Exhibit 4.2


 


FLUOR CORPORATION


 


AND


 


                                                    ,


 


TRUSTEE


 


SUBORDINATED
DEBT SECURITIES


 


INDENTURE


 


 


DATED
AS OF                                                         ,
20   


 


1

















 


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
                              ,
20    ,  between Fluor Corporation and
                              ,
as Trustee.


 


	
  Section of 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 11.05

  
	
  314(c)(2)

  	
   

  	
  2.04 and 11.05

  
	
  314(c)(3)

  	
   

  	
  N/A

  
	
  314(d)

  	
   

  	
  N/A

  
	
  314(e)

  	
   

  	
  11.05

  
	
  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)

  	
   

  	
  11.07

  



 






*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.


 


2

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE
  1

  
	
  DEFINITIONS SECTION

  	
  1

  
	
  SECTION  1.01.

  	
  Certain Terms Defined

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  
	
   

  
	
  SECURITIES

  	
   

  	
  4

  
	
  SECTION  2.01.

  	
  Forms Generally

  	
  4

  
	
  SECTION  2.02.

  	
  Form of Trustee’s
  Certificate of Authentication

  	
  5

  
	
  SECTION  2.03.

  	
  Amount Unlimited; Issuable
  in Series

  	
  5

  
	
  SECTION  2.04.

  	
  Authentication and
  Delivery of Securities

  	
  7

  
	
  SECTION  2.05.

  	
  Execution of Securities

  	
  8

  
	
  SECTION  2.06.

  	
  Certificate of Authentication

  	
  8

  
	
  SECTION  2.07.

  	
  Denomination and Date of
  Securities; Payments of Interest

  	
  8

  
	
  SECTION  2.08.

  	
  Registration, Registration
  of Transfer and Exchange

  	
  9

  
	
  SECTION  2.09.

  	
  Mutilated, Defaced,
  Destroyed, Lost and Stolen Securities

  	
  10

  
	
  SECTION  2.10.

  	
  Cancellation of Securities

  	
  10

  
	
  SECTION  2.11.

  	
  Temporary Securities

  	
  10

  
	
  SECTION  2.12.

  	
  Securities in Global Form

  	
  11

  
	
  SECTION  2.13.

  	
  CUSIP Numbers

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  
	
   

  	
   

  
	
  COVENANTS OF THE COMPANY

  	
  11

  
	
  SECTION  3.01.

  	
  Payment of Principal and
  Interest

  	
  11

  
	
  SECTION  3.02.

  	
  Offices for Payment, Etc.

  	
  11

  
	
  SECTION  3.03.

  	
  Paying Agents

  	
  12

  
	
  SECTION  3.04.

  	
  Officers’ Certificate

  	
  12

  
	
  SECTION  3.05.

  	
  Calculation of Original
  Issue Discount

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  
	
   

  	
   

  	
   

  
	
  SECURITYHOLDERS’ LISTS AND
  REPORTS BY THE COMPANY

  	
  12

  
	
  SECTION  4.01.

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

  	
  12

  
	
  SECTION 
  4.02.

  	
  Preservation and
  Disclosure of Securityholders’ Lists

  	
  13

  
	
  SECTION 
  4.03.

  	
  Reports by the Company

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  
	
  REMEDIES
  OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

  	
  14

  
	
  SECTION  5.01.

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

  	
  14

  
				



 


i

















 


	
  SECTION  5.02.

  	
  Collection of Indebtedness
  by Trustee; Trustee May Prove Debt

  	
  15

  
	
  SECTION  5.03.

  	
  Application of Proceeds

  	
  17

  
	
  SECTION  5.04.

  	
  Restoration of Rights on
  Abandonment of Proceedings

  	
  17

  
	
  SECTION  5.05.

  	
  Limitations on Suits by
  Securityholders

  	
  17

  
	
  SECTION  5.06.

  	
  Unconditional Right of
  Securityholders to Institute Certain Suits

  	
  17

  
	
  SECTION  5.07.

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

  	
  18

  
	
  SECTION  5.08.

  	
  Control by Securityholders

  	
  18

  
	
  SECTION  5.09.

  	
  Waiver of Past Defaults

  	
  18

  
	
  SECTION  5.10.

  	
  Right of Court to Require
  Filing of Undertaking to Pay Costs

  	
  18

  
	
  SECTION  5.11.

  	
  Suits for Enforcement

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  
	
   

  
	
  CONCERNING THE TRUSTEE

  	
  19

  
	
  SECTION  6.01.

  	
  Duties of Trustee

  	
  19

  
	
  SECTION  6.02.

  	
  Rights of Trustee

  	
  19

  
	
  SECTION  6.03.

  	
  Individual Rights of
  Trustee

  	
  20

  
	
  SECTION  6.04.

  	
  Trustee’s Disclaimer

  	
  21

  
	
  SECTION  6.05.

  	
  Notice of Defaults

  	
  21

  
	
  SECTION  6.06.

  	
  Reports by Trustee to
  Holders

  	
  21

  
	
  SECTION  6.07.

  	
  Compensation and Indemnity

  	
  21

  
	
  SECTION  6.08.

  	
  Replacement of Trustee

  	
  22

  
	
  SECTION  6.09.

  	
  Successor Trustee by
  Merger

  	
  22

  
	
  SECTION  6.10.

  	
  Eligibility; Disqualification

  	
  22

  
	
  SECTION  6.11.

  	
  Preferential Collection of
  Claims Against Company

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  
	
   

  
	
  CONCERNING THE
  SECURITYHOLDERS

  	
  22

  
	
  SECTION  7.01.

  	
  Evidence of Action Taken
  by Securityholders

  	
  22

  
	
  SECTION  7.02.

  	
  Proof of Execution of
  Instruments

  	
  23

  
	
  SECTION  7.03.

