Exhibit 4.04


 




 


 





DURATEK
INC.

ISSUER


 


 


AND


 


 


U.S.
BANK NATIONAL ASSOCIATION

TRUSTEE


 


 












 


 


INDENTURE


 


DATED
AS OF [  ], [  ]


 












 


SENIOR
DEBT SECURITIES




 


 





 

















 


CROSS-REFERENCE
TABLE(1)


 


	
  Section of
  Trust Indenture Act of 1939, as Amended

  	
   

  	
  Indenture

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  7.10

  
	
  310(b)

  	
   

  	
  7.09; 7.11

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.14

  
	
  311(b)

  	
   

  	
  7.14

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(c)

  
	
  312(c)

  	
   

  	
  Inapplicable

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a); 5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03; 4.06

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.07

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.07

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a); 7.03

  
	
  315(b)

  	
   

  	
  7.02

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
  315(e)

  	
   

  	
  6.07; 7.07

  
	
  316(a)

  	
   

  	
  6.06; 8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  13.09

  



 












(1)           This Cross-Reference Table does not
constitute part of the Indenture and shall not have any bearing on the
interpretation of any of its terms or provisions.


 


ii

















 


TABLE OF
CONTENTS


 


	
  ARTICLE I DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
  DEFINITIONS OF TERMS.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II ISSUE, DESCRIPTION, TERMS,
  EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
  DESIGNATION AND
  TERMS OF SECURITIES.

  	
   

  
	
  SECTION 2.02

  	
  FORM OF
  SECURITIES AND TRUSTEE’S CERTIFICATE.

  	
   

  
	
  SECTION 2.03

  	
  DENOMINATIONS:
  PROVISIONS FOR PAYMENT.

  	
   

  
	
  SECTION 2.04

  	
  EXECUTION AND
  AUTHENTICATION.

  	
   

  
	
  SECTION 2.05

  	
  REGISTRATION OF
  TRANSFER AND EXCHANGE.

  	
   

  
	
  SECTION 2.06

  	
  TEMPORARY SECURITIES.

  	
   

  
	
  SECTION 2.07

  	
  MUTILATED,
  DESTROYED, LOST OR STOLEN SECURITIES.

  	
   

  
	
  SECTION 2.08

  	
  CANCELLATION.

  	
   

  
	
  SECTION 2.09

  	
  BENEFITS OF INDENTURE.

  	
   

  
	
  SECTION 2.10

  	
  AUTHENTICATING AGENT.

  	
   

  
	
  SECTION 2.11

  	
  GLOBAL
  SECURITIES.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III REDEMPTION OF SECURITIES AND
  SINKING FUND PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
  REDEMPTION.

  	
   

  
	
  SECTION 3.02

  	
  NOTICE OF REDEMPTION.

  	
   

  
	
  SECTION 3.03

  	
  PAYMENT UPON REDEMPTION.

  	
   

  
	
  SECTION 3.04

  	
  SINKING
  FUND.

  	
   

  
	
  SECTION 3.05

  	
  SATISFACTION
  OF SINKING FUND PAYMENTS WITH SECURITIES.

  	
   

  
	
  SECTION 3.06

  	
  REDEMPTION
  OF SECURITIES FOR SINKING FUND.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
  PAYMENT OF
  PRINCIPAL, PREMIUM AND INTEREST.

  	
   

  
	
  SECTION 4.02

  	
  MAINTENANCE OF OFFICE
  OR AGENCY.

  	
   

  
	
  SECTION 4.03

  	
  PAYING AGENTS.

  	
   

  
	
  SECTION 4.04

  	
  APPOINTMENT
  TO FILL VACANCY IN OFFICE OF TRUSTEE.

  	
   

  
	
  SECTION 4.05

  	
  COMPLIANCE
  WITH CONSOLIDATION PROVISIONS.

  	
   

  
	
  SECTION 4.06

  	
  STATEMENT BY
  OFFICERS AS TO DEFAULT.

  	
   

  



 


iii

















 


	
  ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS
  BY THE COMPANY AND THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01

  	
  COMPANY
  TO FURNISH TRUSTEE NAMES AND ADDRESSES OF SECURITYHOLDERS.

  	
   

  
	
  SECTION 5.02

  	
  PRESERVATION
  OF INFORMATION; COMMUNICATIONS WITH SECURITYHOLDERS.

  	
   

  
	
  SECTION 5.03

  	
  REPORTS BY THE COMPANY.

  	
   

  
	
  SECTION 5.04

  	
  REPORTS BY THE TRUSTEE.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI REMEDIES OF THE TRUSTEE AND
  SECURITYHOLDERS ON EVENT OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
  EVENTS
  OF DEFAULT.

  	
   

  
	
  SECTION 6.02

  	
  COLLECTION
  OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.

  	
   

  
	
  SECTION 6.03

  	
  APPLICATION OF MONEYS
  COLLECTED.

  	
   

  
	
  SECTION 6.04

  	
  LIMITATION ON SUITS.

  	
   

  
	
  SECTION 6.05

  	
  RIGHTS
  AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER.

  	
   

  
	
  SECTION 6.06

  	
  CONTROL BY SECURITYHOLDERS.

  	
   

  
	
  SECTION 6.07

  	
  UNDERTAKING TO PAY COSTS.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII CONCERNING THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
  CERTAIN
  DUTIES AND RESPONSIBILITIES OF TRUSTEE.

  	
   

  
	
  SECTION 7.02

  	
  NOTICE
  OF DEFAULTS.

  	
   

  
	
  SECTION 7.03

  	
  CERTAIN RIGHTS OF TRUSTEE.

  	
   

  
	
  SECTION 7.04

  	
  TRUSTEE
  NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR SECURITIES.

  	
   

  
	
  SECTION 7.05

  	
  MAY HOLD SECURITIES.

  	
   

  
	
  SECTION 7.06

  	
  MONEYS HELD IN TRUST.

  	
   

  
	
  SECTION 7.07

  	
  COMPENSATION AND
  REIMBURSEMENT.

  	
   

  
	
  SECTION 7.08

  	
  RELIANCE ON OFFICERS’
  CERTIFICATE.

  	
   

  
	
  SECTION 7.09

  	
  DISQUALIFICATION;
  CONFLICTING INTERESTS.

  	
   

  
	
  SECTION 7.10

  	
  CORPORATE
  TRUSTEE REQUIRED; ELIGIBILITY.

  	
   

  
	
  SECTION 7.11

  	
  RESIGNATION
  AND REMOVAL; APPOINTMENT OF SUCCESSOR.

  	
   

  
	
  SECTION 7.12

  	
  ACCEPTANCE OF
  APPOINTMENT BY SUCCESSOR.

  	
   

  
	
  SECTION 7.13

  	
  MERGER,
  CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.

  	
   

  
	
  SECTION 7.14

  	
  PREFERENTIAL
  COLLECTION OF CLAIMS AGAINST THE COMPANY.

  	
   

  



 


iv

















 


	
  ARTICLE VIII CONCERNING THE SECURITYHOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
  EVIDENCE OF
  ACTION BY SECURITYHOLDERS.

  	
   

  
	
  SECTION 8.02

  	
  PROOF OF
  EXECUTION BY SECURITYHOLDERS.

  	
   

  
	
  SECTION 8.03

  	
  WHO MAY BE DEEMED OWNERS.

  	
   

  
	
  SECTION 8.04

  	
  CERTAIN
  SECURITIES OWNED BY COMPANY DISREGARDED.

  	
   

  
	
  SECTION 8.05

  	
  ACTIONS
  BINDING ON FUTURE SECURITYHOLDERS.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
  SUPPLEMENTAL
  INDENTURES WITHOUT THE CONSENT OF SECURITYHOLDERS.

  	
   

  
	
  SECTION 9.02

  	
  SUPPLEMENTAL
  INDENTURES WITH CONSENT OF SECURITYHOLDERS.

  	
   

  
	
  SECTION 9.03

  	
  EFFECT OF
  SUPPLEMENTAL INDENTURES.

  	
   

  
	
  SECTION 9.04

  	
  SECURITIES
  AFFECTED BY SUPPLEMENTAL INDENTURES.

  	
   

  
	
  SECTION 9.05

  	
  EXECUTION OF
  SUPPLEMENTAL INDENTURES.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X SUCCESSOR ENTITY

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
  COMPANY MAY CONSOLIDATE,
  ETC.

  	
   

  
	
  SECTION 10.02

  	
  SUCCESSOR ENTITY
  SUBSTITUTED.

  	
   

  
	
  SECTION 10.03

  	
  EVIDENCE OF
  CONSOLIDATION, ETC. TO TRUSTEE.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI SATISFACTION AND DISCHARGE;
  DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01

  	
  SATISFACTION AND DISCHARGE.

  	
   

  
	
  SECTION 11.02

  	
  DEFEASANCE.

  	
   

  
	
  SECTION 11.03

  	
  DEPOSITED MONEYS
  TO BE HELD IN TRUST.

  	
   

  
	
  SECTION 11.04

  	
  PAYMENT OF
  MONEYS HELD BY PAYING AGENTS.

