Exhibit 4.5


 


 





 


Aeroflex
Incorporated


 


TO


 


[        ]


Trustee


 


JUNIOR SUBORDINATED INDENTURE


 


Dated
as of [           ], 2003


 












 




 





 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE ONE-

  	
   

  
	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
   

  
	
   

  	
   

  
	
  Section 101.  Definitions

  	
   

  
	
  Act

  	
   

  
	
  Affiliate

  	
   

  
	
  Authenticating
  Agent

  	
   

  
	
  Board of Directors

  	
   

  
	
  Board Resolution

  	
   

  
	
  Business Day

  	
   

  
	
  Commission

  	
   

  
	
  Company

  	
   

  
	
  Company Request
  and Company Order

  	
   

  
	
  Corporate Trust Office

  	
   

  
	
  Corporation

  	
   

  
	
  Covenant defeasance

  	
   

  
	
  Defaulted Interest

  	
   

  
	
  Defeasance

  	
   

  
	
  Depositary

  	
   

  
	
  Dollar

  	
   

  
	
  Event of Default

  	
   

  
	
  Exchange Act

  	
   

  
	
  Expiration Date

  	
   

  
	
  Foreign Currency

  	
   

  
	
  Global Security

  	
   

  
	
  Governmental
  Authority

  	
   

  
	
  Government Obligations

  	
   

  
	
  Holder

  	
   

  
	
  Indebtedness

  	
   

  
	
  Indenture

  	
   

  
	
  Interest Payment Date

  	
   

  
	
  Interest Rate

  	
   

  
	
  Investment
  Company Act

  	
   

  
	
  Junior Subordinated Payment

  	
   

  
	
  Lien

  	
   

  
	
  Maturity

  	
   

  
	
  Notice of Default

  	
   

  
	
  Officers’ Certificate

  	
   

  
	
  Opinion of Counsel

  	
   

  
	
  Original Issue Date

  	
   

  
	
  Original Issue
  Discount Security

  	
   

  
	
  Outstanding

  	
   

  



 


i

















 


	
  Paying Agent

  	
   

  
	
  Person

  	
   

  
	
  Place of Payment

  	
   

  
	
  Precedessor Security

  	
   

  
	
  Proceeding

  	
   

  
	
  Redemption Date

  	
   

  
	
  Redemption
  Price

  	
   

  
	
  Regular Record Date

  	
   

  
	
  Responsible Officer

  	
   

  
	
  Restricted Subsidiary

  	
   

  
	
  Securities or Security

  	
   

  
	
  Securities Act

  	
   

  
	
  Security
  Register and Security Registrar

  	
   

  
	
  Senior Indebtedness

  	
   

  
	
  Special Record Date

  	
   

  
	
  Stated Maturity

  	
   

  
	
  Subsidiary

  	
   

  
	
  Trust Indenture Act

  	
   

  
	
  Trustee

  	
   

  
	
  Vice President

  	
   

  
	
  Section 102.  Compliance Certificate and Opinions

  	
   

  
	
  Section 103.  Form of Documents Delivered to Trustee

  	
   

  
	
  Section 104.  Acts of Holders; Record Dates

  	
   

  
	
  Section 105.  Notices, Etc., to Trustee and Company

  	
   

  
	
  Section 106.  Notice to Holders; Waiver

  	
   

  
	
  Section 107.  Conflict with Trust Indenture Act

  	
   

  
	
  Section 108.  Effect of Headings and Table of Contents

  	
   

  
	
  Section 109.  Successors and Assigns

  	
   

  
	
  Section 110.  Separability Clause

  	
   

  
	
  Section 111.  Benefits of Indenture

  	
   

  
	
  Section 112.  Governing Law

  	
   

  
	
  Section 113.  Legal Holidays

  	
   

  
	
  Section 114.  Computations

  	
   

  
	
   

  	
   

  
	
  ARTICLE TWO-

  	
   

  
	
  SECURITY FORMS

  	
   

  
	
   

  	
   

  
	
  Section 201.  Forms Generally

  	
   

  
	
  Section 202.  Form of Legend for Global Securities

  	
   

  
	
  Section 203.  Form of Trustee’s Certificate of
  Authentication

  	
   

  
	
   

  	
   

  
	
  ARTICLE THREE-

  	
   

  
	
  THE SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 301.  Title; Terms

  	
   

  
	
  Section 302.  Denominations

  	
   

  



 


ii

















 


	
  Section 303.  Execution, Authentication, Delivery and
  Dating

  	
   

  
	
  Section 304.  Temporary Securities

  	
   

  
	
  Section 305.  Registration, Registration of Transfer and
  Exchange

  	
   

  
	
  Section 306.  Mutilated, Destroyed, Lost and Stolen
  Securities

  	
   

  
	
  Section 307.  Payment of Interest; Interest Rights
  Preserved

  	
   

  
	
  Section 308.  Persons Deemed Owners

  	
   

  
	
  Section 309.  Cancellation

  	
   

  
	
  Section 310.  Computation of Interest

  	
   

  
	
   

  	
   

  
	
  ARTICLE FOUR-

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  
	
  Section 401.  Satisfaction and Discharge of Indenture

  	
   

  
	
  Section 402.  Application of Trust Money

  	
   

  
	
   

  	
   

  
	
  ARTICLE FIVE-

  	
   

  
	
  REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section 501.  Events of Default

  	
   

  
	
  Section 502.  Acceleration of Maturity; Rescission and
  Annulment

  	
   

  
	
  Section 503.  Collection of Indebtedness an Suits for
  Enforcement by Trustee

  	
   

  
	
  Section 504.  Trustee May File Proofs of Claim

  	
   

  
	
  Section 505.  Trustee May Enforce Claims Without
  Possession of Securities

  	
   

  
	
  Section 506.  Application of Money Collected

  	
   

  
	
  Section 507.  Limitation on Suits

  	
   

  
	
  Section 508.  Unconditional Right of Holders to Receive
  Principal, Premium

  	
   

  
	
  Section 509.  Restoration of Rights and Remedies

  	
   

  
	
  Section 510.  Rights and Remedies Cumulative

  	
   

  
	
  Section 511.  Delay or Omission Not Waiver

  	
   

  
	
  Section 512.  Control by Holders

  	
   

  
	
  Section 513.  Waiver of Past Defaults

  	
   

  
	
  Section 514.  Undertaking for Costs

  	
   

  
	
  Section 515.  Waiver of Usury, Stay or Extension Laws

  	
   

  
	
   

  	
   

  
	
  ARTICLE SIX-

  	
   

  
	
  THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 601.  Certain Duties and Responsibilities

  	
   

  
	
  Section 602.  Notice of Defaults

  	
   

  
	
  Section 603.  Certain Rights of Trustee

  	
   

  
	
  Section 604.  Not Responsible for Recitals or Issuance
  of Securities

  	
   

  
	
  Section 605.  May Hold Securities

  	
   

  
	
  Section 606.  Money Held in Trust

  	
   

  
	
  Section 607.  Compensation and Reimbursement

  	
   

  
	
  Section 608.  Disqualification; Conflicting Interests

  	
   

  
	
  Section 609.  Corporate Trustee Required; Eligibility

  	
   

  



 


iii

















 


	
  Section 610.  Resignation and Removal; Appointment of
  Successor

  	
   

  
	
  Section 611.  Acceptance of Appointment by Successor

  	
   

  
	
  Section 612.  Merger, Conversion, Consolidation or
  Succession to Business

  	
   

  
	
  Section 613.  Preferential Collection of Claims Against
  Company

  	
   

  
	
  Section 614.  Appointment of Authenticating Agent

  	
   

  
	
   

  	
   

  
	
  ARTICLE SEVEN-

  	
   

  
	
  HOLDERS’
  LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
   

  
	
   

  	
   

  
	
  Section 701.  Company to Furnish Trustee Names and
  Addresses of Holders

  	
   

  
	
  Section 702.  Preservation of Information;
  Communications to Holders

  	
   

  
	
  Section 703.  Reports by Trustee

  	
   

  
	
  Section 704.  Reports by Company

  	
   

  
	
   

  	
   

  
	
  ARTICLE EIGHT-

  	
   

  
	
  CONSOLIDATION, MERGER, CONVEYANCE,
  TRANSFER OR LEASE

  	
   

  
	
   

  	
   

  
	
  Section 801.  Company May Consolidate, Etc., Only on
  Certain Terms

  	
   

  
	
  Section 802.  Successor Corporation Substituted

  	
   

  
	
   

  	
   

  
	
  ARTICLE NINE-

  	
   

  
	
  SUPPLEMENTAL
  INDENTURES

  	
   

  
	
   

  	
   

  
	
  Section 901.  Supplemental Indentures Without Consent of
  Holdres

  	
   

  
	
  Section 902.  Supplemental Indentures With Consent of
  Holders

  	
   

  
	
  Section 903.  Execution of Supplemental Indentures

  	
   

  
	
  Section 904.  Effect of Supplemental Indentures

  	
   

  
	
  Section 905.  Conformity with Trust Indenture Act

  	
   

  
	
  Section 906.  Reference in Securities to Supplement
  Indentures

  	
   

  
	
   

  	
   

  
	
  ARTICLE TEN-

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 1001. Payment
  of Principal, Premium and Interest

  	
   

  
	
  Section 1002.
  Maintenance of Office or Agency

  	
   

  
	
  Section 1003. Money
  for Securities Payments to be Held in Trust

  	
   

  
	
  Section 1004.
  Statement by Officers as to Default

  	
   

  
	
  Section 1005.
  Existence

  	
   

  
	
  Section 1006.
  Maintenance of Properties

  	
   

  
	
  Section 1007. Payment
  of Taxes

  	
   

  
	
  Section 1008.
  [Intentionally Omitted]

  	
   

  
	
  Section 1009. Waiver
  of Certain Covenants

  	
   

  



 


iv

















 


	
  ARTICLE ELEVEN

  	
   

  
	
  REDEMPTION
  OF SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 1101.  Company’s Right of Redemption

  	
   

  
	
  Section 1102.  Applicability of Article

  	
   

  
	
  Section 1103.  Election to Redeem; Notice to Trustee

  	
   

  
	
  Section 1104.  Selection by Trustee of Securities to be
  Redeemed

  	
   

  
	
  Section 1105.  Notice of Redemption

  	
   

  
	
  Section 1106.  Deposit of Redemption Price

  	
   

  
	
  Section 1107.  Securities Payable on Redemption Date

  	
   

  
	
  Section 1108.  Securities Redeemed in Part

  	
   

  
	
   

  	
   

  
	
  ARTICLE TWELVE-

  	
   

  
	
  SUBRODINATION OF SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 1201.  Securities Subordinate to Senior
  Indebtedness

  	
   

  
	
  Section 1202.  Payment Over of Proceeds Upon Dissolution,
  Etc.

