securities of any
Series are listed. The Company promptly will notify the Trustee whenever the
Securities of any Series become listed on any securities exchange and of any
delisting thereof.


 


SECTION 6.07.  Compensation and Indemnity.  The
Company:


 


(a)           will
pay to the Trustee from time to time, and the Trustee shall be entitled to,
such compensation as shall be agreed to in writing between the Company and the
Trustee for all services rendered by it hereunder, which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust;


 


27

















 


(b)           will
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture, including the reasonable compensation and
expenses of its agents and counsel, except to the extent any such compensation
or expense shall be determined to have been caused by its own negligence or
willful misconduct; and


 


(c)           will
fully indemnify the Trustee for, and to hold it harmless against, any loss,
liability, claim, damage or expense arising out of or in connection with the
acceptance or administration of this trust or the performance of its duties
hereunder, including the reasonable costs and expenses of defending itself
against or investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder, except to the extent
that any such loss, liability or expense shall be determined to have been
caused by its own negligence or willful misconduct.


 


As security for the
performance of the Company’s obligations under this Section 6.07, the
Trustee shall have a lien prior to the Securities on all funds or property held
or collected by the Trustee, except for those funds that are held in trust to
pay the principal of or interest, if any, on particular Securities.


 


“Trustee” for purpose of
this Section 6.07 includes any predecessor trustee; provided that the
negligence or bad faith of any Trustee shall not be attributable to any other
Trustee.


 


The Company’s payment
obligations pursuant to this Section 6.07 shall constitute additional
indebtedness hereunder and shall survive the discharge of this Indenture and
resignation or removal of the Trustee. When the Trustee incurs expenses after
the occurrence of a default specified in Sections 5.01(c), such expenses,
including reasonable fees and expenses of counsel, are intended to constitute
expenses of administration under bankruptcy law.


 


SECTION 6.08.  Replacement of Trustee.  The
Trustee may resign at any time with respect to Securities of one or more Series
by so notifying the Company. No such resignation, however, shall be effective
until a successor Trustee has accepted its appointment pursuant to this
Section 6.08. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any Series may remove the Trustee with respect to
such Series by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:


 


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


 


(b)           the
Trustee is adjudged bankrupt or insolvent;


 


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


 


(d)           the
Trustee otherwise becomes incapable of acting.


 


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


 


28

















 


A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture with respect to the Securities
of such Series. The successor Trustee shall mail a notice of its succession to
Holders so affected. The retiring Trustee shall upon payment of its charges
hereunder promptly transfer all funds and property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 6.07.


 


If a successor Trustee
does not take office within 30 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company or the Holders of a majority in
aggregate principal amount of the Outstanding Securities of each affected
Series may petition at the expense of the Company any court of competent
jurisdiction for the appointment of a successor Trustee.


 


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


 


SECTION 6.09.  Successor Trustee by Merger.  If
the Trustee consolidates with, merges or converts into or transfers all or
substantially all its corporate trust business or assets to another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.


 


SECTION 6.10.  Eligibility; Disqualification.  The
Trustee shall at all times satisfy the requirements of Section 310(a)(1)
of the Trust Indenture Act. The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition. Neither the Company nor any person directly or
indirectly controlling, controlled by or under common control with the Company
shall serve as Trustee hereunder. The Trustee shall comply with
Section 310(b) of the Trust Indenture Act.


 


SECTION 6.11.  Preferential Collection of Claims Against
Company.  The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.


 


ARTICLE 7

CONCERNING THE HOLDERS


 


SECTION 7.01.  Evidence of Action Taken by Holders.


 


(a)           Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Holders of any or all Series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Holders in person or by agent duly
appointed in writing. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture 


 


29

















 


and,
subject to Sections 6.01 and 6.02, conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Article 7.


 


(b)           The
ownership of Securities shall be proved by the Security register.


 


SECTION 7.02.  Proof of Execution of Instruments.  Subject
to Sections 6.01 and 6.02, the execution of any instrument by a Holder or
his agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.


 


SECTION 7.03.  Holders to Be Treated as Owners.  The
Company, the Trustee and any agent of the Company or the Trustee may deem and
treat the person in whose name any Security shall be registered upon the
Security register for such Series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and interest on such Security and for all
other purposes. Neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice to the contrary. All
payments made to any such person, or upon his order, shall be valid and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for amounts payable upon any such Security.


 


SECTION 7.04.  Securities Owned by Company Deemed Not
Outstanding.  In determining whether the Holders of the
requisite aggregate principal amount of Outstanding Securities of any or all
Series have concurred in any direction, consent or waiver under this Indenture,
Securities that are owned by the Company or any other obligor on the Securities
with respect to which such determination is being made, or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Securities with
respect to which such determination is being made, shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination. For the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities that the Trustee knows are
so owned shall be so disregarded. Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Securities.


 


SECTION 7.05.  Right of Revocation of Action Taken.  At
any time prior to the evidencing to the Trustee, as provided in
Section 7.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Securities of any Series specified in this
Indenture in connection with such action, any Holder of a Security the serial
number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action,
by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article 7, may revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the Holder
of any Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor, irrespective of whether 


 


30

















 


or not any
notation in regard thereto is made upon any such Security. Any action taken by
the Holders of the percentage in aggregate principal amount of the Securities
of any Series specified in this Indenture in connection with such action shall
be binding upon the Company, the Trustee and the Holders of all the Securities
affected by such action. This Section 7.05 shall apply unless otherwise
specified as contemplated by Section 2.03 for the Securities of any Series.


 


ARTICLE 8

SUPPLEMENTAL INDENTURES


 


SECTION 8.01.  Supplemental Indentures Without Consent
of Holders.  Unless otherwise specified as contemplated by
Section 2.03 for the Securities of any Series, the Company, when
authorized by a resolution of its Board of Directors, and the Trustee for the
Securities of any Series from time to time and at any time may enter into an
indenture or indentures supplemental hereto, which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof, in form satisfactory to such Trustee, for one or more of the following
purposes:


 


(a)           to
convey, transfer, assign, mortgage or pledge any property or assets to the
Trustee as security for the Securities of one or more Series;


 


(b)           to
evidence the succession of another corporation to the Company, or successive
successions, and the assumption by the successor corporation of the covenants,
agreements and obligations of the Company pursuant to Article 9;


 


(c)           to
add to the covenants of the Company such further covenants, restrictions,
conditions or provisions for the protection of the Holders of Securities of any
Series and, if such additional covenants are to be for the benefit of less than
all the Series of Securities, stating that such covenants are being added
solely for the benefit of such Series, or to surrender any right or power
conferred on the Company;


 


(d)           to
cure any ambiguity or to correct or supplement any provision contained herein
or in any supplemental indenture that may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising under this
Indenture or under any supplemental indenture as the Board of Directors may deem
necessary or desirable and that shall not materially and adversely affect the
interests of the Holders of such Series of Securities;


 


(e)           to
establish the form or terms of Securities of any Series as permitted by
Sections 2.01 and 2.03; or


 


(f)            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 the
one Trustee, pursuant to the requirements of Section 6.08.