  	
   

  
	
  SECTION 11.05

  	
  REPAYMENT TO COMPANY.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII IMMUNITY OF INCORPORATORS,
  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01

  	
  NO
  RECOURSE.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 13.01

  	
  EFFECT ON SUCCESSORS
  AND ASSIGNS.

  	
   

  
	
  SECTION 13.02

  	
  ACTIONS BY SUCCESSOR.

  	
   

  
	
  SECTION 13.03

  	
  SURRENDER OF COMPANY
  POWERS.

  	
   

  
	
  SECTION
  13.04

  	
  NOTICES.

  	
   

  



 


v

















 


	
  SECTION 13.05

  	
  GOVERNING
  LAW.

  	
   

  
	
  SECTION 13.06

  	
  TREATMENT OF
  SECURITIES AS DEBT.

  	
   

  
	
  SECTION 13.07

  	
  COMPLIANCE
  CERTIFICATES AND OPINIONS.

  	
   

  
	
  SECTION 13.08

  	
  PAYMENTS ON BUSINESS DAYS.

  	
   

  
	
  SECTION 13.09

  	
  CONFLICT WITH TRUST
  INDENTURE ACT.

  	
   

  
	
  SECTION 13.10

  	
  COUNTERPARTS.

  	
   

  
	
  SECTION 13.11

  	
  SEPARABILITY.

  	
   

  
	
  SECTION 13.12

  	
  ASSIGNMENT.

  	
   

  



 


vi

















 


INDENTURE, dated as of
[      ],
[         ], between DURATEK,
INC., a Delaware corporation (the “Company”), and U.S. Bank National
Association, as trustee (the “Trustee”):


 


WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance of unsecured debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate
principal amount to be issued from time to time in one or more series as in
this Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;


 


WHEREAS, to provide the
terms and conditions upon which the Securities are to be authenticated, issued
and delivered, the Company has duly authorized the execution of this Indenture;
and


 


WHEREAS, all things
necessary to make this Indenture a valid agreement of the Company, in
accordance with 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 covenanted and agreed as follows for the equal and
ratable benefit of the holders of Securities or of series thereof.


 


ARTICLE
I

DEFINITIONS


 


SECTION 1.01                     DEFINITIONS OF TERMS.


 


The terms defined in this
Section (except as in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular. All other
terms used in this Indenture that are defined in the Trust Indenture Act, or that
are by reference in said Trust Indenture Act defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.


 


“AUTHENTICATING AGENT”
means an authenticating agent with respect to all or any of the series of
Securities appointed with respect to all or any series of the Securities by the
Trustee pursuant to Section 2.10.


 


“BANKRUPTCY LAW” means
Title 11, U.S. Code, or any similar federal or state law for the relief of
debtors.


 


“BOARD OF DIRECTORS”
means the Board of Directors of the Company or any duly authorized committee of
such Board.


 


“BOARD RESOLUTION” means
a copy of a resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification.


 

















 


“BUSINESS DAY” means,
with respect to any series of Securities, any day other than a day on which
federal or state banking institutions in the Borough of Manhattan, The City of
New York, are authorized or obligated by law, executive order or regulation to
close.


 


“CERTIFICATE” means a
certificate signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company. The Certificate
need not comply with the provisions of Section 13.07.


 


“COMMISSION” means the
Securities and Exchange Commission.


 


“COMPANY” means Duratek,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware, and, subject to the provisions of Article X, shall also include its
successors and assigns.


 


“CORPORATE TRUST OFFICE”
means the office of the Trustee at which, at any particular time, its corporate
trust business shall be principally administered, which office at the date
hereof is located at 60 Livingston Avenue, St. Paul, MN 55107-2292, except that
whenever a provision herein refers to an office or agency of the Trustee in the
Borough of Manhattan, The City of New York, such office is located, at the date
hereof, at 100 Wall Street, New York, New York, 10005.


 


“COVENANT DEFEASANCE” has
the meaning given in Section 11.02.


 


“CUSTODIAN” means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.


 


“DEFAULT” means any
event, act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.


 


“DEFAULTED INTEREST” has
the meaning given in Section 2.03.


 


“DEPOSITARY” means, with
respect to Securities of any series, for which the Company shall determine that
such Securities will be issued as a Global Security, The Depository Trust
Company, New York, New York, another clearing agency, or any successor
registered as a clearing agency under the Securities and Exchange Act of 1934,
as amended (the “Exchange Act”), or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to either
Section 2.01 or 2.11.


 


“EVENT OF DEFAULT” means,
with respect to Securities of a particular series any event specified in
Section 6.01, continued for the period of time, if any, therein designated.


 


“EXCHANGE ACT” means the
Securities Exchange Act of 1934, as amended, or any successor statute or
statutes thereto.


 


“GLOBAL SECURITY” means,
with respect to any series of Securities, a Security executed by the Company
and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction,
all in accordance with the Indenture, which shall be registered in the name of
the Depositary or its nominee.


 


2

















 


“GOVERNMENTAL
OBLIGATIONS” means securities that are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged
or (ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States of America that, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act)
as custodian with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental Obligation held by
such custodian for the account of the holder of such depositary receipt;
provided, however, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the
Governmental Obligation or the specific payment of principal of or interest on
the Governmental Obligation evidenced by such depositary receipt.


 


“HEREIN”, “HEREOF” and
“HEREUNDER”, and other words of similar import, refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.


 


“INDENTURE” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this instrument and
any such supplemental indenture, respectively. The term “Indenture” shall also
include the terms of particular series of Securities established as
contemplated by Section 2.01.


 


“INTEREST PAYMENT DATE”,
when used with respect to any installment of interest on a Security of a
particular series, means the date specified in such Security or in a Board
Resolution or in an indenture supplemental hereto with respect to such series
as the fixed date on which an installment of interest with respect to
Securities of that series is due and payable.


 


“LEGAL DEFEASANCE” has the
meaning given in Section 11.02.


 


“OFFICERS’ CERTIFICATE”
means a certificate signed by the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Controller or an Assistant
Controller or the Secretary or an Assistant Secretary of the Company that is
delivered to the Trustee in accordance with the terms hereof. Each such
certificate shall include the statements provided for in Section 13.07, if and
to the extent required by the provisions thereof.


 


“OPINION OF COUNSEL”
means an opinion in writing of legal counsel, who may be an employee of or
counsel for the Company that is delivered to the Trustee in accordance with the
terms hereof. Each such opinion shall include the statements provided for in
Section 13.07, if and to the extent required by the provisions thereof.


 


“ORIGINAL ISSUE DISCOUNT
SECURITY” means any Security which 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 6.01.


 


3

















 


“OUTSTANDING”, when used
with reference to Securities of any series, means, subject to the provisions of
Section 8.04, as of any particular time, all Securities of that series
theretofore authenticated and delivered by the Trustee under this Indenture,
except (a) Securities theretofore canceled by the Trustee or any paying agent,
or delivered to the Trustee or any paying agent for cancellation or that have
previously been canceled; (b) Securities or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent); provided,
however, that if such Securities or portions of such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have been
given as in Article III or provision satisfactory to the Trustee shall have
been made for giving such notice; and (c) Securities in lieu of or in
substitution for which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.07; provided, however, that in
determining whether the holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as
of any date, the principal amount of an Original Issue Discount Security which
shall be deemed to be Outstanding shall be the amount of the principal thereof
which would be due and payable as of such date upon acceleration of the
maturity thereof to such date pursuant to Section 6.01.


 


“PERSON” means any
individual, corporation, limited liability company, partnership, joint-venture,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.


 


“PREDECESSOR SECURITY” of
any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the lost, destroyed or stolen Security.


 


“RESPONSIBLE OFFICER”
when used with respect to the Trustee means the Chairman of the Board of
Directors, the President, any Vice President, the Secretary, the Treasurer, any
trust officer, any corporate trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.


 


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


 


“SECURITIES ACT” means
the Securities Act of 1933, as amended, or any successor statute or statutes
thereto.


 


“SECURITYHOLDER”, “HOLDER
of SECURITIES”, “REGISTERED HOLDER”, or other similar term, means the Person or
Persons in whose name or names a particular Security shall be registered on the
books of the Company kept for that purpose in accordance with the terms of this
Indenture.


 


4

















 


“SECURITY REGISTER” has
the meaning given in Section 2.05.


 


“SECURITY REGISTRAR” has
the meaning given in Section 2.05.


 


“SUBSIDIARY” means, with
respect to any Person, (i) any corporation at least a majority of whose
outstanding Voting Stock shall at the time be owned, directly or indirectly, by
such Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, (ii) any general partnership, limited liability
company, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries and (iii) any limited partnership of which such Person
or any of its Subsidiaries is a general partner.


 


“TRUSTEE” means U.S. Bank
National Association, and, subject to the provisions of Article VII, shall also
include its successors and assigns, and, if at any time there is more than one
Person acting in such capacity hereunder, “Trustee” shall mean each such
Person. The term “Trustee” as used with respect to a particular series of the
Securities shall mean the trustee with respect to that series.


