Exhibit
      4.12

     

    FORM
      OF
      INDENTURE TO BE ENTERED INTO

    


    DISCOVERY
      LABORATORIES, INC.

     

    and

    


    THE
      BANK
      OF NEW YORK

     

    as
      Trustee


    
      
        

      

    

    


    INDENTURE
      

    


    Dated
      as
      of             ,
      2008


     

    
      

    

    


    Subordinated
      Debt Securities

     

    
      
         

      

      
         

        
          

        

      

      
         

      

       

    

    TABLE
      OF
      CONTENTS 


    


    
      	 	 	 	
              PAGE

            
	 	 	 	 
	
              ARTICLE
                I DEFINITIONS AND INCORPORATION BY REFERENCE

            	 	
              1

            
	 	 	 	 
	
              Section
                1.1

            	
              Definitions

            	 	
              1

            
	 	 	 	 
	
              Section
                1.2

            	
              Other
                Definitions

            	 	
              5

            
	 	 	 	 
	
              Section
                1.3

            	
              Incorporation
                by Reference of Trust Indenture Act

            	 	
              5

            
	 	 	 	 
	
              Section
                1.4

            	
              Rules
                of Construction

            	 	
              6

            
	 	 	 	 
	
              ARTICLE
                II THE SECURITIES

            	 	
              6

            
	 	 	 	 
	
              Section
                2.1

            	
              Issuable
                in Series

            	 	
              6

            
	 	 	 	 
	
              Section
                2.2

            	
              Establishment
                of Terms of Series of Securities

            	 	
              6

            
	 	 	 	 
	
              Section
                2.3

            	
              Execution
                and Authentication

            	 	
              8

            
	 	 	 	 
	
              Section
                2.4

            	
              Registrar
                and Paying Agent

            	 	
              9

            
	 	 	 	 
	
              Section
                2.5

            	
              Paying
                Agent to Hold Money in Trust

            	 	
              9

            
	 	 	 	 
	
              Section
                2.6

            	
              Securityholder
                Lists

            	 	
              9

            
	 	 	 	 
	
              Section
                2.7

            	
              Transfer
                and Exchange

            	 	
              10

            
	 	 	 	 
	
              Section
                2.8

            	
              Mutilated,
                Destroyed, Lost and Stolen Securities

            	 	
              10

            
	 	 	 	 
	
              Section
                2.9

            	
              Outstanding
                Securities

            	 	
              10

            
	 	 	 	 
	
              Section
                2.10

            	
              Treasury
                Securities

            	 	
              11

            
	 	 	 	 
	
              Section
                2.11

            	
              Temporary
                Securities

            	 	
              11

            
	 	 	 	 
	
              Section
                2.12

            	
              Cancellation

            	 	
              11

            
	 	 	 	 
	
              Section
                2.13

            	
              Defaulted
                Interest

            	 	
              11

            
	 	 	 	 
	
              Section
                2.14

            	
              Global
                Securities

            	 	
              11

            
	 	 	 	 
	
              Section
                2.15

            	
              CUSIP
                Numbers

            	 	
              13

            
	 	 	 	 
	
              ARTICLE
                III REDEMPTION

            	 	
              13

            
	 	 	 	 
	
              Section
                3.1

            	
              Notice
                to Trustee

            	 	
              13

            
	 	 	 	 
	
              Section
                3.2

            	
              Selection
                of Securities to be Redeemed

            	 	
              13

            
	 	 	 	 
	
              Section
                3.3

            	
              Notice
                of Redemption

            	 	
              13

            


    

     

    
      
         

      

      
        i

        
          

        

      

      
         

      

    

     

    
      	
              Section
                3.4

            	
              Effect
                of Notice of Redemption

            	 	
              14

            
	 	 	 	 
	
              Section
                3.5

            	
              Deposit
                of Redemption Price

            	 	
              14

            
	 	 	 	 
	
              Section
                3.6

            	
              Securities
                Redeemed in Part

            	 	
              14

            
	 	 	 	 
	
              ARTICLE
                IV COVENANTS

            	 	
              14

            
	 	 	 	 
	
              Section
                4.1

            	
              Payment
                of Principal and Interest

            	 	
              14

            
	 	 	 	 
	
              Section
                4.2

            	
              SEC
                Reports

            	 	
              14

            
	 	 	 	 
	
              Section
                4.3

            	
              Compliance
                Certificate

            	 	
              14

            
	 	 	 	 
	
              Section
                4.4

            	
              Corporate
                Existence

            	 	
              15

            
	 	 	 	 
	
              Section
                4.5

            	
              Taxes

            	 	
              15

            
	 	 	 	 
	
              ARTICLE
                V SUCCESSORS

            	 	
              15

            
	 	 	 	 
	
              Section
                5.1

            	
              When
                Company May Merge, Etc

            	 	
              15

            
	 	 	 	 
	
              Section
                5.2

            	
              Successor
                Corporation Substituted

            	 	
              15

            
	 	 	 	 
	
              ARTICLE
                VI DEFAULTS AND REMEDIES

            	 	
              16

            
	 	 	 	 
	
              Section
                6.1

            	
              Events
                of Default

            	 	
              16

            
	 	 	 	 
	
              Section
                6.2

            	
              Acceleration
                of Maturity; Rescission and Annulment

            	 	
              17

            
	 	 	 	 
	
              Section
                6.3

            	
              Collection
                of Indebtedness and Suits for Enforcement by Trustee

            	 	
              17

            
	 	 	 	 
	
              Section
                6.4

            	
              Trustee
                May File Proofs of Claim

            	 	
              18

            
	 	 	 	 
	
              Section
                6.5

            	
              Trustee
                May Enforce Claims Without Possession of Securities

            	 	
              18

            
	 	 	 	 
	
              Section
                6.6

            	
              Application
                of Money Collected

            	 	
              18

            
	 	 	 	 
	
              Section
                6.7

            	
              Limitation
                on Suits

            	 	
              19

            
	 	 	 	 
	
              Section
                6.8

            	
              Unconditional
                Right of Holders to Receive Principal and Interest

            	 	
              19

            
	 	 	 	 