 


31

















 


The Trustee is hereby
authorized to join with the Company in the execution of any such supplemental
indenture, to make any further appropriate agreements and stipulations that may
be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


Any supplemental
indenture authorized by the provisions of this Section 8.01 may be
executed without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 8.02.


 


SECTION 8.02.  Supplemental Indentures with Consent of
Holders.  Except as otherwise specified as contemplated by
Section 2.03 for the Securities of any Series, with the consent (evidenced
as provided in Article 7) of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each Series
affected by such supplemental indenture, the Company, when authorized by a
resolution of its Board of Directors, and the Trustee for such Series of
Securities, from time to time and at any time, may enter into an indenture or
indentures supplemental hereto, which shall conform to the provisions of the
Trust Indenture Act as in force at the date of execution thereof, for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each
such Series. Except as otherwise specified as contemplated by Section 2.03
for the Securities of any Series, no such supplemental indenture, however,
shall:


 


(a)           extend
the final maturity date of any Security, reduce the principal amount thereof,
reduce the rate or extend the time of payment of interest thereon, reduce any
amount payable on redemption or repurchase thereof, change the time at which
the Securities of any Series may be redeemed, impair or affect the right of any
Holder to receive payment of principal of, and interest on, any Security or to
institute suit for payment thereof or, if the Securities provide therefor,
affect any right of repayment at the option of the Holder without the consent
of each affected Holder of Securities of such Series;


 


(b)           reduce
the aforesaid percentage of Securities of any Series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of each affected Holder of Securities of such Series; or


 


(c) reduce the
amount of principal payable upon acceleration of the maturity date of any
Original Issue Discount Security without the consent of each affected Holder of
Securities of such Series.


 


Upon the request of the
Company, accompanied by a copy of a resolution of the Board of Directors
certified by the secretary or an assistant secretary of the Company authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee for such Series of Securities of evidence of the consent of the Holders
as aforesaid and other documents, if any, required by Section 7.01, the
Trustee for such Series of Securities shall join with the Company in the
execution of such supplemental indenture. If such supplemental indenture 


 


32

















 


affects such
Trustee’s own rights, duties or immunities under this Indenture or otherwise,
such Trustee in its discretion may, but shall not be obligated to, enter into
such supplemental indenture.


 


It shall not be necessary
for the consent of the Holders under this Section 8.02 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.


 


Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of this Section 8.02, the Company shall give notice in
the manner and to the extent provided in Section 13.04 to the Holders of
Securities of each Series affected thereby at their addresses as they shall
appear on the Security register, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Company to mail such notice,
or any defect therein, shall not in any way impair or affect the validity of
any such supplemental indenture.


 


SECTION 8.03.  Effect of Supplemental Indenture.  Upon
the execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities of each Series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes. This Section 8.03 shall apply unless
otherwise specified as contemplated by Section 2.03 for the Securities of
any Series.


 


SECTION 8.04.  Documents to Be Given to Trustee.  The
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall be
provided with an Officers’ Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this
Article 8 complies with the applicable provisions of this Indenture.


 


SECTION 8.05.  Notation on Securities in Respect of Supplemental
Indentures. Securities of any Series authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article 8 may bear, upon the direction of the Company, a notation in
form satisfactory to the Trustee for the Securities of such Series as to any
matter provided for by such supplemental indenture. If the Company or the
Trustee shall so determine, new Securities of any Series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Outstanding Securities of such Series.


 


ARTICLE 9

CONSOLIDATION, MERGER, SALE OR CONVEYANCE


 


SECTION 9.01.  Company May Consolidate, Etc. on Certain
Terms.  Unless otherwise specified as contemplated by
Section 2.03 for the Securities of any Series, the Company may 


 


33

















 


consolidate with
or merge with or into, or sell, convey or lease all or substantially all of its
assets to, any other corporation; provided that in any such case:


 


(a)           either
the Company shall be the continuing corporation, or the successor corporation
shall be organized and validly existing under the laws of the United States of
America or any State thereof or the District of Columbia and shall expressly
assume the due and punctual payment of the principal of and interest on all the
Securities according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company by supplemental indenture satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation, and


 


(b)           the
Company or such successor corporation, as the case may be, shall not be in
material default immediately after such consolidation, merger, sale, conveyance
or lease in the performance or observance of any such covenant or condition.


 


SECTION 9.02.  Successor Corporation Substituted.  In
case of any such consolidation, merger, sale, lease or conveyance, and
following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of the Company
prior to such succession, any or all of the Securities issuable hereunder that
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture, the Trustee
shall authenticate and shall make available for delivery any Securities that
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.


 


In case of any such
consolidation, merger, sale, lease or conveyance such changes in phraseology
and form (but not in substance) may be made in the Securities thereafter to be
issued as may be appropriate.


 


In the event of any such
sale or conveyance (except in the case of a lease of all or substantially all
of the assets of the Company) the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.


 


The provisions of this
Section 9.02 shall apply except as otherwise specified as contemplated by
Section 2.03 for the Securities of any Series.


 


SECTION 9.03.  Opinion of Counsel to Trustee.  The
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall
receive an Opinion of Counsel, prepared in accordance with 


 


34

















 


Section 13.05,
as conclusive evidence that any such consolidation, merger, sale, lease or
conveyance, and any such assumption complies with the applicable provisions of
this Indenture.


 


ARTICLE 10

SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;

UNCLAIMED FUNDS


 


SECTION
10.01.  Satisfaction and Discharge
of Indenture; Defeasance. Unless otherwise specified as contemplated
by Section 2.03 for the Securities of any Series:


 


. (a)  When
(i) all outstanding Securities of a Series (other than Securities of such
Series replaced or paid pursuant to Section 2.08) have been canceled or
delivered to the Trustee for cancellation or (ii) all outstanding
Securities of such Series have become due and payable, whether at maturity or
as a result of the mailing of a notice of redemption in connection with a
redemption of a Series of Securities, or will become due and payable within one
year, and the Company irrevocably deposits with the Trustee funds in an amount
sufficient or U.S. Government Obligations, the principal of and interest on
which will be sufficient, or a combination thereof sufficient, in the written
opinion of a nationally recognized firm of independent public accountants
delivered to the Trustee (which opinion shall only be required to be delivered
if U.S. Government Obligations have been so deposited), to pay the principal of
and interest and on the outstanding Securities when due at maturity or upon
redemption of, including interest thereon to maturity or such redemption date
(other than Securities of such Series replaced or paid pursuant to
Section 2.08) and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to
Section 10.01(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers’ Certificate and an Opinion of Counsel and
at the cost and expense of the Company.


 


(b)           Subject
to Sections 10.01(c) and 10.02, the Company at any time may terminate
(i) all of its obligations under the Securities of such Series and this
Indenture (“legal defeasance option“) or (ii) its obligations under
Sections 4.03 (“covenant defeasance option“). The Company may exercise its
legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option for such Series.