 


“TRUST INDENTURE ACT”
means the Trust Indenture Act of 1939, as amended, subject to the provisions of
Sections 9.01, 9.02, and 10.01, as in effect at the date of execution of this
instrument.


 


“VOTING STOCK”, as
applied to stock of any Person, means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors
(or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.


 


ARTICLE
II

ISSUE, DESCRIPTION, TERMS, EXECUTION, 

REGISTRATION AND EXCHANGE OF SECURITIES


 


SECTION 2.01                     DESIGNATION AND TERMS OF SECURITIES.


 


The aggregate principal
amount of Securities that may be authenticated and delivered under this
Indenture is unlimited. The Securities may be issued in one or more series up
to the aggregate principal amount of Securities of that series from time to
time authorized by or pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of Securities of any
series, there shall be established in or pursuant to a Board Resolution, and
set forth in an Officers’ Certificate, or established in one or more indentures
supplemental hereto:


 


(1)           the title of the Security of
the series (which shall distinguish the Securities of the series from all other
Securities);


 


(2)           any limit upon the aggregate
principal amount of the Securities of that series that may be authenticated and
delivered under this Indenture (except for Securities authenticated and


 


5

















 


delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of that series);


 


(3)           the date or dates on which
the principal of the Securities of the series is payable and the place(s) of payment;


 


(4)           the rate or rates at which
the Securities of the series shall bear interest or the manner of calculation
of such rate or rates, if any;


 


(5)           the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such interest
will be payable or the manner of determination of such Interest Payment Dates,
the place(s) of payment, and the record date or other method for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;


 


(6)           the right, if any, to extend
the interest payment periods and the duration of such extension;


 


(7)           the period or periods within
which, the price or prices at 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;


 


(8)           the obligation, if any, of
the Company to redeem or purchase Securities of the series pursuant to any
sinking fund or analogous provisions (including payments made in cash in
satisfaction of future sinking fund obligations) or at the option of a holder
thereof and the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;


 


(9)           the form of the Securities
of the series including the form of the Trustee’s certificate of authentication
for such series;


 


(10)         if other than denominations
of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the
denominations in which the Securities of the series shall be issuable;


 


(11)         any and all other terms with
respect to such series (which terms shall not be inconsistent with the terms of
this Indenture, as amended by any supplemental indenture) including any terms
which may be required by or advisable under United States laws or regulations
or advisable in connection with the marketing of Securities of that series;


 


(12)         whether the Securities of
the series are issuable as a Global Security and, in such case, the identity of
the Depositary for such series;


 


(13)         whether the Securities of
the series will be convertible into shares of common stock or other securities
of the Company and, if so, the terms and conditions upon which such Securities
will be so convertible, including the conversion price and the conversion
period;


 


6

















 


(14)         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 6.01;


 


(15)         any additional or different
Events of Default or restrictive covenants provided for with respect to the
Securities of the series;


 


(16)         if applicable, that the
Securities of the series, in whole or in specified part, shall be defeasible
pursuant to Section 11.02 and, if other than by a Board Resolution, the manner
in which any election by the Company to defease such Securities shall be
evidenced; and


 


(17)         if other than the currency
of the United States of America, the currency, currencies or currency units in
which the principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the equivalent thereof in
the currency of the United States of America for any purpose, including for
purposes of the definition of “Outstanding” in Section 1.01. All Securities of
any one series shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to any such Board Resolution
or in any indentures supplemental hereto. If any of the terms of the series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers’ Certificate setting forth the terms of the
series. Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by
which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates. Notwithstanding
Section 2.01(2) and unless otherwise expressly provided with respect to a
series of Securities, the aggregate principal amount of a series of Securities
may be increased and additional Securities of such series may be issued up to
the maximum aggregate principal amount authorized with respect to such series
as increased.


 


SECTION 2.02                     FORM OF SECURITIES AND TRUSTEE’S CERTIFICATE.


 


The Securities of any
series and the Trustee’s certificate of authentication to be borne by such
Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution and
as set forth in an Officers’ Certificate. The Securities may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange on
which Securities of that series may be listed, or to conform to usage.


 


SECTION 2.03                     DENOMINATIONS: PROVISIONS FOR PAYMENT.


 


The Securities shall be
issuable as registered Securities and in the denominations of one thousand U.S.
dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(10).
The Securities of a particular series shall bear interest payable on the dates
and at the rates specified


 


7

















 


or provided for
with respect to that series. Except as contemplated by Section 2.01(17), the
principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the United States of America that at the
time is legal tender for public and private debt, at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, the City
and State of New York; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register. Each
Security shall be dated the date of its authentication by the Trustee. Except
as contemplated by Section 2.01(4), interest on the Securities shall be
computed on the basis of a 360-day year composed of twelve 30-day months.
Except as contemplated by Section 2.01(5), the interest installment on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Securities of that series shall be paid to the Person
in whose name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such
interest installment. In the event that any Security of a particular series or
portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to
such Interest Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section 3.03. Any
interest on any Security that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date for Securities of the same series
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of having been
such holder; and such Defaulted Interest shall be paid by the Company, at its
election, as provided in clause (1) or clause (2) below:


 


(1)           The Company may make payment
of any Defaulted Interest on Securities to the Persons in whose names 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 such Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money 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 money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15 nor less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly 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
therefor to be mailed, first class postage prepaid, to each Securityholder at
his or her address as it appears in the Security Register (as hereinafter
defined), not less than 10 days prior to such special record date. Notice of
the proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date.


 


8

















 


(2)           The Company may make payment
of any Defaulted Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities 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 manner of payment shall be deemed
practicable by the Trustee. Unless otherwise set forth in a Board Resolution or
one or more indentures supplemental hereto establishing the terms of any series
of Securities pursuant to Section 2.01 hereof, the term “regular record date” as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of
the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the first day of a month, or the last day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not such
date is a Business Day. Subject to the foregoing provisions of this Section,
each Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, that were carried by such
other Security.


 


SECTION 2.04                     EXECUTION AND AUTHENTICATION.


 


The Securities shall be
signed on behalf of the Company by its President, or one of its Vice
Presidents, or its Treasurer, or one of its Assistant Treasurers, under its
corporate seal attested by its Secretary or one of its Assistant Secretaries.
Signatures may be in the form of a manual or facsimile signature. The Company
may use the facsimile signature of any Person who shall have been a President
or Vice President thereof, or of any Person who shall have been the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary thereof,
notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to be the President
or a Vice President, or the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company. The seal of the Company may be in the
form of a facsimile of such seal and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. The Securities may contain such
notations, legends or endorsements required by law, stock exchange rule or
usage. A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature 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. 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 for the authentication and delivery of such
Securities, signed by its President or any Vice President and its Secretary or
any Assistant Secretary, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities. In authenticating such
Securities and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the form and terms thereof have been established in
conformity with the provisions of this Indenture and that such Securities, 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 legally binding obligations of the Company


 


9

















 


enforceable in
accordance with their terms, subject to any Bankruptcy Law or other insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles. The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.


 


SECTION 2.05                     REGISTRATION OF TRANSFER AND EXCHANGE.


 


(a)           Securities of any series may
be exchanged upon presentation thereof at the office or agency of the Company
designated for such purpose in the Borough of Manhattan, the City and State of
New York, for other Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, all as provided
in this Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or agency
shall deliver in exchange therefor the Security or Securities of the same
series that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.


 


(b)           The Company shall keep, or
cause to be kept, at its office or agency designated for such purpose in the
Borough of Manhattan, the City and State of New York, or such other location
designated by the Company a register or registers (herein referred to as the
“Security Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable times shall
be open for inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein provided shall be
appointed as authorized by Board Resolution (the “Security Registrar”). Upon
surrender for transfer of any Security at the office or agency of the Company
designated for such purpose, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in the name of the transferee or
transferees a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount. All Securities presented or
surrendered for exchange or registration of transfer, as provided in this
Section, shall be accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in form
satisfactory to the Company or the Security Registrar, duly executed by the
registered holder or by such holder’s duly authorized attorney in writing.


 


(c)           No service charge shall be
made for any exchange or registration of transfer of Securities, or issue of
new Securities in case of partial redemption of any series, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer. The Company shall
not be required (i) to issue, exchange or register the transfer of any
Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of less than all the
Outstanding Securities of the same series and ending at the close of business
on the day of such mailing, nor (ii) to register the transfer of or exchange
any Securities of any series or portions thereof called for redemption. The
provisions of this Section 2.05 are, with respect to any Global Security,
subject to Section 2.11 hereof.


 


10

















 


SECTION 2.06                     TEMPORARY SECURITIES.


 


Pending the preparation
of definitive Securities of any series, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination. Such temporary
Securities shall be substantially in the form of the definitive Securities in
lieu of which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Every temporary Security of any series 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 of such series. Without unnecessary delay the Company
will execute and will furnish definitive Securities of such series and
thereupon any or all temporary Securities of such series may be surrendered in
exchange therefor (without charge to the holders), at the office or agency of
the Company designated for the purpose in the Borough of Manhattan, the City
and State of New York, and the Trustee shall authenticate and such office or
agency shall deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series, unless the
Company advises the Trustee to the effect that definitive Securities need not
be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.


