urg_ex44





 







Exhibit 4.4


 



FORM OF SUBORDINATED INDENTURE


 


 


 


UR-ENERGY
INC.,


ISSUER,


AND


[                      
                  ],


TRUSTEE


 



INDENTURE


DATED
AS OF [                            ],
20[    ]


 


 


 


SUBORDINATED
DEBT SECURITIES


 


 




 








 






 



TABLE OF CONTENTS1  


 


	
 

	
 

	


Page


	

ARTICLE
I DEFINITIONS

	
 

	

1


	
 

	
 

	
 


	

Section 1.01
Definitions of Terms

	
 

	

1


	
 

	
 

	
 


	

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

	
 

	

4


	
 

	
 

	
 


	

Section 2.01
Designation and Terms of Securities

	
 

	

4


	

Section 2.02
Form of Securities and Trustee’s Certificate

	
 

	

6


	

Section 2.03
Denominations; Provisions for Payment

	
 

	

6


	

Section 2.04
Execution and Authentications

	
 

	

8


	

Section 2.05
Registration of Transfer and Exchange

	
 

	

8


	

Section 2.06
Temporary Securities

	
 

	

9


	

Section 2.07
Mutilated, Destroyed, Lost or Stolen Securities

	
 

	

10


	

Section 2.08
Cancellation

	
 

	

10


	

Section 2.09
Benefits of Indenture

	
 

	

10


	

Section 2.10
Authenticating Agent

	
 

	

11


	

Section 2.11
Securities

	
 

	

11


	
 

	
 

	
 


	

ARTICLE
III REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS

	
 

	

12


	
 

	
 

	
 


	

Section 3.01
Redemption

	
 

	

12


	

Section 3.02
Notice of Redemption

	
 

	

12


	

Section 3.03
Payment Upon Redemption

	
 

	

13


	

Section 3.04
Sinking Fund

	
 

	

14


	

Section 3.05
Satisfaction of Sinking Fund Payments with Securities

	
 

	

14


	

Section 3.06
Redemption of Securities for Sinking Fund

	
 

	

14


	
 

	
 

	
 


	

ARTICLE
IV COVENANTS

	
 

	

14


	
 

	
 

	
 


	

Section 4.01
Payment of Principal, Premium and Interest

	
 

	

14


	

Section 4.02
Maintenance of Office or Agency

	
 

	

14


	

Section 4.03
Paying Agents

	
 

	

15


	

Section 4.04
Appointment to Fill Vacancy in Office of Trustee

	
 

	

15


	
 

	
 

	
 


	

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

	
 

	

16


	
 

	
 

	
 


	

Section 5.01
Company to Furnish Trustee Names and Addresses of
Securityholders

	
 

	

16


	

Section 5.02
Preservation Of Information; Communications With
Securityholders

	
 

	

16


	

Section 5.03
Reports by the Company

	
 

	

16


	

Section 5.04
Reports by the Trustee

	
 

	

17


	
 

	
 

	
 


	

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

	
 

	

17


	
 

	
 

	
 


	

Section 6.01
Events of Default

	
 

	

17


	

Section 6.02
Suits for Enforcement by Trustee

	
 

	

19


	

Section 6.03
Application of Moneys Collected

	
 

	

20


	

Section 6.04
Limitation on Suits

	
 

	

20







 


 




 








 






 


	
 

	
 

	


Page


	

Section 6.05
Rights and Remedies Cumulative; Delay or Omission Not
Waiver

	
 

	

21


	

Section 6.06
Control by Securityholders

	
 

	

21


	

Section 6.07
Undertaking to Pay Costs

	
 

	

22


	
 

	
 

	
 


	

ARTICLE
VII CONCERNING THE TRUSTEE

	
 

	

22


	
 

	
 

	
 


	

Section 7.01
Certain Duties and Responsibilities of Trustee

	
 

	

22


	

Section 7.02
Certain Rights of Trustee

	
 

	

23


	

Section 7.03
Trustee Not Responsible for Recitals or Issuance or
Securities

	
 

	

24


	

Section 7.04 May
Hold Securities

	
 

	

24


	

Section 7.05
Moneys Held in Trust

	
 

	

24


	

Section 7.06
Compensation and Reimbursement

	
 

	

24


	

Section 7.07
Reliance on Officers’ Certificate

	
 

	

25


	

Section 7.08
Disqualification; Conflicting Interests

	
 

	

25


	

Section 7.09
Corporate Trustee Required; Eligibility

	
 

	

25


	

Section 7.10
Resignation and Removal; Appointment of Successor

	
 

	

25


	

Section 7.11
Acceptance of Appointment By Successor

	
 

	

26


	

Section 7.12
Merger, Conversion, Consolidation or Succession to
Business

	
 

	

28


	

Section 7.13
Preferential Collection of Claims Against the Company

	
 

	

28


	
 

	
 

	
 


	

ARTICLE
VIII CONCERNING THE SECURITYHOLDERS

	
 

	

28


	
 

	
 

	
 


	