 


If the Company exercises
its legal defeasance option with respect to Securities of a Series, payment of
the Securities of such Series may not be accelerated because of an Event of
Default.


 


Upon satisfaction of the
conditions set forth herein and upon request of the Company, the Trustee shall
acknowledge in writing the discharge of those obligations that the Company
terminates.


 


(c)           Notwithstanding
clauses (a) and (b) above, the Company’s obligations in
Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, and 6.07, and in this
Article 10 shall survive until the Securities of such Series have been
paid in full. Thereafter, the Company’s obligations in Sections 6.07 and
10.05 and the Trustee’s obligations under Section 10.04 shall survive such
satisfaction and discharge.


 


35

















 


SECTION 10.02 Conditions to Defeasance.  Unless
otherwise specified as contemplated by Section 2.03 for the Securities of
any Series, the Company may exercise its legal defeasance option or its
covenant defeasance option only if:


 


(i)            the Company
irrevocably deposits in trust with the Trustee money in an amount sufficient or
U.S. Government Obligations, the principal of and interest on which will be
sufficient, or a combination thereof sufficient, to pay the principal of, and
premium (if any) and interest on the Securities of such Series when due at
maturity or redemption, as the case may be, including interest thereon to
maturity or such redemption date;


 


(ii)           in the case of the
legal defeasance option, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (1) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or
(2) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of such Series
will not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit and defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred; and


 


(iii)          in the case of the
covenant defeasance option, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit and defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred.


 


SECTION 10.03 Application of Trust Money. The Trustee
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to this Article 10. It shall apply the deposited money and the
money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Securities of such Series.


 


SECTION 10.04 Repayment to Company. The Trustee and the
Paying Agent shall promptly turn over to the Company upon request any money or
U.S. Government Obligations held by it as provided in this Article which, in
the written opinion of nationally recognized firm of independent public
accountants delivered to the Trustee (which opinion shall only be required to
be delivered if U.S. Government Obligations have been so deposited), are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent discharge or defeasance in accordance with this Article.


 


Subject to any applicable
abandoned property law, the Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for the payment of
principal or interest or that remains unclaimed for two years, and, thereafter,
Holders entitled to the money must look to the Company for payment as general
creditors, and the Trustee and the Paying Agent shall have no further liability
with respect to such monies.


 


36

















 


SECTION 10.05 Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.


 


SECTION 10.06 Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations in accordance
with this Article 10 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 of such Series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 10 until such time
as the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article 10; provided,
however, that, if the Company has made any payment of principal of or
interest on, any Securities of such Series 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 or U.S. Government
Obligations held by the Trustee or Paying Agent.


 


This Section 10.06 shall
not apply to any Series unless specified as contemplated by Section 2.03
for the Securities of such Series.


 


ARTICLE 11

REDEMPTION OF SECURITIES AND SINKING FUNDS


 


SECTION 11.01.  Applicability of Article.  The
provisions of this Article 11 shall be applicable to the Securities of any
Series which are redeemable before their maturity or to any sinking fund for
the retirement of Securities of a Series except as otherwise specified as
contemplated by Section 2.03 for Securities of such Series.


 


SECTION 11.02.  Notice of Redemption; Partial
Redemptions.


 


This Section 11.02 shall
apply unless otherwise specified as contemplated by Section 2.03 for the
Securities of any Series.


 


Notice of redemption to
the Holders of Securities of any Series required to be redeemed or to be
redeemed as a whole or in part at the option of the Company shall be given by
giving notice of such redemption as provided in Section 13.04, at least
30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities of such Series. Failure to give notice
by mail, or any defect in the notice to the Holder of any Security of a Series
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such Series.


 


The notice of redemption
to each such Holder shall specify the date fixed for redemption, the “CUSIP”
number or numbers for such Securities, the redemption price, the Place of
Payment or Places of Payment, that payment will be made upon presentation and
surrender of such Securities, that such redemption is pursuant to the mandatory
or optional sinking fund, or both, if such be the case, that interest accrued
to the date fixed for redemption will be paid as specified in such notice, that
on and after said date interest thereon or on the portions thereof to be
redeemed 


 


37

















 


will cease to
accrue and, if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate and
the date and time when the option to convert shall expire. If less than all of
the Securities of any Series are to be redeemed, the notice of redemption shall
specify the numbers of the Securities of such Series to be redeemed. In case
any Security of a Series is to be redeemed in part, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and
shall state that on and after the date fixed for redemption, upon surrender of
such Security, a new Security or Securities of such Series in principal amount
equal to the unredeemed portion thereof will be issued.


 


The notice of redemption
of Securities of any Series to be redeemed at the option of the Company shall
be given by the Company or, at the Company’s request, by the Trustee in the
name and at the expense of the Company. If such notice is to be given by the
Trustee, the Company shall provide notice of such redemption to the Trustee at
least 45 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee). If such notice is given by the
Company, the Company shall provide a copy of such notice given to the Holders
of such redemption to the Trustee at least three Business Days prior to the
date such notice is given to such Holders, but in any event at least
15 days prior to the date fixed for redemption (unless a shorter notice
shall be satisfactory to the Trustee).


 


Unless otherwise
specified pursuant to Section 2.03, not later than the redemption date
specified in the notice of redemption given as provided in this
Section 11.02, the Company will have on deposit with the Trustee or with
one or more Paying Agents (or, if the Company is acting as its own Paying
Agent, set aside, segregate and hold in trust as provided in Section 3.03)
funds available on such date (or other forms of property, if permitted by the
terms of the Securities of such Series) sufficient to redeem on the redemption
date all the Securities of such Series so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed
for redemption. If less than all the Outstanding Securities of a Series are to
be redeemed, the Company will deliver to the Trustee at least 45 days
prior to the date fixed for redemption an Officers’ Certificate stating the
aggregate principal amount of Securities to be redeemed (unless a shorter
notice shall be satisfactory to the Trustee).


 


If less than all the
Securities of a Series are to be redeemed, the Trustee shall select Securities
of such Series to be redeemed on a pro rata basis, by lot or by such other
method as the Trustee in its sole discretion shall deem to be fair and
appropriate, and the Trustee shall promptly notify the Company in writing of
the Securities of such Series selected for redemption and, in the case of any
Securities of such Series selected for partial redemption, the principal amount
thereof to be redeemed. However, if less than all the Securities of any Series
with differing issue dates, interest rates and stated maturities are to be
redeemed, the Company in its sole discretion shall select the particular
securities to be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date (unless a shorter
notice shall be satisfactory to the Trustee). Securities may be redeemed in
part in multiples equal to the minimum authorized denomination for Securities
of such Series or any multiple thereof. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the
redemption of Securities of any Series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.


 


38

















 


This Section 11.02 shall
apply unless otherwise specified as contemplated by Section 2.03 for the
Securities of any Series.