	
              Section
                6.9

            	
              Restoration
                of Rights and Remedies

            	 	
              19

            
	 	 	 	 
	
              Section
                6.10

            	
              Rights
                and Remedies Cumulative

            	 	
              19

            
	 	 	 	 
	
              Section
                6.11

            	
              Delay
                or Omission Not Waiver

            	 	
              20

            
	 	 	 	 
	
              Section
                6.12

            	
              Control
                by Holders

            	 	
              20

            
	 	 	 	 
	
              Section
                6.13

            	
              Waiver
                of Past Defaults

            	 	
              20

            
	 	 	 	 
	
              Section
                6.14

            	
              Undertaking
                for Costs

            	 	
              20

            


    

     

    
      
         

      

      
        ii

        
          

        

      

      
         

      

    

     

    
      	
              ARTICLE
                VII TRUSTEE

            	 	
              21

            
	 	 	 	 
	
              Section
                7.1

            	
              Duties
                of Trustee

            	 	
              21

            
	 	 	 	 
	
              Section
                7.2

            	
              Rights
                of Trustee

            	 	
              21

            
	 	 	 	 
	
              Section
                7.3

            	
              Individual
                Rights of Trustee

            	 	
              22

            
	 	 	 	 
	
              Section
                7.4

            	
              Trustee’s
                Disclaimer

            	 	
              23

            
	 	 	 	 
	
              Section
                7.5

            	
              Notice
                of Defaults

            	 	
              23

            
	 	 	 	 
	
              Section
                7.6

            	
              Reports
                by Trustee to Holders

            	 	
              23

            
	 	 	 	 
	
              Section
                7.7

            	
              Compensation
                and Indemnity

            	 	
              23

            
	 	 	 	 
	
              Section
                7.8

            	
              Replacement
                of Trustee

            	 	
              24

            
	 	 	 	 
	
              Section
                7.9

            	
              Successor
                Trustee by Merger, etc

            	 	
              24

            
	 	 	 	 
	
              Section
                7.10

            	
              Eligibility;
                Disqualification

            	 	
              25

            
	 	 	 	 
	
              Section
                7.11

            	
              Preferential
                Collection of Claims Against Company

            	 	
              25

            
	 	 	 	 
	
              ARTICLE
                VIII SATISFACTION AND DISCHARGE; DEFEASANCE

            	 	
              25

            
	 	 	 	 
	
              Section
                8.1

            	
              Satisfaction
                and Discharge of Indenture

            	 	
              25

            
	 	 	 	 
	
              Section
                8.2

            	
              Application
                of Trust Funds; Indemnification

            	 	
              26

            
	 	 	 	 
	
              Section
                8.3

            	
              Legal
                Defeasance of Securities of any Series

            	 	
              26

            
	 	 	 	 
	
              Section
                8.4

            	
              Covenant
                Defeasance

            	 	
              27

            
	 	 	 	 
	
              Section
                8.5

            	
              Repayment
                to Company

            	 	
              28

            
	 	 	 	 
	
              Section
                8.6

            	
              Reinstatement

            	 	
              28

            
	 	 	 	 
	
              ARTICLE
                IX AMENDMENTS AND WAIVERS

            	 	
              28

            
	 	 	 	 
	
              Section
                9.1

            	
              Without
                Consent of Holders

            	 	
              28

            
	 	 	 	 
	
              Section
                9.2

            	
              With
                Consent of Holders

            	 	
              29

            
	 	 	 	 
	
              Section
                9.3

            	
              Limitations

            	 	
              29

            
	 	 	 	 
	
              Section
                9.4

            	
              Compliance
                with Trust Indenture Act

            	 	
              30

            
	 	 	 	 
	
              Section
                9.5

            	
              Revocation
                and Effect of Consents

            	 	
              30

            
	 	 	 	 
	
              Section
                9.6

            	
              Notation
                on or Exchange of Securities

            	 	
              30

            
	 	 	 	 
	
              Section
                9.7

            	
              Trustee
                Protected

            	 	
              30

            
	 	 	 	 
	
              ARTICLE
                X MISCELLANEOUS

            	 	
              30

            
	 	 	 	 
	
              Section
                10.1

            	
              Trust
                Indenture Act Controls

            	 	
              30

            


    

     

    
      
         

      

      
        iii

        
          

        

      

      
         

      

    

     

    
      	
              Section
                10.2

            	
              Notices

            	 	
              30

            
	 	 	 	 
	
              Section
                10.3

            	
              Communication
                by Holders with Other Holders

            	 	
              31

            
	 	 	 	 
	
              Section
                10.4

            	
              Certificate
                and Opinion as to Conditions Precedent

            	 	
              31

            
	 	 	 	 
	
              Section
                10.5

            	
              Statements
                Required in Certificate or Opinion

            	 	
              31

            
	 	 	 	 
	
              Section
                10.6

            	
              Rules
                by Trustee and Agents

            	 	
              32

            
	 	 	 	 
	
              Section
                10.7

            	
              Legal
                Holidays

            	 	
              32

            
	 	 	 	 
	
              Section
                10.8

            	
              No
                Recourse Against Others

            	 	
              32

            
	 	 	 	 
	
              Section
                10.9

            	
              Counterparts

            	 	
              32

            
	 	 	 	 
	
              Section
                10.10

            	
              Governing
                Laws; Waiver of Jury Trial

            	 	
              32

            
	 	 	 	 
	
              Section
                10.11

            	
              No
                Adverse Interpretation of Other Agreements

            	 	
              32

            
	 	 	 	 
	
              Section
                10.12

            	
              Successors

            	 	
              32

            
	 	 	 	 
	
              Section
                10.13

            	
              Severability

            	 	
              32

            
	 	 	 	 
	
              Section
                10.14

            	
              Table
                of Contents, Headings, Etc

            	 	
              32

            
	 	 	 	 
	
              Section
                10.15

            	
              Securities
                in a Foreign Currency or in ECU

            	 	
              33

            
	 	 	 	 