Section 8.01
Evidence of Action by Securityholders

	
 

	

28


	

Section 8.02
Proof of Execution by Securityholders

	
 

	

28


	

Section 8.03
Who May be Deemed Owners

	
 

	

29


	

Section 8.04
Certain Securities Owned by Company Disregarded

	
 

	

29


	

Section 8.05
Actions Binding on Future Securityholders

	
 

	

29


	
 

	
 

	
 


	

ARTICLE
IX SUPPLEMENTAL INDENTURES

	
 

	

30


	
 

	
 

	
 


	

Section 9.01
Supplemental Indentures Without the Consent of
Securityholders

	
 

	

30


	

Section 9.02
Supplemental Indentures With Consent of
Securityholders

	
 

	

31


	

Section 9.03
Effect of Supplemental Indentures

	
 

	

31


	

Section 9.04
Securities Affected by Supplemental Indentures

	
 

	

31


	

Section 9.05
Execution of Supplemental Indentures

	
 

	

31


	
 

	
 

	
 


	

ARTICLE
X SUCCESSOR ENTITY

	
 

	

32


	
 

	
 

	
 


	

Section 10.01
Company May Consolidate, Etc

	
 

	

32


	

Section 10.02
Successor Entity Substituted

	
 

	

32


	

Section 10.03
Evidence of Consolidation, Etc

	
 

	

33


	
 

	
 

	
 


	

ARTICLE
XI SATISFACTION AND DISCHARGE

	
 

	

33


	
 

	
 

	
 


	

Section 11.01
Satisfaction and Discharge of Indenture

	
 

	

33


	

Section 11.02
Discharge of Obligations

	
 

	

33


	

Section 11.03
Deposited Moneys to be Held in Trust

	
 

	

33


	

Section 11.04
Payment of Moneys Held by Paying Agents

	
 

	

34


	

Section 11.05
Repayment to Company

	
 

	

34







 


 




 








 






 


	
 

	
 

	


Page


	

ARTICLE
XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS

	
 

	

34


	
 

	
 

	
 


	

Section 12.01
No Recourse

	
 

	

34


	
 

	
 

	
 


	

ARTICLE
XIII MISCELLANEOUS PROVISIONS

	
 

	

34


	
 

	
 

	
 


	

Section 13.01
Effect on Successors and Assigns

	
 

	

34


	

Section 13.02
Actions by Successor

	
 

	

35


	

Section 13.03
Notices

	
 

	

35


	

Section 13.04
Governing Law

	
 

	

35


	

Section 13.05
Compliance Certificates and Opinions

	
 

	

35


	

Section 13.06
Payments on Business Days

	
 

	

35


	

Section 13.07
Conflict with Trust Indenture Act

	
 

	

36


	

Section 13.08
Counterparts

	
 

	

36


	

Section 13.09
Separability

	
 

	

36


	

Section 13.10
Assignment

	
 

	

36


	
 

	
 

	
 


	

ARTICLE
XIV SUBORDINATION OF SECURITIES

	
 

	

36


	
 

	
 

	
 


	

Section 14.01
Subordination Terms

	
 

	

36







 



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


 


 




 








 






 



CROSS-REFERENCE TABLE2


 


	

Section
of Trust Indenture Act of 1939, as amended

	
 

	

Section of Indenture


	

310(a)(1)

	
 

	

7.09


	

310(a)(2)

	
 

	

7.09


	

310(a)(3)

	
 

	

Inapplicable


	

310(a)(4)

	
 

	

Inapplicable


	

310(b)

	
 

	

7.08


	
 

	
 

	

7.10


	

310(c)

	
 

	

Inapplicable


	

311(a)

	
 

	

7.13


	

311(b)

	
 

	

7.13


	

311(c)

	
 

	

Inapplicable


	

312(a)

	
 

	

5.01


	
 

	
 

	

5.02(a)


	

312(b)

	
 

	

5.02(c)


	

312(c)

	
 

	

5.02(c)


	

313(a)

	
 

	

5.04(a)


	

313(b)

	
 

	

5.04(b)


	

313(c)

	
 

	

5.04(a)


	
 

	
 

	

5.04(b)


	
 

	
 

	

5.04(c)


	

313(d)

	
 

	

5.04(b)


	
 

	
 

	

5.04(c)


	

314(a)

	
 

	

5.03


	
 

	
 

	

13.05(c)


	

314(b)

	
 

	

Inapplicable


	

314(c)

	
 

	

13.05


	

314(d)

	
 

	

Inapplicable


	

314(e)

	
 

	

13.05


	

314(f)

	
 

	

Inapplicable


	

315(a)(1)

	
 

	

7.01(b)


	

315(a)(2)

	
 

	

7.02


	

315(b)

	
 

	

5.04(d)


	

315(c)

	
 

	

7.01


	

315(d)

	
 

	

7.01


	
 

	
 

	

7.02


	

315(e)

	
 

	

6.07


	

316(a)

	
 

	

6.06


	
 

	
 

	

8.04


	

316(b)

	
 

	

6.04


	

316(c)

	
 

	

8.01


	

317(a)

	
 

	

6.02


	

317(b)

	
 

	

4.03


	

318(a)

	
 

	

13.07







 



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


 




 








 






 


INDENTURE,
dated as of [      ],
20[    ],
between Ur-Energy Inc., a corporation continued under the Canada
Business Corporations Act (the “Company”), and
[      ],
as trustee (the “Trustee”):


 


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


 


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


 


WHEREAS, all things
necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.