 


SECTION 11.03.  Payment of Securities Called for
Redemption.  If notice of redemption has been given as
above provided, the Securities or portions of Securities specified in such
notice shall become due and payable on the date and at the place stated in such
notice at the applicable redemption price, together with interest accrued to
the date fixed for redemption, and on and after said date (unless the Company
shall default in the payment of such Securities at the redemption price,
together with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue. Except
as provided in Sections 6.01 and 10.04, such Securities shall cease from
and after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a Place of Payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption. If for any Securities the date fixed
for redemption is a regular interest payment date, payment of interest becoming
due on such date shall be payable to the Holders of such Securities registered
as such on the relevant record date subject to the terms and provisions of
Section 2.07.


 


If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the
principal shall, until paid or duly provided for, bear interest from the date
fixed for redemption at the rate of interest borne by the Security.


 


Upon presentation of any
Security redeemed in part only, the Company shall execute and the Trustee shall
authenticate and make available for delivery to or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities, of
authorized denominations, in principal amount equal to the unredeemed portion
of the Security so presented.


 


This Section 11.03 shall
apply unless otherwise specified as contemplated by Section 2.03 for the
Securities of any Series.


 


SECTION 11.04.  Exclusion of Certain Securities from
Eligibility for Selection for Redemption.  Securities
shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written statement signed
by an authorized officer of the Company and delivered to the Trustee at least
30 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated
by, either (a) the Company or (b) an entity specifically identified
in such written statement as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company.


 


This Section 11.04 shall
apply unless otherwise specified as contemplated by Section 2.03 for the
Securities of any Series.


 


39

















 


SECTION 11.05.  Mandatory and Optional Sinking Funds.  The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any Series is referred to as a “mandatory
sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of Securities of any Series is referred to as
an “optional sinking fund payment”.
The date on which a sinking fund payment is to be made is referred to as the “sinking fund payment date”.


 


In lieu of providing
funds for all or any part of any mandatory sinking fund payment with respect to
any Series of Securities, the Company at its option:


 


(a)           may
deliver to the Trustee securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.10;


 


(b)           may
receive credit for optional sinking fund payments (not previously so credited)
made pursuant to this Section 11.05; or


 


(c)           may
receive credit for Securities of such Series (not previously so credited)
redeemed by the Company through any optional redemption provision contained in
the terms of such Series.


 


Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.


 


On or before the 45th day
next preceding each sinking fund payment date for any Series of Securities, the
Company will deliver to the Trustee a written statement (which need not contain
the statements required by Section 13.05) signed by an authorized officer
of the Company which will:


 


(a)           specify
the portion of the mandatory sinking fund payment to be satisfied by delivery
of funds, except as otherwise specified pursuant to Section 2.03 for the
Securities of such Series, and the portion to be satisfied by delivery or
credit of Securities of such Series;


 


(b)           state
that none of the Securities of such Series for which credit is sought has
theretofore been so credited;


 


(c)           state
that no defaults in the payment of interest or Events of Default with respect
to such Series have occurred (which have not been waived or cured) and are
continuing;


 


(d)           state
whether or not the Company intends to exercise its right to make an optional
sinking fund payment with respect to such Series and, if so, specifying the
amount of such optional sinking fund payment which the Company intends to pay
on or before the next succeeding sinking fund payment date; and


 


40

















 


(e)           specify
such sinking fund payment date.


 


Any Securities of such
Series to be credited and required to be delivered to the Trustee in order for
the Company to be entitled to credit therefor that have not previously been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.10 to the Trustee with such written statement. Such written
statement shall be irrevocable. Upon its receipt by the Trustee, the Company
shall become unconditionally obligated to make all the payments, if any,
therein referred to on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such 45th day, to deliver such written
statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund
payment for such Series due on the next succeeding sinking fund payment date
shall be paid entirely in funds without the option to deliver or credit
Securities of such Series in respect thereof and (ii) that the Company
will make no optional sinking fund payment with respect to such Series as
provided in this Section 11.05.


 


If the sinking fund
payment or payments (mandatory or optional or both) to be made in funds on the next
succeeding sinking fund payment date plus any unused balance of any preceding
sinking fund payments made in funds shall exceed $100,000 (or a lesser amount
if the Company shall so request) with respect to the Securities of any
particular Series, such funds shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such Series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $100,000 or less and the Company makes no
such request, then it shall be carried over until an amount in excess of
$100,000 is available. The Trustee shall select, in the manner provided in
Section 11.02 and giving effect to any exclusions required pursuant to
Section 11.04, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such Series to absorb, as nearly
as may be possible, such funds and shall inform the Company of the serial
numbers of the Securities of such Series (or portions thereof) so selected. The
Trustee, in the name and at the expense of the Company, shall cause notice of
redemption of the Securities of such Series to be given in substantially the
manner provided in Section 11.02 for the redemption of Securities of such
Series. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such Series shall be added to the next sinking
fund payment for such Series and, together with such payment, shall be applied
in accordance with the provisions of this Section 11.05. Any and all sinking
fund amounts held on the stated maturity date of the Securities of any
particular Series (or earlier, if such maturity is accelerated) that are not
held for the payment or redemption of particular Securities of such Series
shall be applied, together with other amounts, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such Series at maturity.


 


Unless otherwise
specified pursuant to Section 2.03, not later than the sinking fund
payment date, the Company shall have paid to the Trustee or shall otherwise
provide funds available on such date for the payment of all principal and
interest accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date.


 


The Trustee shall not
redeem or cause to be redeemed any Securities of a Series with sinking fund
amounts or mail or publish any notice of redemption of Securities for such
Series 


 


41

















 


by operation of
the sinking fund during the continuance of a default in payment of interest on
such Securities or of any Event of Default except that, where the mailing or
publication of notice of redemption of any Securities previously shall have
been made, the Trustee shall redeem or cause to be redeemed such Securities;
provided that it shall have received from the Company amounts sufficient for
such redemption. Except as aforesaid, any amounts in the sinking fund for such
Series at the time when any such default or Event of Default shall occur, and
any amounts thereafter paid into the sinking fund, during the continuance of
such default or Event of Default, shall be deemed to have been collected under
Article 5 and held for the payment of all such Securities. In case such
Event of Default shall have been waived as provided in Section 5.09 or the
default cured on or before the sixtieth day preceding the sinking fund payment
date in any year, such amounts thereafter shall be applied on the next
succeeding sinking fund payment date in accordance with this Section 11.05 to
the redemption of such Securities.


 


SECTION 11.06.  Repayment at the Option of the Holders.  Securities
of any Series that are repayable at the option of the Holders before their
stated maturity shall be repaid in accordance with the terms of the Securities
of such Series.


 


The repayment of any
principal amount of Securities pursuant to such option of the Holder to require
repayment of Securities before their stated maturity, for purposes of
Section 10.01, shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and until the
Company, at its option, shall deliver or surrender the same to the Trustee with
a direction that such Securities be cancelled.