	
              Section
                10.16

            	
              Judgment
                Currency

            	 	
              33

            
	 	 	 	 
	
              Section
                10.17

            	
              Force
                Majeure

            	 	
              34

            
	 	 	 	 
	
              ARTICLE
                XI SINKING FUNDS

            	 	
              34

            
	 	 	 	 
	
              Section
                11.1

            	
              Applicability
                of Article

            	 	
              34

            
	 	 	 	 
	
              Section
                11.2

            	
              Satisfaction
                of Sinking Fund Payments with Securities

            	 	
              34

            
	 	 	 	 
	
              Section
                11.3

            	
              Redemption
                of Securities for Sinking Fund

            	 	
              35

            
	 	 	 	 
	
              ARTICLE
                XII SUBORDINATION OF SECURITIES

            	 	
              35

            
	 	 	 	 
	
              Section
                12.1

            	
              Agreement
                of Subordination

            	 	
              35

            
	 	 	 	 
	
              Section
                12.2

            	
              Payments
                to Holders

            	 	
              35

            
	 	 	 	 
	
              Section
                12.3

            	
              Subrogation
                of Securities

            	 	
              37

            
	 	 	 	 
	
              Section
                12.4

            	
              Authorization
                to Effect Subordination

            	 	
              38

            
	 	 	 	 
	
              Section
                12.5

            	
              Notice
                to Trustee

            	 	
              38

            
	 	 	 	 
	
              Section
                12.6

            	
              Trustee’s
                Relation to Senior Indebtedness

            	 	
              39

            
	 	 	 	 
	
              Section
                12.7

            	
              No
                Impairment of Subordination

            	 	
              39

            
	 	 	 	 
	
              Section
                12.8

            	
              Article
                Applicable to Paying Agents

            	 	
              39

            
	 	 	 	 
	
              Section
                12.9

            	
              Senior
                Indebtedness Entitled to Rely

            	 	
              39

            


    

     

    
      
         

      

      
        iv

        
          

        

      

      
         

DISCOVERY
        LABORATORIES, INC. 

    

     

    Reconciliation
      and tie between Trust Indenture Act of 1939 and 

    Indenture,
      dated as of             ,
      2008

    


    
      	
              Section
                310(a) (1)

            	 	
              7.10

            
	 	 	 
	
              (a)
                (2)

            	 	
              7.10

            
	 	 	 
	
              (a)
                (3)

            	 	
              Not Applicable

            
	 	 	 
	
              (a)
                (4)

            	 	
              Not
                Applicable

            
	 	 	 
	
              (a)
                (5)

            	 	
              7.10

            
	 	 	 
	
              (b)

            	 	
              7.10

            
	 	 	 
	
              Section
                311(a)

            	 	
              7.11

            
	 	 	 
	
              (b)

            	 	
              7.11

            
	 	 	 
	
              (c)

            	 	
              Not
                Applicable

            
	 	 	 
	
              Section
                312(a)

            	 	
              2.6

            
	 	 	 
	
              (b)

            	 	
              10.3

            
	 	 	 
	
              (c)

            	 	
              10.3

            
	 	 	 
	
              Section
                313(a)

            	 	
              7.6

            
	 	 	 
	
              (b)
                (1)

            	 	
              7.6

            
	 	 	 
	
              (b)
                (2)

            	 	
              7.6

            
	 	 	 
	
              (c)
                (1)

            	 	
              7.6

            
	 	 	 
	
              (d)

            	 	
              7.6

            
	 	 	 
	
              Section
                314(a)

            	 	
              4.2,
                10.5

            
	 	 	 
	
              (b)

            	 	
              Not
                Applicable

            
	 	 	 
	
              (c)
                (1)

            	 	
              10.4

            
	 	 	 
	
              (c)
                (2)

            	 	
              10.4

            
	 	 	 
	
              (c)
                (3)

            	 	
              Not
                Applicable

            
	 	 	 
	
              (d)

            	 	
              Not
                Applicable

            
	 	 	 
	
              (e)

            	 	
              10.5

            
	 	 	 
	
              (f)

            	 	
              Not
                Applicable

            
	 	 	 
	
              Section
                315(a)

            	 	
              7.1

            
	 	 	 
	
              (b)

            	 	
              7.5

            


    

     

    
      
         

      

      
        v

        
          

        

      

      
         

      

    

     

    
      	
              (c)

            	 	
              7.1

            
	 	 	 
	
              (d)

            	 	
              7.1

            
	 	 	 
	
              (e)

            	 	
              6.14

            
	 	 	 
	
              Section
                316(a)

            	 	
              2.10

            
	 	 	 
	
              (a)
                (1)(a)

            	 	
              6.12

            
	 	 	 
	
              (a)
                (1)(b)

            	 	
              6.13

            
	 	 	 
	
              (b)

            	 	
              6.8

            
	 	 	 
	
              Section
                317(a)(1)

            	 	
              6.3

            
	 	 	 
	
              (a)(2)

            	 	
              6.4

            
	 	 	 
	
              (b)

            	 	
              2.5

            
	 	 	 
	
              Section
                318(a)

            	 	
              10.1

            


    

    


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

     

    
      
         

      

      
        vi

        
          

        

      

      
         

      

       

    

    INDENTURE,
      dated as of ___________, 2008 between Discovery Laboratories, Inc., a Delaware
      corporation (the “Company”), and The Bank of New York, a New York banking
      corporation (the “Trustee”). 

     

    Each
      party agrees as follows for the benefit of the other party and for the equal
      and
      ratable benefit of the Holders of the Securities issued under this Indenture.
      

     

    ARTICLE
      I

     

    DEFINITIONS
      AND INCORPORATION BY REFERENCE 

     

    Section
      1.1 Definitions. 

     

    “Additional
      Amounts” means any additional amounts which are required hereby or by any
      Security, under circumstances specified herein or therein, to be paid by the
      Company in respect of certain taxes imposed on Holders specified therein and
      which are owing to such Holders. 