 


NOW,
THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders
of Securities:


 


ARTICLE
I


DEFINITIONS


 


Section 1.01
Definitions of
Terms. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section and shall include the plural as well as
the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or that are
by reference in such Act defined in the Securities Act of 1933, as
amended (the “Securities Act”) (except as herein
otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this instrument.


 


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


 


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


 


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


 


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


 


“Business Day” means, with
respect to any series of Securities, [
                               ].


 


 




 

1








 






 


“Certificate” means a
certificate signed by the principal executive officer, the
principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of
Section 13.05.


 


“Company” means Ur-Energy
Inc., a corporation continued under the Canada Business
Corporations Act.


 


“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 [
          ],
except that whenever a provision herein refers to an office or
agency of the Trustee in the United States, such office is located,
at the date hereof, at [
        ].


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 




 

2








 






 


“Indenture” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms
hereof.


 


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


 


“Officers’
Certificate” means in the case of the Company, a
certificate signed by the Chairman, Chief Executive Officer,
President, Chief Financial Officer, Chief Operating Officer, an
Executive Vice President or a Senior Vice President and by the
Controller or an Assistant Controller or the Secretary or an
Assistant Secretary of the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate
shall include the statements provided for in Section 13.05, if
and to the extent required by the provisions thereof.


 


“Opinion of Counsel” means
an opinion in writing of legal counsel, who may be an employee of
or counsel for the Company, that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.05, if and to the
extent required by the provisions thereof.


 


“Outstanding,” when used
with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered
by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or
delivered to the Trustee or any paying agent for cancellation or
that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or
in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of
Section 2.07.


 


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


 


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


 


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


 


 




 

3








 






 


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


 


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


 


“Senior Indebtedness”
means indebtedness issued pursuant to a senior indenture, as
supplemented or amended by one or more indentures supplemental
thereto, payment of which shall be senior to the payment of the
Securities issued hereunder, pursuant to ARTICLE XIV
hereof.


 


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


 


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


 


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


 


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


 


ARTICLE
II


ISSUE,
DESCRIPTION, TERMS, EXECUTION,


REGISTRATION
AND EXCHANGE OF SECURITIES


 


Section 2.01
Designation and Terms of
Securities.


 


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


 


 




 

4








 






 


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


 


(2) any
limit upon the aggregate principal amount of the Securities of that
series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series);


 


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


 


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


 


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


 


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


 


(7) the
period or periods within which, the price or prices at which and
the terms and conditions upon which, Securities of the series may
be redeemed, in whole or in part, at the option of the
Company;


 


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


 


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


 


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


 


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


 


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


 


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


 




 

5








 






 


(14) if
other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant
to Section 6.01;


 


(15)
the subordination terms of the Securities of the series;
and


 


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


 


(b)
 All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.


 


(c)
 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.


 


(d)
 Securities of any particular series may be issued at various
times, with different dates on which the principal or any
installment of principal is payable, with different rates of
interest, if any, or different methods by which rates of interest
may be determined, with different dates on which such interest may
be payable and with different redemption dates.


 


Section 2.02
Form of Securities and
Trustee’s Certificate. The Securities of any series
and the Trustee’s certificate of authentication to be borne
by such Securities shall be substantially of the tenor and purport
as set forth in one or more indentures supplemental hereto or as
provided in a Board Resolution and as set forth in an
Officers’ Certificate and may have such letters, numbers or
other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which
Securities of that series may be listed, or to conform to
usage.


 


Section 2.03
Denominations; Provisions
for Payment. The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, subject to
Section 2.01(10). The Securities of a particular series shall
bear interest payable on the dates and at the rate specified with
respect to that series. The principal of and the interest on the
Securities of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin
or currency of the United States of America that at the time is
legal tender for public and private debt, at the office or agency
of the Company maintained for that purpose in the United States.
Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.


 




 

6








 






 


The
interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
for Securities of that series shall be paid to the Person in whose
name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for
such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in
Section 3.03.


 


Any
interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for
Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of
having been such holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (1) or
clause (2) below:


 


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


 


(2) The
Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.


 


Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term
“regular record date” as used in this Section with
respect to a series of Securities with respect to any Interest
Payment Date for such series shall mean either the fifteenth day of
the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date
is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of
a month, whether or not such date is a Business Day.