 


SECTION 11.07.  Conversion Arrangement on Call for
Redemption.  In connection with any redemption of
Securities, the Company may arrange for the purchase and conversion of any
Securities called for redemption by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the
Trustee or the Paying Agent in trust for the Holders of Securities, on or
before 10:00 a.m. New York time on the redemption date, an amount not less
than the redemption price, together with interest, if any, accrued to the
redemption date of such Securities, in immediately available funds. Notwithstanding
anything to the contrary contained in this Article 11, the obligation of
the Company to pay the redemption price of such Securities, including all
accrued interest, if any, shall be deemed to be satisfied and discharged to the
extent such amount is so paid by such purchasers. If such an agreement is
entered into, any Securities not duly surrendered for conversion by the Holders
thereof, at the option of the Company, may be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such Holders and surrendered
by such purchasers for conversion, all as of immediately prior to the close of
business on the last day on which such Securities called for redemption may be
converted in accordance with this Indenture and the terms of such Securities,
subject to payment to the Trustee or Paying Agent of the above-described amount.
The Trustee or the Paying Agent shall hold and pay to the Holders whose
Securities are selected for redemption any such amount paid to it in the same
manner as it would pay funds deposited with it by the Company for the
redemption of Securities. Without the Trustee’s and the Paying Agent’s prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect
any of the powers, duties, responsibilities or obligations of the Trustee and
the Paying Agent as set forth in this Indenture. The Company agrees to
indemnify the Trustee and the Paying Agent from, and hold 


 


42

















 


them harmless
against, any loss, liability or expense arising out of or in connection with
any such arrangement for the purchase and conversion of any Securities between
the Company and such purchasers, including the reasonable costs and expenses
incurred by the Trustee and the Paying Agent in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of their powers, duties, responsibilities or obligations under this
Indenture.


 


ARTICLE 12

CONVERSION OF SECURITIES


 


SECTION 12.01.  Applicability of Article.  Securities
of any Series that are convertible into Common Shares at the option of the
Holder of such Securities shall be convertible in accordance with their terms
and, unless otherwise specified as contemplated by Section 2.03 for the Securities
of any Series, in accordance with this Article 12. Each reference in this
Article 12 to “a Security” or “the Securities” refers to the Securities of
the particular Series that is convertible into Common Shares. If more than one
Series of Securities with conversion privileges are Outstanding at any time,
the provisions of this Article 12 shall be applied separately to each such
Series.


 


SECTION 12.02.  Right of Holders to Convert Securities
into Common Shares.  Subject to the provisions of
Section 11.07 and this Article 12, at the option of the Holder
thereof, any Security of any Series that is convertible into Common Shares, or
any portion of the principal amount thereof which is $1,000 or any integral
multiple of $1,000, may be converted into duly authorized, validly issued,
fully paid and nonassessable Common Shares at any time during the period
specified in the Securities of such Series, or in case such Security or portion
thereof shall have been called for redemption, then in respect of such Security
or portion thereof until (unless the Company shall default in payment due upon
the redemption thereof) the close of business on the redemption date (except
that in the case of repayment at the option of the Holder, if specified in the
terms of the relevant Security, such right shall terminate upon the Company’s
receipt of written notice of the exercise of such option), as specified in such
Security, at the conversion price or conversion rate for each $1,000 principal
amount of Securities (such initial conversion rate reflecting an initial
conversion price specified in such Security) in effect on the conversion date,
or, in case an adjustment in the conversion price has taken place pursuant to
the provisions of this Article 12, then at the applicable conversion price
as so adjusted, upon surrender of the Security or Securities, the principal
amount of which is so to be converted, to the Company at any time during usual
business hours at the office or agency to be maintained by it in accordance
with the provisions of Section 3.02, accompanied by a written notice of
election to convert as provided in Section 12.03. If the Holder requests
that the Common Shares be registered in a name other than that of the Holder,
such notice also shall be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and/or the Trustee, as applicable,
duly executed by the Holder thereof or his attorney duly authorized in writing.
All Securities surrendered for conversion shall, if surrendered to the Company
or any conversion agent, be delivered to the Trustee for cancellation and
cancelled by it, or shall, if surrendered to the Trustee, be cancelled by it,
as provided in Section 2.10.


 


The initial conversion
price or conversion rate in respect of a Series of Securities shall be as
specified in the Securities of such Series. The conversion price or conversion
rate will be subject to adjustment on the terms set forth in Section 12.05
or such other or different terms, if 


 


43

















 


any, as may be
specified by Section 2.03 for Securities of such Series. Provisions of
this Indenture that apply to conversion of all of a Security also apply to
conversion of any portion of such Security.


 


SECTION 12.03.  Issuance of Common Shares on Conversions.  As
promptly as practicable after the surrender, as herein provided, of any
Security or Securities for conversion into Common Shares, the Company shall
deliver or cause to be delivered at the office or agency to be maintained by it
in accordance with the provisions of Section 3.02 to or upon the written
order of the Holder of the Security or Securities so surrendered a certificate
or certificates representing the number of duly authorized, validly issued,
fully paid and nonassessable Common Shares into which such Security or
Securities may be converted in accordance with the terms thereof and the
provisions of this Article 12. Prior to delivery of such certificate or
certificates, the Company shall require written notice at its said office or
agency from the Holder of the Security or Securities so surrendered stating
that the Holder irrevocably elects to convert such Security or Securities, or,
if less than the entire principal amount thereof is to be converted, stating
the portion thereof to be converted. Such notice shall also state the name or
names (with address and social security or other taxpayer identification
number) in which said certificate or certificates are to be issued. Such
conversion shall be deemed to have been made at the time that such Security or
Securities shall have been surrendered for conversion and such notice shall
have been received by the Company or the Trustee and such conversion shall be
at the conversion price in effect at such time. The rights of the Holder of
such Security or Securities as a Holder shall cease at such time, and the
Person or Persons entitled to receive the Common Shares upon conversion of such
Security or Securities shall be treated for all purposes as having become
either record holder or holders of such Common Shares at such time. In the case
of any Security of any Series that is converted in part only, upon such
conversion the Company shall execute and, upon the Company’s request and at the
Company’s expense, the Trustee or an authenticating agent shall authenticate
and deliver to the Holder thereof, as requested by such Holder, a new Security
or Securities of such Series of authorized denominations in aggregate principal
amount equal to the unconverted portion of such Security.


 


If the last day on which
such Security may be converted is not a Business Day in a place where the
conversion agent for that Security is located, such Security may be surrendered
to that conversion agent on the next succeeding day that is a Business Day.


 


The Company shall not be
required to deliver certificates for Common Shares upon conversion while its
stock transfer books are closed for a meeting of shareholders or for the
payment of dividends or for any other purpose, but certificates for Common
Shares shall be delivered as soon as the stock transfer books shall again be
opened.