     

    “Affiliate”
      of any specified person means any other person directly or indirectly
      controlling or controlled by or under direct or indirect common control with
      such specified person. For the purposes of this definition, “control”
(including, with correlative meanings, the terms “controlled by” and “under
      common control with”), as used with respect to any person, shall mean the
      possession, directly or indirectly, of the power to direct or cause the
      direction of the management or policies of such person, whether through the
      ownership of voting securities or by agreement or otherwise. 

     

    “Agent”
      means any Registrar, Paying Agent, Service Agent or authenticating agent.


     

    “Authorized
      Newspaper” means a newspaper in an official language of the country of
      publication customarily published at least once a day for at least five days
      in
      each calendar week and of general circulation in the place in connection with
      which the term is used. If it shall be impractical to make any publication
      of
      any notice required hereby in an Authorized Newspaper, any publication or other
      notice in lieu thereof that is made or given by the Trustee shall constitute
      a
      sufficient publication of such notice. 

     

    “Bearer”
      means anyone in possession from time to time of a Bearer Security. 

     

    “Bearer
      Security” means any Security, including any interest coupon appertaining
      thereto, that does not provide for the identification of the Holder thereof.
      

     

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

     

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

     

    “Business
      Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate
      or supplemental indenture hereto for a particular Series, any day except a
      Saturday, Sunday or a legal holiday in The City of New York on which banking
      institutions are authorized or required by law, regulation or executive order
      to
      close. 

     

    “Company”
      means the party named as such above until a successor replaces it and thereafter
      means the successor. 

     

    “Company
      Order” means a written order signed in the name of the Company by two Officers,
      one of whom must be the Company’s chief executive officer, chief financial
      officer or principal accounting officer. 

     

    “Company
      Request” means a written request signed in the name of the Company by its
      Chairman of the Board, a President or a Vice President, and by its Treasurer,
      an
      Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
      to
      the Trustee. 

     

    
      
         

      

      
        1

        
          

        

      

      
         

      

    

     

    “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 101 Barclay Street, Floor 8 West, New York, New
      York 10286, Attention: Corporate Trust Administration, or such other address
      as
      the Trustee may designate from time to time by notice to the Holders and the
      Company, or the principal corporate trust office of any successor Trustee (or
      such other address as such successor Trustee may designate from time to time
      by
      notice to the Holders and the Company).

     

    “Default”
      means any event which is, or after notice or passage of time would be, an Event
      of Default. 

     

    “Depositary”
      means, with respect to the Securities of any Series issuable or issued in whole
      or in part in the form of one or more Global Securities, the person designated
      as Depositary for such Series by the Company, which Depositary shall be a
      clearing agency registered under the Exchange Act; and if at any time there
      is
      more than one such person, “Depositary” as used with respect to the Securities
      of any Series shall mean the Depositary with respect to the Securities of such
      Series. 

     

    “Designated
      Senior Indebtedness” means any of our senior indebtedness that expressly
      provides that it is “designated senior indebtedness” for purposes of this
      Indenture (provided that the instrument, agreement or other document creating
      or
      evidencing such Senior Indebtedness may place limitations and conditions on
      the
      right of such Senior Indebtedness to exercise the rights of Designated Senior
      Indebtedness). 

     

    “Discount
      Security” means any Security that provides for an amount less than the stated
      principal amount thereof to be due and payable upon declaration of acceleration
      of the maturity thereof pursuant to Section 6.2. 

     

    “Dollars”
      means the currency of The United States of America. 

     

    “ECU”
      means the European Currency Unit as determined by the Commission of the European
      Union. 

     

    “Exchange
      Act” means the Securities Exchange Act of 1934, as amended. 

     

    “Foreign
      Currency” means any currency or currency unit issued by a government other than
      the government of The United States of America. 

     

    “Foreign
      Government Obligations” means with respect to Securities of any Series that are
      denominated in a Foreign Currency, (i) direct obligations of the government
      that
      issued or caused to be issued such currency for the payment of which obligations
      its full faith and credit is pledged or (ii) obligations of a person controlled
      or supervised by or acting as an agency or instrumentality of such government
      the timely payment of which is unconditionally guaranteed as a full faith and
      credit obligation by such government, which, in either case under clauses (i)
      or
      (ii), are not callable or redeemable at the option of the issuer thereof.


     

    “Global
      Security” or “Global Securities” means a Security or Securities, as the case may
      be, in the form established pursuant to Section 2.2 evidencing all or part
      of a
      Series of Securities, issued to the Depositary for such Series or its nominee,
      and registered in the name of such Depositary or nominee. 

     

    “Holder”
      or “Securityholder” means a person in whose name a Security is registered or the
      holder of a Bearer Security. 

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    “indebtedness”
      means, with respect to any person, and without duplication, (a) all
      indebtedness, obligations and other liabilities (contingent or otherwise) of
      such person for borrowed money (including obligations of the Company in respect
      of overdrafts, foreign exchange contracts, currency exchange agreements,
      interest rate protection agreements, and any loans or advances from banks,
      whether or not evidenced by notes or similar instruments) or evidenced by bonds,
      debentures, notes or similar instruments (whether or not the recourse of the
      lender is to the whole of the assets of such person or to only a portion
      thereof) (other than any account payable or other accrued current liability
      or
      obligation incurred in the ordinary course of business in connection with the
      obtaining of materials or services), (b) all reimbursement obligations and
      other
      liabilities (contingent or otherwise) of such person with respect to letters
      of
      credit, bank guarantees or bankers’ acceptances, (c) all obligations and
      liabilities (contingent or otherwise) in respect of leases of such person
      required, in conformity with generally accepted accounting principles, to be
      accounted for as capitalized lease obligations on the balance sheet of such
      person and all obligations and all other obligations and liabilities, contingent
      or otherwise, as lessee under leases for facility equipment (and related assets
      leased together with such equipment) and under any lease or related document
      (including a purchase agreement, conditional sale or other title retention
      or
      synthetic lease agreement) in connection with the lease of real property or
      improvement thereon (or any personal property included as part of any such
      lease) which provides that such Person is contractually obligated to purchase
      or
      cause a third party to purchase the leased property or pay an agreed upon
      residual value of the leased property, including the obligations under such
      lease or related document to purchase or cause a third party to purchase such
      leased property (whether or not such lease transaction is characterized as
      an
      operating lease or a capitalized lease in accordance with GAAP) or pay an agreed
      upon residual value of the leased property to the lessor; (d) all obligations
      of
      such person (contingent or otherwise) with respect to an interest rate or other
      swap, cap or collar agreement or other similar instrument or agreement or
      foreign currency hedge, exchange, purchase or similar instrument or agreement,
      (e) all direct or indirect guaranties or similar agreements by such person
      in
      respect of, and obligations or liabilities (contingent or otherwise) of such
      person to purchase or otherwise acquire or otherwise assure a creditor against
      loss in respect of indebtedness, obligations or liabilities of another person
      of
      the kind described in clauses (a) through (d), (f) any indebtedness or other
      obligations described in clauses (a) through (e) secured by any mortgage,
      pledge, lien or other encumbrance existing on property which is owned or held
      by
      such person, regardless of whether the indebtedness or other obligation secured
      thereby shall have been assumed by such person and (g) any and all refinancings,
      replacements, deferrals, renewals, extensions and refundings of, or amendments,
      modifications or supplements to, any indebtedness, obligation or liability
      of
      the kind described in clauses (a) through (f). 