 


 




 

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


 


Section 2.04
Execution and
Authentications. The Securities shall be signed on behalf of
the Company by its Chairman, Vice Chairman, Chief Executive
Officer, President, Chief Financial Officer, Chief Operating
Officer, or one of its Executive Vice Presidents or Senior Vice
Presidents, or its Treasurer, or one of its Assistant Treasurers,
or its Secretary, or one of its Assistant Secretaries, under its
corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any
Person who were at any time proper officers of the Company,
notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have
ceased to hold such office. The seal of the Company may be in the
form of a facsimile of such seal and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. The Securities
may contain such notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication by the Trustee.


 


No
Security shall be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent.
Such signature shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and
delivery of such Securities, signed by an authorized officer and
its Secretary or any Assistant Secretary, and the Trustee in
accordance with such written order shall authenticate and deliver
such Securities.


 


In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject
to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the form and terms thereof have
been established in conformity with the provisions of this
Indenture.


 


The
Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.


 


Section 2.05
Registration of Transfer
and Exchange.


 


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


 




 

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(b) The
Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the United States, or such other
location designated by the Company a register or registers (herein
referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable
times shall be open for inspection by the Trustee. The registrar
for the purpose of registering Securities and transfer of
Securities as herein provided shall be appointed as authorized by a
Board Resolution (the “Security
Registrar”).


 


Upon
surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security
or Securities of the same series as the Security presented for a
like aggregate principal amount.


 


All
Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the
Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in
writing.


 


(c) No
service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of
partial redemption of any series, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to
Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.


 


(d) The
Company shall not be required (1) to issue, exchange or
register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of
a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day
of such mailing, nor (2) to register the transfer of or
exchange any Securities of any series or portions thereof called
for redemption. The provisions of this Section 2.05 are, with
respect to any Global Security, subject to Section 2.11
hereof.


 


Section 2.06
Temporary
Securities. Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination. Such
temporary Securities shall be substantially in the form of the
definitive Securities in lieu of which they are issued, but with
such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company.
Every temporary Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose in the United States, and
the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that
definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary
Securities of such series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.


 


 




 

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Section 2.07
Mutilated, Destroyed, Lost
or Stolen Securities. In case any temporary or definitive
Security shall become mutilated or be destroyed, lost or stolen,
the Company (subject to the next succeeding sentence) shall
execute, and upon the Company’s request, the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen.
In every case the applicant for a substituted Security shall
furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the
applicant’s Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer
of the Company. Upon the issuance of any substituted Security, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. In case any Security that has
matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may
require to save each of them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of
the ownership thereof.


 


Every
replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost or
stolen Security shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of
the same series duly issued hereunder. All Securities shall be held
and owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities, and shall preclude
(to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their
surrender.


 


Section 2.08
Cancellation. All
Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled
by it, and no Securities shall be issued in lieu thereof except as
expressly required or permitted by any of the provisions of this
Indenture. On request of the Company at the time of such surrender,
the Trustee shall deliver to the Company canceled Securities held
by the Trustee. In the absence of such request the Trustee may
dispose of canceled Securities in accordance with its standard
procedures and deliver a certificate of disposition to the Company.
If the Company shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for
cancellation.


 


Section 2.09
Benefits of
Indenture. Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any
Person, other than the parties hereto and the holders of the
Securities (and, with respect to the provisions of ARTICLE XIV, the
holders of Senior Indebtedness), any legal or equitable right,
remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of
the parties hereto and of the holders of the Securities (and, with
respect to the provisions of ARTICLE XIV, the holders of Senior
Indebtedness).


 


 




 

10








 






 


Section 2.10
Authenticating
Agent. So long as any of the Securities of any series remain
Outstanding there may be an Authenticating Agent for any or all
such series of Securities which the Trustee shall have the right to
appoint. Said Authenticating Agent shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series
issued upon exchange, transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. All references in
this Indenture to the authentication of Securities by the Trustee
shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a
combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or
examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.


 


Any
Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee, to the Company. The Trustee
may at any time (and upon request by the Company shall) terminate
the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent, to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.


 


Section 2.11
Securities.


 


(a) If
the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a
Global Security that (1) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such series,
(2) shall be registered in the name of the Depositary or its
nominee, (3) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and
(4) shall bear a legend substantially to the following effect:
“Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in
part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor
Depositary.”


 


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


 


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


 


 




 

11








 






 


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


 


ARTICLE
III


REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS


 


Section 3.01
Redemption. The
Company may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.


 


Section 3.02
Notice of
Redemption.


 


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


 


Each
such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that
series are to be redeemed, and shall state that payment of the
redemption price of such Securities to be redeemed will be made at
the office or agency of the Company in the United States, upon
presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease
to accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Securities of a series are to be
redeemed, the notice to the holders of Securities of that series to
be redeemed in whole or in part shall specify the particular
Securities to be so redeemed. In case any Security is to be
redeemed in part only, the notice that relates to such Security
shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date,
upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion
thereof will be issued.


 


 




 

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


 


Section 3.03
Payment Upon
Redemption.


 


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


 


(b)
Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee
shall authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of
the Company, a new Security of the same series of authorized
denominations in principal amount equal to the unredeemed portion
of the Security so presented.