 


SECTION 12.04.  No Payment or Adjustment for Interest or
Dividends.  Unless otherwise specified as contemplated by
Section 2.03 for Securities of such Series, Securities surrendered for
conversion into Common Shares during the period from the close of business on
any regular record date or special record date next preceding any interest
payment date to the opening of business on such interest payment date (except
Securities called for redemption on a redemption date within such period) when
surrendered for conversion must be accompanied by payment (by certified or
official bank check to the order of the Company payable in clearing house funds
at the location where the Securities are surrendered) of an amount equal to the



 


44

















 


interest thereon
which the Holder is entitled to receive on such interest payment date. Payment
of interest shall be made, on such interest payment date or such other payment
date (as set forth in Section 2.07), as the case may be, to the Holder of
the Securities as of such regular record date or special record date, as
applicable. Except where Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Securities
will be payable by the Company on any interest payment date subsequent to the
date of conversion. No other payment or adjustment for interest or dividends is
to be made upon conversion. Notwithstanding the foregoing, upon conversion of
any Original Issue Discount Security, the fixed number of Common Shares into
which such Security is convertible delivered by the Company to the Holder
thereof shall be applied, first, to the portion attributable to the accrued
original issue discount relating to the period from the date of issuance to the
date of conversion of such Security, and, second, to the portion attributable
to the balance of the principal amount of such Security.


 


SECTION 12.05.  Adjustment of Conversion Price.  Unless
otherwise specified as contemplated by Section 2.03 for Securities of such
Series, the conversion price for Securities convertible into Common Shares
shall be adjusted from time to time as follows:


 


(a)           If
the Company shall (x) pay a dividend or make a distribution on Common
Shares in Common Shares, (y) subdivide the outstanding Common Shares into
a greater number of shares or (z) combine the outstanding Common Shares
into a smaller number of shares, the conversion price for the Securities of
such Series shall be adjusted so that the Holder of any such Security
thereafter surrendered for conversion shall be entitled to receive the number
of Common Shares that such Holder would have owned or have been entitled to
receive after the happening of any of the events described above had such
Security been converted immediately prior to the record date in the case of a
dividend or the effective date in the case of subdivision or combination. An
adjustment made pursuant to this Section 12.05(a) shall become
effective immediately after the record date in the case of a dividend, except
as provided in Section 12.05(h), and shall become effective immediately
after the effective date in the case of a subdivision or combination.


 


(b)           If
the Company shall issue rights or warrants to all holders of Common Shares
entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase Common Shares at a price per
share less than the current market price per share of Common Shares (as defined
for purposes of this Section 12.05(b) in Section 12.05(e)), at the record
date for the determination of shareholders entitled to receive such rights or
warrants, the conversion price in effect immediately prior thereto shall be
adjusted so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of Common Shares outstanding on such
record date plus the number of Common Shares which the aggregate offering price
of the total number of Common Shares so offered would purchase at such current
market price, and the denominator of which shall be the number of Common Shares
outstanding on such record date plus the number of additional Common Shares
receivable upon exercise of such rights or warrants. Such adjustment shall be
made successively whenever any such rights or warrants are issued, and shall
become effective 


 


45

















 


immediately,
except as provided in Section 12.05(h), after such record date. In
determining whether any rights or warrants entitle the Holders of the
Securities of such Series to subscribe for or purchase Common Shares at less
than such current market price, and in determining the aggregate offering price
of such Common Shares, there shall be taken into account any consideration
received by the Company for such rights or warrants plus the exercise price
thereof, the value of such consideration or exercise price, as the case may be,
if other than cash, to be determined by the Board of Directors.


 


(c)           If
the Company shall distribute to all holders of Common Shares any shares of
capital stock of the Company (other than Common Shares) or evidences of its
indebtedness or assets (excluding cash dividends or distributions paid from
retained earnings of the Company) or rights or warrants to subscribe for or
purchase any of its securities (excluding those rights or warrants referred to
in Section 12.05(b)) (any of the foregoing being herein in this
Section 12.05(c) called the “Special
Securities”), the conversion price shall be adjusted as provided in
the next sentence unless the Company elects to reserve such Special Securities
for distribution to the Holders of Securities of such Series upon the
conversion so that any such Holder converting such Securities will receive upon
such conversion, in addition to the Common Shares to which such Holder is
entitled, the amount and kind of Special Securities which such Holder would
have received if such Holder had, immediately prior to the record date for the
distribution of the Special Securities, converted Securities into Common Shares.
The conversion price, as adjusted, shall equal the price determined by multiplying
the conversion price in effect immediately prior to such record date by a
fraction the numerator of which shall be the current market price per share (as
defined for purposes of this Section 12.05(c) in Section 12.05(e)) of
Common Shares on the record date mentioned above less the then fair market
value (as determined by the Board of Directors, whose determination shall, if
made in good faith, be conclusive) of the portion of the Special Securities so
distributed applicable to one Common Share, and the denominator of which shall
be the current market price per Common Shares (as defined in
Section 12.05(e)). In the event the then fair market value (as so
determined) of the portion of the Special Securities so distributed applicable
to one Common Share is equal to or greater than the current market price per
Common Share (as defined in Section 12.05(e)) on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of Securities of such Series shall have the right to receive
the amount and kind of Special Securities such holder would have received had
he converted such Securities immediately prior to the record date for the
distribution of the Special Securities. Such adjustment shall become effective
immediately, except as provided in Section 12.05(h), after the record date
for the determination of shareholders entitled to receive such distribution.


 


(d)           If,
pursuant to Section 12.05(b) or 12.05(c), the conversion price shall have
been adjusted because the Company has declared a dividend, or made a
distribution, on the outstanding Common Shares in the form of any right or
warrant to purchase securities of the Company, or the Company has issued any
such right or warrant, then, upon the expiration of any such unexercised right
or unexercised warrant, the conversion price shall forthwith be adjusted to
equal the conversion price that would have applied had such right or warrant
never been declared, distributed or issued.


 


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(e)           For
the purpose of any computation under Section 12.05(b), the current market
price per Common Share on any date shall be deemed to be the average of the
reported last sales prices for the 30 consecutive Trading Days (as defined
below) commencing 45 Trading Days before the date in question. For the
purpose of any computation under Section 12.05(c), the current market
price per Common Share on any date shall be deemed to be the average of the
reported last sales prices for the ten consecutive Trading Days before the date
in question. The reported last sales price for each day (whether for purposes
of Section 12.05(b) or 12.05(c)) shall be the reported last sales price,
regular way, or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, in either case as reported
on the New York Stock Exchange Composite Tape or, if the Common Shares are not
listed or admitted to trading on the New York Stock Exchange, on the principal
national securities exchange on which the Common Shares are listed or admitted
to trading or, if not listed or admitted to trading on any national securities
exchange, on the Nasdaq National Market or, if the Common Shares are not quoted
on the Nasdaq National Market, the average of the closing bid and asked prices
on such day in the over-the-counter market as furnished by any New York Stock
Exchange member firm regularly making a market in the Common Shares selected
for such purpose by the Board of Directors or, if no such quotations are
available, the fair market value of the Common Shares as determined by a New
York Stock Exchange member firm regularly making a market in the Common Shares
selected for such purpose by the Board of Directors. As used herein, the term “Trading Day” with respect to the Common
Shares means (x) if the Common Shares are listed or admitted for trading
on the New York Stock Exchange or another national securities exchange, a day
on which the New York Stock Exchange or such other national securities exchange
is open for business, (y) if the Common Shares are quoted on the Nasdaq
National Market, a day on which trades may be made on the Nasdaq National
Market or (z) otherwise, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.