  	
   

  
	
  Section 1203.  Prior Payment to Senior Indebtedness

  	
   

  
	
  Section 1204.  No Payment When Senior Indebtedness in
  Default

  	
   

  
	
  Section 1205.  Payment Permitted If No Default

  	
   

  
	
  Section 1206.  Subrogation to Rights of Holders of Senior
  Indebtedness

  	
   

  
	
  Section 1207.  Provisions Solely to Define Relative
  Rights

  	
   

  
	
  Section 1208.  Trustee to Effectuate Subordination

  	
   

  
	
  Section 1209.  No Waiver of Subordination Provisions

  	
   

  
	
  Section 1210.  Notice to Trustee

  	
   

  
	
  Section 1211.  Reliance on Judicial Order or Certificate
  of Liquidating Agent

  	
   

  
	
  Section 1212.  Trustee Not Fiduciary For Holders of
  Senior Indebtedness

  	
   

  
	
  Section 1213.  Rights of Trustee as Holder of Senior
  Indebtedness; Preservation of Trustee’s Rights

  	
   

  
	
  Section 1214.  Article Applicable to Paying Agents

  	
   

  
	
  Section 1215.  Certain Conversions or Exchanges Deemed
  Payment

  	
   

  
	
   

  	
   

  
	
  ARTICLE THIRTEEN-

  	
   

  
	
  DEFEASANCE AND
  COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section 1301.  Company’s Option to Effect Defeasance or
  Covenant Defeasance

  	
   

  
	
  Section 1302.  Defeasance and Discharge

  	
   

  
	
  Section 1303.  Covenant Defeasance

  	
   

  
	
  Section 1304.  Conditions to Defeasance or Covenant
  Defeasance

  	
   

  
	
  Section 1305.  Deposited Money and Government Obligations
  to be Held in Trust; Miscellaneous Provisions

  	
   

  
	
  Section 1306.  Reinstatement

  	
   

  
	
  Section 1307.  Qualifying Trustee

  	
   

  



 


v

















 


CERTAIN
SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318, INCLUSIVE OF
THE TRUST INDENTURE ACT OF 1939


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture
  Section

  
	
   

  	
   

  	
   

  
	
  Section 310(a)(1)

  	
   

  	
  609,610

  
	
  (a)(2)

  	
   

  	
  609

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
  (a)(5)

  	
   

  	
  609

  
	
  (b)

  	
   

  	
  608, 610

  
	
  Section 311 (a)

  	
   

  	
  613

  
	
  (b)

  	
   

  	
  613

  
	
  Section 312(a)

  	
   

  	
  701, 702

  
	
  (b)

  	
   

  	
  702

  
	
  (c)

  	
   

  	
  702

  
	
  Section 313(a)

  	
   

  	
  703

  
	
  (b)

  	
   

  	
  703

  
	
  (c)

  	
   

  	
  703

  
	
  (d)

  	
   

  	
  703

  
	
  Section 314(a)

  	
   

  	
  704

  
	
  (a)(4)

  	
   

  	
  101, 1004

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
  102

  
	
  (c)(2)

  	
   

  	
  102

  
	
  (c)(3)

  	
   

  	
  NA

  
	
  (d)

  	
   

  	
  NA

  
	
  (e)

  	
   

  	
  102

  
	
  Section 315 (a)

  	
   

  	
  601

  
	
  (b)

  	
   

  	
  602

  
	
  (c)

  	
   

  	
  601

  
	
  (d)

  	
   

  	
  601

  
	
  (e)

  	
   

  	
  514

  
	
  Section 316 (a)

  	
   

  	
  101

  
	
  (a)(1)(a)

  	
   

  	
  502,512

  
	
  (a)(1)(b)

  	
   

  	
  513

  
	
  (a)(2)

  	
   

  	
  NA

  
	
  (b)

  	
   

  	
  508

  
	
  (c)

  	
   

  	
  104

  
	
  Section 317 (a)(1)

  	
   

  	
  503

  
	
  (a)(2)

  	
   

  	
  504

  
	
  (b)

  	
   

  	
  1003

  
	
  Section 318 (a)

  	
   

  	
  107

  



 


NOTE: This reconciliation
and tie shall not, for any purpose, be deemed to be a part of the Indenture.


 


vi

















 


JUNIOR
SUBORDINATED INDENTURE, dated as of
[           ], 2003,
between Aeroflex Incorporated, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the “Company”), having its
principal office at 35 South Service Road, Plainview, New York 11803, and
[           ], as
Trustee (herein called the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured junior subordinated debt securities
in one or more series (the “Securities”) of substantially the tenor hereinafter
provided, and to provide the terms and conditions upon which the Securities are
to be authenticated, issued and delivered; and all things necessary to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
and to make this Indenture a valid agreement of the Company, in accordance with
its terms, have been done.


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


For and in consideration
of the premises and the purchase of the Securities by the Holders thereof, it
is mutually agreed, for the equal and proportionate benefit of all Holders of
the Securities or of a series thereof, as follows:


 


ARTICLE ONE


DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


SECTION 101.         Definitions.


 


For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:


 


(1) the terms defined in
this Article have the meanings assigned to them in this Article and include the
plural as well as the singular;


 


(2) all other terms used
herein which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;


 


(3) all accounting terms
not otherwise defined herein have the meanings assigned to them in accordance
with generally accepted accounting principles, and, except as otherwise herein
expressly provided, the term “generally accepted accounting principles” with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the time of such
computation; provided, that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by
the Company;


 

















 


(4) unless the context
otherwise requires, any reference to an “Article” or a “Section” refers to an
Article or a Section, as the case may be, of this Indenture; and


 


(5) the words “herein”,
“hereinafter”, “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.


 


“Act”
when used with respect to any Holder, has the meaning
specified in Section 104.


 


“Affiliate” of any specified Person
means any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.


 


“Authenticating Agent” means any Person authorized by
the Trustee pursuant to Section 614 to act on behalf of the Trustee to
authenticate Securities.


 


“Board of Directors” means either the board of directors of the
Company or any duly authorized committee of that 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, and delivered to the Trustee.


 


“Business Day” means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York, the Corporate Trust Office or any Place of Payment are authorized or
obligated by law or executive order to close.


 


“Commission” means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.


 


“Company” means the Person named as the “Company” in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor Person.


 


“Company Request” and “Company
Order” mean, respectively, a written request or order signed in the name of the
Company by (i) its Chairman of the Board of


 


2

















 


Directors, Chief
Executive Officer, President or any Vice President, and (ii) its Treasurer, any
Associate Treasurer, any Assistant Treasurer, its Controller, its Secretary or
any Assistant Secretary, and delivered to the Trustee or, with respect to
Sections 303, 304, 305 and 603, any other employee of the Company named in an
Officers’ Certificate delivered to the Trustee.


 


“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 59 Maiden Lane, New
York, New York 10038.


 


“corporation” means a corporation, association, company,
joint-stock company or business trust.


 


“Covenant Defeasance” has the meaning specified in Section
1303.


 


“Defaulted Interest” has the meaning specified in Section
307.


 


“Defeasance” has the meaning specified in Section 1302.


 


“Depositary” means the clearing agency registered under the
Exchange Act that is designated by the Company in Section 301 to act as
depositary for any series of Securities with respect to such series (or any
successor to such clearing agency).


 


“Dollar” means the currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.


 


“Event of Default,” unless otherwise specified with respect to
Securities of a series pursuant to Section 301, has the meaning specified in
Section 501.


 


“Exchange Act” means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to time.


 


“Expiration Date” has the meaning specified in Section 104.


 


“Foreign Currency” means any currency issued by the government
of one or more countries other than the United States of America or by any
recognized confederation or association of such governments.


 


“Global Security” means a Security that evidences all or part of
a series of Securities issued to the Depositary or its nominee for such series,
and registered in the name of such Depositary or its nominee and bearing the
legend set forth in Section 202.


 


“Governmental Authority” means any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.


 


3

















 


“Government Obligations” means, with respect to the
Securities of any series, securities which are (i) direct obligations of the
United States of America 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 by the United
States of America and which, in either case, are full faith and credit obligations
of the United States of America and are not callable or redeemable at the
option of the issuer thereof and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any such Government Obligation held by such custodian for the
account of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Obligation or the
specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.


 


“Holder” means a Person in whose name a Security is registered
in the Security Register.


 


“Indebtedness” of any person means the principal of and
premium, if any, and interest due on indebtedness of such Person, whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent which is (a) indebtedness for money borrowed, and
(b) any amendments, renewals, extensions, modifications and refundings of any
such indebtedness. For the purposes of this definition, “indebtedness for money
borrowed” means (i) any obligation of, or any obligation guaranteed by, such
Person for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) any obligation of, or any
such obligation guaranteed by, such Person evidenced by bonds, debentures,
notes or similar written instruments, including obligations assumed or incurred
in connection with the acquisition of property, assets or businesses (provided,
however, that the deferred purchase price of any property, assets or business
shall not be considered Indebtedness if the purchase price thereof is payable
in full within 90 days from the date on which such indebtedness was created), and
(iii) any obligations of such Person as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles and leases of property or assets made as part of any sale
and lease-back transaction to which such Person is a party. Indebtedness does
not include trade accounts payable or accrued liability arising in the ordinary
course of business.


 


“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 pursuant to the applicable
provisions hereof, and shall include the terms of each particular series of
Securities established as contemplated by Section 301, 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.


 


4

















 


“Interest Payment Date” means as to each series of Securities
the Stated Maturity of an installment of interest on such Securities.


 


“Interest Rate” means the rate of interest specified or
determined as specified in each Security as being the rate of interest payable
on such Security.


 


“Investment Company Act” means the Investment Company
Act of 1940 and any statute successor thereto, in each case as amended from
time to time.


 


“Junior Subordinated Payment” has the meaning specified in
Section 1202.


 


“Lien” means any mortgage, pledge, lien, security interest or
other encumbrance.


 


“Maturity” when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as provided in the Securities or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.


 


“Notice of Default” means a written notice of the kind specified
in Section 501(3).


 


“Officers’ Certificate” means a certificate signed by (i) the
Chairman of the Board of Directors, Chief Executive Officer, President or any
Vice President, and (ii) the Treasurer, any Associate Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary, of the
Company, and delivered to the Trustee. One of the officers signing an Officers’
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company.


 


“Opinion of Counsel” means a written opinion of counsel, who
may be counsel for (and an employee of) the Company, and who shall be
reasonably acceptable to the Trustee.


 


“Original Issue Date” means the date of issuance specified as
such in each Security.


 


“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 502.


 


“Outstanding” when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:


 


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


 


5

















 


(2) Securities for whose
payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and


 


(3) Securities which have
been paid pursuant to Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held
by Holders in whose hands such Securities are valid, binding and legal
obligations of the Company; 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, (A) 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 502, (B) if, as of such date, the principal amount payable
at the Stated Maturity of a Security is not determinable, the principal amount
of such Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, and (C) Securities
beneficially owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.


 


“Paying Agent” means the Trustee or any other Person
authorized by the Company to pay the principal of or any premium or interest on
any Securities on behalf of the Company.


 


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


 


“Place of Payment” means, with respect to the Securities of any
series, the place or places where the principal of and any premium and interest
on the Securities of such series are payable as specified as contemplated by
Section 301.


 


6

















 


“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 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.


 


“Proceeding” has the meaning specified in Section 1202.


 


“Redemption Date” when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.


 


“Redemption Price” when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.