 




 

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


 


Section 3.05
Satisfaction of Sinking
Fund Payments with Securities. The Company (a) may
deliver Outstanding Securities of a series (other than any
Securities previously called for redemption) and (b) may apply
as a credit Securities of a series that have been redeemed either
at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made
pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.


 


Section 3.06
Redemption of Securities
for Sinking Fund. Not less than 45 days prior to each
sinking fund payment date for any series of Securities, the Company
will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05
and the basis for such credit and will, together with such
Officers’ Certificate, deliver to the Trustee any Securities
to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.02. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in
Section 3.03.


 


ARTICLE
IV


COVENANTS


 


Section 4.01
Payment of Principal,
Premium and Interest. The Company will duly and punctually
pay or cause to be paid the principal of (and premium, if any) and
interest on the Securities of that series at the time and place and
in the manner provided herein and established with respect to such
Securities.


 


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


 


 




 

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Section 4.03
Paying
Agents.


 


(a) If
the Company shall appoint one or more paying agents for all or any
series of the Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:


 


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


 


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


 


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


 


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


 


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


 


(c)
Notwithstanding anything in this Section to the contrary,
(1) the agreement to hold sums in trust as provided in this
Section is subject to the provisions of Section 11.05, and
(2) the Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums
to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying
agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with
respect to such money.


 


Section 4.04
Appointment to Fill
Vacancy in Office of Trustee. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.


 


 




 

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ARTICLE
V


SECURITYHOLDERS’
LISTS AND REPORTS


BY THE
COMPANY AND THE TRUSTEE


 


Section 5.01
Company to Furnish Trustee
Names and Addresses of Securityholders. The Company will
furnish or cause to be furnished to the Trustee (a) on each
regular record date (as defined in Section 2.03), but in each
case will be no more than six months apart, a list, in such form as
the Trustee may reasonably require, of the names and addresses of
the holders of each series of Securities as of such regular record
date, provided that the Company shall not be obligated to furnish
or cause to be furnished such list at any time that the list shall
not differ in any respect from the most recent list furnished to
the Trustee by the Company and (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by
the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that, in either case, no such list
need be furnished for any series for which the Trustee shall be the
Security Registrar.


 


Section 5.02
Preservation Of
Information; Communications With
Securityholders.


 


(a) The
Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished
to it as provided in Section 5.01 and as to the names and
addresses of holders of Securities received by the Trustee in its
capacity as Security Registrar (if acting in such
capacity).


 


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


 


(c)
Securityholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities. The
Company, the Trustee, the Security Registrar and any other Person
shall have the protection of the Trust Indenture Act
Section 312(c).


 


Section 5.03
Reports by the
Company.


 


(a) The
Company covenants and agrees to file with the Trustee, within 15
days after the Company files the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant to
Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and
regulations.


 


(b) The
Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and
regulations.


 


 




 

16








 






 


(c) The
Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that
provides for evidence of receipt, to the Securityholders, as their
names and addresses appear upon the Security Register, within 30
days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from
time to time by the Commission.


 


Section 5.04
Reports by the
Trustee.


 


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


 


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


 


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


 


(d) If
an Event of Default occurs and is continuing and the Trustee
receives actual notice of such Event of Default, the Trustee shall
mail to each Securityholder notice of the uncured Event of Default
within 90 days after the occurrence thereof. Except in the case of
an Event of Default in payment of principal of, or interest on, any
Securities, or in the payment of any sinking or purchase fund
installment, the Trustee may withhold the notice if and so long as
the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in
the interests of the Securityholders.


 


ARTICLE
VI


REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT


 


Section 6.01
Events of
Default.


 


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


 


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


 


 




 

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


 


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


 


(4) the
Company pursuant to or within the meaning of any Bankruptcy Law
(i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors;
or


 


(5) a
court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in
an involuntary case, (ii) appoints a Custodian of the Company
for all or substantially all of its property or (iii) orders
the liquidation of the Company, and the order or decree remains
unstayed and in effect for 90 days.


 


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


 


(c) At
any time after the principal of the Securities of that series shall
have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in
aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its
consequences if: (1) the Company has paid or deposited with
the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series and the principal
of (and premium, if any, on) all Securities of that series that
shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Securities of that series to the date of such payment or deposit)
and any amount payable to the Trustee under Section 7.06, and
(2) any and all other Events of Default under the Indenture
with respect to such series, other than the nonpayment of principal
on Securities of that series that shall not have become due by
their terms, shall have been remedied or waived as provided in
Section 6.06.


 


 




 

18








 






 


No such
rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent
thereon.


 


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


 


Section 6.02
Suits for Enforcement by
Trustee.


 


(a) If
an Event of Default specified in Section 6.01(a)(1) or
(2) hereof occurs and is continuing, the Trustee, in its own
name and as trustee of an express trust, shall be entitled and
empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against
the Company or any other obligor upon the Securities of that series
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon the Securities of that series, wherever
situated.