 


SECTION 2.07                     MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.


 


In case any temporary or
definitive Security shall become mutilated or be destroyed, lost or stolen, the
Company (subject to the next succeeding sentence) shall execute, and upon the
Company’s request the Trustee (subject as aforesaid) shall authenticate and
deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. In every case the applicant for a substituted Security shall furnish
to the Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and the Trustee evidence
to their satisfaction of the destruction, loss or theft of the applicant’s
Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Security, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Security that has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Security) if
the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as they may require to save them harmless, and, in
case of destruction, loss or theft, evidence to the satisfaction of the Company
and the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof. Every replacement Security issued pursuant to the provisions
of this Section shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Security shall
be found at any time, or be enforceable by anyone, and shall be entitled to all
the


 


11

















 


benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder. All Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.


 


SECTION 2.08                     CANCELLATION.


 


All Securities
surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying agent, 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 required or permitted by any of the provisions of this Indenture. On
request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Securities in accordance with its
standard procedures and deliver a certificate of disposition to the Company. If
the Company shall otherwise acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.


 


SECTION 2.09                     BENEFITS OF INDENTURE.


 


Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to
any Person, other than the parties hereto and the holders of the Securities any
legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Securities.


 


SECTION 2.10                     AUTHENTICATING AGENT.


 


So long as any of the
Securities of any series remain Outstanding there may be an Authenticating
Agent for any or all such series of Securities which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
exchange, transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to the
Company and shall be a corporation that has a combined capital and surplus, as
most recently reported or determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under such laws to conduct
such business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be eligible
in accordance with these provisions, it shall resign immediately. Any
Authenticating Agent may at any time resign by giving written notice


 


12

















 


of resignation to
the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto. Any corporation into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
that such corporation shall be otherwise eligible under this Section, without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.


 


SECTION 2.11                     GLOBAL SECURITIES.


 


(a)           If the Company shall
establish pursuant to Section 2.01 that the Securities of a particular series
are to be issued as a Global Security, then the Company shall execute and the
Trustee shall, in accordance with Section 2.04, authenticate and deliver, a
Global Security that


 


(1)           shall represent, and shall
be denominated in an amount equal to the aggregate principal amount of, all or
a portion of the Outstanding Securities of such series,


 


(2)           shall be registered in the
name of the Depositary or its nominee,


 


(3)           shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instruction, and


 


(4)           shall bear a legend
substantially to the following effect: “Except as otherwise provided in Section
2.11 of the Indenture, this Security may be transferred, in whole but not in
part, only to the Depositary, another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary.”


 


(b)           Notwithstanding the
provisions of Section 2.05, the Global Security of a series may be transferred,
in whole but not in part and in the manner provided in Section 2.05, only to
the Depositary for such series, another nominee of the Depositary for such
series, or to a successor Depositary for such series selected or approved by
the Company or to a nominee of such successor Depositary.


 


(c)           If at any time the
Depositary for a series of the Securities notifies the Company that it is
unwilling or unable to continue as Depositary for such series or if at any time
the Depositary for such series shall no longer be registered or in good
standing under the Exchange Act, or other applicable statute or regulation, and
a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to
Section 2.05, the Trustee will authenticate and deliver the Securities of such
series in definitive registered form without


 


13

















 


coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. In addition, the Company
may at any time determine that the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this Section 2.11
shall no longer apply to the Securities of such series. In such event the
Company will execute and subject to Section 2.05, the Trustee, upon receipt of
an Officers’ Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security. Upon the exchange of the Global
Security for such Securities in definitive registered form without coupons, in
authorized denominations, the Global Security shall be canceled by the Trustee.
Such Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Depositary for
delivery to the Persons in whose names such Securities are so registered.


 


ARTICLE
III

REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS


 


SECTION 3.01                     REDEMPTION.


 


The Company may redeem
the Securities of any series issued hereunder on and after the dates and in
accordance with the terms established for such series pursuant to Section 2.01
hereof.


 


SECTION 3.02                     NOTICE OF REDEMPTION.


 


(a)           In case the Company shall
desire to exercise such right to redeem all or, as the case may be, a portion
of the Securities of any series in accordance with the right reserved so to do,
the Company shall, or shall cause the Trustee to, give notice of such
redemption to holders of the Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than
30 days and not more than 90 days before the date fixed for redemption of that
series to such holders at their last addresses as they shall appear upon the
Security Register unless a shorter period is specified in the Securities to be
redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to
the holder of any Security of any series designated for redemption in whole or
in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Securities of such series or any
other series. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers’ Certificate evidencing compliance with any such
restriction. Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are to
be redeemed, and shall state that payment of the redemption price of such
Securities to be redeemed will be made at the office or agency of the Company
in the Borough of Manhattan, the City and State of New York, upon presentation
and surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said


 


14

















 


notice, that from and after said date interest will
cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in whole or
in part shall specify the particular Securities to be so redeemed. In case any
Security is to be redeemed in part only, the notice that relates to such
Security shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date, 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.


 


(b)           If less than all the
Securities of a series are to be redeemed, the Company shall give the Trustee
at least 45 days’ notice in advance of the date fixed for redemption as to the
aggregate principal amount of Securities of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner as it shall
deem appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S. dollars ($1,000)
or any integral multiple thereof) of the principal amount of such Securities of
a denomination larger than $1,000, the Securities to be redeemed and shall
thereafter promptly notify the Company in writing of the numbers of the
Securities to be redeemed, in whole or in part. The Company may, if and
whenever it shall so elect, by delivery of instructions signed on its behalf by
its President or any Vice President, instruct the Trustee or any paying agent
to call all or any part of the Securities of a particular series for redemption
and to give notice of redemption in the manner set forth in this Section, such
notice to be in the name of the Company or its own name as the Trustee or such
paying agent as it may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit to remain with, the
Trustee or such paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by
mail that may be required under the provisions of this Section.


 


SECTION 3.03                     PAYMENT UPON REDEMPTION.


 


(a)           If the giving of notice of
redemption shall have been completed as above provided, the Securities or
portions of Securities of the series to be redeemed 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 interest on such Securities or portions of Securities
shall cease to accrue on and after the date fixed for redemption, unless the
Company shall default in the payment of such redemption price and accrued
interest with respect to any such Security or portion thereof. On presentation
and surrender of such Securities on or after the date fixed for redemption at
the place of payment specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an Interest Payment Date, the interest installment
payable on such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section 2.03).


 


(b)           Upon presentation of any
Security of such series that is to be redeemed in part only, the Company shall
execute and the Trustee shall authenticate and the office or agency where the
Security is presented shall deliver to the holder thereof, at the expense of
the


 


15

















 


Company, a new Security of the same series of
authorized denominations in principal amount equal to the unredeemed portion of
the Security so presented.


 


SECTION 3.04                     SINKING FUND.


 


The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement
of Securities of a series, except as otherwise specified as contemplated by
Section 2.01 for Securities of such series. The minimum amount of any sinking
fund payment provided for by the terms of Securities of any series is herein
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
herein referred to as an “optional sinking fund payment”. If provided for by
the terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 3.05. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.


 


SECTION 3.05                     SATISFACTION OF SINKING FUND
PAYMENTS WITH SECURITIES.


 


The Company,


 


(1)           may deliver Outstanding
Securities of a series (other than any Securities previously called for redemption)
and


 


(2)           may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.


 


SECTION 3.06                     REDEMPTION OF SECURITIES FOR
SINKING FUND.


 


Not less than 45 days
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers’ Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of the series, the portion thereof, if any, that is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 3.05 and
the basis for such credit and will, together with such Officers’ Certificate,
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 3.02 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 3.02.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 3.03.


 


16

















 


ARTICLE
IV

COVENANTS


 


SECTION 4.01                     PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.


 


The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and
interest on the Securities of each series at the time and place and in the
manner provided herein and established with respect to such Securities.


 


SECTION 4.02                     MAINTENANCE OF OFFICE OR AGENCY.


 


So long as any series of
the Securities remain Outstanding, the Company agrees to maintain an office or
agency in the Borough of Manhattan, the City and State of New York, with
respect to each such series and at such other location or locations as may be
designated as provided in this Section 4.02, where (i) Securities of that
series may be presented for payment, (ii) Securities of that series may be
presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by its President or a Vice President and
delivered to the Trustee, designate some other office or agency in the Borough
of Manhattan, the City and State of New York for such purposes or any of them.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.


 


The Company may also from
time to time designate one or more other offices or agencies where the
Securities of one or more series may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City and State of New York for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.


 


SECTION 4.03                     PAYING AGENTS.