 


“Regular Record Date” for the interest payable on any Interest
Payment Date on the Securities of a series means, unless otherwise provided
pursuant to Section 301 with respect to Securities of a series, the date which
is fifteen days next preceding such Interest Payment Date (whether or not a
Business Day).


 


“Responsible Officer,” when used with respect to the
Trustee, means any officer of the Trustee located at the Corporate Trust Office
and assigned by the Trustee from time to time to administer its corporate trust
matters.


 


“Restricted Subsidiary” means a Subsidiary which is
incorporated in any State of the United States or in the District of Columbia,
provided that no such Subsidiary shall be a Restricted Subsidiary if (i) the
total assets of such Subsidiary are less than 10% of the total assets of the
Company and its consolidated Subsidiaries (including such Subsidiary), in each
case as set forth on the most recent fiscal year-end balance sheets of such
Subsidiary and the Company and its consolidated Subsidiaries, respectively, and
computed in accordance with generally accepted accounting principles, or (ii)
in the judgment of the Board of Directors, as evidenced by a Board Resolution,
such Subsidiary is not material to the financial condition of the Company and its
consolidated Subsidiaries taken as a whole.


 


“Securities” or “Security” means any debt securities or debt
security, as the case may be, authenticated and delivered under this Indenture.


 


“Securities Act” means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.


 


“Security Register” and “Security Registrar” have the
respective meanings specified in Section 305.


 


“Senior Indebtedness” means the principal of (and premium, if
any) and interest, if any (including interest accruing on or after the filing
of any petition in bankruptcy or


 


7

















 


for reorganization
relating to the Company whether or not such claim for post-petition interest is
allowed in such proceeding), on Indebtedness, whether incurred on or prior to
the date of this Indenture (including without limitation the Indebtedness under
the Indenture dated as of December 5, 2003 between the Company and
[          ], as Trustee and
the Subordinated Indenture dated as of December 5, 2003 between the Company and
[          ], As Trustee), or
thereafter incurred unless, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Securities or to other
Indebtedness which is pari passu with, or subordinated to, the Securities;
provided, however, that Senior Indebtedness shall not be deemed to include (a)
any Indebtedness of the Company which when incurred and without respect to any
election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was
without recourse to the Company, (b) any Indebtedness of the Company to any of
its Subsidiaries, (c) Indebtedness to any employee of the Company or any
employee of a Subsidiary of the Company, (d) any liability for taxes, (e)
Indebtedness or other monetary obligations to trade creditors created or
assumed by the Company or any of its Subsidiaries in the ordinary course of
business in connection with the obtaining of goods, materials or services and
(f) the Securities.


 


“Special Record Date” for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.


 


“Stated Maturity” when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, in the case of such
principal or installment of principal, as such date may be extended or
shortened as provided pursuant to the terms of such Security.


 


“Subsidiary” means a corporation, partnership or other
entity of which, at the time of determination, more than 50% of the outstanding
voting stock or equivalent interest is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, “voting stock” means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.


 


“Trust Indenture Act” means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.


 


“Trustee” means the Person named as the “Trustee” in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
“Trustee” shall mean or include each Person who is then a Trustee hereunder,
and, if at any time there is more than one such Person,


 


8

















 


“Trustee” as used with
respect to the Securities of any series shall mean the Trustee with respect to
the Securities of that series.


 


“Vice President” when used with respect to the Company or
the Trustee, means any officer with a title of “Vice President”, “Senior Vice
President” or “Executive Vice President”.


 


SECTION 102.         Compliance
Certificates and Opinions.


 


Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate
or opinion shall be given in the form of an Officers’ Certificate, if to be
given by an officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture. In the case of an
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.


 


Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (other than the certificates provided pursuant to Section 1004)
shall include:


 


(1) a statement that each
individual signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;


 


(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 each such individual, 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, in the opinion of each such individual, such condition or covenant has
been complied with.


 


SECTION 103. Form of Documents Delivered to Trustee.


 


In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.


 


9

















 


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


 


Where any Person is
required to make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.


 


SECTION 104. Acts of Holders; Record Dates.


 


(a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive and may be relied upon by the
Trustee, the Company, and any agent of the Trustee or the Company, if made in
the manner provided in this Section.


 


(b) The fact and date of
the execution by any Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a certificate of any notary
public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged
to him the execution thereof. Where such execution is by a Person acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.


 


(c) The fact and date of
the execution by any Person of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other manner which
the Trustee deems sufficient and in accordance with such reasonable rules as
the Trustee may determine.


 


(d) The ownership of
Securities shall be proved by the Security Register.


 


10

















 


(e) Any request, demand,
authorization, direction, notice, consent, waiver or other action by the Holder
of any Security shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.


 


(f) The Company may, but
shall not be obligated to, set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities, provided that the Company may not set a record date
for, and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to
in the next paragraph. If any record date is set pursuant to this paragraph,
the Holders of Outstanding Securities on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date (as defined below) by Holders of the requisite principal amount
of Outstanding Securities on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities in the manner
set forth in Section 106.


 


The Trustee may set any
day as a record date for the purpose of determining the Holders of Outstanding
Securities entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii)
any request to institute proceedings referred to in Section 507(2) or (iv) any
direction referred to in Section 512. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities on such record date, and
no other Holders, shall be entitled to join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of


 


11

















 


Outstanding Securities on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company’s expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities in the manner set forth in Section
106.


 


With respect to any
record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to
time may change the Expiration Date to any earlier or later day; provided that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the other party hereto in writing, and to each Holder of
Securities in the manner set forth in Section 106, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such
record date shall be deemed to have initially designated the 180th
day after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.


 


Without limiting the
foregoing, a Holder entitled hereunder to take any action hereunder with regard
to any particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed agents each
of which may do so pursuant to such appointment with regard to all or any part
of such principal amount.


 


SECTION 105. Notices, Etc., to Trustee and Company.


 


Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:


 


(1) the Trustee by any
Holder or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed to or with the Trustee in writing at its
Corporate Trust Office, Attention: Corporate Trust Department, or


 


(2) the Company by the
Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class, postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the
Company, Attention: General Counsel.


 


Neither the Company nor
the Trustee shall be deemed to have received any such request, demand,
authorization, direction, notice, consent, waiver or Act of Holders unless
given, furnished or filed as provided in this Section 105.


 


12

















 


SECTION 106. Notice to Holders; Waiver.


 


Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.


 


In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall be
made with the written approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.


 


SECTION 107. Conflict with Trust Indenture Act.


 


If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act
which is required under such Act to be a part of and govern this Indenture, the
latter provision 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.


 


SECTION 108. Effect of Headings and Table of Contents.


 


The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.


 


SECTION 109. Successors and Assigns.


 


All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.


 


SECTION 110. Separability Clause.


 


In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.


 


13

















 


SECTION 111. Benefits of Indenture.


 


Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto, any Paying Agent and their successors and assigns, and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.


 


SECTION 112. Governing Law.


 


This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York.


 


SECTION 113. Legal Holidays.


 


In any case where any
Interest Payment Date, Redemption Date, Maturity or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this
Section)) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Maturity or Stated Maturity and no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, Maturity
or Stated Maturity, as the case may be, if such payment is made or duly
provided for on the next succeeding Business Day, except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day.


 


SECTION 114. Computations.


 


Unless otherwise
specifically provided, the certificate or opinion of any independent firm of
public accountants of recognized standing selected by the Board of Directors
shall be conclusive evidence of the correctness of any computation made under
the provisions of this Indenture. The Company shall furnish to the Trustee upon
its request a copy of any such certificate or opinion.


 


Article Two


 


Security Forms


 


SECTION 201. Forms Generally.


 


The Securities of each
series shall be substantially in the form attached as Exhibit A, or in such
other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate provisions as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed


 


14

















 


thereon as may be
required to comply with applicable tax laws or the rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution
thereof. If the form of Securities of any series is 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 Company Order
contemplated by Section 303 with respect to the authentication and delivery of
such Securities.


 


The Trustee’s certificate
of authentication shall be substantially in the form set forth in this Article.


 


The definitive Securities
shall be printed, lithographed or engraved on a steel engraved border or on
steel engraved borders or produced by any combination of these methods, if
required by any securities exchange on which the Securities may be listed, or
may be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.


 


The Securities of each
series will initially be issued in the form of one or more Global Securities.
Each such Global Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and each shall provide that it shall
represent the aggregate amount of Outstanding Securities of such series from
time to time endorsed thereon and that the aggregate amounts of Outstanding
Securities of such series represented thereby may from time to time be reduced
or increased, as appropriate. The Global Security or Securities evidencing the
Securities of a series (and all Securities issued in exchange therefore) shall
bear the legend indicated in Section 202.


 


SECTION 202. Form of Legend for Global Securities.


 


Every Global Security
authenticated and delivered hereunder shall, in addition to the provisions
contained in Exhibit A, bear a legend in substantially the following form:


 


UNLESS THIS SECURITY IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.


 


15

















 


THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.


 


SECTION 203. Form of Trustee’s Certificate of Authentication.


 


The Trustee’s
certificates of authentication shall be in substantially the following form:


 


Certificate of
Authentication


 


This is one of the
Securities referred to in the within-mentioned Indenture.


 


	
  Dated:

  	
   

  
	
   

  	
  [        ],

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


16

















 


Article
Three


 


The Securities


 


SECTION 301. Title; Terms.


 


The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.


 


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


 


(a) the title of the
securities of such series, which shall distinguish the Securities of the series
from all other Securities;


 


(b) the limit, if any,
upon the aggregate principal amount of the Securities of such series which may
be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Securities of the same series pursuant to Section
304, 305, 306, 906 or 1108 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder); provided, however, that the authorized aggregate principal amount
of such series may be increased above such amount by a Board Resolution to such
effect;


 


(c) the Stated Maturity
or Maturities on which the principal of the Securities of such series is
payable or the method of determination thereof;


 


(d) the rate or rates, if
any, at which the Securities of such series shall bear interest or the method
of determining such rate or rates, the Interest Payment Dates on which such
interest shall be payable, the right, if any, of the Company to defer or extend
an Interest Payment Date, the Regular Record Date (if other than as defined in
this Indenture) for the interest payable on any Interest Payment Date and the
dates from which interest shall accrue and the method of determining these
dates;


 


(e) the place or places
where the principal of (and premium, if any) and interest on the Securities of
such series shall be payable, the place or places where the Securities of such
series may be presented for registration of transfer or exchange, and the place
or places where notices and demands to or upon the Company in respect of the
Securities of such series may be made;


 


(f) the period or periods
within or the date or dates on which, if any, the price or prices at which and
the terms and conditions upon which the Securities of such series may be
redeemed or prepaid, in whole or in part, at the option of the Company;


 


17

















 


(g) the obligation or the
right, if any, of the Company to redeem, repay or purchase the Securities of
such series pursuant to any sinking fund, amortization or analogous provisions
or at the option of a Holder thereof and the period or periods within which,
the price or prices at which, the currency or currencies (including currency
unit or units) in which and the other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;


 


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


 


(i) if other than
Dollars, the currency or currencies (including currency unit or units) in which
the principal of (and premium, if any) and interest, if any, on the Securities
of the series shall be payable, or in which the Securities of the series shall
be denominated;


 