  	
  Holders to Be Treated as
  Owners

  	
  23

  
	
  SECTION  7.04.

  	
  Securities Owned by
  Company Deemed Not Outstanding

  	
  23

  
	
  SECTION  7.05.

  	
  Right of Revocation of
  Action Taken

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  
	
   

  
	
  SUPPLEMENTAL INDENTURES

  	
  23

  
	
  SECTION  8.01.

  	
  Supplemental Indentures Without
  Consent of Securityholders

  	
  23

  
	
  SECTION  8.02.

  	
  Supplemental Indentures
  with Consent of Securityholders

  	
  24

  
	
  SECTION  8.03.

  	
  Effect of Supplemental
  Indenture

  	
  25

  
	
  SECTION  8.04.

  	
  Documents to Be Given to
  Trustee

  	
  25

  
	
  SECTION  8.05.

  	
  Notation on Securities in
  Respect of Supplemental Indentures

  	
  25

  
	
  SECTION  8.06.

  	
  Subordination Unimpaired

  	
  25

  



 


ii

















 


	
  ARTICLE 9

  
	
   

  
	
  CONSOLIDATION, MERGER,
  SALE OR CONVEYANCE

  	
  26

  
	
  SECTION  9.01.

  	
  Company
  May Consolidate, Etc. on Certain Terms

  	
  26

  
	
  SECTION  9.02.

  	
  Successor Person
  Substituted

  	
  26

  
	
  SECTION  9.03.

  	
  Opinion of Counsel to
  Trustee

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  
	
   

  
	
  SATISFACTION AND DISCHARGE
  OF INDENTURE; UNCLAIMED FUNDS

  	
  26

  
	
  SECTION  10.01.

  	
  Satisfaction and Discharge
  of Indenture

  	
  26

  
	
  SECTION  10.02.

  	
  Application by Trustee of
  Funds Deposited for Payment of Securities

  	
  28

  
	
  SECTION  10.03.

  	
  Repayment of Amounts Held
  by Paying Agent

  	
  29

  
	
  SECTION  10.04.

  	
  Return of Unclaimed
  Amounts Held by Trustee and Paying Agent

  	
  29

  
	
  SECTION  10.05.

  	
  Reinstatement of Company’s
  Obligations

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  
	
  MISCELLANEOUS
  PROVISIONS

  	
  29

  
	
  SECTION  11.01.

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

  	
  29

  
	
  SECTION  11.02.

  	
  Provisions of Indenture
  for the Sole Benefit of Parties and Securityholders

  	
  29

  
	
  SECTION  11.03.

  	
  Successors and Assigns of
  Company Bound by Indenture

  	
  29

  
	
  SECTION  11.04.

  	
  Notices and Demands on
  Company, Trustee and Securityholders

  	
  30

  
	
  SECTION  11.05.

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

  	
  30

  
	
  SECTION  11.06.

  	
  Payments Due on Saturdays,
  Sundays and Holidays

  	
  31

  
	
  SECTION  11.07.

  	
  Conflict of Any Provision
  of Indenture with Trust Indenture Act

  	
  31

  
	
  SECTION  11.08.

  	
  New York Law to Govern

  	
  31

  
	
  SECTION  11.09.

  	
  Counterparts

  	
  31

  
	
  SECTION  11.10.

  	
  Effect of Headings; Gender

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  
	
   

  
	
  REDEMPTION OF SECURITIES
  AND SINKING FUNDS

  	
  31

  
	
  SECTION  12.01.

  	
  Applicability of Article

  	
  31

  
	
  SECTION  12.02.

  	
  Notice of Redemption;
  Partial Redemptions

  	
  31

  
	
  SECTION  12.03.

  	
  Payment of Securities
  Called for Redemption

  	
  32

  
	
  SECTION  12.04.

  	
  Exclusion of Certain
  Securities from Eligibility for Selection for Redemption

  	
  33

  
	
  SECTION  12.05.

  	
  Mandatory and Optional
  Sinking Funds

  	
  33

  
	
  SECTION  12.06.

  	
  Repayment at the Option of
  the Holders

  	
  35

  
	
  SECTION  12.07.

  	
  Conversion Arrangement on
  Call for Redemption

  	
  35

  



 


iii

















 


	
  ARTICLE 13

  
	
   

  
	
  CONVERSION
  OF SECURITIES

  	
  35

  
	
  SECTION  13.01.

  	
  Applicability of Article

  	
  35

  
	
  SECTION  13.02.

  	
  Right of Holders to
  Convert Securities into Common Shares

  	
  35

  
	
  SECTION  13.03.

  	
  Issuance of Common Shares
  on Conversions

  	
  36

  
	
  SECTION  13.04.

  	
  No Payment or Adjustment
  for Interest or Dividends

  	
  36

  
	
  SECTION  13.05.

  	
  Adjustment of Conversion
  Price

  	
  37

  
	
  SECTION  13.06.

  	
  No Fractional Shares to Be
  Issued

  	
  39

  
	
  SECTION  13.07.

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

  	
  39

  
	
  SECTION  13.08.

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

  	
  40

  
	
  SECTION  13.09.

  	
  Covenant to Reserve Shares
  for Issuance on Conversion of Securities

  	
  40

  
	
  SECTION  13.10.

  	
  Compliance with
  Governmental Requirements

  	
  40

  
	
  SECTION  13.11.

  	
  Payment of Taxes upon
  Certificates for Shares Issued upon Conversion

  	
  41

  
	
  SECTION  13.12.

  	
  Trustee’s Duties with
  Respect to Conversion Provisions

  	
  41

  
	
  SECTION  13.13.

  	
  Conversion of Securities
  into Preferred Shares or Other Securities

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  14

  
	
   

  
	
  SUBORDINATION OF
  SECURITIES

  	
  41

  
	
  SECTION  14.01.