 


(f)            No
adjustment in the conversion price shall be required unless such adjustment
would require an increase or decrease of at least 1% in such price. Any
adjustments that by reason of this Section 12.05(f) are not required to be
made, however, shall be carried forward and taken into account in any
subsequent adjustment. Any adjustment required to be made in accordance with
the provisions of this Article 12 shall be made not later than such time
as may be required in order to preserve the tax free nature of a distribution
to the holders of Common Shares. All calculations under this Article 12
shall be made to the nearest cent or to the nearest one-one hundredth of a
share, as the case may be, with one-half cent and one-two hundredth of a share,
respectively, being rounded upward. The Company shall be entitled to make such
reductions in the conversion price, in addition to those required by this
Section 12.05, as it in its discretion shall determine to be advisable in
order that any stock dividend, subdivision of shares, distribution of rights or
warrants to purchase stock or securities or distribution of other assets (other
than cash dividends) made by the Company to its shareholders shall not be
taxable.


 


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(g)           Whenever
the conversion price is adjusted, the Company shall file with the Trustee, at
the Corporate Trust Office of the Trustee, and with the office or agency
maintained by the Company for the conversion of Securities of such Series
pursuant to Section 3.02, an Officers’ Certificate, setting forth the
conversion price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment. Neither the Trustee nor any
conversion agent shall be under any duty or responsibility with respect to any
such certificate or any facts or computations set forth therein, except to
exhibit said certificate from time to time to any Holder of a Security of such
Series desiring to inspect the same. The Company shall promptly cause a notice
setting forth the adjusted conversion price to be mailed to the Holders of
Securities of such Series, as their names and addresses appear upon the
Security register.


 


(h)           In
any case in which this Section 12.05 provides that an adjustment shall
become effective immediately after a record date for an event, the Company may
defer until the occurrence of such event (y) issuing to the Holder of any
Security of such Series converted after such record date and before the
occurrence of such event the additional Common Shares issuable upon such
conversion by reason of the adjustment required by such event over and above
the Common Shares issuable upon such conversion before giving effect to such
adjustment and (z) paying to such holder any amount in cash in lieu of any
fractional Common Shares pursuant to Section 12.06.


 


SECTION 12.06.  No Fractional Shares to Be Issued.  No
fractional Common Shares shall be issued upon any conversion of Securities. If
more than one Security of any Series shall be surrendered for conversion at one
time by the same Holder, the number of full Common Shares which shall be
issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities of such Series (or specified
portions thereof to the extent permitted hereby) so surrendered. Instead of a
fraction of a Common Share which would otherwise be issuable upon conversion of
any Security or Securities (or specified portions thereof), the Company shall
pay a cash adjustment (computed to the nearest cent, with one-half cent being
rounded upward) in respect of such fraction of a share in an amount equal to
the same fractional interest of the reported last sales price (as defined in
Section 12.05(e)) of the Common Shares on the Trading Day (as defined in
Section 12.05(e)) next preceding the day of conversion.


 


SECTION 12.07.  Preservation of Conversion Rights upon
Consolidation, Merger, Sale or Conveyance.  In case of any
consolidation of the Company with, or merger of the Company into, any other
corporation (other than a consolidation or merger in which the Company is the
surviving corporation), or in the case of any sale or transfer of all or
substantially all of the assets of the Company, the corporation formed by such
consolidation or the corporation into which the Company shall have been merged
or the corporation which shall have acquired such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture in accordance
with the provisions of Articles 8 and 9 as they relate to supplemental
indentures, providing that the Holder of each Outstanding Security that was
convertible into Common Shares shall have the right thereafter to convert such
Security into the kind and amount of shares of stock and other securities and
property, including cash, receivable upon such consolidation, merger, sale or
transfer by a holder of the number of Common Shares into which such Securities
might have been converted immediately prior to such consolidation, merger, sale
or transfer. Such 


 


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supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article 12. Neither
the Trustee nor any conversion agent shall have any liability or responsibility
for determining the correctness of any provision contained in any such
supplemental indenture relating either to the kind or amount of shares of stock
or other securities or property receivable by Holders of the Securities upon
the conversion of their Securities after any such consolidation, merger, sale
or transfer, or to any adjustment to be made with respect thereto and, subject
to the provisions of Section 313 of the Trust Indenture Act, may accept as
conclusive evidence of the correctness of any such provisions, and shall be protected
in relying upon, an Officers’ Certificate with respect thereto and an Opinion
of Counsel with respect to legal matters related thereto. If in the case of any
such consolidation, merger, sale or transfer, the stock or other securities and
property receivable by a Holder of the Securities includes stock or other
securities and property of a corporation other than the successor or purchasing
corporation, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary. The above provisions of this Section 12.07
shall similarly apply to successive consolidations, mergers, sales or
transfers.


 


SECTION 12.08.  Notice to Holders of the Securities of a
Series Prior to Taking Certain Types of Action.  With
respect to the Securities of any Series, in case:


 


(a)           the
Company shall authorize the issuance to all holders of Common Shares of rights
or warrants to subscribe for or purchase shares of its capital stock or of any
other right;


 


(b)           the
Company shall authorize the distribution to all holders of Common Shares of
evidences of indebtedness or assets (except for cash dividends or distributions
paid from retained earnings of the Company);


 


(c)           of
any subdivision or combination of Common Shares or of any consolidation or
merger to which the Company is a party and for which approval by the
shareholders of the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company; or


 


(d)           of
the voluntary or involuntary dissolution, liquidation or winding up of the
Company;


 


the Company shall
cause to be filed with the Trustee and at the office or agency maintained for
the purpose of conversion of Securities of such Series pursuant to
Section 3.02, and shall cause to be mailed to the Holders of Securities of
such Series at their last addresses as they shall appear on the Security
register, at least ten days prior to the applicable record date hereinafter
specified, a notice stating (i) the date as of which the holders of Common
Shares to be entitled to receive any such rights, warrants or distribution are
to be determined, or (ii) the date on which any such subdivision,
combination, consolidation, merger, sale, transfer, dissolution, liquidation,
winding up or other action is expected to become effective, and the date as of
which it is expected that holders of record of Common Shares shall be entitled
to exchange their Common Shares for securities or other property, if any,
deliverable upon such subdivision, combination, 


 


49

















 


consolidation,
merger, sale, transfer, dissolution, liquidation, winding up or other action. The
failure to give the notice required by this Section 12.08 or any defect
therein shall not affect the legality or validity of any distribution, right,
warrant, subdivision, combination, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action, or the vote upon any of
the foregoing.


