Exhibit 4.05


 




 


 





DURATEK INC.

ISSUER


 


 


AND


 


 


U.S. BANK NATIONAL
ASSOCIATION

TRUSTEE


 












 


INDENTURE


 


DATED AS OF [ ], [ ]


 












 


SUBORDINATED 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.


 


i

















 


TABLE OF CONTENTS(1)


 


	
  ARTICLE I

  	
  Article
  I DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  DEFINITIONS
  OF TERMS.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  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

  	
  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

  	
  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.

  	
   

  
				



 












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


 


ii

















 


	
  Section
  4.06

  	
  STATEMENT BY
  OFFICERS AS TO DEFAULT.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  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

  	
  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

  	
  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.

  	
   

  
				



 


iii

















 


	
  ARTICLE VIII

  	
  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

  	
  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

  	
  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

  	
  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

  	
  Article XII IMMUNITY OF INCORPORATORS,  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  NO RECOURSE.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  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.

  	
   

  
	
  Section 13.05

  	
  GOVERNING LAW.

  	
   

  
				



 


iv

















 


	
  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.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  Article XIV SUBORDINATION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  14.01

  	
  SUBORDINATION
  TERMS.

  	
   

  
				



 


v

















 


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 subordinated 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.


 


“SENIOR INDEBTEDNESS”
means the principal of (and premium, if any) and interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on any indebtedness of
the Company, incurred or assumed, unless, in the case of any particular
indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such indebtedness shall
not be senior in right of payment to the Securities. Notwithstanding the
foregoing, “SENIOR INDEBTEDNESS” shall not include (i) any indebtedness of the
Company to a Subsidiary of the Company or any Affiliate of the Company or any
of such Affiliate’s Subsidiaries, (ii) indebtedness to, or guaranteed on behalf
of, any shareholder, director, officer or employee of the Company or any
Subsidiary of the Company (including, without limitation, amounts owed for
compensation), (iii) indebtedness to trade creditors and other amounts incurred
in connection with obtaining goods, materials or services, (iv) any liability
for federal, state, local or other taxes owed or owing by the Company, (v) that
portion of any indebtedness incurred in violation of an incurrence test
applicable to a series of the Securities, (vi) that portion of any indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of Title 11, United States Code, is without recourse to the Company and (vii)
that portion of any indebtedness which is, by its express terms, subordinated
in right of payment to the Securities.


 


“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.


 


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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 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;


 


6

















 


(9)           any
additional or different subordination terms applicable to the Securities of the
series;


 


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


 


(11)         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;


 


(12)         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;


 


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


 


(14)         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;


 


(15)         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;


 


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


 


(17)         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


 


(18)         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


 


7

















 


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(11).
The Securities of a particular series shall bear interest payable on the dates
and at the rates specified or provided for with respect to that series. Except
as contemplated by Section 2.01(18), 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


 


8

















 


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.


 


(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


 


9

















 


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 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


 


10

















 


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.


 


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


 


11

















 


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 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
(and, with respect to the provisions of Article XIV, the holders of Senior
Indebtedness) any legal


 


12

















 


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 (and, with respect to the provisions of Article XIV, the holders of
Senior Indebtedness).


 


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 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,


 


13

















 


(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 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.


 


14

















 


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 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


 


15

















 


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 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.


 


16

















 


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.


 


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


 


17

















 


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;


 


(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


 


18

















 


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 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.


 


19

















 


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.


 


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


 


20

















 


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.


 


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 occasioned by the subordination provisions of Article XIV or other
subordination provisions applicable to a series of Securities or 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


 


21

















 


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


 


(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


 


22

















 


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:


 


(1)           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


 


(2)           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.


 


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


 


(a)           The
Company covenants that


 


(1)           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


 


(2)           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


 


23

















 


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.


 


(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


 


24

















 


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;


 


SECOND: To the payment of
all Senior Indebtedness of the Company if and to the extent required by Article
XIV or other subordination provisions applicable with respect to such series;
and


 


THIRD: 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;


 


(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


 


25

















 


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.


 


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


 


26

















 


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.


 


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.


 


27

















 


(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:


 


(1)           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;


 


(2)           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;


 


(3)           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


 


(4)           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 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.


 


28

















 


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 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);


 


29

















 


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.


 


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


 


30

















 


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
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


 


31

















 


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:


 


(1)           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


 


(2)           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


 


(3)           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


 


32

















 


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.


 


(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


 


(1)           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,


 


(2)           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


 


33

















 


(3)           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 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


 


34

















 


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 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.


 


35

















 


(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 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


 


36

















 


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, 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


 


37

















 


(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 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


 


38

















 


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); or


 


(4)           modify
the provisions of this Indenture with respect to the subordination of such
Security in a manner adverse to the holder thereof.


 


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 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


 


39

















 


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 (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


 


40

















 


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 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


 


41

















 


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(16),
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.


 


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


 


42

















 


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 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. Funds held pursuant to this Section with
respect to any series of Securities shall not be subject to the claims of the
holders of Senior Indebtedness with respect to such series, provided, that at
the time of the deposit of such funds with the Trustee under this Article, no
event had occurred that would, under the subordination provisions related to
such series, require that any payment to be made to the holders of such
Securities be paid or paid over to the holders of such Senior Indebtedness.


 


43

















 


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


 


44

















 


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.


 


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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


 


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


 


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


 


(3)           a
statement that, in the opinion of such Person, 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


 


(4)           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.


 


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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.


 


ARTICLE XIV

SUBORDINATION OF SECURITIES


 


SECTION 14.01          SUBORDINATION
TERMS.


 


The payment by the
Company of the principal of, premium, if any, and interest on any series of
Securities issued hereunder shall be subordinated to the extent set forth in an
indenture supplemental hereto relating to such securities.


 


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:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. Bank
  National Association, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


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