     

    “Indenture”
      means this Indenture as amended from time to time and shall include the form
      and
      terms of particular Series of Securities established as contemplated hereunder.
      

     

    “interest”
      with respect to any Discount Security which by its terms bears interest only
      after Maturity, means interest payable after Maturity. 

     

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

     

    “Officer”
      means the Chairman of the Board, any President, any Vice-President, the
      Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary
      of
      the Company. 

     

    “Officers’
      Certificate” means a certificate signed by two Officers, one of whom must be the
      Company’s principal executive officer, principal financial officer or principal
      accounting officer. 

     

    “Opinion
      of Counsel” means a written opinion of legal counsel. The counsel may be an
      employee of or counsel to the Company. 

     

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

     

    “principal”
      of a Security means the principal of the Security plus, when appropriate, the
      premium, if any, on, and any Additional Amounts in respect of, the Security.
      

     

    “Representative”
      means the (a) indenture trustee or other trustee, agent or representative for
      any Senior Indebtedness or (b) with respect to any Senior Indebtedness that
      does
      not have any such trustee, agent or other representative, (i) in the case of
      such Senior Indebtedness issued pursuant to an agreement providing for voting
      arrangements as among the holders or owners of such Senior Indebtedness, any
      holder or owner of such Senior Indebtedness acting with the consent of the
      required persons necessary to bind such holders or owners of such Senior
      Indebtedness and (ii) in the case of all other such Senior Indebtedness, the
      holder or owner of such Senior Indebtedness. 

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

     

    “Responsible
      Officer” means any officer of the Trustee in its corporate trust department
      including any vice president, assistant vice president, secretary, assistant
      treasurer, trust officer or any other officer of the Trustee who customarily
      performs functions similar to those performed by the Persons who at the time
      shall be such officers, respectively, and also means, with respect to a
      particular corporate trust matter, any other officer to whom any corporate
      trust
      matter is referred because of his or her knowledge of and familiarity with
      a
      particular subject and who shall have direct responsibility for the
      administration of this Indenture. 

     

    “SEC”
      means the Securities and Exchange Commission. 

     

    “Securities”
      means the debentures, notes or other debt instruments of the Company of any
      Series authenticated and delivered under this Indenture. 

     

    “Senior
      Indebtedness” means the principal, premium, if any, interest, including any
      interest accruing after bankruptcy, and rent or termination payment on or other
      amounts due on our current or future Indebtedness, whether created, incurred,
      assumed, guaranteed or in effect guaranteed by us, including any deferrals,
      renewals, extensions, refundings, amendments, modifications or supplements
      to
      the above. However, Senior Indebtedness does not include: (i) Indebtedness
      that
      expressly provides that it shall not be senior in right of payment to the
      Securities or expressly provides that it is on the same basis or junior to
      the
      Securities; (ii) our indebtedness to any of our majority-owned subsidiaries;
      and
      (iii) the Securities. 

     

    “Series”
      or “Series of Securities” means each series of debentures, notes or other debt
      instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.
      

     

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

     

    “Subsidiary”
      of any specified person means any corporation of which at least a majority
      of
      the outstanding stock having by the terms thereof ordinary voting power for
      the
      election of directors of such corporation (irrespective of whether or not at
      the
      time stock of any other class or classes of such corporation shall have or
      might
      have voting power by reason of the happening of any contingency) is at the
      time
      directly or indirectly owned by such person, or by one or more other
      Subsidiaries, or by such person and one or more other Subsidiaries.


     

    “TIA”
      means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb)
      as in
      effect on the date of this Indenture; provided, however, that in the event
      the
      Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the
      extent required by any such amendment, the Trust Indenture Act as so amended.
      

     

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

     

    “U.S.
      Government Obligations” means securities which are (i) direct obligations of The
      United States of America for the payment of which its full faith and credit
      is
      pledged or (ii) obligations of a person controlled or supervised by and acting
      as an agency or instrumentality of 

     

    The
      United States of America the payment of which is unconditionally guaranteed
      as a
      full faith and credit obligation by The United States of America, and which
      in
      the case of (i) and (ii) are not callable or redeemable at the option of the
      issuer thereof, and shall also include a depository receipt issued by a bank
      or
      trust company as custodian with respect to any such U.S. Government Obligation
      or a specific payment of interest on or principal of any such U.S. Government
      Obligation held by such custodian for the account of the holder of a depository
      receipt, provided that (except as required by law) such custodian is not
      authorized to make any deduction from the amount payable to the holder of such
      depository receipt from any amount received by the custodian in respect of
      the
      U.S. Government Obligation evidenced by such depository receipt. 

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

     

    Section
      1.2 Other Definitions. 