 


(a)           If the Company shall appoint
one or more paying agents for all or any series of the Securities, other than
the Trustee, the Company will cause each 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:


 


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


 


17

















 


(2)           that it will give the
Trustee notice of any failure by the Company (or by any other obligor of such
Securities) to make any payment of the principal of (and premium, if any) or
interest on the Securities of that series when the same shall be due and
payable;


 


(3)           that it will, at any time
during the continuance of any failure referred to in the preceding paragraph
(a)(2) above, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent; and


 


(4)           that it will perform all
other duties of paying agent as set forth in this Indenture.


 


(b)           If the Company shall act as
its own paying agent with respect to any series of the Securities, it will on
or before each due date of the principal of (and premium, if any) or interest
on Securities of that series, set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay such principal
(and premium, if any) or interest so becoming due on Securities of that series
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of such action, or any failure
(by it or any other obligor on such Securities) to take such action. Whenever
the Company shall have one or more paying agents for any series of Securities,
it will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities of that series, deposit with the paying agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of this action or failure
so to act.


 


(c)           Notwithstanding anything in
this Section to the contrary,


 


(1)           the agreement to hold sums
in trust as provided in this Section is subject to the provisions of Section
11.05, and


 


(2)           the Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying agent, such sums
to be held by the Trustee upon the same terms and conditions as those upon
which such sums were held by the Company or such paying agent; and, upon such
payment by any paying agent to the Trustee, such paying agent shall be released
from all further liability with respect to such money.


 


SECTION 4.04                     APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.


 


The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.11, a Trustee, so that there shall at all times be
a Trustee hereunder.


 


SECTION 4.05                     COMPLIANCE WITH
CONSOLIDATION PROVISIONS.


 


The Company will not,
while any of the Securities remain Outstanding, consolidate with or merge into
any other Person, in either case where the Company is not the survivor of such
transaction, or sell, convey, transfer or otherwise dispose of its property as
an entirety or


 


18

















 


substantially as
an entirety to any other Person unless the provisions of Article X hereof are
complied with.


 


SECTION 4.06                     STATEMENT BY OFFICERS AS TO DEFAULT.


 


The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers’ Certificate, stating whether or not to the best knowledge
of the signer thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which such signer may have knowledge.


 


ARTICLE
V

SECURITYHOLDERS’ LISTS AND REPORTS 

BY THE COMPANY AND THE TRUSTEE


 


SECTION 5.01                     COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS.


 


The Company will furnish
or cause to be furnished to the Trustee:


 


(1)           not more than 15 days after
each regular record date (as defined in Section 2.03) a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders
of each series of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the most recent list
furnished to the Trustee by the Company; and


 


(2)           at such other times as the
Trustee may request in writing within 30 days after the receipt by the Company
of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the
Trustee shall be the Security Registrar.


 


SECTION 5.02                     PRESERVATION OF INFORMATION;
COMMUNICATIONS WITH SECURITYHOLDERS.


 


(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 Securities contained in the most recent
list furnished to it as provided in Section 5.01 and as to the names and
addresses of holders of Securities received by the Trustee in its capacity as
Security Registrar (if acting in such capacity).


 


(b)           The Trustee may destroy any
list furnished to it as provided in Section 5.01 upon receipt of a new list so
furnished.


 


(c)           Securityholders may
communicate as provided in Section 312(b) of the Trust Indenture Act with other
Securityholders with respect to their rights under this Indenture or under the
Securities.


 


19

















 


SECTION 5.03                     REPORTS BY THE COMPANY.


 


(a)           The Company covenants and
agrees to 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 may from time to time by rules and regulations
prescribe) that the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the 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 the 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 Exchange Act, in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.


 


(b)           The Company covenants and
agrees to file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from 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.


 


(c)           The Company covenants and
agrees to transmit by mail, first class postage prepaid, or reputable overnight
delivery service that provides for evidence of receipt, to the Securityholders,
as their names and addresses appear upon the Security Register, 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
subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.


 


SECTION 5.04                     REPORTS BY THE TRUSTEE.


 


(a)           On or before July 15 in each
year in which any of the Securities are Outstanding, the Trustee shall transmit
by mail, first class postage prepaid, to the Securityholders, as their names
and addresses appear upon the Security Register, a brief report dated as of the
preceding May 15, if and to the extent required under Section 313(a) of the
Trust Indenture Act.


 


(b)           The Trustee shall comply
with Section 313(b) and 313(c) of the Trust Indenture Act.


 


(c)           A copy of each such report
shall, at the time of such transmission to Securityholders, be filed by the
Trustee with the Company, with each stock exchange upon which any Securities
are listed (if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Securities become listed on any stock exchange.


 


20

















 


ARTICLE
VI

REMEDIES OF THE TRUSTEE 

AND SECURITYHOLDERS ON EVENT OF DEFAULT


 


SECTION 6.01                     EVENTS OF DEFAULT.


 


(a)           Whenever used herein with
respect to Securities of a particular series, “Event of Default” means any one
or more of the following events that has occurred and is 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):


 


(1)           the Company defaults in the
payment of any installment of interest upon any of the Securities of that
series, as and when the same shall become due and payable, and continuance of
such default for a period of 90 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance with the terms of
any indenture supplemental hereto shall not constitute a default in the payment
of interest for this purpose;


 


(2)           the Company defaults in the
payment of the principal of (or premium, if any, on) any of the Securities of
that series as and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise, or in any payment
required by any sinking or analogous fund established with respect to that
series; provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental hereto
shall not constitute a default in the payment of principal or premium, if any;


 


(3)           the Company fails to observe
or perform any other of its covenants or agreements with respect to that series
contained in this Indenture or otherwise established with respect to that
series of Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series) for a
period of 90 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is a “Notice of
Default” hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the holders
of at least 25% in principal amount of the Securities of that series at the
time Outstanding;


 


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


 


(i)            commences a voluntary case,


 


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


 


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


 


(iv)          makes a general assignment for
the benefit of its creditors; or


 


21

















 


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


 


(i)            is for relief against the
Company in an involuntary case,


 


(ii)           appoints a Custodian of the
Company for all or substantially all of its property, or


 


(iii)          orders the liquidation of
the Company, and the order remains unstayed and in effect for 90 days.


 


(b)           In each and every such case,
unless the principal of all the Securities of that series shall have already
become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of all the Securities of that
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, notwithstanding
anything contained in this Indenture or in the Securities of that series or
established with respect to that series pursuant to Section 2.01 to the
contrary.


 


(c)           At any time after the
principal of the Securities of that series shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the holders of a
majority in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:


 


(i)            the Company has paid or
deposited with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series and the principal of (and
premium, if any, on) any and all Securities of that series that shall have
become due otherwise than by acceleration (with interest upon such principal
and premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum
expressed in the Securities of that series to the date of such payment or
deposit) and the amount payable to the Trustee under Section 7.07, and


 


(ii)           any and all Events of
Default under the Indenture with respect to such series, other than the
nonpayment of principal on Securities of that series that shall not have become
due by their terms, shall have been remedied or waived as provided in Section
6.06. No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.


 


(d)           In case the Trustee shall
have proceeded to enforce any right with respect to Securities of that series
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case, subject to any determination in such proceedings, the Company, and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.


 


22

















 


SECTION 6.02                     COLLECTION OF INDEBTEDNESS
AND SUITS FOR ENFORCEMENT BY TRUSTEE.


 


(a)           The Company covenants that


 


(i)            in case it shall default in
the payment of any installment of interest on any of the Securities of a
series, as and when the same shall have become due and payable, and such
default shall have continued for a period of 90 days, or


 


(ii)           in case it shall default in
the payment of the principal of (or premium, if any, on) any of the Securities
of a series when the same shall have become due and payable, whether upon
maturity of the Securities of a series or upon redemption or upon declaration,
pursuant to any sinking or analogous fund established with respect to that
series or otherwise, then, upon demand of the Trustee, the Company will pay to
the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such
Securities for principal (and premium, if any) or interest, or both, as the
case may be, with interest upon the overdue principal (and premium, if any) and
(to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in
the Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.07.


 


(b)           If the Company shall fail to
pay such amounts forthwith upon such demand, the Trustee, 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 sums so
due and unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Securities of that series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or other obligor upon the Securities of that
series, wherever situated.


 


(c)           In case of any receivership,
insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement,
composition or judicial proceedings affecting the Company, or its creditors or
property, the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and shall (except as
may be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to have
the claims of the Trustee and of the holders of Securities of such series
allowed for the entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to collect
and receive any moneys or other property payable or deliverable on any such
claim, and to distribute the same after the deduction of the amount payable to
the Trustee under Section 7.07; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Securityholders, to pay to the Trustee any amount due it under Section
7.07.


 


23

















 


(d)           All rights of action and of
asserting claims under this Indenture, or under any of the terms established
with respect to Securities of that series, may be enforced by the Trustee
without the possession of any of such Securities, or the production thereof at
any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to the
Trustee of any amounts due under Section 7.07, be for the ratable benefit of
the holders of the Securities of such series. In case of an Event of Default
hereunder, the Trustee may in its discretion 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 the
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. Nothing contained herein 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 that 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.


 


SECTION 6.03                     APPLICATION OF MONEYS COLLECTED.