  	
  Securities Subordinated to
  Senior Indebtedness

  	
  41

  
	
  SECTION  14.02.

  	
  Subrogation

  	
  42

  
	
  SECTION  14.03.

  	
  Obligation of the Company
  Unconditional

  	
  42

  
	
  SECTION  14.04.

  	
  Payments on Securities
  Permitted

  	
  43

  
	
  SECTION  14.05.

  	
  Effectuation of
  Subordination by Trustee

  	
  43

  
	
  SECTION  14.06.

  	
  Knowledge of Trustee

  	
  43

  
	
  SECTION  14.07.

  	
  Trustee May Hold
  Senior Indebtedness

  	
  43

  
	
  SECTION  14.08.

  	
  Rights of Holders of
  Senior Indebtedness Not Impaired

  	
  43

  
	
  SECTION  14.09.

  	
  Default in Senior
  Indebtedness

  	
  43

  
					



 


iv

















 


This INDENTURE (this “INDENTURE”),
dated as of
                                 ,
20    , between FLUOR CORPORATION, a Delaware corporation
(the “COMPANY”), and
                                ,
a                                 ,
as trustee (the “TRUSTEE”).


 


RECITALS


 


A.            The Company has duly authorized the issue from time to
time of its unsecured subordinated 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
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.  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 $1.00 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.


 


1

















 


“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
                                ,
Attention:
                                .


 


“DEFAULTED INTEREST” has the
meaning specified in Section 2.07.


 


“DEFEASANCE” has the meaning
specified in Section 10.01(b).


 


“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.


 


“GOVERNMENT OBLIGATIONS”,
unless otherwise specified pursuant to Section 2.03, means securities that
are (i) direct obligations of the United States government or (ii) obligations
of a Person controlled or supervised by, or acting as an agency or
instrumentality of, the United States government, the payment of which
obligations is unconditionally guaranteed by such government, and that, in
either case, are full faith and credit obligations of such government and are
not callable or redeemable at the option of the issuer thereof.


 


“HOLDER”, “HOLDER OF
SECURITIES”, “REGISTERED HOLDER”, “SECURITYHOLDER” 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.


 


“INSTRUCTIONS” means
instructions acceptable to the Trustee issued pursuant to the written order of
the Company, signed by its chief executive officer, president or any vice
president, and by its treasurer, secretary or any assistant treasurer or
assistant secretary. Instructions need not comply with the provisions of Section 11.05.


 


“OFFICERS’ CERTIFICATE”
means a certificate signed on behalf of the Company by the chief executive
officer, the president or any vice president and by the treasurer, controller,
secretary or any assistant treasurer or assistant secretary of the Company and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 11.05.


 


“OPINION OF COUNSEL” means a
written opinion of legal counsel who may be an employee of or counsel to the
Company and who shall be reasonably acceptable to the Trustee. Each Opinion of
Counsel shall include the statements provided for in Section 11.05, if and
to the extent required hereby.


 


“ORIGINAL ISSUE DATE” of any
Security means the date set forth as such on such Security.


 


2

















 


“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;


 


(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.


 


“PERIODIC OFFERING” means an offering of Securities of
a Series from time to time, during which any or all of the specific terms
of the Securities, including the rate or rates of interest, if any, thereon,
the maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.


 


“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”.


 


3

















 


“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, assistant secretary,
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.


 


“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.


 


“SENIOR INDEBTEDNESS” means (i) the principal of
and premium, if any, and unpaid interest on indebtedness for money borrowed, (ii) purchase
money and similar obligations, (iii) obligations under capital leases or
leases of property or assets made as part of any sale and leaseback
transaction, (iv) guarantees, assumptions or purchase commitments relating
to, or other transactions as a result of which the Company is responsible for
the payment of, such indebtedness of others, (v) renewals, extensions and
refunding of any such indebtedness, (vi) interest or obligations in
respect of any such indebtedness accruing after the commencement of any
insolvency or bankruptcy proceedings and (vii) obligations associated with
derivative products such as interest rate and currency exchange contracts,
foreign exchange contracts, commodity contracts and similar arrangements,
unless, in each case, the instrument by which the Company incurred, assumed or
guaranteed the indebtedness or obligations described in clauses (i) through
(vii) hereof expressly provides that such indebtedness or obligation is
not senior in right of payment to the Securities.


 


“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.


 


“TRUST INDENTURE ACT”, 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.


 


“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 or, in the case of a Periodic
Offering, Instructions, 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


 


4
















 


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.


 


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

  
						



 


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, or in the case of
a Periodic Offering, Instructions, prior to the issuance of Securities of any
Series:


 


(a)   the title of the Securities of the Series,
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 12.03;


 


(c)   if other than 100% of their principal amount,
the percentage of their principal amount at which the Securities of the Series will
be offered for sale to the public;


 


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


 


(e)   the rate or rates, which may be fixed or
variable, or the method or methods of determination thereof (including any
procedures to vary or reset such rate or rates), at which the Securities of the
Series shall bear interest, if any, the date or dates from which such
interest shall accrue, the interest payment dates on which such interest shall
be payable or the manner of determination of such interest payment dates and
the record dates for the determination of Holders to whom interest is payable;


 


5

















 


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


 


(g)   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;


 


(h)   if other than the principal amount thereof,
the portion of the principal amount of Securities of the Series which
shall be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 5.01 or provable in bankruptcy pursuant to Section 5.02;


 


(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 right, if any, of the Company to extend
the interest payment periods or defer the payment of interest and the duration
of such extension or deferral;


 


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


 


(l)    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;


 


(m)  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;


 


(n)   the currency or currencies in which payment
of the principal of and interest on, Securities of such Series shall be
payable;


 


(o)   the terms of any repurchase or remarketing
rights;