 


(b) In
case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and
shall (except as may be otherwise provided by law) be entitled to
file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee
and of the holders of Securities of a series allowed for the entire
amount due and payable by the Company under this Indenture at the
date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the
same after the deduction of the amount payable to the Trustee under
Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the
holders of Securities of such series to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Securityholders, to pay to
the Trustee any amount due it under Section 7.06.


 


(c) All
rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of a
series, may be enforced by the Trustee without the possession of
any of such Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under
Section 7.06, be for the ratable benefit of the holders of the
Securities of such series.


 


In case
of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by
law.


 


 




 

19








 






 


Nothing
contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the
rights of any holder thereof or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such
proceeding.


 


Section 6.03
Application of Moneys
Collected. Any moneys collected by the Trustee pursuant to
this Article with respect to a particular series of Securities
shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on
account of principal (or premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon
the payment, if only partially paid, and upon surrender thereof if
fully paid:


 


FIRST:
To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under
Section 7.06;


 


SECOND:
To the payment of all Senior Indebtedness of the Company if and to
the extent required by ARTICLE XIV; and


 


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


 


Section 6.04
Limitation on
Suits. No holder of any Security of any series shall have
any right by virtue or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or
at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless (a) such holder previously shall have given
to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series
specifying such Event of Default, as hereinbefore provided;
(b) the holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action,
suit or proceeding in its own name as trustee hereunder;
(c) such holder or holders shall have offered to the Trustee
such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any
such action, suit or proceeding; and (e) during such 60-day
period, the holders of a majority in principal amount of the
Securities of that series shall not have given the Trustee a
direction inconsistent with the request.


 


Notwithstanding
anything contained herein to the contrary, the right of any holder
of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein
provided, on or after the respective due dates expressed in such
Security (or in the case of redemption, on the redemption date), or
to institute suit for the enforcement of any such payment on or
after such respective dates or redemption date, shall not be
impaired or affected without the consent of such holder. By
accepting a Security hereunder it is expressly understood, intended
and covenanted by the taker and holder of every Security of such
series with every other such taker and holder and the Trustee, that
no one or more holders of Securities of such series shall have any
right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, or to obtain
or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common
benefit of all holders of Securities of such series. For the
protection and enforcement of the provisions of this Section, each
and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.


 


 




 

20








 






 


Section 6.05
Rights and Remedies
Cumulative; Delay or Omission Not Waiver.


 


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


 


(b) No
delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any
such default or on acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Securityholders.


 


Section 6.06
Control by
Securityholders. The holders of a majority in aggregate
principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.01, shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect
to such series; provided, however, that such direction shall not be
in conflict with any rule of law or with this Indenture or be
unduly prejudicial to the rights of holders of Securities of any
other series at the time Outstanding determined in accordance with
Section 8.01. Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the proceeding
so directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.01, may on behalf of
the holders of all of the Securities of such series waive any past
default in the performance of any of the covenants contained herein
or established pursuant to Section 2.01 with respect to such
series and its consequences, except an uncured default in the
payment of the principal of (or premium, if any) or interest on,
any of the Securities of that series as and when the same shall
become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)). Upon any such waiver, the
default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the
holders of the Securities of such series shall be restored to their
former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.


 


 




 

21








 






 


Section 6.07
Undertaking to Pay
Costs. All parties to this Indenture agree, and each holder
of any Securities by such holder’s acceptance thereof shall
be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than 10%
in aggregate principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any)
or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established
pursuant to this Indenture.


 


ARTICLE
VII


CONCERNING
THE TRUSTEE


 


Section 7.01
Certain Duties and
Responsibilities of Trustee.


 


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


 


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


 


(1)
prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have
occurred:


 


(i) the
duties and obligations of the Trustee shall with respect to the
Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and


 


(ii) in
the absence of bad faith on the part of the Trustee, the Trustee
may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture;


 


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


 


 




 

22








 






 


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


 


(4)
none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of
this Indenture or adequate indemnity against such risk is not
reasonably assured to it.


 


Section 7.02
Certain Rights of
Trustee. Except as otherwise provided in
Section 7.01:


 


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


 


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


 


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


 


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


 


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


 


 




 

23








 










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


 


(g) The
Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.


 


Section 7.03
Trustee Not Responsible
for Recitals or Issuance or Securities.


 


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


 


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


 


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


 


Section 7.04 May
Hold Securities. The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the
owner or pledgee of Securities with the same rights it would have
if it were not Trustee, paying agent or Security
Registrar.


 


Section 7.05
Moneys Held in
Trust. Subject to the provisions of Section 11.05, all
moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay
thereon.


 


Section 7.06
Compensation and
Reimbursement.


 


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


 


 




 

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


 


Section 7.07
Reliance on
Officers’ Certificate. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering
or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may,
in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions
of this Indenture upon the faith thereof.


 


Section 7.08
Disqualification;
Conflicting Interests. If the Trustee has or shall acquire
any “conflicting interest” within the meaning of
Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.