 


SECTION 12.09.  Covenant to Reserve Shares for Issuance
on Conversion of Securities.  The Company at all times
will reserve and keep available out of each class of its authorized Common
Shares, free from preemptive rights, solely for the purpose of issue upon
conversion of Securities of any Series as herein provided, such number of
Common Shares as shall then be issuable upon the conversion of all Outstanding
Securities of such Series. The Company covenants that all Common Shares which
shall be so issuable, when issued or delivered, shall be duly and validly
issued Common Shares into which Securities of such Series are convertible, and
shall be fully paid and nonassessable, free of all liens and charges and not
subject to preemptive rights and that, upon conversion, the appropriate capital
stock accounts of the Company will be duly credited.


 


SECTION 12.10.  Compliance with Governmental
Requirements.  If any Common Shares required to be reserved for
purposes of conversion of Securities hereunder require registration or listing
with or approval of any governmental authority under any Federal or State law,
pursuant to the Securities Act or the Securities Exchange Act or any national
or regional securities exchange on which the Common Shares are listed at the
time of delivery of any Common Shares, the Company will use its best efforts to
cause such shares to be duly registered, listed or approved, as the case may
be, before such shares may be issued upon conversion.


 


SECTION 12.11.  Payment of Taxes upon Certificates for
Shares Issued upon Conversion.  The issuance of
certificates for Common Shares upon the conversion of Securities shall be made
without charge to the converting Holders for any tax (including documentary and
stamp taxes) in respect of the issuance and delivery of such certificates, and
such certificates shall be issued in the respective names of, or in such names
as may be directed by, the Holders of the Securities converted. The Company,
however, shall not be required to pay any tax that may be payable in respect of
any transfer involved in the issuance and delivery of any such certificate in a
name other than that of the Holder of the Security converted, and the Company
shall not be required to issue or deliver such certificate unless or until the
Person or Persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.


 


SECTION 12.12.  Trustee’s Duties with Respect to
Conversion Provisions.  The Trustee and any conversion
agent shall have no duty to any Holder to determine whether any facts exist
that may require any adjustment of the conversion rate, or with respect to the
nature or extent of any such adjustment when made, or with respect to the
method employed, in making the same. Neither the Trustee nor any conversion
agent shall be accountable with respect to the registration under securities
laws, listing, validity or value (or the kind or amount) of any Common Shares,
or of any other securities or property, that at any time may be issued or
delivered upon the conversion of any Security, and neither the Trustee nor any
conversion agent makes any representation with respect thereto. Neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Company to make any payment or to issue, transfer or deliver 


 


50

















 


any Common Shares
or stock certificates or other securities or property upon the surrender of any
Security for the purpose of conversion. The Trustee and any conversion agent,
subject to the provisions of Section 313 of the Trust Indenture Act, shall
not be responsible for any failure of the Company to comply with any of the
covenants contained in this Article 12.


 


SECTION 12.13.  Conversion of Securities into Preferred
Shares or Other Securities. Notwithstanding anything to the contrary
in this Article 12, the Company may issue Securities that are convertible
into Preferred Shares or other securities of the Company, including Preferred
Shares convertible into Common Shares, in which case all terms and conditions
relating to the conversion of Securities into Preferred Shares or other
securities, including any terms similar to those provided in
Sections 12.01 through 12.12, shall be as provided in or pursuant to an
appropriate resolution of the Board of Directors or in any indenture
supplemental hereto or as otherwise contemplated by Section 2.03.


 


ARTICLE 13

MISCELLANEOUS PROVISIONS


 


SECTION 13.01.  Incorporators, Shareholders, Officers and
Directors of Company Exempt from Individual Liability.  No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture or in any Security shall be had against any incorporator as such or
against any past, present or future shareholder, employee, officer or director
of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities. This Section 13.01 shall apply
unless otherwise specified as contemplated by Section 2.03 for the
Securities of any Series


 


SECTION 13.02.  Provisions of Indenture for the Sole
Benefit of Parties and Holders.  Nothing in this Indenture
or in the Securities, expressed or implied, shall give or be construed to give
to any Person, firm or corporation, other than the parties hereto, any Paying
Agent and their successors hereunder and the Holders of the Securities any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the Holders
of the Securities.


 


SECTION 13.03.  Successors and Assigns of Company Bound
by Indenture.  All the covenants, stipulations, promises
and agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.


 


SECTION 13.04.  Notices and Demands on Company, Trustee
and Holders.  Any notice or demand that by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Securities to or on the Company may be given or served by
being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Company
is filed by the Company with the Trustee) to Alliant Techsystems Inc., 5050
Lincoln Drive, Edina, Minnesota 55436-1097, Attention: Corporate Secretary. Any
notice, direction, request or demand by the Company or 


 


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any Holder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made at the Corporate Trust Office.


 


Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed by
first-class mail, postage prepaid to such Holders as their names and addresses
appear in the Security register within the time prescribed. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given.


 


In case, by reason of the
suspension of or irregularities in regular mail service, it shall be impracticable
to mail notice to the Company and Holders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be reasonably acceptable to the Trustee shall be deemed to
be a sufficient giving of such notice.


 


SECTION 13.05.  Officers’ Certificates and Opinions of
Counsel; Statements to Be Contained Therein.  Upon any
application or demand by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers’ Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.


 


Each certificate or
opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture
shall include:


 


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


 


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


 


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


 


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


 


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


 


Any certificate,
statement or opinion of an officer of the Company or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of
or representations by an accountant or firm of accountants in the employ of the
Company, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.


 


SECTION 13.06.  Payments Due on Saturdays, Sundays and
Holidays.  Unless otherwise specified in a Security, if
the date of maturity of interest on or principal of the Securities of any
Series or the date fixed for redemption, repurchase or repayment of any such
Security shall not be a Business Day, payment of interest or principal need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the date of maturity or the date fixed
for redemption, and no interest shall accrue for the period after such date.


 


SECTION 13.07.  Conflict of any Provision of Indenture
with Trust Indenture Act.  If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required by the Trust Indenture
Act, such required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.


 


SECTION 13.08.  New York Law to Govern.  This
Indenture and each Security will be governed by and construed in accordance
with the laws of the State of New York.


 


SECTION 13.09.  Counterparts.  This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.


 


SECTION 13.10.  Effect of Headings; Gender.  The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof. The use of the
masculine, feminine or neuter gender herein shall not limit in any way the
applicability of any term or provision hereof.


 


53

















 


SECTION 13.11  Waiver of
Jury Trial.


 


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


 


SECTION 13.12  Force Majeure.


 


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


 


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


 


	
   

  	
  ALLIANT
  TECHSYSTEMS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK TRUST 

  COMPANY, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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