 


Any moneys collected by
the Trustee pursuant to this Article with respect to a particular series of
Securities shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of
principal (or premium, if any) or interest, upon presentation of the Securities
of that series, and notation thereon of the payment, if only partially paid,
and upon surrender thereof if fully paid:


 


FIRST: To the payment of
costs and expenses of collection and of all amounts payable to the Trustee
under Section 7.07; and


 


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


 


SECTION 6.04                     LIMITATION ON SUITS.


 


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 suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless


 


(1)           such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series specifying
such Event of Default, as hereinbefore provided;


 


24

















 


(2)           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, suit or proceeding in its own name as trustee hereunder;


 


(3)           such holder or holders shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby; and


 


(4)           the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding and


 


(5)           during such 60 day period,
the holders of a majority in principal amount of the Securities of that series
do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, the right of any
holder of any Security to receive payment of the principal of (and premium, if
any) and interest on such Security, as therein provided, on the respective due
dates expressed in such Security (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker and holder
and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such 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 such series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.


 


SECTION 6.05                     RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER.


 


(a)           Except as otherwise provided
in Section 2.07, all powers and remedies given by this Article to the Trustee
or to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the
Trustee or the holders of the Securities, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Indenture or otherwise established with respect to such Securities.


 


(b)           No delay or omission of the
Trustee or of any holder of any of the Securities 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 default or on acquiescence therein; and, subject to the provisions of
Section 6.04, every power and remedy given by this Article or by law to the
Trustee or the Securityholders may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the Securityholders.


 


25

















 


SECTION 6.06                     CONTROL BY SECURITYHOLDERS.


 


The holders of a majority
in aggregate principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.01, 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 on
the Trustee with respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture or be
unduly prejudicial to the rights of holders of Securities of any other series
at the time Outstanding determined in accordance with Section 8.01. Subject to
the provisions of Section 7.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding affected thereby, determined in accordance with Section 8.01, may
on behalf of the holders of all of the Securities of such series waive any past
default in the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series and its
consequences, except a default in the payment of the principal of (or premium,
if any) or interest on, any of the Securities of that series as and when the
same shall become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)) or in respect
of a covenant or provision hereof which under Article IX cannot be modified or
amended without the consent of the holder of each Outstanding Security
affected. Upon any such waiver, the default covered thereby shall be deemed to
be cured for all purposes of this Indenture and the Company, the Trustee and
the holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.


 


SECTION 6.07                     UNDERTAKING TO PAY COSTS.


 


All parties to this
Indenture agree, and each holder of any Securities by such holder’s acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
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 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, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
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; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.


 


26

















 


ARTICLE
VII

CONCERNING THE TRUSTEE


 


SECTION 7.01                     CERTAIN DUTIES AND
RESPONSIBILITIES OF TRUSTEE.


 


(a)           The Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of a series
and after the curing of all Events of Default with respect to the Securities of
that series that may have occurred, shall undertake to perform with respect to
the Securities of such series such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants shall be
read into this Indenture against the Trustee. In case an Event of Default with
respect to the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.


 


(b)           No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:


 


(i)            prior to the occurrence of
an Event of Default with respect to the Securities of a series and after the
curing or waiving of all such Events of Default with respect to that series
that may have occurred: the duties and obligations of the Trustee shall with
respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect
to the Securities of such series 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 in the absence of bad faith on the part of the Trustee, the Trustee may
with respect to the Securities of such series 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; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirement of this Indenture;


 


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


 


(iii)          the Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the holders of not less than a
majority in principal amount of the Securities of any series at the time
Outstanding relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the Securities
of that series; and


 


(iv)          none of the provisions
contained in this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the


 


27

















 


performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing
that the repayment of such funds or liability is not reasonably assured to it
under the terms of this Indenture or adequate indemnity against such risk is
not reasonably assured to it.


 


(c)           The Trustee shall not be
deemed to have notice of any Default or Event of Default with respect to any
series of Securities, except Events of Default under Section 6.01(a)(1) or
(a)(2), unless a Responsible Officer has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.


 


SECTION 7.02                     NOTICE OF DEFAULTS.


 


If a Default occurs
hereunder with respect to Securities of any series and is known to a
Responsible Officer of the Trustee, the Trustee shall give the holders of Securities
of such series notice of such Default as and to the extent provided by the
Trust Indenture Act; provided, however, that in the case of any Default of the
character specified in clause (3) of Section 6.01(a) with respect to Securities
of such series, no such notice to holders shall be given until at least 30 days
after the occurrence thereof.


 


SECTION 7.03                     CERTAIN RIGHTS OF TRUSTEE.


 


Except as otherwise
provided in Section 7.01:


 


(a)           The Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;


 


(b)           Any request, direction,
order or demand of the Company mentioned herein shall be sufficiently evidenced
by a Board Resolution or an instrument signed in the name of the Company, by
the President or any Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer thereof (unless other
evidence in respect thereof is specifically prescribed herein);


 


(c)           The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken or suffered or omitted hereunder in good faith and in reliance thereon;


 


(d)           The Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived) to exercise with respect to
Securities of that series such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in


 


28

















 


their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs;


 


(e)           The Trustee shall not be
liable for any action taken or omitted to be taken by it in good faith and
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;


 


(f)            The Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other papers or
documents, unless requested in writing so to do by the holders of not less than
a majority in principal amount of the Outstanding Securities of the particular
series affected thereby (determined as provided in Section 8.04); provided,
however, 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 is, in the opinion of the Trustee, 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 costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and


 


(g)           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.


 


SECTION 7.04                     TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR
SECURITIES.


 


(a)           The recitals contained
herein and in the Securities shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same.


 


(b)           The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities.


 


(c)           The Trustee shall not be
accountable for the use or application by the Company of any of the Securities
or of the proceeds of such Securities, or for the use or application of any
moneys paid over by the Trustee in accordance with any provision of this
Indenture or established pursuant to Section 2.01, or for the use or
application of any moneys received by any paying agent other than the Trustee.


 


SECTION 7.05                     MAY HOLD SECURITIES.


 


The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it would have if
it were not Trustee, paying agent or Security Registrar.


 


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SECTION 7.06                     MONEYS HELD IN TRUST.


 


Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but 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
moneys received by it hereunder except such as it may agree with the Company to
pay thereon.


 


SECTION 7.07                     COMPENSATION AND REIMBURSEMENT.


 


(a)           The Company covenants and
agrees to pay to the Trustee, and the Trustee shall be entitled to, such
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), as the Company,
and the Trustee may from time to time agree in writing, for all services
rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability in
the premises.


 


(b)           The obligations of the
Company under this Section to compensate and indemnify the Trustee and to pay
or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities.


 


SECTION 7.08                     RELIANCE ON OFFICERS’ CERTIFICATE.


 


Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers’ Certificate delivered to the Trustee and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warranty to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.


 


SECTION 7.09                     DISQUALIFICATION;
CONFLICTING INTERESTS.


 


If the Trustee has or
shall acquire any “conflicting interest” within the meaning of Section 310(b)
of the Trust Indenture Act, the Trustee and the Company shall in all respects


 


30

















 


comply with the
provisions of Section 310(b) of the Trust Indenture Act, subject to the
penultimate paragraph thereof.


 


SECTION 7.10                     CORPORATE TRUSTEE REQUIRED;
ELIGIBILITY.


 


There shall at all times
be a Trustee with respect to the Securities issued hereunder which shall at all
times be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the District
of Columbia, or a corporation or other Person permitted to act as trustee by
the Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section
7.11.


 


SECTION 7.11                     RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.


 


(a)           The Trustee or any successor
hereafter appointed, may at any time resign with respect to the Securities of
one or more series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities of such series
by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee with
respect to Securities of such series, or any Securityholder of that series who
has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.


 


(b)           In case at any time any one
of the following shall occur:


 


(i)            the Trustee shall fail to
comply with the provisions of Section 7.09 after written request therefor by
the Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months; or


 


31

















 


(ii)           the Trustee shall cease to
be eligible in accordance with the provisions of Section 7.10 and shall fail to
resign after written request therefor by the Company or by any such
Securityholder; or


 


(iii)          the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence
a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its
property shall be appointed or consented to, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such case, the
Company may remove the Trustee with respect to all Securities and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, unless, in the
case of a failure to comply with Section 7.09, the Trustee’s duty to resign is
stayed as provided in the penultimate paragraph of Section 310(b) of the Trust
Indenture Act, any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months may, on behalf of that holder and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.


 


(c)           The holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding may at any time remove the Trustee with respect to such series by
so notifying the Trustee and the Company and may appoint a successor Trustee
for such series with the consent of the Company.


 


(d)           Any resignation or removal
of the Trustee and appointment of a successor trustee with respect to the
Securities of a series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.12.


 


(e)           Any successor trustee
appointed pursuant to this Section may be appointed with respect to the
Securities of one or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Securities of any particular
series.


 


SECTION 7.12                     ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.


 


(a)           In case of the appointment
hereunder of a successor trustee with respect to all Securities, every such
successor trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor trustee all the rights,
powers, and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor trustee all property and money held by such retiring
Trustee hereunder.


