Exhibit 4.4


 




 





Aeroflex Incorporated


 


TO


 


[        ],


Trustee


 


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
  Indebtedness

  	
   

  
	
   

  	
  Junior Subordinated Payment

  	
   

  
	
   

  	
  Lien

  	
   

  
	
   

  	
  Maturity

  	
   

  
	
   

  	
  Notice of
  Default

  	
   

  
	
   

  	
  Officers’
  Certificate

  	
   

  
	
   

  	
  Opinion
  of Counsel

  	
   

  
	
   

  	
  Original
  Issue Date

  	
   

  
	
   

  	
  Original Issue
  Discount Security

  	
   

  
	
   

  	
  Outstanding

  	
   

  
	
   

  	
  Paying Agent

  	
   

  
	
   

  	
  Person

  	
   

  



 


i

















 


	
   

  	
  Place of
  Payment

  	
   

  
	
   

  	
  Predecessor
  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

  	
   

  
	
   

  	
  Subordinated Indebtedness

  	
   

  
	
   

  	
  Subsidiary

  	
   

  
	
   

  	
  Trust
  Indenture Act

  	
   

  
	
   

  	
  Trustee

  	
   

  
	
   

  	
  Vice President

  	
   

  
	
  Section 102 – Compliance
  Certificates 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

  	
   

  
	
   

  	
   

  
	
  ARTICTLE 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 – Denomination

  	
   

  
	
  Section 303 – Execution,
  Authentication, Delivery and Dating

  	
   

  
	
  Section 304 – Temporary
  Securities

  	
   

  
	
  Section 305 – Registration,
  Registration of Transfer and Exchange

  	
   

  



 


ii

















 


	
  Section 306 – Mutilated,
  Destroyed, Lost and Stolen Securities

  	
   

  
	
  Section 307 – Payment of
  Interest; Interst 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 and 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 and Interest

  	
   

  
	
  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 of 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

  	
   

  
	
  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

  	
   

  



 


iii

















 


	
  ARTICTLE
  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 Holder

  	
   

  
	
  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 Holders

  	
   

  
	
  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 Indentures

  	
   

  
	
  Section 906 – Reference in
  Securities to Supplemental 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

  	
   

  
	
   

  	
   

  
	
  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

  	
   

  



 


iv

















 


	
  ARTICLE TWELVE:  SUBORDINATION 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 Upon Acceleration of Securities

  	
   

  
	
  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 Holder 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

















 


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 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 Indebtedness”
means any Indebtedness of the Company which is expressly subordinate in right
of payment to the Securities pursuant to a written agreement.


 


“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:


 


5

















 


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


 


(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.


 


6

















 


“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.


 


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.


 


7

















 


“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 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 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 is expressly
subordinate in right of payment to any other Indebtedness of the Company,
including without limitation, any Subordinated Indebtedness and any Junior
Subordinated Indebtedness, (b) 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, (c) any
Indebtedness of the Company to any of its Subsidiaries, (d) Indebtedness to any
employee of the Company or any employee of a Subsidiary of the Company, (e) any
liability for taxes, (f) 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 (g) 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.


 


“Subordinated Indebtedness” means the
Securities and any other Indebtedness of the Company that specifically provides
that such Indebtedness is to rank pari passu with the Securities and is not by
its express terms subordinate in right of payment to any Indebtedness of the
Company which is not Senior Indebtedness.


 


“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.


 


8

















 


“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, “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.


 


9

















 


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.


 


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


 


10

















 


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.


 


(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


 


11

















 


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 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


 


12

















 


(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.


 


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.


 


13

















 


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.


 


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.


 


14

















 


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 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


 


15

















 


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.


 


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;


 


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(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


 


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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.


 


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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


 


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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 preparation of 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,


 


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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.


 


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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


 


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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


 


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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


 


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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 thereafter repaid to the Company or


 


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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.


 


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


 


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(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.


 


30

















 


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.


 


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


 


34

















 


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 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.


 


35

















 


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;


 


(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;


 


36

















 


(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 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,


 


37

















 


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);


 


(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


 


38

















 


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 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, 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


 


39

















 


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
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


 


40

















 


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 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


 


41

















 


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


 


42

















 


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.


 


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


 


43

















 


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.


 


	
   

  	
  Americans Stock
  Transfer & Trust Company,

  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).


 


45

















 


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 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.


 


46

















 


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


 


(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.


 


47

















 


(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, 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


 


48

















 


(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 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


 


49

















 


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


 


(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.


 


50

















 


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.


 


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.


 


51

















 


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 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


 


52

















 


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.


 


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


 


53

















 


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.


 


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


 


54

















 


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 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


 


55

















 


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
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.


 


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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.


 


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.


 


57

















 


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 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.


 


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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 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


 


59

















 


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.


 


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.


 


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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 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.


 


61

















 


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 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


 


62

















 


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 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.


 


63

















 


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.


 


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)


 


64

















 


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 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


 


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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 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.


 


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(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.


 


(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


 


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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 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.


 


*    *    *


 


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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


 


1

















 


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 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.


 


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