     

    
      	
              TERM

            	 	
               DEFINED IN

               SECTION

            	 
	
              “Bankruptcy
                Law”

            	 	 	
              6.1

            	 
	
              “Custodian”

            	 	 	
              6.1

            	 
	
              “Event
                of Default”

            	 	 	
              6.1

            	 
	
              “Journal”

            	 	 	
              10.15

            	 
	
              “Judgment
                Currency”

            	 	 	
              10.16

            	 
	
              “Legal
                Holiday”

            	 	 	
              10.7

            	 
	
              “mandatory
                sinking fund payment”

            	 	 	
              11.1

            	 
	
              “Market
                Exchange Rate”

            	 	 	
              10.15

            	 
	
              “New
                York Banking Day”

            	 	 	
              10.16

            	 
	
              “optional
                sinking fund payment”

            	 	 	
              11.1

            	 
	
              “Paying
                Agent”

            	 	 	
              2.4

            	 
	
              “Payment
                Blockage Notice”

            	 	 	
              12.2

            	 
	
              “Registrar”

            	 	 	
              2.4

            	 
	
              “Required
                Currency”

            	 	 	
              10.16

            	 
	
              “Service
                Agent”

            	 	 	
              2.4

            	 
	
              “successor
                person”

            	 	 	
              5.1

            	 


    

     

    Section
      1.3 Incorporation by Reference of Trust Indenture Act. 

     

    Whenever
      this Indenture refers to a provision of the TIA, the provision is incorporated
      by reference in and made a part of this Indenture. The following TIA terms
      used
      in this Indenture have the following meanings: 

     

    “Commission”
      means the SEC. 

     

    “indenture
      securities” means the Securities. “indenture security holder” means a
      Securityholder. 

     

    “indenture
      to be qualified” means this Indenture. 

     

    “indenture
      trustee” or “institutional trustee” means the Trustee. 

     

    “obligor”
      on the indenture securities means the Company and any successor obligor upon
      the
      Securities. 

     

    All
      other
      terms used in this Indenture that are defined by the TIA, defined by TIA
      reference to another statute or defined by SEC rule under the TIA and not
      otherwise defined herein are used herein as so defined. 

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

     

    Section
      1.4 Rules of Construction. 

     

    Unless
      the context otherwise requires: 

     

    (a)
      a
      term
      has the meaning assigned to it; 

     

    (b)
      an
      accounting term not otherwise defined has the meaning assigned to it in
      accordance with generally accepted accounting principles; 

     

    (c)
      references
      to “generally accepted accounting principles” shall mean generally accepted
      accounting principles in effect as of the time when and for the period as to
      which such accounting principles are to be applied; 

     

    (d)
      “or”
is
      not exclusive; 

     

    (e)
      words
      in
      the singular include the plural, and in the plural include the singular; and
      

     

    (f)
      provisions
      apply to successive events and transactions.

    


    ARTICLE
      II 

     

    THE
      SECURITIES 

     

    Section
      2.1 Issuable in Series. 

     

    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. All Securities of a Series shall be identical except as may be set
      forth
      in a Board Resolution, a supplemental indenture or an Officers’ Certificate
      detailing the adoption of the terms thereof pursuant to the authority granted
      under a Board Resolution. In the case of Securities of a Series to be issued
      from time to time, the Board Resolution, Officers’ Certificate or supplemental
      indenture may provide for the method by which specified terms (such as interest
      rate, maturity date, record date or date from which interest shall accrue)
      are
      to be determined. Securities may differ between Series in respect of any
      matters, provided that all Series of Securities shall be equally and ratably
      entitled to the benefits of the Indenture but all Securities issued hereunder
      shall be subordinate and junior in right of payment, to the extent and in the
      manner set forth in Article XII, to all Senior Indebtedness of the Company.
      

     

    Section
      2.2 Establishment of Terms of Series of Securities. 

     

    At
      or
      prior to the issuance of any Securities within a Series, the following shall
      be
      established (as to the Series generally, in the case of Subsection 2.2.1 and
      either as to such Securities within the Series or as to the Series generally
      in
      the case of Subsections 2.2.2 through 2.2.22) by a Board Resolution, a
      supplemental indenture or an Officers’ Certificate pursuant to authority granted
      under a Board Resolution: 

     

    2.2.1
      the
      title
      of the Series (which shall distinguish the Securities of that particular Series
      from the Securities of any other Series); 

     

    2.2.2
      the
      price
      or prices (expressed as a percentage of the principal amount thereof) at which
      the Securities of the Series will be issued; 

     

    2.2.3
      any
      limit
      upon the aggregate principal amount of the Securities of the Series which 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 the Series pursuant to Section 2.7,
      2.8,
      2.11, 3.6 or 9.6); 

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

     

    2.2.4
      the
      date
      or dates on which the principal of the Securities of the Series is payable;
      

     

    2.2.5
      the
      rate
      or rates (which may be fixed or variable) per annum or, if applicable, the
      method used to determine such rate or rates (including, but not limited to,
      any
      commodity, commodity index, stock exchange index or financial index) at which
      the Securities of the Series shall bear interest, if any, the date or dates
      from
      which such interest, if any, shall accrue, the date or dates on which such
      interest, if any, shall commence and be payable and any regular record date
      for
      the interest payable on any interest payment date; 

     

    2.2.6
      the
      place
      or places where the principal of and interest, if any, on the Securities of
      the
      Series shall be payable, or the method of such payment, if by wire transfer,
      mail or other means; 

     

    2.2.7
      if
      applicable, the period or periods within which, the price or prices at which
      and
      the terms and conditions upon which the Securities of the Series may be
      redeemed, in whole or in part, at the option of the Company; 

     

    2.2.8
      the
      obligation, if any, of the Company to redeem or purchase the Securities of
      the
      Series pursuant to any sinking fund or analogous provisions 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;


     

    2.2.9
      the
      dates, if any, on which and the price or prices at which the Securities of
      the
      Series will be repurchased by the Company at the option of the Holders thereof
      and other detailed terms and provisions of such repurchase obligations;


     

    2.2.10
      if
      other
      than denominations of $1,000 and any integral multiple thereof, the
      denominations in which the Securities of the Series shall be issuable;


     