 


32

















 


(b)           In case of the appointment
hereunder of a successor trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and each successor
trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor trustee shall
accept such appointment and which


 


(i)            shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates,


 


(ii)           shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and


 


(iii)          shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates.


 


(c)           Upon request of any such
successor trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.


 


(d)           No successor trustee shall
accept its appointment unless at the time of such acceptance such successor
trustee shall be qualified and eligible under this Article.


 


(e)           Upon acceptance of
appointment by a successor trustee as provided in this Section, the Company
shall transmit notice of the succession of such trustee hereunder by mail,
first class postage prepaid, to the Securityholders, as their names and
addresses appear upon the


 


33

















 


Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the
expense of the Company.


 


SECTION 7.13                     MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.


 


Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.09 and eligible under the
provisions of Section 7.10, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.


 


SECTION 7.14                     PREFERENTIAL COLLECTION OF
CLAIMS AGAINST THE COMPANY.


 


The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship described 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 included therein.


 


ARTICLE
VIII

CONCERNING THE SECURITYHOLDERS


 


SECTION 8.01                     EVIDENCE OF ACTION BY SECURITYHOLDERS.


 


Whenever in this
Indenture it is provided that the holders of a majority or specified percentage
in aggregate principal amount of the Securities of a particular series may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at
the time of taking any such action the holders of such majority or specified
percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in Person or by agent or proxy appointed
in writing. If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers’
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that


 


34

















 


series have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the record date;
provided, however, that no such authorization, agreement or consent by such
Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
six months after the record date.


 


SECTION 8.02                     PROOF OF EXECUTION BY SECURITYHOLDERS.


 


Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder
(such proof will not require notarization) or his agent or proxy and proof of
the holding by any Person of any of the Securities shall be sufficient if made
in the following manner:


 


(a)           The fact and date of the
execution by any such Person of any instrument may be proved in any reasonable
manner acceptable to the Trustee.


 


(b)           The ownership of Securities
shall be proved by the Security Register of such Securities or by a certificate
of the Security Registrar thereof.


 


(c)           The Trustee may require such
additional proof of any matter referred to in this Section as it shall deem
necessary.


 


SECTION 8.03                     WHO MAY BE DEEMED OWNERS.


 


Prior to the due
presentment for registration of transfer of any Security, the Company, the
Trustee, any paying agent and any Security Registrar may deem and treat the
Person in whose name such Security shall be registered upon the books of the
Company as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of (and premium, if any) and (subject
to Section 2.03) interest on such Security and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.


 


SECTION 8.04                     CERTAIN SECURITIES OWNED BY COMPANY DISREGARDED.


 


In determining whether
the holders of the requisite aggregate principal amount of Securities of a
particular series have concurred in any direction, consent or waiver under this
Indenture, the Securities of that series that are owned by the Company or any
other obligor on the Securities of that series or by any Person directly or
indirectly controlling or controlled by or under common control with the
Company or any other obligor on the Securities of that series shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Securities of such series that the Trustee actually knows are so owned shall be
so disregarded. The Securities so owned that have been pledged in good faith
may be regarded as Outstanding for the purposes of this Section, if the


 


35

















 


pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with
respect to such Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.


 


SECTION 8.05                     ACTIONS BINDING ON FUTURE
SECURITYHOLDERS.


 


At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this
Indenture in connection with such action, any holder of a Security of that
series that is shown by the evidence to be included in the Securities the
holders of which have consented to such action may, by filing written notice
with the Trustee, and upon proof of holding as provided in Section 8.02, 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
Security issued in exchange therefor, on registration of transfer thereof or in
place thereof, irrespective of whether or not any notation in regard thereto is
made upon such Security. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Securities of that series.


 


ARTICLE
IX

SUPPLEMENTAL INDENTURES


 


SECTION 9.01                     SUPPLEMENTAL INDENTURES
WITHOUT THE CONSENT OF SECURITYHOLDERS.


 


In addition to any
supplemental indenture otherwise authorized by this Indenture, the Company and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect), without the consent of the
Securityholders, for one or more of the following purposes:


 


(1)           to cure any ambiguity,
defect, or inconsistency herein, in the Securities of any series;


 


(2)           to comply with Article X;


 


(3)           to provide for
uncertificated Securities in addition to or in place of certificated
Securities;


 


(4)           to add to the covenants of
the Company for the benefit of the holders of all or any series of Securities
(and if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred
upon the Company or to add any additional Events of Default for the benefit of
the holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,


 


36

















 


stating that such additional Events of Default are
expressly being included solely for the benefit of such series);


 


(5)           to add to, delete from, or
revise the conditions, limitations, and restrictions on the authorized amount,
terms, or purposes of issue, authentication, and delivery of Securities (prior
to the issuance thereof), as herein set forth;


 


(6)           to make any change that does
not adversely affect the rights of any Securityholder in any material respect;


 


(7)           to provide for the issuance
of and establish the form and terms and conditions of the Securities of any
series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of
Securities; or


 


(8)           to evidence and provide for
the acceptance of appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 7.12.


 


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


 


Any supplemental
indenture authorized by the provisions of this Section may be executed by the
Company and the Trustee without the consent of the holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 9.02.


 


SECTION 9.02                     SUPPLEMENTAL INDENTURES WITH
CONSENT OF SECURITYHOLDERS.


 


With the consent
(evidenced as provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Securities of each series
affected by such supplemental indenture or indentures at the time Outstanding,
the Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect) 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 not covered by Section
9.01 the rights of the holders of the Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the holders of each Security then Outstanding and affected
thereby:


 


(1)           change the maturity of the
principal of, or any installment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of interest thereon


 


37

















 


or any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount Security or
any other Security which would be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.01 or change the
coin or currency in which any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the maturity thereof (or, in the case of redemption, on or
after the redemption date), or


 


(2)           reduce the percentage in
principal amount of the Outstanding Securities of any series, the consent of
whose holders is required for any such supplemental indenture, or the consent
of whose holders is required for any waiver of certain defaults hereunder and
their consequences provided for in this Indenture, or


 


(3)           modify any of the provisions
of this Section or Section 6.06 relating to waivers of default, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the holder
of each Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any holder with respect to
changes in the references to “the Trustee” and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the requirements
of Sections 7.12 and 9.01(8).


 


A supplemental indenture
which changes or eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of the holders of
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the holders of
Securities of any other series. It shall not be necessary for the consent of
the Securityholders of any series affected thereby under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.


 


SECTION 9.03                     EFFECT OF SUPPLEMENTAL INDENTURES.


 


Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section
10.01, this Indenture shall, with respect to such series, 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 the 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 9.04                     SECURITIES AFFECTED BY
SUPPLEMENTAL INDENTURES.


 


Securities of any series,
affected by a supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the provisions of this
Article or of Section 10.01, may bear a notation in form approved by the
Company, provided such form meets the requirements of any exchange upon which
such series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new


 


38

















 


Securities of that
series so modified as to conform, in the opinion of the Board of Directors of
the Company, 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 Securities of that series then Outstanding.


 


SECTION 9.05                     EXECUTION OF SUPPLEMENTAL INDENTURES.


 


Upon the request of the
Company, accompanied by its Board Resolutions authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence
of the consent of Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section 7.01,
may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper for the Trustee
under the provisions of this Article to join in the execution thereof;
provided, however, that such Opinion of Counsel need not be provided in
connection with the execution of a supplemental indenture that establishes the
terms of a series of Securities pursuant to Section 2.01 hereof.


 


Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of this Section, the Trustee shall transmit by mail, first
class postage prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Securityholders of all series affected
thereby as their names and addresses appear upon the Security Register. Any
failure of the Trustee to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture.


 


ARTICLE
X

SUCCESSOR ENTITY


 


SECTION 10.01                  COMPANY MAY CONSOLIDATE, ETC.


 


Nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of the Company with or into any other Person (whether or not affiliated with
the Company) or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property of the Company
or its successor or successors as an entirety, or substantially as an entirety,
to any other Person (whether or not affiliated with the Company or its
successor or successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any such
consolidation or merger (in each case, if the Company is not the survivor of
such transaction), sale, conveyance, transfer or other disposition, the due and
punctual payment of the principal of (and premium, if any) and interest on all
of the Securities of all series in accordance with the terms of each series,
according to their tenor and the due and punctual performance and observance of
all the covenants and conditions of this Indenture or established with respect
to each series of Securities pursuant to Section 2.01 to be kept or performed
by the Company shall be expressly assumed, by supplemental indenture


 


39

















 


(which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee by
the entity formed by such consolidation, or into which the Company shall have
been merged, or by the entity which shall have acquired such property.


 


SECTION 10.02                  SUCCESSOR ENTITY SUBSTITUTED.


 


(a)           In case of any such
consolidation, merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor entity by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of (and premium, if any) and interest on
all of the Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Securities pursuant to Section
2.01 to be performed by the Company, such successor entity shall succeed to and
be substituted for the Company with the same effect as if it had been named as
the Company herein, and thereupon the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and the Securities.