(j) the additions,
modifications or deletions, if any, in the Events of Default or covenants of
the Company set forth herein with respect to the Securities of such series;


 


(k) if other than the
principal amount thereof, the portion of the principal amount of Securities of
such series that shall be payable upon declaration of acceleration of the
Maturity thereof;


 


(l) the additions or
changes, if any, to this Indenture with respect to the Securities of such
series as shall be necessary to permit or facilitate the issuance of the
Securities of such series in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;


 


(m) any index or indices
used to determine the amount of payments of principal of and premium, if any,
on the Securities of such series or the manner in which such amounts will be
determined;


 


(n) the issuance of a
temporary Global Security representing all of the Securities of such series and
the terms upon which such temporary Global Security may be exchanged for
definitive Securities of such series;


 


(o) whether the Securities
of the series shall be issued in whole or in part in the form of one or more
Global Securities and, in such case, the identity of the Depositary for such
Global Securities;


 


(p) the appointment of
any Paying Agent or Agents for the Securities of such series;


 


(q) the terms and
conditions of any right or obligation on the part of the Company, or any option
on the part of the Holders, to convert or exchange Securities of such series
into cash or any other securities or property of the Company or any other
Person, and the


 


18

















 


additions or changes, if
any, to this Indenture with respect to the Securities of such series to permit
or facilitate such conversion or exchange;


 


(r) the relative degree,
if any, to which the Securities of the series shall be senior to or be
subordinated to other series of Securities in right of payment, whether such
other series of Securities are Outstanding or not;


 


(s) whether and under
what circumstances any or all of the provisions of this Indenture relating to
the subordination of the Securities (including the provisions of Article
Thirteen), or different subordination provisions, including a different
definition of “Senior Indebtedness” will apply or cease to apply to Securities
of the series; and


 


(t) any other terms of
the Securities of such series (which terms shall not be inconsistent with the
provisions of this Indenture).


 


All Securities of any one
series shall be substantially identical except as to denomination and except as
may otherwise be provided herein or in or pursuant to such Board Resolution and
set forth in such Officers’ Certificate or in any such indenture 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.


 


SECTION 302. Denominations.


 


The Securities of each
series shall be in registered form without coupons and shall be issuable in
denominations of $1,000 and any integral multiples thereof, unless otherwise
specified as contemplated by Section 301.


 


SECTION 303. Execution, Authentication, Delivery and Dating.


 


The Securities shall be
executed on behalf of the Company by its Chairman of the Board of Directors,
Chief Executive Officer, President or any Vice President, under its corporate
seal reproduced or impressed thereon and attested by its Treasurer, any
Associate Treasurer, any Assistant Treasurer, its Secretary or any Assistant
Secretary. The signature of any of these officers on the Securities may be
manual or facsimile.


 


Securities bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.


 


19

















 


At any time and from time
to time after the execution and delivery of this Indenture, the Company may
deliver Securities executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities.


 


Notwithstanding the
provisions of the preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to deliver the
Company Order otherwise required pursuant to such preceding paragraph at or
prior to the authentication of each Security of such series if such Company
Order is delivered at or prior to the authentication upon original issuance of
the first Security of such series to be issued.


 


Each Security shall be
dated the date of its authentication.


 


No Security shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by the
manual signature of one of its authorized officers, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.


 


Minor typographical and
other minor errors in the text of any Security shall not affect the validity
and enforceability of such Security if it has been duly authenticated and
delivered by the Trustee.


 


The Company shall execute
and the Trustee shall authenticate and deliver one or more Global Securities
with respect to each series of Securities that (i) shall represent an aggregate
amount equal to the aggregate principal amount of the initially issued
Securities of such series, (ii) shall be registered in the name of the
Depositary or the nominee of the Depositary, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv)
shall bear a legend substantially in the form required in Section 202.


 


The Depositary must, at
all times while it serves as such Depositary, be a clearing agency registered
under the Exchange Act, and any other applicable statute or regulation.


 


SECTION 304. Temporary Securities.


 


Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary


 


20

















 


Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities of any series in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.


 


If temporary Securities
of any series are issued, the Company will cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparationof
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company in a Place of Payment without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations and having the same Original Issue Date and Stated
Maturity and having the same terms as such temporary Securities. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.


 


SECTION 305. Registration, Registration of Transfer and Exchange.


 


The Company shall cause
to be kept at the Corporate Trust Office of the Trustee a register (the
register maintained in such office or in any other office or agency of the
Company in a Place of Payment being herein sometimes referred to as the
“Security Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers and exchanges of Securities. The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers of
Securities as herein provided.


 


Upon surrender for
registration of transfer of any Security at the office or agency of the Company
in a Place of Payment, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series of any authorized
denominations and of a like tenor and aggregate principal amount, of the same
original Issue Date and Stated Maturity and having the same terms.


 


Notwithstanding any other
provision of this Section, unless and until it is exchanged in whole or in part
for the individual Securities represented thereby, a Global Security
representing all or a portion of the Securities may not be transferred except
as a whole by the Depositary to a nominee of such Depositary, or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary, or
by such Depositary or any such nominee to a successor Depositary or nominee of
such successor Depositary.


 


At the option of the
Holder, Securities may be exchanged for other Securities, of the same series of
any authorized denominations, of like tenor and aggregate principal amount, of
the same Original Issue Date and Stated Maturity and having the same terms,


 


21

















 


upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.


 


If at any time the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary or if at any time the Depositary shall cease to be a clearing agency
registered under the Exchange Act as provided in Section 303, the Company shall
appoint a successor Depositary. If a successor Depositary is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Securities, will authenticate and make available for delivery, individual
Securities in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing the Securities in exchange for
such Global Security or Securities.


 


The Company may at any
time and in its sole discretion determine that individual Securities issued in
the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities, will authenticate and make available for delivery,
individual Securities in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing the Securities in
exchange for such Global Security or Securities.


 


The Depositary may
surrender a Global Security in exchange in whole or in part for individual
Securities on such terms as are acceptable to the Company, the Trustee and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge:


 


(1) to each Person
specified by such Depositary a new individual Security or Securities of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person’s beneficial interest in the
Global Security; and


 


(2) to such Depositary a
new Global Security in a denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate
principal amount of individual Securities delivered to Holders thereof.


 


Upon the exchange of a
Global Security for individual Securities in an aggregate principal amount
equal to the principal amount of such Global Security, such Global Security
shall be canceled by the Trustee. Individual Securities issued in exchange for
a Global Security pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee.


 


22

















 


The Trustee shall make
available for delivery such individual Securities to the Persons in whose names
such Securities are so registered.


 


All Securities issued
upon any registration of transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.


 


Every Security presented
or surrendered for registration of transfer or for exchange shall (if so
required by the Company or the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.


 


No service charge shall
be made to a Holder for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with
any registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1108 not involving any transfer.


 


Neither the Company nor
the Trustee shall be required, pursuant to the provisions of this Section: (i)
to issue, register the transfer of or exchange any Security of any series
during a period beginning at the opening of business 15 Business Days before
the day of the mailing of a notice of redemption of any such Securities
selected for redemption of Securities pursuant to Article Eleven and ending at
the close of business on the day of such mailing of notice of redemption; or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, any portion thereof that is not redeemed.


 


SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.


 


If any mutilated Security
is surrendered to the Trustee together with such security or indemnity as may
be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same issue and series, of like tenor
and principal amount, having the same Original Issue Date and Stated Maturity
and bearing the same Interest Rate as such mutilated Security, and bearing a
number not contemporaneously outstanding.


 


If there shall be
delivered to the Company and to the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
issuing Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same issue and series of like


 


23

















 


tenor and principal
amount, having the same Original Issue Date and Stated Maturity and bearing the
same Interest Rate as such destroyed, lost or stolen Security, and bearing a
number not contemporaneously outstanding.


 


In case any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.


 


Upon the issuance of any
new Security under this Section, 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.


 


Every new Security issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.


 


The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.


 


SECTION 307. Payment of Interest; Interest Rights Preserved.


 


Interest on any Security
of any series which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest in respect of Securities
of such series. The initial payment of interest on any Security of any series
which is issued between a Regular Record Date and the related Interest Payment
Date shall be payable as provided in such Security or in the Board Resolution
pursuant to Section 301 with respect to the related series of Securities.


 


Any interest on any
Security which is payable, but is not timely paid or duly provided for, on any
Interest Payment Date for Securities of such 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 may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:


 


(1) The Company may elect
to make payment of any Defaulted Interest to the Persons in whose names the
Securities of such series in respect of which interest is in default (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount


 


24

















 


of Defaulted Interest
proposed to be paid on each 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 be not more
than 15 days and not 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 Holder of a Security of such series at the address of such Holder as it
appears in the Security Register 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 so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).


 


(2) The Company may make
payment of any Defaulted Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of the series in respect of which interest is in
default may be listed, and upon such notice as may be required by such exchange
(or by the Trustee if the Securities are not listed), 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.


 


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


 


SECTION 308. Persons Deemed Owners.


 


The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
any Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or


 


25

















 


maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.


 


SECTION 309. Cancellation.


 


All Securities surrendered
for payment, redemption, registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and Securities surrendered directly to the Trustee for
any such purpose shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a
Company Order, and the Trustee shall deliver to the Company a certificate
evidencing the disposition of the cancelled Securities. Acquisition by the
Company of any Security shall not operate as a redemption or satisfaction of
the indebtedness represented by such Security unless and until the same is
delivered to the Trustee for cancellation.


 


SECTION 310. Computation of Interest.


 


Except as otherwise
specified as contemplated by Section 301 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.


 


Article Four


 


Satisfaction And Discharge


 


SECTION 401. Satisfaction and Discharge of Indenture.


 


This Indenture shall upon
Company Request cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange 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,
when:


 


(1) either


 


(A) all Securities
theretofore authenticated and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 306 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and


 


26

















 


thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or


 


(B) all such Securities
not theretofore delivered to the Trustee for cancellation:


 


(i)
have become due and payable, or


 


(ii)
will become due and payable at their Stated Maturity within one year of the
date of deposit, or


 


(iii)
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, and the Company, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited with the Trustee
as trust funds: (A) money in an amount; (B) Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment, money in an amount; or (C) a combination thereof, in each
case sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee of such series (but such opinion need only be delivered if
Government Obligations have been so deposited), to pay and discharge, and which
shall be applied by the Trustee, to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;


 


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


 


(3) the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section 401
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 607 and the preceding paragraph, the


 


27

















 


obligations of the
Company to any Authenticating Agent under Section 614 and, if money and/or
Government Obligations shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.


 


SECTION 402. Application of Trust Money.


 


Subject to the provisions
of the last paragraph of Section 1003, all money and Government Obligations
deposited with the Trustee pursuant to Section 401 and all proceeds of such
Government Obligations and the interest thereon, shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money and Government Obligations have been
deposited with the Trustee.


 


Article Five


 


Remedies


 


SECTION 501. Events of Default.