 


(p)   if other than the Trustee, any trustees,
authenticating agents, Paying Agents, transfer agents or registrars or any
other agents with respect to the Securities of such Series;


 


(q)   if the Securities of such Series do not bear
interest, the applicable dates for purposes of Section 4.01;


 


(r)    whether the Securities of such Series are
to be issuable in whole or in part in the form of one or more Depository
Securities and, in such case, the Depository for such Securities;


 


(s)   any restrictive covenants or additional
Events of Default that will apply to the Securities of such Series, or any
changes to the Events of Default set forth in Section 5.01 that will apply to
the Securities of Series, which may consist of establishing different terms or
provisions from those set forth in Article 3 or Section 5.01 or
eliminating any such Event of Default with respect to the Securities of such
Series;


 


(t)    the application, if any, of Section 10.01(b) to
the Securities of such Series;


 


(u)   any and all additional, eliminated or changed
terms that shall apply to the Securities of such Series, including any terms
which may be required by or advisable under United States laws or regulations 


 


6

















 


(including
the Securities Act and the rules and regulations promulgated thereunder)
or advisable in connection with the marketing of Securities of such Series; and


 


(v)   whether the Securities of such Series shall
be subject to a Periodic Offering.


 


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, together with a written order of
the Company, signed by its chief executive officer, president or any vice
president, and by its treasurer, secretary or any assistant treasurer or
assistant secretary for the authentication and delivery of such Securities and
the Trustee, in accordance with such order of the Company, shall authenticate
and deliver such Securities. In the case of Securities offered in a Periodic
Offering, however, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with Instructions or such other procedures
acceptable to the Trustee as may be specified by or pursuant to a supplemental
indenture or the written order of the Company delivered to the Trustee prior to
the time of the first authentication of Securities of such Series. 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 entitled to receive 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 11.05;
and


 


(d)   an Opinion of Counsel, prepared in accordance
with Section 11.05, 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.


 


With respect to Securities
of a Series subject to a Periodic Offering, however, the Trustee may
conclusively rely, as to the authorization by the Company of any of such
Securities, the forms and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the written order of the Company,
Opinion of Counsel, Officers’ Certificate and other documents delivered
pursuant to this Section 2.04 at or prior to the time of the first
authentication of Securities of such Series unless and until such written
order, Opinion of Counsel, Officers’ Certificate or other documents have been
superseded or revoked or expire by their terms.


 


7

















 


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 its chief executive officer, president or
any vice president and by its treasurer, secretary or any assistant treasurer
or 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 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 


 


8

















 


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 promptly 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. 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 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.


 


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 12.03 not involving any transfer.


 


9

















 


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. 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 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 or its agent shall dispose of cancelled Securities held by it and
deliver a certificate of disposition 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 


 


10

















 


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 Sections 2.03(k) 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
from time to time may 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 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 11.05 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.


 


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.


 


11

















 


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 amounts 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 of
the Company ending after the date hereof, principal execute officer, principal
financial officer or principal accounting officer, which need not constitute an
Officers’ Certificate, as to the Company’s compliance with all conditions and
covenants under the Indenture (such compliance to be determined without regard
to any period of grace or requirement of notice provided under the Indenture).


 


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 Securities as of the end of such year.


 


ARTICLE
4

SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY


 


SECTION 4.01.  Company to Furnish Trustee Information as to
Names and Addresses of Securityholders. 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.


 


12

















 


If the Trustee shall be the
Security registrar for such Series, no such list shall be required to be
furnished to the Trustee.


 


SECTION 4.02.  Preservation and Disclosure of
Securityholders’ 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 Securityholders the form of proxy or other communication, if any,
specified in such application.


 


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 Securityholder 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
Securityholders 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).


 


13

















 


SECTION 4.03.  Reports by the Company.  The Company:


 


(a)   will file with the Trustee, within 15 days
after the Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission from time to
time by rules and regulations may prescribe) that the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act, or if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then to
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Securities Exchange Act or in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;


 


(b)   will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to time by such rules and
regulations; and


 


(c)   will transmit by mail to the Holders of
Securities in the manner and to the extent required by Section 6.06,
within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to Sections 4.03(a) and (b) as may be required to be transmitted to
such Holders by rules and regulations prescribed from time to time by the
Commission.


 


ARTICLE
5

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS 

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 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, by
declaration or otherwise;


 


(c)   default in the performance or breach of any
covenant or warranty contained in the Securities of such Series or in this
Indenture (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section 5.01 specifically dealt with or
which has expressly been included in this Indenture solely for the benefit of
one or more Series of Securities other than that Series), and continuance
of such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that Series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder;


 


14
















 


(d)   the entry by a court having jurisdiction in
the premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order (1) adjudging the Company a bankrupt or insolvent, (2) approving
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state law, (3) appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property or (4) ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of
90 consecutive days;


 


(e)   the commencement by the Company of a
voluntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors; or


 


(f)    any other Event of Default provided with
respect to Securities of such Series in the supplemental indenture or
resolution of the Board of Directors establishing such Series.


 


If an Event of Default
occurs and is continuing with respect to the Securities of any Series, then and
in each and every such case, unless the principal of all Securities of such Series shall
have already become due and payable, either the Trustee for such Series or
the Holders of not less than 25% in aggregate principal amount at maturity of
the Securities of such Series then Outstanding, by notice in writing to
the Company and to the Trustee if given by such Holders, may declare the
principal of all the Securities of such Series 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.


 


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 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 


 


15

















 


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 Securityholders 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


 


(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 Securityholders 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
Securityholders, 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 Securityholder 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 Securityholder 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.