 


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


 


(c)           Nothing contained in this
Article shall require any action by the Company in the case of a consolidation
or merger of any Person into the Company where the Company is the survivor of
such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not
affiliated with the Company).


 


SECTION 10.03                  EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE.


 


The Trustee, subject to
the provisions of Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
other disposition, and any such assumption, comply with the provisions of this
Article.


 


ARTICLE
XI

SATISFACTION AND DISCHARGE; DEFEASANCE


 


SECTION 11.01                  SATISFACTION AND DISCHARGE.


 


This Indenture will be
discharged and will cease to be of further effect with respect to a series of
Securities (except as to any surviving rights of registration of transfer or
exchange of such series of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
series, when:


 


(1)           either (A) all Securities of
that series theretofore authenticated and delivered (other than (i) any
Securities that shall have been destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.07 and (ii) Securities for whose
payment money or noncallable Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged


 


40

















 


from such trust, as provided in Section 11.05) have
been delivered to the Trustee for cancellation; or (B) all Securities of such
series not theretofore delivered to the Trustee for cancellation (i) have
become due and payable, or (ii) will by their terms become due and payable
within one year, or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with the
Trustee as trust funds in trust for the purpose (x) moneys in an amount, or (y)
noncallable Governmental Obligations the scheduled principal of and interest on
which in accordance with their terms will provide, not later than the due date
of any payment, money in an amount, or (z) a combination thereof, sufficient,
in the case of (y) or (z), in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, at maturity or upon redemption,
all Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be;


 


(2)           the Company has paid or
caused to be paid all other sums payable hereunder with respect to such series
by the Company; and


 


(3)           the Company has delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all the conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such series of
Securities have been complied with. Notwithstanding the satisfaction and
discharge of this Indenture with respect to a series of Securities, the
obligations of the Trustee under Section 7.07 and, if money shall have been
deposited with the Trustee pursuant to subclause (y) of clause (1) of this
Section, the obligations of the Trustee under Sections 11.03 and 11.05 shall
survive.


 


SECTION 11.02                  DEFEASANCE.


 


The Company may, at its
option and at any time (including notwithstanding the exercise by the Company
of a Covenant Defeasance (as defined herein)), elect to have its obligations
discharged with respect to a series of the Securities (“Legal Defeasance”).
Such Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such series of Securities,
except for (a) the rights of holders to receive payments in respect of the
principal of (and premium, if any) and interest on the Securities when such
payments are due solely from the trust fund described in this Section, (b) the
Company’s obligations with respect to such series of Securities concerning
issuing temporary Securities, registration of transfer or exchange of such
series of Securities, mutilated, destroyed, lost or stolen Securities of such
series and the maintenance of an office or agency for payments, (c) the rights,
powers, trust, duties and immunities of the Trustee and the Company’s
obligations in connection therewith and (d) the Legal Defeasance provisions of
this Indenture. In addition, the Company may, at its option and at any time,
elect to have the obligations of the Company released with respect to covenants
provided with respect to such series of Securities under Section 2.01(15),
9.01(4) and 9.01(7) of this Indenture (“Covenant Defeasance”) and thereafter
any omission to comply with such obligations shall not constitute a Default or
Event of Default with respect to such series of Securities. In the event of
Covenant Defeasance, those events described under Section 6.01(a) with respect
to the foregoing covenants will no longer constitute an Event of Default with
respect to such series of Securities.


 


41

















 


In order to exercise
either Legal Defeasance or Covenant Defeasance:


 


(1)           the Company must irrevocably
deposit with the Trustee, in trust, for the benefit of the holders of such
series, (A) moneys in an amount, or (B) noncallable Governmental Obligations
the scheduled principal of and interest on which in accordance with their terms
will provide, not later than the due date of any payment, money in an amount,
or (C) a combination thereof, sufficient, in the case of (B) or (C), in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, at maturity or upon redemption, the principal of (and premium,
if any) and interest on such series of Securities on the stated date for
payment thereof or on the applicable redemption date, as the case may be;


 


(2)           in the case of Legal
Defeasance, the Company shall have delivered to the Trustee an Opinion of
Counsel confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the holders of such series of Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;


 


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


 


(4)           no Default or Event of Default
shall have occurred and be continuing on the date of such deposit or insofar as
Events of Default under clauses (4) and (5) of Section 6.01(a) with respect to
the Securities of such series are concerned, at any time in the period ending
on the 91st day after the date of deposit;


 


(5)           the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for or relating to the
Legal Defeasance or the Covenant Defeasance, as the case may be, have been
complied with; and


 


(6)           if such series of Securities
are to be redeemed prior to final maturity (other than from mandatory sinking
fund payments or analogous payments), notice of such redemption shall have been
duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee shall have been made.


 


SECTION 11.03                  DEPOSITED MONEYS TO BE HELD IN TRUST.


 


All moneys or
Governmental Obligations deposited with the Trustee pursuant to Sections 11.01
or 11.02 shall be held in trust and shall be available for payment as due,
either directly or


 


42

















 


through any paying
agent (including the Company acting as its own paying agent), to the holders of
the particular series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.


 


SECTION 11.04                  PAYMENT OF MONEYS HELD BY PAYING AGENTS.


 


In connection with the
satisfaction and discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.


 


SECTION 11.05                  REPAYMENT TO COMPANY.


 


Any moneys or
Governmental Obligations deposited with any paying agent or the Trustee, or
then held by the Company, in trust for payment of principal of (or premium, if
any) or interest on the Securities of a particular series that are not applied
but remain unclaimed by the holders of such Securities for at least two years
after the date upon which the principal of (and premium, if any) or interest on
such Securities shall have respectively become due and payable, shall be repaid
to the Company on May 31 of each year or (if then held by the Company) shall be
discharged from such trust; and thereupon the paying agent and the Trustee
shall be released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Company for the payment thereof.


 


ARTICLE
XII

IMMUNITY OF INCORPORATORS, 

STOCKHOLDERS, OFFICERS AND DIRECTORS


 


SECTION 12.01                  NO RECOURSE.


 


No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security, or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director, past, present or
future as such, of the Company or of any predecessor or successor corporation,
either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or implied therefrom, are hereby expressly waived and


 


43

















 


released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Securities.


 


ARTICLE
XIII

MISCELLANEOUS PROVISIONS


 


SECTION 13.01                  EFFECT ON SUCCESSORS AND ASSIGNS.


 


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


 


SECTION 13.02                  ACTIONS BY SUCCESSOR.


 


Any act or proceeding by
any provision of this Indenture authorized or required to be done or performed
by any board, committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board, committee or
officer of any corporation that shall at the time be the lawful successor of
the Company.


 


SECTION 13.03                  SURRENDER OF COMPANY POWERS.


 


The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the
Trustee may surrender any of the powers reserved to the Company, and thereupon
such power so surrendered shall terminate both as to the Company and as to any
successor corporation.


 


SECTION 13.04                  NOTICES.


 


Except as otherwise
expressly provided herein 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 first class postage prepaid in a post-office letterbox addressed
(until another address is filed in writing by the Company with the Trustee), as
follows: 10100 Old Columbia Road, Columbia, Maryland 21046. Any notice,
election, 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 in writing at the Corporate Trust Office of the
Trustee.


 


SECTION 13.05                  GOVERNING LAW.


 


This Indenture and each
Security shall be deemed to be a contract made under the internal laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State.


 


SECTION 13.06                  TREATMENT OF SECURITIES AS DEBT.


 


It is intended that the
Securities will be treated as indebtedness and not as equity for federal income
tax purposes. The provisions of this Indenture shall be interpreted to further
this intention.


 


44

















 


SECTION 13.07                  COMPLIANCE CERTIFICATES AND OPINIONS.


 


(a)           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 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 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.


 


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


 


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


 


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


 


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


 


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


 


SECTION 13.08                  PAYMENTS ON BUSINESS DAYS.


 


Except as provided
pursuant to Section 2.01 pursuant to a Board Resolution, and as set forth in an
Officers’ Certificate, or established in one or more indentures supplemental to
this Indenture, in any case where the date of maturity of interest or principal
of any Security or the date of redemption of any Security shall not be a
Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as
if made on the nominal date of maturity or redemption, and no interest shall
accrue for the period after such nominal date.


 


SECTION 13.09                  CONFLICT WITH TRUST INDENTURE ACT.


 


If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.


 


45

















 


SECTION 13.10                  COUNTERPARTS.


 


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


 


SECTION 13.11                  SEPARABILITY.


 


In case any one or more
of the provisions contained in this Indenture or in the Securities of any
series shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.


 


SECTION 13.12                  ASSIGNMENT.


 


The Company will have the
right at all times to assign any of its rights or obligations under this
Indenture to a direct or indirect wholly-owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company, will remain
liable for all such obligations. Subject to the foregoing, the Indenture is
binding upon and inures to the benefit of the parties thereto and their
respective successors and assigns. This Indenture may not otherwise be assigned
by the parties thereto.


 


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


 


	
   

  	
  DURATEK, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
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  U.S. Bank National
  Association, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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