 


Section 7.09
Corporate Trustee
Required; Eligibility. There shall at all times be a Trustee
with respect to the Securities issued hereunder which shall at all
times be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any
Person directly or indirectly controlling, controlled by or under
common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in
Section 7.10.


 


Section 7.10
Resignation and Removal;
Appointment of Successor.


 


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


 


 




 

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


 


(1) the
Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or
by any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months; or


 


(2) the
Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after
written request therefor by the Company or by any such
Securityholder; or


 


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


 


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


 


(d) Any
resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11.


 


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


 


Section 7.11
Acceptance of Appointment
By Successor.


 


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


 


 




 

26








 






 


(b) In
case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor trustee relates, (2) shall
contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon
the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee
shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture, and each such successor trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee, to the
extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of
such successor trustee relates.


 


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


 


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


 


(e)
Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to
be transmitted at the expense of the Company.


 


 




 

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Section 7.12
Merger, Conversion,
Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper
or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Securities.


 


Section 7.13
Preferential Collection of
Claims Against the Company. The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.


 


ARTICLE
VIII


CONCERNING
THE SECURITYHOLDERS


 


Section 8.01
Evidence of Action by
Securityholders. Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate
principal amount of the Securities of a particular series may take
any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the
holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any
number of instruments of similar tenor executed by such holders of
Securities of that series in Person or by agent or proxy appointed
in writing.


 


If the
Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an
Officers’ Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action
may be given before or after the record date, but only the
Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the
record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after
the record date.


 


Section 8.02
Proof of Execution by
Securityholders. Subject to the provisions of
Section 7.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following
manner:


 


 




 

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


 


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


 


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


 


Section 8.03
Who May be Deemed
Owners. Prior to the due presentment for registration of
transfer of any Security, the Company, the Trustee, any paying
agent and any Security Registrar may deem and treat the Person in
whose name such Security shall be registered upon the books of the
Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of
the principal of (and premium, if any) and (subject to
Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying
agent nor any Security Registrar shall be affected by any notice to
the contrary.


 


Section 8.04
Certain Securities Owned
by Company Disregarded. In determining whether the holders
of the requisite aggregate principal amount of Securities of a
particular series have concurred in any direction, consent or
waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that
series or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other
obligor on the Securities of that series shall be disregarded and
deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that the Trustee
actually knows are so owned shall be so disregarded. The Securities
so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the
pledgee is not a Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or any such other obligor. In case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.


 


Section 8.05
Actions Binding on Future
Securityholders. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the
evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the
Trustee, and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder
of any Security shall be conclusive and binding upon such holder
and upon all future holders and owners of such Security, and of any
Security issued in exchange therefor, on registration of transfer
thereof or in place thereof, irrespective of whether or not any
notation in regard thereto is made upon such Security. Any action
taken by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified
in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders
of all the Securities of that series.


 


 




 

29








 






 


ARTICLE
IX


SUPPLEMENTAL
INDENTURES


 


Section 9.01
Supplemental Indentures
Without the Consent of Securityholders. In addition to any
supplemental indenture otherwise authorized by this Indenture, the
Company and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or
more of the following purposes:


 


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


 


(b) to
comply with Article Ten;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 




 

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Section 9.02
Supplemental Indentures
With Consent of Securityholders. With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the
time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner not covered by Section 9.01 the rights of the holders
of the Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof,
or reduce the rate of interest thereon, or reduce any premium
payable upon the redemption thereof, or (ii) reduce the
aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental
indenture.


 


It
shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.


 


Section 9.03
Effect of Supplemental
Indentures. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such
series, be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all
purposes.


 


Section 9.04
Securities Affected by
Supplemental Indentures. Securities of any series affected
by a supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in
form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed,
as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of that series so
modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.


 


Section 9.05
Execution of Supplemental
Indentures. Upon the request of the Company, accompanied by
Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent
thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated
to enter into such supplemental indenture. The Trustee, subject to
the provisions of Section 7.01, may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by,
and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel
need not be provided in connection with the execution of a
supplemental indenture that establishes the terms of a series of
Securities pursuant to Section 2.01 hereof.


 


 




 

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


 


ARTICLE
X


SUCCESSOR
ENTITY


 


Section 10.01
Company May Consolidate,
Etc. Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company
with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company, or its successor or
successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or
its successor or successors) authorized to acquire and operate the
same; provided, however, the Company hereby covenants and agrees
that, upon any such consolidation or merger (in each case, if the
Company is not the survivor of such transaction), sale, conveyance,
transfer or other disposition, the due and punctual payment of the
principal of (premium, if any) and interest on all of the
Securities of all series in accordance with the terms of each
series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act as then in effect) satisfactory in form to
the Trustee executed and delivered to the Trustee by the entity
formed by such consolidation, or into which the Company shall have
been merged, or by the entity which shall have acquired such
property.


 


Section 10.02
Successor Entity
Substituted.