 


16

















 


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;


 


SECOND:
to the payment of the amounts then due and unpaid to the holders of Senior
Indebtedness, to the extent required by Article 14;


 


THIRD:
to the payment of the amounts then due and unpaid for principal of and interest
on the Securities of such Series 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 for principal and interest; and


 


FOURTH:
To the payment of the remainder, if any, to the Company or any other Person
lawfully entitled thereto.


 


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 Securityholders shall continue as though no such
proceedings had been taken.


 


SECTION 5.05.  Limitations on Suits by Securityholders. 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 indemnity reasonable 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
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 Securityholders to
Institute Certain Suits. Notwithstanding any provision in this Indenture and
any provision of any Security, 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 


 


17

















 


respective amount on or
after the respective due dates expressed in such Security, 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.


 


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
Securityholders 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 Securityholder 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
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or the Securityholders.


 


SECTION 5.08.  Control by Securityholders. 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; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture. The Trustee shall have the right to decline to follow any such
direction if the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if 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 this Section 5.10
shall not apply, however, to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders 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 Securityholder 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.


 


18

















 


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;


 


(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 rely on, and shall be
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.


 


19

















 


(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 reasonable to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.


 


(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 and after the curing or waiving of all Events of Default, 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, 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.


 


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.


 


20

















 


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 any Securities of any Series and if the
Trustee has actual knowledge of such default, the Trustee shall give to each
Securityholder of such Series notice of the default within 90 days after
such default occurs. Except in the case of a default described in Section 5.01(a) or
(b), the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Securityholders 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 Securityholder 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 Securityholders 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;


 


(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 may be attributable to its negligence
or willful misconduct; and


 


(c)   will indemnify the Trustee for, and hold it
harmless against, any loss, liability 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 may be
attributable to its 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. When
the Trustee incurs expenses after the occurrence of a default specified in
Sections 5.01(d) and (e), such expenses, including reasonable fees and
expenses of counsel, are intended to constitute expenses of administration
under bankruptcy law.


 


21

















 


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.


 


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
Securityholders so affected. The retiring Trustee shall 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 any court of competent jurisdiction for the appointment of a successor
Trustee.


 


If the Trustee fails to
comply with Section 6.10, any Securityholder 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 SECURITYHOLDERS


 


SECTION 7.01.  Evidence of Action Taken by Securityholders.


 


(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 


 


22

















 


Securityholders
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 Securityholders 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 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 Securityholder 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
amounts 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 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.


 


ARTICLE
8

SUPPLEMENTAL INDENTURES


 


SECTION 8.01.  Supplemental Indentures Without Consent of
Securityholders. 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 


 


23

















 


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 or to provide that any of the Company’s obligations
under any Series of the Securities or this Indenture shall be guaranteed
and the terms and conditions for the release or substitution of such security
or guarantee;


 


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


 


(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 the
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.


 


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
Securityholders. 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. 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
thereof, impair or affect the right of any Securityholder to institute suit for
payment thereof or, if the Securities


 


24
















 


provide therefor, affect any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected;


 


(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 the Holders of each Security so affected; or


 


(c)          reduce the amount of principal payable upon acceleration of the
maturity date of any Original Issue Discount Security.


 


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
Securityholders 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
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 Securityholders 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 11.04 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.


 


SECTION 8.04.  Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall receive 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.


 


SECTION 8.06.  Subordination Unimpaired. This Indenture may
not be amended to alter the subordination of any of the Outstanding Securities
of any Series without the written consent of each holder of Senior
Indebtedness then outstanding that would be adversely affected thereby.


 


25

















 


ARTICLE
9

CONSOLIDATION, MERGER, SALE OR CONVEYANCE


 


SECTION 9.01.  Company May Consolidate, Etc. on Certain
Terms. The Company may consolidate with or merge with or into, or sell, convey
or lease all or substantially all of its assets to, any other Person; provided
that in any such case:


 


(a)          either the Company shall be the continuing Person, or the successor
Person 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
Person, and


 


(b)         the Company or such successor Person, 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 of this Indenture.


 


SECTION 9.02.  Successor Person Substituted. In case of any
such consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor Person, such successor Person shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein. Such successor Person 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
Person 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 Person 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, the Company (or any successor Person which shall
theretofore have become such in the manner described in this Article 9)
shall be discharged from all obligations and covenants under this Indenture and
the Securities and may be liquidated and dissolved.


 


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 Section 11.05, as conclusive
evidence that any such consolidation, merger, sale, lease or conveyance, and
any such assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.


 


ARTICLE
10

SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS


 


SECTION 10.01.  Satisfaction and Discharge of Indenture.


 


(a)          If at any time:


 


(i)             the Company shall have paid or caused to be
paid the principal of and interest on all the Outstanding Securities of any Series as
and when the same shall have become due and payable,


 


26

















 


(ii)          the Company shall have delivered to the
Trustee for cancellation all Securities of any Series theretofore
authenticated (other than any Securities of such Series which have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.09) or


 


(iii)       (A) all the Securities of such Series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (B) the Company
shall have irrevocably deposited or caused to be deposited with the Trustee as
trust funds the entire amount or Government Obligations maturing as to
principal and interest in such amounts and at such times as will ensure the
availability of funds sufficient to pay at maturity or upon redemption all
Securities of such Series (other than any Securities of such Series which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.09) not theretofore delivered to the Trustee
for cancellation, including principal and interest due or to become due to such
date of maturity as the case may be, and if, in any such case, the Company
shall also pay or cause to be paid all other amounts payable hereunder by the
Company with respect to Securities of such Series, then this Indenture shall
cease to be of further effect with respect to Securities of such Series (except
as to (1) rights of registration of transfer and exchange, (2) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of
Holders to receive payments of principal thereof and interest thereon upon the
original stated due dates therefor and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (4) the rights,
obligations and immunities of the Trustee hereunder and (5) the rights of
the Securityholders of such Series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them).
Subject to Section 10.05, the Trustee, on demand of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such
Series. The Company will reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and will compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture and the Securities of such Series.