 


“Event of Default”,
wherever used herein with respect to the Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


(1) default in the
payment of any interest upon any Security of that series when it becomes due
and payable, and such default continues for a period of 30 days; or


 


(2) default in the
payment of the principal of or premium, if any, on any Security of that series
at its Maturity; or


 


(3) default in the
performance, or breach, of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in the performance of
which or the breach of which is specifically dealt with elsewhere in this
Section), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder; or


 


28

















 


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


 


(5) the institution by
the Company of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer of consent seeking
reorganization or relief under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or the consent by it to the
filing of any such petition or to the appointment of a receiver, liquidator
assignee, trustee, sequestrator (or other similar official) of the Company or
of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due and its willingness to
be adjudicated a bankrupt, or the taking of corporate action by the Company in
furtherance of any such action; or


 


(6) any other Event of
Default specified with respect to Securities of that series as contemplated in
Section 301.


 


SECTION 502. Acceleration of Maturity; Rescission and Annulment.


 


If an Event of Default
(other than an Event of Default specified in Section 501(4) or 501(5)) with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in aggregate principal amount of the Outstanding Securities of that series
may declare the principal amount (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of all of the Securities of that
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable, provided that the payment of principal and interest on such Securities
shall remain subordinated to the extent provided in Article Thirteen. If an
Event of Default specified in Section 501(4) or 501(5) with respect to
Securities of a series at the time Outstanding occurs, the principal amount of
all the Securities of such series (or specified amount) shall automatically,
and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.


 


At any time after such a
declaration of acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
not less than a majority in aggregate principal amount of the Outstanding
Securities of


 


29

















 


that series, 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


 


(A)
all overdue interest on all Securities of that series,


 


(B)
the principal of, and premium, if any, on, any Securities of that series which
have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates borne by such Securities,


 


(C) to
the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate or rates borne by or prescribed therefor
in such Securities, and


 


(D)
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; and


 


(2) all Events of Default
with respect to Securities of that series, other than the non-payment of the
principal (or a specified portion of the principal) of and interest on Securities
of that series which has become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.


 


No such rescission shall
affect any subsequent default or impair any right consequent thereon.


 


SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.


 


The Company covenants
that if:


 


(1) default is made in
the payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or


 


(2) default is made in
the payment of the principal or premium, if any, on any Security at the
Maturity thereof,


 


the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal, including any sinking fund payment or analogous obligations (and
premium, if any) and interest, including, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal or
premium, if any, and on any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


 


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If the Company fails to
pay such amounts forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon the Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or
any other obligor upon the Securities, wherever situated.


 


If an Event of Default
with respect to Securities of any series occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.


 


SECTION 504. Trustee May File Proofs of Claim.


 


In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors:


 


(a) the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise,


 


(i) to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding, and


 


(ii)
in particular, the Trustee shall be authorized to collect and receive any
moneys or other property payable or deliverable on any such claims and to
distribute the same in accordance with Section 506; and


 


(b) any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee for distribution in accordance with Section 506, and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
607.


 


No provision of this
Indenture shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided, however, that the Trustee
may, on behalf


 


31

















 


of the Holders, vote for
the election of a trustee in bankruptcy or similar official and be a member of
a creditors’ or other similar committee.


 


SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.


 


All rights of action and
claims under this Indenture or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such 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 the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.


 


SECTION 506. Application of Money Collected.


 


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


 


FIRST: To the payment of
all amounts due the Trustee and any predecessor Trustee under Section 607;


 


SECOND: To the payment of
the amounts then due and unpaid upon such series of Securities 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 series of Securities
for principal (and premium, if any) and interest, respectively; and


 


THIRD: To the payment of
the remainder, if any, to the Company, its successors or assigns or to
whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.


 


SECTION 507. Limitation on Suits.


 


No Holder of any
Securities of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:


 


(1) such Holder has
previously given written notice to the Trustee of a continuing Event of Default
with respect to the Securities of that series;


 


32

















 


(2) the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities of
that series have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;


 


(3) such Holder or
Holders have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities to be incurred in compliance with such
request;


 


(4) the Trustee for 60
days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and


 


(5) no direction
inconsistent with such written request has been given to the Trustee during such
60-day period by the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series; 
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.


 


SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.


 


Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and (subject to Section 307) interest on such Security on
the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.


 


SECTION 509. Restoration of Rights and Remedies.


 


If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.


 


SECTION 510. Rights and Remedies Cumulative.


 


Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall,


 


33

















 


to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


SECTION 511. Delay or Omission Not Waiver.


 


No delay or omission of
the Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.


 


SECTION 512. Control by Holders.


 


The Holders of a majority
in aggregate principal amount of the Outstanding Securities of any series 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 the Securities of such series,
provided that:


 


(1) such direction shall
not be in conflict with any rule of law or with this Indenture, involve the
Trustee in personal liability or be unduly prejudicial to the Holders of the
Securities not joining in the action; and


 


(2) the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction.


 


SECTION 513. Waiver of Past Defaults.


 


The Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
any series may, on behalf of the Holders of all the Securities of such series,
waive any past default hereunder with respect to such series and its
consequences, except a default:


 


(1) in the payment of the
principal of, or premium, if any, or interest on, any Security of such series;
or


 


(2) in respect of a
covenant or provision hereof which under Article Nine cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such
series affected.


 


34

















 


Upon any such waiver,
such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.


 


SECTION 514. Undertaking for Costs.


 


All parties to this
Indenture agree, and each holder of any Security by his 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, suffered or omitted by it
as Trustee, any party litigant in such suit to file an undertaking to pay the
costs of such suit, and that court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any such party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date).


 


SECTION 515. Waiver of Usury, Stay or Extension Laws.


 


The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.


 


Article Six


 


The Trustee


 


SECTION 601. Certain Duties and Responsibilities.


 


The duties,
responsibilities, protections, privileges, and immunities of the Trustee shall
be as provided by the Trust Indenture Act, particularly Sections 315 and 316
thereof, unless expressly excluded as provided in this Article Six.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its


 


35

















 


duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.


 


Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.


 


SECTION 602. Notice of Defaults.


 


If a default occurs
hereunder with respect to the Securities of a series, the Trustee within 90
days of such default shall give the Holders of such Securities 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 Section
501(3) with respect to such Securities, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof; and provided,
further, that the Trustee may withhold notice to the Holders, of any default
with respect to Securities of a series (except any default of the character
specified in Section 501(1) and (2)), if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determine that the withholding of the
notice is in the interest of the Holders of such Securities. For the purpose of
this Section, the term “default” means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to the
Securities of a series.


 


SECTION 603. Certain Rights of Trustee.


 


Subject to the provisions
of Section 601:


 


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


 


(2) any request or
direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, and any resolution of the Board of Directors
shall be sufficiently evidenced by a Board Resolution;


 


(3) whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers’ Certificate and may at its discretion secure such further evidence
deemed necessary or advisable, but shall in no case be bound to secure the
same;


 


36

















 


(4) 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, suffered or omitted by it hereunder in good faith and in
reliance thereon;


 


(5) 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, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;


 


(6) 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;


 


(7) the Trustee’s
immunities and protections from liability and its rights to compensation and
indemnification in connection with the performance of its duties under this
Indenture shall extend to the Trustee’s officers, directors, agents and
employees and its services as Paying Agent, Security Registrar or any other
role assumed by the Trustee hereunder or to which it has been appointed with
respect to the Securities issued hereunder. Such immunities and protections and
right to indemnification, together with the Trustee’s right to compensation,
shall survive the Trustee’s resignation or removal and final payment of the
Securities;


 


(8) the Trustee is not
required to give any bond or surety with respect to the performance of its
duties or the exercise of its powers under this Indenture;


 


(9) the Trustee shall not
be deemed to have knowledge of any “default” or Event of Default hereunder
except (i) during any period it is serving as Paying Agent for the Securities
of a series, any Event of Default pursuant to Section 501(1) or (2), or (ii)
any default or Event of Default of which a Responsible Officer shall have
received written notification from the Company or the Holders of at least 25%
in aggregate principal amount of the Securities of the series with respect to
which such default or Event of Default has occurred and is continuing or
obtained “actual knowledge.” The term “actual knowledge” as used herein shall mean
the actual fact or statement of knowing by a Responsible Officer without
independent investigation with respect thereto. The term “default” as used in
this Section 603 shall mean any event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to Securities of a
series; and


 


(10) the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Indenture (other than the payment of debt service on the


 


37

















 


Securities from moneys
furnished to it pursuant hereto), whether at the request or direction of the
Holders or any other Person, pursuant to this Indenture or otherwise, unless it
shall have been offered reasonable indemnity or security against the fees,
advances, costs, expenses and liabilities which might be incurred by it in
connection with the exercise of any such rights or powers.


 


Notwithstanding anything
else herein contained, (i) the Trustee shall not be liable for any error of
judgment made in good faith by any officer of the Trustee unless it shall be
proved that the Trustee was grossly negligent in ascertaining the pertinent
facts and (ii) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it believes the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


SECTION 604. Not Responsible for Recitals or Issuance of
Securities.


 


The recitals contained
herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.


 


SECTION 605. May Hold Securities.


 


The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.


 


SECTION 606. Money Held in Trust.


 


Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as agreed with the Company herein or
otherwise.


 


SECTION 607. Compensation and Reimbursement.


 


The Company agrees:


 


(1) to pay to the Trustee
from time to time reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);


 


38

















 


(2) except as otherwise
expressly provided herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its agents or
attorneys), except any such expense, disbursement or advance as may be
attributable to the negligence, willful misconduct or bad faith of it or of its
agents or attorneys;


 


(3) to indemnify, defend
and to hold the Trustee harmless against, any loss, liability or expense
(including the reasonable compensation and the reasonable expenses and
disbursements of its agents or attorneys) incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection therewith or with the exercise or performance of any of
its powers or duties hereunder;


 


(4) that the Trustee
shall have a lien prior to the Securities upon all property and funds held by
it hereunder for any amount owing it or any predecessor Trustee pursuant to
this Section 607, except with respect to funds held in trust for the benefit of
the Holders of particular Securities; and


 


(5) without limiting any
rights available to the Trustee under applicable law, that when the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 501(4) or Section 501(5), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.


 


SECTION 608. Disqualification; Conflicting Interests.


 


If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by the Trust
Indenture Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a Trustee under this Indenture with respect to Securities of
more than one series or by virtue of being a Trustee under this Indenture and
under each of the Subordinated Indenture dated as of [           ], 2003 between the Company and
[          ], as Trustee and the Junior
Subordinated Indenture dated as of [           ], 2003 between the Company and
[          ], as Trustee.


 


SECTION 609. Corporate Trustee Required; Eligibility.


 


There shall at all times
be a Trustee hereunder which shall (i) be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, (ii) be authorized under such laws to exercise
corporate trust powers, (iii) have a combined capital and surplus of at least
$10,000,000,


 


39

















 


and (iv) be subject to
supervision or examination by Federal or State authority. If such corporation
files reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so filed. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article Six. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities of any series issued hereunder.


 


SECTION 610. Resignation and Removal; Appointment of Successor.


 


No resignation or removal
of the Trustee and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
611.


 


The Trustee may resign as
Trustee at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have been delivered to
the Trustee within 30 days after the giving 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 the Securities of such
series.


 


The Trustee may be
removed as Trustee hereunder at any time with respect to the Securities of any
series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.