    2.2.11
      the
      forms
      of the Securities of the Series in bearer or fully registered form (and, if
      in
      fully registered form, whether the Securities will be issuable as Global
      Securities); 

     

    2.2.12
      if
      other
      than the principal amount thereof, the portion of the principal amount of the
      Securities of the Series that shall be payable upon declaration of acceleration
      of the maturity thereof pursuant to Section 6.2; 

     

    2.2.13
      the
      currency of denomination of the Securities of the Series, which may be Dollars
      or any Foreign Currency, including, but not limited to, the ECU, and if such
      currency of denomination is a composite currency other than the ECU, the agency
      or organization, if any, responsible for overseeing such composite currency;
      

     

    2.2.14
      the
      designation of the currency, currencies or currency units in which payment
      of
      the principal of and interest, if any, on the Securities of the Series will
      be
      made; 

     

    2.2.15
      if
      payments of principal of or interest, if any, on the Securities of the Series
      are to be made in one or more currencies or currency units other than that
      or
      those in which such Securities are denominated, the manner in which the exchange
      rate with respect to such payments will be determined; 

     

    2.2.16
      the
      manner in which the amounts of payment of principal of or interest, if any,
      on
      the Securities of the Series will be determined, if such amounts may be
      determined by reference to an index based on a currency or currencies or by
      reference to a commodity, commodity index, stock exchange index or financial
      index; 

     

    2.2.17
      the
      provisions, if any, relating to any security provided for the Securities of
      the
      Series; 

     

    2.2.18
      if
      the
      holders of Securities of the Series may convert or exchange the Securities
      into
      or for securities of the Issuer or of other entities or other property, the
      period or periods within which, the rate or rates at which and the terms and
      conditions upon which Securities of the Series may be converted or exchanged,
      in
      whole or in part; 

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

     

    2.2.19
      any
      addition to or change in the Events of Default which applies to any Securities
      of the Series and any change in the right of the Trustee or the requisite
      Holders of such Securities to declare the principal amount thereof due and
      payable pursuant to Section 6.2; 

     

    2.2.20
      any
      addition to or change in the covenants set forth in Articles IV or V which
      applies to Securities of the Series; 

     

    2.2.21
      any
      other
      terms of the Securities of the Series (which terms shall not be inconsistent
      with the provisions of this Indenture, except as permitted by Section 9.1,
      but
      which may modify or delete any provision of this Indenture insofar as it applies
      to such Series); and 

     

    2.2.22
      any
      depositories, interest rate calculation agents, exchange rate calculation agents
      or other agents with respect to Securities of such Series if other than those
      appointed herein. 

     

    All
      Securities of any one Series need not be issued at the same time and may be
      issued from time to time, consistent with the terms of this Indenture, if so
      provided by or pursuant to the Board Resolution, supplemental indenture or
      Officers’ Certificate referred to above, and the authorized principal amount of
      any Series may not be increased to provide for issuances of additional
      Securities of such Series, unless otherwise provided in such Board Resolution,
      supplemental indenture or Officers’ Certificate. 

     

    Section
      2.3 Execution and Authentication. 

     

    Two
      Officers shall sign the Securities for the Company by manual or facsimile
      signature. 

     

    If
      an
      Officer whose signature is on a Security no longer holds that office at the
      time
      the Security is authenticated, the Security shall nevertheless be valid.


     

    A
      Security shall not be valid until authenticated by the manual signature of
      the
      Trustee or an authenticating agent. The signature shall be conclusive evidence
      that the Security has been authenticated under this Indenture. 

     

    The
      Trustee shall at any time, and from time to time, authenticate Securities for
      original issue in the principal amount provided in the Board Resolution,
      supplemental indenture hereto or Officers’ Certificate, upon receipt by the
      Trustee of a Company Order. Such Company Order may authorize authentication
      and
      delivery pursuant to electronic instructions from the Company or its duly
      authorized agent or agents, which instructions shall be promptly confirmed
      in
      writing. Each Security shall be dated the date of its authentication unless
      otherwise provided by a Board Resolution, a supplemental indenture hereto or
      an
      Officers’ Certificate. 

     

    The
      aggregate principal amount of Securities of any Series outstanding at any time
      may not exceed any limit upon the maximum principal amount for such Series
      set
      forth in the Board 

     

    Resolution,
      supplemental indenture hereto or Officers’ Certificate delivered pursuant to
      Section 2.2, except as provided in Section 2.8. 

     

    Prior
      to
      the issuance of Securities of any Series, the Trustee shall have received and
      (subject to Section 7.2) shall be fully protected in conclusively relying on:
      (a) the Board Resolution, supplemental indenture hereto or Officers’ Certificate
      establishing the form of the Securities of that Series or of Securities within
      that Series and the terms of the Securities of that Series or of Securities
      within that Series, (b) an Officers’ Certificate complying with Section 10.4,
      and (c) an Opinion of Counsel complying with Section 10.4, and stating (i)
      that
      the form and terms of the Securities have been established in conformity with
      the provisions of this Indenture, and (ii) that such Securities, when
      authenticated and delivered by the Trustee and issued by the Company in the
      manner and subject to any conditions specified therein, will constitute valid
      and binding obligations of the Company enforceable in accordance with their
      terms, except as the enforceability thereof may be limited by bankruptcy,
      insolvency, reorganization, moratorium, or other laws relating to or affecting
      creditors' rights and by general principles of equity. 

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

    

     

    The
      Trustee shall have the right to decline to authenticate and deliver any
      Securities of such Series: (a) if the Trustee, being advised by counsel,
      determines that such action may not lawfully be taken; or (b) if the Trustee
      in
      good faith by its board of directors or trustees, executive committee or a
      trust
      committee of directors and/or vice-presidents shall determine that such action
      would expose the Trustee to personal liability to Holders of any then
      outstanding Series of Securities. 

     

    The
      Trustee may appoint an authenticating agent acceptable to the Company to
      authenticate Securities. An authenticating agent may authenticate Securities
      whenever the Trustee may do so. Each reference in this Indenture to
      authentication by the Trustee includes authentication by such agent. An
      authenticating agent has the same rights as an Agent to deal with the Company
      or
      an Affiliate. 