 


(b)         In addition to its rights to discharge this Indenture pursuant to Section 10.01(a),
the Company may defease the covenants applicable to any Series of
Securities, as provided in this Section 10.01(b), by complying with the
provisions of this Section 10.01(b):


 


(i)             The Company, at its option at any time, may
exercise its right to elect to have defeasance under Section 10.01(b)(ii) be
applied to the Outstanding Securities of any Series; provided that provision is
made for such right pursuant to Section 2.03 and the applicable conditions
thereto as set forth in this Section 10.01(b) have been satisfied.


 


(ii)          Upon the Company’s exercise of the right
referenced in Section 10.01(b)(i) applicable to this Section 10.01(b)(ii),
the Company may terminate its obligations under the Outstanding Securities of
any Series and this Indenture with respect to such Series on the date
the conditions set forth in Section 10.01(b)(iii) are satisfied (“DEFEASANCE”).
For this purpose, defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such Series and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned, except for the following: (A) the rights of Holders of
Outstanding Securities of such Series to receive payments in respect of
the principal of and interest on such Securities when such payments are due; (B) the
Company’s obligations with respect to such Securities under Sections 2.08,
2.09, 3.02, 6.07, 10.04 and 10.05; (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder; and (D) this Section 10.01(b).


 


(iii)       The following shall be the conditions to the
application of Section 10.01(b)(ii) to the Outstanding Securities of
such Series:


 


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(A)      The Company shall have irrevocably deposited
or caused to be deposited with the Trustee under the terms of an irrevocable
trust agreement, as trust funds in trust solely for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of Securities of such Series, (I) cash in
the currency or currency unit required, (II) Government Obligations
maturing as to principal and interest in such amounts (payable in the currency
in which the Securities of such Series are payable) and at such times as
are sufficient to pay the principal of and interest on the Outstanding
Securities of such Series to maturity or redemption, as the case may be,
or (III) a combination thereof, in each case sufficient, in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, (x) the
principal of and each installment of interest, if any, on the Outstanding
Securities of such Series on the stated maturity of such principal or
installment of interest, if any, and (y) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities of such
Series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities. Such irrevocable trust
agreement shall include, among other things, (a) provision for the
payments referenced in clauses (x) and (y) of the immediately
preceding sentence, (b) the payment of the reasonable expenses of the
Trustee incurred or to be incurred in connection with carrying out such trust
provisions, (c) rights of registration of transfer, substitution and
exchange of Securities of such Series in accordance with the terms stated
in this Indenture and (d) continuation of the rights and obligations and
immunities of the Trustee as against the Holders of Securities of such Series as
stated in this Indenture.


 


(B)        No Event of Default or event which with
notice or lapse of time or both would constitute an Event of Default with
respect to the Securities of such Series shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 5.01(d) and
5.01(e) are concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).


 


(C)        Such defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture with respect to
the Securities of such Series.


 


(D)       The Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that Securityholders of such Series will
not recognize income, gain or loss for federal income tax purposes as a result
of such deposit and discharge and will be subject to federal income tax on the
same amounts and in the same manner and at the same time as would have been the
case if such deposit and defeasance had not occurred, and which Opinion of
Counsel must be based upon (x) a ruling of the U.S. Internal Revenue
Service to the same effect or (y) a change in applicable U.S. federal
income tax law after the date of the Indenture such that a ruling is no longer
required.


 


(E)         The Company shall have delivered to the
Trustee an Officers’ Certificate and Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the deposit and defeasance
contemplated by this Section 10.01(b) have been complied with.


 


SECTION 10.02.  Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.04, all funds deposited with
the Trustee pursuant to Section 10.01 shall be held in trust and applied
by it to the payment, either directly or through any Paying Agent, to the
Holders of the particular Securities of such Series for the payment or
redemption of which such funds have been deposited with the Trustee, of all
amounts due and to become due thereon for principal and interest; but such
funds need not be segregated from other funds except to the extent required by
law.


 


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SECTION 10.03.  Repayment of Amounts Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any Series, all amounts then held by any Paying Agent (other
than the Company) under the provisions of this Indenture with respect to such Series of
Securities, upon written demand of the Company, shall be paid to the Trustee
and thereupon such Paying Agent shall be released from all further liability
with respect to such amounts.


 


SECTION 10.04.  Return of Unclaimed Amounts Held by Trustee
and Paying Agent. Any amounts deposited with or paid to the Trustee or any
Paying Agent (including the Company acting as its own Paying Agent) for the
payment of the principal of or interest on any Security of any Series and
not applied but remaining unclaimed for two years after the date upon which
such principal or interest shall have become due and payable, upon the written
request of the Company, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, promptly shall be
repaid to the Company by the Trustee for such Series or such Paying Agent
(except that with respect to any amounts then held by the Company in trust as
its own Paying Agent no such request need be given and at such time the Company
shall be discharged from its duty to hold such amounts in trust as Paying
Agent). The Holder of the Security of such Series, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter shall look only to the Company for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
Paying Agent with respect to such amounts thereupon shall cease. Anything in
this Article 10 to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the written request of the Company
any funds or Government Obligations held by it as provided in Section 10.01(b)(iii) which,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect such defeasance in accordance with the provisions of this
Indenture.


 


SECTION 10.05.  Reinstatement of Company’s Obligations. If
the Trustee is unable to apply any funds or Government Obligations in
accordance with Section 10.01 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 any Series for
which such application is prohibited shall be revived and reinstated as if no
deposit had occurred pursuant to Section 10.01 until such time as the
Trustee is permitted to apply all such funds or Government Obligations in
accordance with Section 10.01. If the Company has made any payment of
interest on or principal of any of such Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Securityholders of such Securities to receive such payment from the funds or
Government Obligations held by the Trustee.