 


If at any time:


 


(1) the Trustee shall
fail to comply with Section 608 after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at least six
months; or


 


(2) the Trustee shall
cease to be eligible under Section 609 and shall fail to resign after written
request therefor by the Company or by any such Holder; or


 


(3) the Trustee shall
become incapable of acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed 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, (A) the Company by a Board Resolution may remove the Trustee,
or (B) subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent


 


40

















 


jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee or Trustees.


 


If the Trustee shall
resign, be removed or become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series and shall comply with the applicable requirements of Section 611. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, the retiring Trustee or, subject to Section
514, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.


 


The Company shall give
notice of each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written notice of such event
by first-class mail, postage prepaid, to the Holders of Securities of such
series as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.


 


SECTION 611. Acceptance of Appointment by Successor.


 


(a) In the 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


 


41

















 


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) if the retiring Trustee is not retiring with
respect to all Securities, 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 (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 and 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 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 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 all 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 the 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.


 


SECTION 612. 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 all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication


 


42

















 


and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.


 


SECTION 613. Preferential Collection of Claims Against Company.


 


If and when the Trustee
shall be or become a creditor of the Company(or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).


 


SECTION 614. Appointment of Authenticating Agent.


 


The Trustee may appoint
an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, 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. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State,
Territory or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$10,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent files reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so filed.


 


If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


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 all or substantially all of the corporate trust
business of an Authenticating Agent, shall be the successor Authenticating
Agent hereunder, provided 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.


 


43

















 


An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and to
the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall give notice of such appointment in the manner provided
in Section 106 to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent.


 


No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.


 


The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section.


 


If an appointment with
respect to one or more series is made pursuant to this Section, the Securities
of such series may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in
the following form:


 


This is one of the
Securities referred to in the within-mentioned Indenture.


 


	
   

  	
  [           ]

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  As
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


44

















 


Article
Seven


 


Holders’ Lists And Reports By Trustee And Company


 


SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.


 


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


 


(1) semi-annually, not
more than 15 days after each Regular Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders as of
such Regular Record Date; 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, that
no such list need be provided in any case to the extent it would include names
and addresses received by the Trustee in its capacity as Security Registrar.


 


SECTION 702. Preservation of Information; Communications to Holders.


 


The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 701 and the names and addresses of Holders received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new list so
furnished.


 


The rights of Holders to
communicate with other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture Act.


 


Every Holder of
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture Act.


 


SECTION 703. Reports by Trustee.


 


The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. If required by Section
313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each
May 15 following the date of this Indenture, deliver to Holders a brief report,
dated as of such May 15, which complies with the provisions of such Section
313(a).


 


A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with


 


45

















 


the Commission and with
the Company. The Company will notify the Trustee whenever any Securities are
listed on any stock exchange.


 


SECTION 704. Reports by Company.


 


The Company shall:


 


(1) 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) which 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 said Sections, then it
shall file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;


 


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


 


(3) transmit by mail, to
all Holders, as their names and addresses appear in 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 Clauses (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.


 


Article
Eight


 


Consolidation, Merger, Conveyance, Transfer Or Lease


 


SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.


 


(a) Subject to Section
801(c), the Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its assets substantially as an entirety to
any Person, and the Company shall not permit any Person to consolidate with or
merge with or into the Company, unless:


 


(1) the Company is the
surviving corporation in a merger or consolidation; or


 


46

















 


(2) in case the Company
shall consolidate with or merge into another Person or convey, transfer or
lease its assets substantially as an entirety to any Person, the Person formed
by such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the assets of the Company
substantially as an entirety shall be a corporation, partnership, trust or
limited liability company, organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, the due and punctual payment of the principal of and
any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed; and


 


(3) immediately after giving
effect to such transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and


 


(4) the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.


 


(b) Subject to Section
801(c), any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of any such transaction shall be treated as having been
incurred by the Company or such Subsidiary at the time of such transaction.


 


(c) The provisions of
Section 801(a) and (b) shall not be applicable to:


 


(1) the direct or
indirect conveyance, transfer or lease of all or any portion of the stock,
assets or liabilities of any of the Company’s wholly owned Subsidiaries to the
Company or to other wholly owned Subsidiaries of the Company; or


 


(2) any recapitalization
transaction, a change of control of the Company or a highly leveraged
transaction unless such transaction or change of control is structured to
include a merger or consolidation by the Company or the conveyance, transfer or
lease of the Company’s assets substantially as an entirety.


 


SECTION 802. Successor Corporation Substituted.


 


Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of the assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and thereafter,


 


47

















 


except in the case of any
lease, the Company shall be relieved of all obligations and covenants under
this Indenture and the Securities and may be dissolved and liquidated.


 


In case of any such
consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form may be made in the Securities thereafter to be issued as
may be appropriate.


 


Article Nine


 


Supplemental Indentures


 


SECTION 901. Supplemental Indentures Without Consent of Holders.


 


Without the consent of
any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:


 


(1) to evidence the
succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities; or


 


(2) to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee or to surrender
any right or power herein conferred upon the Company; or


 


(3) to provide for the
issuance under this Indenture of Securities in bearer form (including
securities registrable as to principal only) and to provide for exchangeability
of such Securities for Securities issued hereunder in fully registered form,
and to make all appropriate changes for such purpose; or


 


(4) to establish the form
or terms of Securities of any series as permitted by Sections 201 or 301; or


 


(5) to add to the
covenants of the Company for the benefit of the Holders of all Securities 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


 


(6) to add any additional
Events of Default; or


 


(7) to secure the
Securities; or


 


(8) to evidence and
provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and to add to or change any
provisions of this Indenture as shall be necessary to provide for or facilitate


 


48

















 


the administration of the
trusts hereunder by more than one Trustee pursuant to the requirements of
Section 611(b); or


 


(9) to cure any
ambiguity, to correct or supplement any provision herein which may be defective
or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture as
the Company and the Trustee may deem necessary and desirable, provided that
such action pursuant to this Clause (9) shall not adversely affect the
interests of the Holders of Securities of any series in any material respect;
or


 


(10) to conform any
provision hereof to the requirements of the Trust Indenture Act or otherwise as
necessary to comply with applicable law; or


 


(11) to modify the
provisions in Article Thirteen of this Indenture with respect to the
subordination of Outstanding Securities of any series in a manner not
materially adverse to the Holders thereof; or


 


(12) to make any change
that does not adversely affect the rights of any Holder in any material
respect.


 


SECTION 902. Supplemental Indentures With Consent of Holders.


 


With the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:


 


(1) change the Stated
Maturity of the principal of, or any installment of interest payable on, any
Outstanding Security, or reduce the principal amount of or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the
amount of principal of an Original Issue Discount Security that would be due
and payable upon redemption or would be provable in bankruptcy, or adversely
affect any right of repayment of the Holder of any Security or change the Place
of Payment or the coin or currency in which, any Outstanding Security or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date); or


 


49

















 


(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 compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences or reduce the quorum or voting requirements provided for in this
Indenture; or


 


(3) modify any of the
provisions of this Section, Section 513 or Section 1009, except to increase any
such percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this
Section and Section 1009, or the deletion of this proviso, in accordance with
the requirements of Sections 611 and 901(8); or


 


(4) modify the provisions
of Article Thirteen of this Indenture with respect to the subordination of
Outstanding Securities of any series in a manner materially adverse to the
Holders 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 any Act of Holders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof. 


 


SECTION 903. Execution of Supplemental Indentures.


 


In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Officers’ Certificate
and an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture, and that all conditions
precedent have been complied with. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee’s own
rights, duties, protections, privileges, indemnities, liabilities or immunities
under this Indenture or otherwise.


 


50

















 


SECTION 904. Effect of Supplemental Indentures.


 


Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.


 


SECTION 905. Conformity with Trust Indenture Act.


 


Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.


 


SECTION 906. Reference in Securities to Supplemental Indentures.


 


Securities authenticated
and delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.


 


Article Ten


 


Covenants


 


SECTION 1001. Payment of Principal, Premium and Interest.


 


The Company covenants and
agrees for the benefit of each series of Securities that it will duly and punctually
pay the principal of, premium, if any, and interest on the Securities of that
series in accordance with the terms of such Securities and this Indenture.


 


Unless otherwise
specified as contemplated by Section 301, the Company shall pay interest on
overdue amounts at the rate set forth in the first paragraph of the Securities,
and it shall pay interest on overdue interest at the same rate (to the extent
that the payment of such interest shall be legally enforceable), which interest
on overdue interest shall accrue from the date such amounts became overdue.


 


SECTION 1002. Maintenance of Office or Agency.


 


The Company will maintain
in each Place of Payment for any series, an office or agency where Securities
of that series may be presented or surrendered for payment, and an office or
agency where Securities may be surrendered for registration of transfer or


 


51

















 


exchange and where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company initially appoints the Trustee,
acting through its Corporate Trust Office, as its agent for said purposes. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. 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,
surrenders, 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, surrenders, notices and demands.


 


The Company may also from
time to time designate one or more other offices or agencies where the
Securities 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 each Place of Payment 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 office or agency.


 


SECTION 1003. Money for Securities Payments to Be Held in Trust.


 


If the Company shall at
any time act as its own Paying Agent with respect to any series of Securities,
it will, on or before each due date of the principal of or premium, if any, or
interest on any of the Securities of such series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium, if any, and any interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.


 


Whenever the Company
shall have one or more Paying Agents, it will, prior to each due date of the
principal of or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held as provided by the Trust Indenture Act, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.


 


The Company will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will (1) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent,
(2) give the Trustee notice of any default by the Company (or any other obligor
upon the Securities) in the making of any payment of principal (and premium, if
any) or interest, and (3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.


 


52

















 


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 by Company Order 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 trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by the Company or any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.


 


Any money or U.S.
Government Obligation (including the proceeds thereof and the interest thereon)
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on any
Security and remaining unclaimed for two years after such principal, premium,
if any, or interest has become due and payable shall be paid to the Company at
its option on Company Request (unless otherwise required by mandatory provision
of applicable escheat or abandoned or unclaimed property law) or (if then held
by the Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in the Borough of Manhattan,
The City of New York, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.


 


SECTION 1004. 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 ending after the date hereof, an Officers’ Certificate covering the
preceding fiscal year, stating whether or not, to the best knowledge of the
signers 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 they may have knowledge.


 


The Company shall, so
long as any of the Securities are outstanding, deliver to the Trustee, as soon
as possible, and in any event within five days after any Officer becomes aware
of any Default or Event of Default, an Officers’ Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto.


 


53

















 


SECTION 1005. Existence.


 


Subject to Article Eight,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its legal existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.


 


SECTION 1006. Maintenance of Properties.


 


The Company will cause
all material properties of the Company used or useful in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the Company and each Restricted Subsidiary
may properly and advantageously conduct their respective businesses at all
times; provided, however, that nothing in this Section shall prevent the
Company from selling, abandoning or otherwise disposing of, or discontinuing the
operation or maintenance of, any of such properties if such action is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Restricted Subsidiary.


 


SECTION 1007. Payment of Taxes.