 


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


 


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


 


(c)
Nothing contained in this Article shall apply to limit or impose
any requirements upon the consolidation or merger of any Person
into the Company where the Company is the survivor of such
transaction, or the acquisition by the Company, by purchase or
otherwise, of all or any part of the property of any other Person
(whether or not affiliated with the Company).


 


 




 

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Section 10.03
Evidence of Consolidation,
Etc. to Trustee. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with
the provisions of this Article.


 


ARTICLE
XI


SATISFACTION
AND DISCHARGE


 


Section 11.01
Satisfaction and Discharge
of Indenture. If at any time: (a) the Company shall
have delivered to the Trustee for cancellation all Securities of a
series theretofore authenticated (other than any Securities that
have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.07) and Securities for whose
payment money or Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company
(and thereupon repaid to the Company or discharged from such trust,
as provided in Section 11.05); or (b) all such Securities
of a particular series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations or a
combination thereof, 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 at
maturity or upon redemption all Securities of that series not
theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further
effect with respect to such series except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall
survive until the date of maturity or redemption date, as the case
may be, and Sections 7.06 and 11.05, that shall survive to such
date and thereafter, and the Trustee, on demand of the Company and
at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this
Indenture with respect to such series.


 


Section 11.02
Discharge of
Obligations. If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described
in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations sufficient to pay at maturity or
upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if
the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then
after the date such moneys or Governmental Obligations, as the case
may be, are deposited with the Trustee, the obligations of the
Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections
2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 11.05 hereof
that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.


 


Section 11.03
Deposited Moneys to be
Held in Trust. All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02
shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the
Trustee.


 


 




 

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Section 11.04
Payment of Moneys Held by
Paying Agents. In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations
then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee
and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental
Obligations.


 


Section 11.05
Repayment to
Company. Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company,
in trust for payment of principal of (and premium, if any) or
interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities for
at least two years after the date upon which the principal of (and
premium, if any) or interest on such Securities shall have
respectively become due and payable, shall be repaid to the Company
or (if then held by the Company) shall be discharged from such
trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment
thereof.


 


ARTICLE
XII


IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


Section 12.01
No Recourse. No
recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or
future as such, of the Company or of any predecessor or successor
Person, either directly or through the Company or any such
predecessor or successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of
any predecessor or successor Person, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and
the issuance of such Securities.


 


ARTICLE
XIII


MISCELLANEOUS
PROVISIONS


 


Section 13.01
Effect on Successors and
Assigns. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so expressed
or not.


 




 

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Section 13.02
Actions by
Successor. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done
and performed with like force and effect by the corresponding
board, committee or officer of any corporation that shall at the
time be the lawful successor of the Company.


 


Section 13.03
Notices. Except as
otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Securities to
or on the Company may be given or served by being deposited first
class postage prepaid in a post-office letterbox addressed (until
another address is filed in writing by the Company with the
Trustee), as follows: [    ]. Any
notice, election, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.


 


Section 13.04
Governing Law. This
Indenture and each Security shall be deemed to be a contract made
under the internal laws of [
          ], and
for purposes shall be construed in accordance with the laws of [
          ].


 


Section 13.05
Compliance Certificates
and Opinions.


(a)
Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.


 


(b)
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (1) a
statement that the Person making such certificate or opinion has
read such covenant or condition; (2) a brief statement as to
the nature and scope of the examination or investigation upon which
the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied
with.


 


(c) The
Company shall furnish to the Trustee, on [    ] of
each year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting
officer as to his or her knowledge of such obligor’s
compliance with all conditions and covenants under this Indenture.
For purposes of this subsection, such compliance shall be
determined without regard to any period of grace or requirement of
notice provided hereunder.


 


Section 13.06
Payments on Business
Days. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an
Officers’ Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the
date of maturity of interest or principal of any Security or the
date of redemption of any Security shall not be a Business Day,
then payment of interest or principal (and premium, if any) may be
made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal
date.


 




 

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Section 13.07
Conflict with Trust
Indenture Act. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.


 


Section 13.08
Counterparts. This
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument.


 


Section 13.09
Separability. In
case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid
or illegal or unenforceable provision had never been contained
herein or therein.


 


Section 13.10
Assignment. The
Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event
of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding
upon and inures to the benefit of the parties thereto and their
respective successors and assigns. This Indenture may not otherwise
be assigned by the parties thereto.


 


ARTICLE
XIV


SUBORDINATION
OF SECURITIES


 


Section 14.01
Subordination
Terms. The payment by the Company of the principal of (and
premium, if any) and interest on any series of Securities issued
hereunder shall be subordinated to the extent set forth in an
indenture supplemental hereto relating to such
Securities.


 


 




 

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


 


	

UR-ENERGY
INC.

	
 


	
 

	
 


	

By:

	
 

	
 


	

Name:

	
 

	
 


	

Title:

	
 

	
 


	
 


	



____________________________,
as Trustee




	
 


	

By:

	
 

	
 


	

Name:

	
 

	
 


	

Title:

	
 

	
 







 


 

 




 

37