 


ARTICLE
11

MISCELLANEOUS PROVISIONS


 


SECTION 11.01.  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, 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.


 


SECTION 11.02.  Provisions of Indenture for the Sole Benefit
of Parties and Securityholders. 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 11.03.  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.


 


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SECTION 11.04.  Notices and Demands on Company, Trustee and
Securityholders. 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 Fluor Corporation, 6700 Las Colinas Boulevard, Irving,
Texas 75039, Attention: Chief Financial Officer. Any notice, direction, request
or demand by the Company or any Securityholder 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 Securityholders 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 11.05.  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.


 


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 


 


30

















 


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 11.06.  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 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 11.07.  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 11.08.  New York Law to Govern. This Indenture and
each Security shall be deemed to be a contract under the internal laws of the
State of New York (other than principles of law that would apply the law of
another jurisdiction), and for all purposes shall be construed and enforced in
accordance with and governed by the laws of said State.


 


SECTION 11.09.  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 11.10.  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.


 


ARTICLE
12

REDEMPTION OF SECURITIES AND SINKING FUNDS


 


SECTION 12.01.  Applicability of Article. The provisions of
this Article 12 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 12.02.  Notice of Redemption; Partial Redemptions.
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 11.04,
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 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 


 


31

















 


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 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 60 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 30 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 12.02, 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 60 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, in
such manner as it shall deem appropriate and fair, Securities of such Series to
be redeemed in whole or in part 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 60 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.


 


SECTION 12.03.  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, 


 


32

















 


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.


 


SECTION 12.04.  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.


 


SECTION 12.05.  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 12.05; 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 forty-fifth
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 11.05) 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;


 


33

















 


(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


 


(e)          specify such sinking fund payment date.


 


Any Securities of such Series to
be credited and required to be delivered on 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 forty-fifth 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 12.05.


 


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 12.02
and giving effect to any exclusions required pursuant to Section 12.04,
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 12.02 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 12.05. 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 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 Securities of any Series 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 Securities of 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 Securities of such Series. In case such Event of


 


34
















 


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 12.05
to the redemption of such Securities.


 


SECTION 12.06.  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 directive that such
Securities be cancelled.


 


SECTION 12.07.  Conversion Arrangement on Call for
Redemption. In connection with any redemption of Securities of any Series, the
Company may arrange for the purchase and conversion of any Securities of any Series 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 such 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 12, 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 of such Series. 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 them harmless
against, any loss, liability or expense arising out of or in connection with
any such arrangement for the purchase and conversion of Securities of any Series 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 13

CONVERSION OF SECURITIES


 


SECTION 13.01.  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 13. Each reference in this Article 13
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 13
shall be applied separately to each such Series.


 


SECTION 13.02.  Right of Holders to Convert Securities into
Common Shares. Subject to the provisions of Section 12.07 and this Article 13,
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 


 


35

















 


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 13,
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 13.03.
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
the Trustee, 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 13.05
or such other or different terms, if 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 13.03.  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 13. 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 13.04.  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 


 


36

















 


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 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 13.05.  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 13.05(a) shall become
effective immediately after the record date in the case of a dividend, except
as provided in Section 13.05(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 13.05(b) in Section 13.05(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 immediately, except as provided in Section 13.05(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 13.05(b)) (any of the foregoing being herein in this Section 13.05(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 


 


37

















 


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 13.05(c) in Section 13.05(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 13.05(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 13.05(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 13.05(h),
after the record date for the determination of shareholders entitled to receive
such distribution.


 


(d)         If, pursuant to Section 13.05(b) or 13.05(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.


 


(e)          For the purpose of any computation under Section 13.05(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 13.05(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 13.05(b) or 13.05(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 13.05(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 


 


38

















 


Article 13
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 13 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 13.05, 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.


 


(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 13.05 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 13.06.


 


SECTION 13.06.  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 13.05(e))
of the Common Shares on the Trading Day (as defined in Section 13.05(e))
next preceding the day of conversion.


 


SECTION 13.07.  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 supplemental indenture shall provide for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for
in this Article 13. 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 


 


39

















 


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 13.07
shall similarly apply to successive consolidations, mergers, sales or
transfers.


 


SECTION 13.08.  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, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action. The failure to give the
notice required by this Section 13.08 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 13.09.  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 13.10.  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.


 


40

















 


SECTION 13.11.  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 13.12.  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 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 13.


 


SECTION 13.13.  Conversion of Securities into Preferred
Shares or Other Securities. Notwithstanding anything to the contrary in this Article 13,
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 13.01 through 13.12, 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
14

SUBORDINATION OF SECURITIES


 


SECTION 14.01.  Securities Subordinated to Senior
Indebtedness. The Company covenants and agrees, and each Holder of Securities,
by his acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Securities and the payment of any and all amounts payable in
respect of each and all of the Securities is expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of Senior Indebtedness, whether outstanding on the date
of this Indenture or thereafter incurred, assumed or guaranteed.