 


The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, all taxes, assessments and governmental charges levied or imposed
upon the Company or any Restricted Subsidiary or upon the income, profits or
property of the Company or any Restricted Subsidiary, and lawful claims for
labor, materials and supplies, which, if unpaid, might by law become a Lien
upon the property of the Company or any Restricted Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment or governmental charge whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Securities.


 


SECTION 1008. [Intentionally Omitted].


 


SECTION 1009. Waiver of Certain Covenants.


 


The Company may omit in
any particular instance to comply with any term, provision, covenant or
condition set forth in any covenant provided pursuant to Section 901(5) for the
benefit of the Holders or in any of Sections 1006 to 1008, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or


 


54

















 


generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.


 


Article Eleven


 


Redemption Of Securities


 


SECTION 1101. Company’s Right of Redemption.


 


Unless otherwise
specified as contemplated by Section 301 with respect to the Securities of a
particular series, and notwithstanding any additional redemption rights that
may be so specified, the Company may, at its option, redeem the Securities of
any series after their date of issuance in whole or in part at any time and
from time to time, subject to the provisions of this Section 1101 and the other
provisions of this Article Eleven. Unless otherwise specified as contemplated
by Section 301 with respect to the Securities of a particular series, the
redemption price for any Security so redeemed shall be equal to 100% of the
principal amount of such Securities then Outstanding plus accrued and unpaid
interest up to, but excluding, the date fixed for redemption; provided,
however, that installments of accrued and unpaid interest whose Stated Maturity
is on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.


 


SECTION 1102. Applicability of Article.


 


Redemption of Securities,
as permitted or required by any form of Security issued pursuant to this
Indenture or the documentation providing therefor, shall be made in accordance
with such form of Security or documentation and this Article Eleven; provided,
however, that if any provision of any such form of Security or documentation
shall conflict with any provision of this Article, the provision of such form
of Security or documentation shall govern. Except as otherwise set forth in the
form of Security for such series or such documentation, each Security shall be
subject to partial redemption only in the amount of $1,000 or integral
multiples of $1,000.


 


SECTION 1103. Election to Redeem; Notice to Trustee.


 


The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of the
Securities of a series, the Company shall, at least 45 days but not more than
60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of any


 


55

















 


restriction on such
redemption provided in the terms of such Securities or (b) pursuant to an election
of the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers’ Certificate
and an Opinion of Counsel evidencing compliance with such restriction or
condition.


 


SECTION 1104. Selection by Trustee of Securities to Be Redeemed.


 


If less than all the
Securities are to be redeemed (unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, by such method as the Trustee
in its sole discretion shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities and specified tenor not previously called for
redemption in accordance with the preceding sentence.


 


The Trustee shall
promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in the case of any Securities selected for partial
redemption as aforesaid, the principal amount thereof to be redeemed.


 


The provisions of the two
preceding paragraphs shall not apply with respect to any redemption affecting
only a single Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed portion of the
principal amount of the Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such Security.


 


For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed. If the Company shall so
direct, Securities registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Securities selected for redemption.


 


SECTION 1105. Notice of Redemption.


 


Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at its address appearing in the Security Register.
Unless the Company defaults in payment of the Redemption Price, on and after
the Redemption Date, interest shall cease to accrue on the Securities.


 


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All notices of redemption
shall state:


 


(1) the Redemption Date;


 


(2) the Redemption Price,
or if not then ascertainable, the manner of calculation thereof;


 


(3) if less than all the
Outstanding Securities consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities consisting of a
single Security are to be redeemed, the principal amount of the particular
Security to be redeemed;


 


(4) that on the
Redemption Date the Redemption Price will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date; and


 


(5) the place or places
where each such Security is to be surrendered for payment of the Redemption
Price.


 


Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company and shall be irrevocable. The notice if mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, a failure to give
such notice by mail or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security.


 


SECTION 1106. Deposit of Redemption Price.


 


Prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.


 


SECTION 1107. Securities Payable on Redemption Date.


 


Notice of redemption
having been given pursuant to Section 1105, the Securities to be so redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear or accrue any interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with any accrued
but unpaid interest to, but excluding, the


 


57

















 


Redemption Date;
provided, however, that installments of accrued and unpaid interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Regular Record Dates according
to their terms and the provisions of Section 307.


 


If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the
principal and any premium shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.


 


SECTION 1108. Securities Redeemed in Part.


 


Any Security which is to
be redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security
or Securities of like tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.


 


Article Twelve


 


Subordination Of Securities


 


SECTION 1201. Securities Subordinate to Senior Indebtedness.


 


The Company covenants and
agrees, and each Holder of a Security, by its acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article, the payment of the principal of (and premium, if any)
and interest on each and all of the Securities are hereby expressly made
subordinate in right of payment to the prior payment in full of all amounts
then due and payable in respect of all Senior Indebtedness. Each Holder, by its
acceptance hereof, waives all notice of acceptance of the subordination
provisions contained herein by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred and waives reliance by each such holder upon
said provisions.


 


SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc.


 


Upon any payment or
distribution of assets to creditors upon any liquidation, dissolution, winding
up, reorganization, assignment for the benefit of creditors, marshaling of
assets or any bankruptcy, insolvency, debt restructuring or similar proceedings
in connection with the Company’s insolvency or bankruptcy (each such event, if
any, herein sometimes referred to as a “Proceeding”), then the holders of
Senior Indebtedness shall be entitled to receive payment in full of principal
of (and premium, if


 


58

















 


any) and interest, if
any, on such Senior Indebtedness, or provision shall be made for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Indebtedness, before the Holders of the Securities are
entitled to receive or retain any payment or distribution of any kind or
character, whether in cash, property or securities (including any payment or
distribution which may be payable or deliverable by reason of the payment of
any other Indebtedness of the Company (including any series of the Securities)
subordinated to the payment of the Securities, such payment or distribution
being hereinafter referred to as a “Junior Subordinated Payment”), on account
of principal of (or premium, if any) or interest on the Securities or on
account of the purchase or other acquisition of Securities by the Company or
any Subsidiary and to that end the holders of Senior Indebtedness shall be
entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
including any Junior Subordinated Payment, which may be payable or deliverable
in respect of the Securities in any such Proceeding.


 


In the event that,
notwithstanding the foregoing provisions of this Section, the Trustee or the
Holder of any Security shall have received any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, including any Junior Subordinated Payment, before all Senior
Indebtedness is paid in full or payment thereof is provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, and if written notice thereof shall, at least three Business Days
prior to the time of such payment or distribution, have been received by a
Responsible Officer of the Trustee or, as the case may be, such Holder, then
and in such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.


 


For purposes of this
Article only, the words “any payment or distribution of any kind or character,
whether in cash, property or securities” shall not be deemed to include shares
of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment which securities are subordinated in right of payment to all then
outstanding Senior Indebtedness to substantially the same extent as the
Securities are so subordinated as provided in this Article. The consolidation
of the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as any entirety to another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article Eight shall not be deemed
a Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall,
as a part of such consolidation, merger, or sale comply with the conditions set
forth in Article Eight.


 


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SECTION 1203. Prior Payment to Senior Indebtedness Upon Acceleration of Securities.


 


In the event that any
Securities are declared due and payable before their Stated Maturity, then and
in such event the holders of the Senior Indebtedness outstanding at the time
such Securities so become due and payable shall be entitled to receive payment
in full of all amounts due on or in respect of such Senior Indebtedness
(including any amounts due upon acceleration), or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness, before the Holders of the Securities are
entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or interest
on the Securities or on account of the purchase or other acquisition of
Securities by the Company or any Subsidiary; provided, however, that nothing in
this Section shall prevent the satisfaction of any sinking fund payment in
accordance with this Indenture or as otherwise specified as contemplated by
Section 301 for the Securities of any series by delivering and crediting as
contemplated by Section 301 for the Securities of any series Securities which
have been acquired (upon redemption or otherwise) prior to such declaration of
acceleration.


 


In the event that,
notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of
this Section, and if written notice of such fact shall, at least three Business
Days prior to the time of such payment, have been received by a Responsible
Officer of the Trustee or, as the case may be, such Holder, then and in such
event such payment shall be paid over and delivered forthwith to the Company.


 


The provisions of this
Section shall not apply to any payment with respect to which Section 1202 would
be applicable.


 


SECTION 1204. No Payment When Senior Indebtedness in Default.


 


In the event and during
the continuation of any default in the payment of principal of (or premium, if
any) or interest on any Senior Indebtedness, or in the event that any event of
default with respect to any Senior Indebtedness shall have occurred and be
continuing and shall have resulted in such Senior Indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, unless and until such event of default shall have
been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or in the event any judicial proceeding shall
be pending with respect to any such default in payment or such event of
default, then no payment or distribution of any kind or character, whether in
cash, properties or securities (including any Junior Subordinated Payment)
shall be made by the Company on account of principal of (or premium, if any) or
interest, if any, on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary; provided, however,
that nothing in this


 


60

















 


Section shall prevent the
satisfaction of any sinking fund payment in accordance with this Indenture or
as otherwise specified as contemplated by Section 301 for the Securities of any
series by delivering and crediting pursuant to Section 1202 or as otherwise
specified as contemplated by Section 301 for the Securities of any series
Securities which have been acquired (upon redemption or otherwise) prior to such
default in payment or event of default.


 


In the event that,
notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of
this Section, and if written notice thereof shall, at least three Business Days
or prior to the time of such payment, have been received by the Trustee or, as
the case may be, such Holder, then and in such event such payment shall be paid
over and delivered forthwith to the Company.


 


The provisions of this
Section shall not apply to any payment with respect to which Section 1202 would
be applicable.


 


SECTION 1205. Payment Permitted If No Default.


 


Nothing contained in this
Article or elsewhere in this Indenture or in any of the Securities shall prevent
(a) the Company, at any time except during the pendency of any Proceeding
referred to in Section 1202 or under the conditions described in Sections 1203
and 1204, from making payments at any time of principal of (and premium, if
any) or interest on the Securities, or (b) the application by the Trustee of
any money or Government Obligations deposited with it hereunder to the payment
of or on account of the principal of (and premium, if any) or interest on the
Securities or the retention of such payment by the Holders, if, at least three
Business Days prior to the time of such application by the Trustee, a
Responsible Officer of the Trustee did not have knowledge that such payment
would have been prohibited by the provisions of this Article.


 


SECTION 1206. Subrogation to Rights of Holders of Senior Indebtedness.


 


Subject to the payment in
full of all Senior Indebtedness, or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent
of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to Senior Indebtedness of the Company to substantially the same
extent as the Securities are subordinated to the Senior Indebtedness and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Indebtedness) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation or assignment, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee


 


61

















 


would be entitled except
for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Indebtedness.


 


SECTION 1207. Provisions Solely to Define Relative Rights.


 


The provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities on the one hand and the holders of
Senior Indebtedness on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than their rights in relation to the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture
including, without limitation, filing and voting claims in any Proceeding,
subject to the rights, if any, under this Article of the holders of Senior
Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.


 


SECTION 1208. Trustee to Effectuate Subordination.


 


Each Holder of a Security
by his or her acceptance thereof authorizes and directs the Trustee on his or
her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.


 


SECTION 1209. No Waiver of Subordination Provisions.


