Exhibit 4.1


 


FLUOR
CORPORATION


 


AND


 


                                                  ,


 


TRUSTEE


 


SENIOR
DEBT SECURITIES


 


INDENTURE


 


 


DATED AS OF                                                         ,
20


 

















 


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.


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1       DEFINITIONS

  	
  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

  	
  4

  
	
  SECTION 2.03

  	
  Amount
  Unlimited; Issuable in Series

  	
  5

  
	
  SECTION 2.04

  	
  Authentication
  and Delivery of Securities

  	
  7

  
	
  SECTION 2.05

  	
  Execution
  of Securities

  	
  7

  
	
  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

  	
  9

  
	
  SECTION 2.10

  	
  Cancellation
  of Securities

  	
  10

  
	
  SECTION 2.11

  	
  Temporary
  Securities

  	
  10

  
	
  SECTION 2.12

  	
  Securities
  in Global Form

  	
  10

  
	
  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

  	
  11

  
	
  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

  	
  12

  
	
  SECTION 4.03

  	
  Reports
  by the Company

  	
  13

  
	
   

  	
   

  	
   

  
	
  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

  
	
  SECTION 5.02

  	
  Collection
  of Indebtedness by Trustee; Trustee May Prove Debt

  	
  15

  
	
  SECTION 5.03

  	
  Application
  of Proceeds

  	
  16

  
	
  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

  	
  17

  
	
  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

  	
  18

  
	
  SECTION 6.01

  	
  Duties
  of Trustee

  	
  18

  
	
  SECTION 6.02

  	
  Rights
  of Trustee

  	
  19

  
	
  SECTION 6.03

  	
  Individual
  Rights of Trustee

  	
  20

  
	
  SECTION 6.04

  	
  Trustee’s
  Disclaimer

  	
  20

  
	
  SECTION 6.05

  	
  Notice
  of Defaults

  	
  20

  
	
  SECTION 6.06

  	
  Reports
  by Trustee to Holders

  	
  21

  
	
  SECTION 6.07

  	
  Compensation
  and Indemnity

  	
  21

  



 


i

















 


	
  SECTION 6.08

  	
  Replacement
  of Trustee

  	
  21

  
	
  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

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9       CONSOLIDATION,
  MERGER, SALE OR CONVEYANCE

  	
  25

  
	
  SECTION 9.01

  	
  Company
  May Consolidate, Etc.

  	
  25

  
	
  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

  	
  28

  
	
  SECTION 10.04

  	
  Return
  of Unclaimed Amounts Held by Trustee and Paying Agent

  	
  28

  
	
  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

  	
  29

  
	
  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

  	
  34

  
	
  SECTION 12.07

  	
  Conversion
  Arrangement on Call for Redemption

  	
  35

  
	
   

  	
   

  	
   

  
	
  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

  



 


ii

















 


	
  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

  	
  40

  
	
  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

  



 


iii

















 


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 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.


 


“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:                                                   .


 


1

















 


“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, president or any vice president and by the treasurer, controller,
secretary, or any assistant treasurer or any 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.


 


“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.


 


2

















 


“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”.


 


“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.


 


3

















 


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


 


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


 


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


 


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


 


“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 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.


 


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                                                    , 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;


 


(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;


 


5




















 


(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 such 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
(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.


 


6

















 


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 any 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.


 


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 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.


 


7





















 


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 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


 


8





















 


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.


 


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


 


9





















 


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 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


 


10





















 


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.


 


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


 


11





















 


(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, a
statement signed by a 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.


 


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


 


12





















 


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).


 


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


 


13





















 


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;


 


(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;


 


14





















 


(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 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


 


15
















 


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.


 


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:


 


16

















 


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 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


 


THIRD: 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 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,


 


17

















 


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.


 


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:


 


18

















 


(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.


 


(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.


 


19

















 


(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.


 


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


 


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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.


 


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;


 


21

















 


(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 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.


 


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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 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;


 


23

















 


(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 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


 


24

















 


(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.


 


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
corporation; 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


 


25
















 


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,


 


(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)  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


 


26

















 


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:


 


(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


 


27

















 


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.


 


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


 


28

















 


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.


 


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.


 


29

















 


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 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.


 


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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 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.


 


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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, 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.


 


32

















 


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:


 


(d)   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;


 


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


 


(f)    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;


 


(g)   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


 


(h)   specify such sinking fund payment date.


 


33

















 


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 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


 


34

















 


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 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


 


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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
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 


 


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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 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, 


 


37

















 


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 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.


 


38

















 


(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 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.


 


39

















 


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.


 


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.


 


40

















 


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.


 


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

  
	
   

  	
   

  
	
   

  	
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                                                             ,
  Trustee

  
	
   

  	
   

  
	
   

  	
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