 


In the event (x) of any
distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company whether in a bankruptcy,
insolvency, reorganization or receivership proceeding or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise, except a distribution in connection with a merger
or consolidation or a conveyance or transfer of all or substantially all of the
properties of the Company which complies with the requirements of Article 9,
(y) that a default shall have occurred and be continuing with respect to
the payment of any amount payable in respect of any Senior Indebtedness or (z) that
the principal of the Securities of any Series shall have been declared due
and payable pursuant to Section 5.01 and such declaration shall not have
been rescinded and annulled as provided in Section 5.01, then:


 


(a)          in a circumstance described in the foregoing clause (x) or (y) the
holders of all Senior Indebtedness, and in the circumstance described in the
foregoing clause (z) the holders of all Senior Indebtedness the principal
of which shall have been so declared due and payable, shall first be entitled
to receive payment of the full amount due thereon, or provision shall be made
for such payment, before the 


 


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Holders
of any of the Securities are entitled to receive any payment in respect of the
indebtedness evidenced by the Securities;


 


(b)         any payment by, or distribution of assets of, the Company of any kind
or character, whether in cash, property or securities (other than securities of
the Company as reorganized or readjusted or securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in this Article 14
with respect to the Securities, to the payment of all Senior Indebtedness,
provided that the rights of the holders of the Senior Indebtedness are not
altered by such reorganization or readjustment), to which the Holders of any of
the Securities would be entitled except for the provisions of this Article 14
shall be paid or delivered by the person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instrument evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of such Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment or distribution
(or provision therefor) to the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of the indebtedness evidenced by
the Securities under this Indenture; and


 


(c)          in the event that, notwithstanding the foregoing, any payment by, or
distribution of assets of, the Company of any kind or character, whether in
cash, property or securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in this Article 14 with
respect to the Securities, to the payment of all Senior Indebtedness, provided
that the rights of the holders of Senior Indebtedness are not altered by such
reorganization or readjustment), shall be received by the Holders of any of the
Securities before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders of
such Senior Indebtedness.


 


SECTION 14.02.  Subrogation. Subject to the payment in full
of all Senior Indebtedness to which the indebtedness evidenced by the
Securities is in the circumstances subordinated as provided in Section 14.01,
the Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to such Senior Indebtedness
until all amounts owing on the Securities shall be paid in full. As between the
Company, its creditors other than holders of such Senior Indebtedness and the
Holders of the Securities, no such payment or distribution made to the holders
of such Senior Indebtedness by virtue of this Article 14 which otherwise
would have been made to the Holders of the Securities shall be deemed to be a
payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of this Article 14 are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Indebtedness.


 


SECTION 14.03.  Obligation of the Company Unconditional.
Nothing contained in this Article 14 or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and interest on and
any additional amounts owing in respect of the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness nor shall anything
herein or therein prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article 14
of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.


 


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Upon any payment or
distribution of assets of the Company referred to in this Article 14, the
Trustee and the Holders of the Securities shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any such
dissolution, winding up, liquidation or reorganization proceeding affecting the
affairs of the Company is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating
trustee or agent or other person making any payment or distribution, delivered
to the Trustee or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount paid or distributed
thereon and all other facts pertinent thereto or to this Article 14.


 


SECTION 14.04.  Payments on Securities Permitted. Nothing
contained in this Article 14 or elsewhere in this Indenture, or in any of
the Securities, shall affect the obligation of the Company to make, or prevent
the Company from making, payment of the principal of or interest on or any
additional amounts owing in respect of the Securities in accordance with the
provisions hereof and thereof, except as otherwise provided in this Article 14.
No provision of this Article 14 shall prevent the occurrence of any
default or Event of Default hereunder.


 


SECTION 14.05.  Effectuation of Subordination by Trustee.
Each Holder of Securities, by his acceptance thereof, authorizes and directs
the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article 14
and appoints the Trustee his attorney-in-fact for any and all such purposes.


 


SECTION 14.06.  Knowledge of Trustee. Notwithstanding the
provisions of this Article 14 or any other provisions of this Indenture,
the Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee,
or the taking of any other action by the Trustee, unless and until the Trustee
shall have received written notice thereof from the Company, any Holder of
Securities, any paying or conversion agent of the Company or the holder or
representative of any class of Senior Indebtedness. If the Trustee shall not
have received the notice provided for in this Section 14.06 at least three
Business Days prior to the date upon which, by the terms hereof, any amounts
may become payable for any purpose (including the payment of the principal of
or interest on, or additional amounts owing in respect of, any Security) then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have all power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it during or after such three
Business Day period.


 


SECTION 14.07.  Trustee May Hold Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article 14 with respect to any Senior Indebtedness at the
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in Section 313 of the Trust Indenture Act or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.


 


Nothing in this Article 14
shall subordinate any claims of, or payments to, the Trustee pursuant to Section 6.07
to Senior Indebtedness.


 


SECTION 14.08.  Rights of Holders of Senior Indebtedness Not
Impaired. No right of any present or future holder of any Senior Indebtedness
to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.


 


SECTION 14.09.  Default in Senior Indebtedness.


 


(a)          Subject to Section 14.09(b), upon the happening of any event of
default with respect to any Senior Indebtedness, as such event of default is
defined in the instrument under which the Senior Indebtedness is outstanding,
the holders of the Senior Indebtedness, directly or indirectly, may demand by
giving written notice to the Company and the Trustee that, until such event of
default shall have been cured or waived or shall have ceased to exist, the
Company be prohibited from:


 


43

















 


(i)             exercising any right of redemption with
respect to the Securities of any Series pursuant to Article 12;


 


(ii)          making any payments with respect to the
redemption of the Securities of any Series that were called for redemption
pursuant to Article 12 prior to the happening of an event of default with
respect to any Senior Indebtedness;


 


(iii)       making any payment with respect to the
principal of and interest on the Securities of any Series or as a sinking
fund payment pursuant to Article 12; and


 


(iv)      making any payment with respect to the
repayment of the Securities of any Series at the option of the Holders
pursuant to Section 12.06.


 


(b)         If the holders of the Senior Indebtedness, directly or indirectly, fail
to demand the rights provided in Section 14.09(a) within 90 days of
the happening of an event of default with respect to such Senior Indebtedness
they shall be deemed to have waived such rights with respect to such event of
default; provided, however, that such waiver shall not affect the ability of
the holders of the Senior Indebtedness to demand such rights upon the happening
of any other event of default.


 


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


 


 


	
   

  	
  FLUOR CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
                                      ,
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


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