 


No right of any present
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or be otherwise charged with.


 


SECTION 1210. Notice to Trustee.


 


The Company shall give
prompt written notice to the Trustee of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the


 


62

















 


existence of any facts
which would prohibit the making of any payment to or by the Trustee in respect
of the Securities, unless and until a Responsible Officer of the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, agent or representative therefor (whether or
not the facts contained in such notice are true); provided, however, that if
the Trustee shall not have received the notice provided for in this Section at
least three Business Days prior to the date upon which by the terms hereof any
monies may become payable for any purpose (including, without limitation, the payment
of the principal of (and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.


 


SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent.


 


Upon any payment or distribution
of assets of the Company referred to in this Article, the Trustee, subject to
the provisions of Article Six, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.


 


SECTION 1212. Trustee Not Fiduciary For Holders of Senior Indebtedness.


 


The Trustee, in its
capacity as trustee under this Indenture, shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and shall not be liable to
any such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property
or securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.


 


SECTION 1213. Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee’s Rights.


 


The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.


 


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SECTION 1214. Article Applicable to Paying Agents.


 


In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term “Trustee” as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee.


 


SECTION 1215. Certain Conversions or Exchanges Deemed Payment.


 


For the purposes of this
Article only, (a) the issuance and delivery of junior securities upon
conversion or exchange of Securities shall not be deemed to constitute a
payment or distribution on account of the principal of (or premium, if any) or
interest on securities or on account of the purchase or other acquisition of
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a
Security shall be deemed to constitute payment on account of the principal of
such security. For the purposes of this Section, the term “junior securities”
means (i) shares of any stock of any class of the Company and (ii) securities
of the Company which are subordinated in right of payment to all Senior
Indebtedness which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article.


 


Article thirteen


 


Defeasance and covenant defeasance


 


SECTION 1301. Company’s Option to Effect Defeasance or Covenant Defeasance.


 


The Company may elect, at
its option at any time, to have Section 1302 or Section 1303 applied to any
Securities upon compliance with the conditions set forth below in this Article.
Any such election shall be evidenced by a Board Resolution.


 


SECTION 1302. Defeasance and Discharge.


 


Upon the Company’s
exercise of its option (if any) to have this Section applied to any Securities,
the Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 1304 are satisfied (hereinafter called
“Defeasance”). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company and upon Company Request, shall execute
proper instruments acknowledging the same), subject to the following, which
shall survive until otherwise terminated or


 


64

















 


discharged hereunder: (1)
the Company’s obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003; (2) the rights, powers, trusts, duties and immunities
of the Trustee hereunder; and (3) this Article. Subject to compliance with this
Article, the Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 1303 applied to such Securities.


 


SECTION 1303. Covenant Defeasance.


 


Upon the Company’s
exercise of its option (if any) to have this Section applied to any Securities
(1) the Company shall be released from its obligations under Section 801,
Section 1006, Section 1007 and any covenants provided pursuant to 901(5) for
the benefit of the Holders of such Securities; and (2) the occurrence of any
event specified in Section 501(3) (with respect to any of Section 801, Section
1006, Section 1007 and any such covenants provided pursuant to Section 901(5))
shall be deemed not to be or result in an Event of Default, in each case with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 1304 are satisfied (hereinafter called
“Covenant Defeasance”). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of Section
501(3)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.


 


Notwithstanding any
Covenant Defeasance with respect to Section 801, any Person that would
otherwise have been required to assume the obligations of the Company pursuant
to said Section shall be required, as a condition to any merger, consolidation,
conveyance, transfer or lease contemplated thereby, to assume the obligations
of the Company to the Trustee under Sections 607 and 1305.


 


SECTION 1304. Conditions to Defeasance or Covenant Defeasance.


 


The following shall be
the conditions to the application of Section 1302 or Section 1303 to any
Securities:


 


(1) The Company shall
irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee which satisfies the requirements contemplated by Section 609
and agrees to comply with the provisions of this Article applicable to it) as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of
the Holders of such Securities, (A) money in an amount, or (B) Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally


 


65

















 


recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the respective
Stated Maturities or on the Redemption Date, in accordance with the terms of
this Indenture and such Securities.


 


(2) In the event of an
election to have Section 1302 apply to any Securities, the Company shall have
delivered to the Trustee an Opinion of Counsel stating 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 instrument, there has been a change in the
applicable Federal income tax law, in the case of either (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the Holders of
such Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.


 


(3) In the event of an
election to have Section 1303 apply to any Securities, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
of such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.


 


(4) No event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to such Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event
specified in Sections 501(4) and (5), at any time on or prior to the 90th day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).


 


(5) Such Defeasance or
Covenant Defeasance shall not result in a breach or violation of, or constitute
a default under, any indenture or other agreement or instrument for borrowed
money to which the Company is a party or by which it is bound.


 


(6) Such Defeasance or
Covenant Defeasance shall not result in the trust arising from such deposit
constituting an investment company within the meaning of the Investment Company
Act unless such trust shall be registered under the Investment Company Act or
exempt from registration thereunder.


 


(7) If such Securities
are to be redeemed prior to Stated 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.


 


66

















 


(8) The Company shall
have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.


 


SECTION 1305. Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions.


 


Subject to the provisions
of the last paragraph of Section 1003, all money and Government Obligations
(including the proceeds thereof and the interest thereon) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the “Trustee”) pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any such Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section 1304
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.


 


Anything in this Article
to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or Government
Obligations held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case
may be, with respect to such Securities.


 


SECTION 1306. Reinstatement.


 


If the Trustee or the
Paying Agent is unable to apply any money in accordance with this Article with
respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 1302 or
1303 shall be revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to
Section 1305 with respect to such Securities in accordance with this Article;
provided, however, that if the Company makes any payment of principal of or any
premium or interest on any such Security following such


 


67

















 


reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.


 


SECTION 1307. Qualifying Trustee.


 


Any trustee appointed
pursuant to Section 1304 for the purpose of holding trust funds deposited
pursuant to that Section shall be appointed under an agreement in form
acceptable to the Trustee and shall provide to the Trustee a certificate of
such trustee, upon which certificate the Trustee shall be entitled to conclusively
rely, that all conditions precedent provided for herein to the related
Defeasance or Covenant Defeasance have been complied with. In no event shall
the Trustee be liable for any acts or omissions of said trustee.


 


* * *


 


68

















 


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


 


IN WITNESS WHEREOF, the
parties hereto have caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the
day and year first above written.


 


	
  AEROFLEX INCORPORATED

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Attest:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [        ],

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Attest:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


69

















 


Exhibit A


 


[Specimen
Bond]


 


(Form Of
Face Of Security)


 


[If the Security is an Original Issue Discount Security, insert—For
purposes of Section 1271 of the United States Internal Revenue Code of 1986, as
amended, the issue price of this security is      % of its
principal amount and the Issue Date is                    ,
20    ]


 


AEROFLEX INCORPORATED


[Title of
Security]


 


	
  CUSIP: 

  	
   

  	
                          

  
	
   

  	
   

  	
   

  
	
  No.            

  	
   

  	
  $               

  



 


AEROFLEX INCORPORATED, a
corporation organized and existing under the laws of Delaware (hereinafter
called the “Company”, which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to [Insert if Global Security-Cede & Co.], or registered assigns, the
principal sum of                Dollars
on
                          
[If the Security is to bear interest prior to Maturity, insert — , and to pay
interest thereon from
                          
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on
                    
and
                    
in each year, commencing
                    ,
at the rate of      % per annum, on the basis of a 360-day
year consisting of twelve 30-day months, until the principal hereof is paid or
duly provided for or made available for payment] [(If applicable insert - , and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of     % per annum on any overdue principal and
premium and on any overdue installment of interest)].


 


[If the Security is to
bear interest prior to Maturity, insert – The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the date which is
fifteen days (whether or not a Business Day) next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the


 

















 


Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].


 


[If the Security is not
to bear interest prior to Maturity, insert - The principal of this Security
shall not bear interest except in the case of a default in payment of principal
upon acceleration, upon redemption or at Stated Maturity and in such case the
overdue principal of this Security shall bear interest at the rate of
    % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of     % per annum
(to the extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such demand for payment to the date payment
of such interest has been made or duly provided for, and such interest shall
also be payable on demand.]


 


The indebtedness
evidenced by this Security is, to the extent provided in the Indenture,
subordinate and subject in right of payments to the prior payment in full of
all Senior Indebtedness, and this Security is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Security by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on its behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee its attorney-in-fact for any and all such purposes. Each
Holder hereof, by its acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.


 


Payment of the principal
of (and premium, if any) and [if applicable, insert - any interest] on this
Security will be made at the office or agency of the Company maintained for
that purpose in [        ], in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -;
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].


 


Reference is hereby made
to the further provisions of this Security set forth on the reverse hereof,
which further provisions shall for all purposes have the same effect as if set
forth at this place.


 


Unless the certificate of
authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.


 


2

















 


IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed under its corporate
seal.


 


Dated:


 


	
   

  	
  AEROFLEX INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Attest:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


FORM
OF REVERSE OF SECURITY


 


This Security is one of a
duly authorized issue of securities of the Company designated as its
                        
due 20     (herein called the “Securities”), issued and to
be issued in one or more series under a Junior Subordinated Indenture, dated as
of
                      ,
2003 as supplemented and amended from time to time (herein called the
“Indenture”), between the Company and
                        ,
as Trustee (herein called the “Trustee”, which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [if applicable insert —,
limited in aggregate principal amount to
$                      ].


 


All terms used in this
Security that are defined in the Indenture shall have the meaning assigned to
them in the Indenture.


 


[If applicable, insert -
The Securities of this series are subject to redemption upon not less than 30
nor more than 60 days’ notice by mail, at any time [on or after
                        ,
20    ], as a whole or in part, at the election of the
Company. The Redemption Price for any Security so redeemed shall be equal to
100% of the principal amount of such Securities then Outstanding plus accrued
and unpaid interest up to but not including the date fixed for redemption. In
the event of redemption of this Security in part


 


3

















 


only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]


 


[Installments of accrued
and unpaid interest whose Stated Maturity is on or prior to the Redemption Date
will be payable to the Holders of the Securities of this series, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Dates according to their terms.]


 


The Indenture contains
provisions for satisfaction, discharge and defeasance of the entire
indebtedness on this security, upon compliance by the Company with certain conditions
set forth therein.


 


[If the Security is not
an Original Issue Discount Security, - If an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture.] [If the security is an Original
Issue Discount Security, - If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of principal of the Securities
of this series may be declared due and payable in the manner and with the
effect provided in the Indenture. Such amount shall be equal to - insert
formula for determining the amount.


 


Upon payment of the
amount of principal so declared due and payable [if applicable insert— and of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable)], all of
the Company’s obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]


 


The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.


 


No reference herein to
the Indenture and no provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest on this Security at
the times, place and rate, and in the coin or currency, herein prescribed.


 


4

















 


As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
any place where the principal of (and premium, if any) and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.


 


The Securities of this
series are issuable only in registered form without coupons in denominations of
$             and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.


 


No service charge shall
be made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.


 


The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.


 


THIS SECURITY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


5