     

    Section
      2.4 Registrar and Paying Agent. 

     

    The
      Company shall maintain, with respect to each Series of Securities, at the place
      or places specified with respect to such Series pursuant to Section 2.2, an
      office or agency where Securities of such Series may be presented or surrendered
      for payment (“Paying Agent”), where Securities of such Series may be surrendered
      for registration of transfer or exchange (“Registrar”) and where notices and
      demands to or upon the Company in respect of the Securities of such Series
      and
      this Indenture may be served (“Service Agent”). The Registrar shall keep a
      register with respect to each Series of Securities and to their transfer and
      exchange. The Company will give prompt written notice to the Trustee of the
      name
      and address, and any change in the name or address, of each Registrar, Paying
      Agent or Service Agent. If at any time the Company shall fail to maintain any
      such required Registrar, Paying Agent or Service Agent or shall fail to furnish
      the Trustee with the name and address thereof, such presentations, surrenders,
      notices and demands may be made or served at the Corporate Trust Office of
      the
      Trustee, and the Company hereby appoints the Trustee as its agent to receive
      all
      such presentations, surrenders, notices and demands. 

     

    The
      Company may also from time to time designate one or more co-registrars,
      additional paying agents or additional service agents and may from time to
      time
      rescind such designations; provided, however, that no such designation or
      rescission shall in any manner relieve the Company of its obligations to
      maintain a Registrar, Paying Agent and Service Agent in each place so specified
      pursuant to Section 2.2 for Securities of any Series for such purposes. The
      Company will give prompt written notice to the Trustee of any such designation
      or rescission and of any change in the name or address of any such co-registrar,
      additional paying agent or additional service agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional
      paying agent; and the term “Service Agent” includes any additional service
      agent. 

     

    The
      Company hereby appoints the Trustee the initial Registrar, Paying Agent and
      Service Agent for each Series unless another Registrar, Paying Agent or Service
      Agent, as the case may be, is appointed prior to the time Securities of that
      Series are first issued. 

     

    Section
      2.5 Paying Agent to Hold Money in Trust. 

     

    The
      Company shall require each Paying Agent other than the Trustee to agree in
      writing that the Paying Agent will hold in trust, for the benefit of
      Securityholders of any Series of Securities, or the Trustee, all money held
      by
      the Paying Agent for the payment of principal of or interest on the Series
      of
      Securities, and will notify the Trustee of any default by the Company in making
      any such payment. While any such default continues, the Trustee may require
      a
      Paying Agent to pay all money held by it to the Trustee. The Company at any
      time
      may require a Paying Agent to pay all money held by it to the Trustee. Upon
      payment over to the Trustee, the Paying Agent (if other than the Company or
      a
      Subsidiary) shall have no further liability for the money. If the Company or
      a
      Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
      trust
      fund for the benefit of Securityholders of any Series of Securities all money
      held by it as Paying Agent. 

     

    Section
      2.6 Securityholder Lists. 

     

    The
      Trustee shall preserve in as current a form as is reasonably practicable the
      most recent list available to it of the names and addresses of Securityholders
      of each Series of Securities and shall otherwise comply with TIA Section 312(a).
      If the Trustee is not the Registrar, the Company shall furnish to the Trustee
      at
      least ten days before each interest payment date and at such other times as
      the
      Trustee may request in writing a list, in such form and as of such date as
      the
      Trustee may reasonably require, of the names and addresses of Securityholders
      of
      each Series of Securities. 

     

    
      
         

      

      
        9

        
          

        

      

      
         

      

    

     

    Section
      2.7 Transfer and Exchange. 

     

    Where
      Securities of a Series are presented to the Registrar or a co-registrar with
      a
      request to register a transfer or to exchange them for an equal principal amount
      of Securities of the same Series, the Registrar shall register the transfer
      or
      make the exchange if its requirements for such transactions are met. To permit
      registrations of transfers and exchanges, the Trustee shall authenticate
      Securities at the Registrar’s request. No service charge shall be made for any
      registration of transfer or exchange (except as otherwise expressly permitted
      herein), but the Company may require payment of a sum sufficient to cover any
      transfer tax or similar governmental charge payable in connection therewith
      (other than any such transfer tax or similar governmental charge payable upon
      exchanges pursuant to Sections 2.11, 3.6 or 9.6). 

     

    Neither
      the Company nor the Registrar shall be required (a) to issue, register the
      transfer of, or exchange Securities of any Series for the period beginning
      at
      the opening of business fifteen days immediately preceding the mailing of a
      notice of redemption of Securities of that Series selected for redemption and
      ending at the close of business on the day of such mailing, or (b) to register
      the transfer of or exchange Securities of any Series selected, called or being
      called for redemption as a whole or the portion being redeemed of any such
      Securities selected, called or being called for redemption in part.


     

    Section
      2.8 Mutilated, Destroyed, Lost and Stolen Securities. 

     

    If
      any
      mutilated Security is surrendered to the Trustee, the Company shall execute
      and
      the Trustee shall authenticate and deliver in exchange therefor a new Security
      of the same Series and of like tenor and principal amount and bearing a number
      not contemporaneously outstanding. 

     

    If
      there
      shall be delivered to the Company and the Trustee (i) evidence to their
      satisfaction of the destruction, loss or theft of any Security and (ii) such
      security or indemnity as may be required by them to save each of them and any
      agent of either of them harmless, then, in the absence of notice to the Company
      or the Trustee that such Security has been acquired by a bona fide purchaser,
      the Company shall execute and upon its request the Trustee shall authenticate
      and make available for delivery, in lieu of any such destroyed, lost or stolen
      Security, a new Security of the same Series and of like tenor and principal
      amount and bearing a number not contemporaneously outstanding. 

     

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

     

    Upon
      the
      issuance of any new Security under this Section, the Company may require the
      payment of a sum sufficient to cover any tax or other governmental charge that
      may be imposed in relation thereto and any other expenses (including the fees
      and expenses of the Trustee) connected therewith. 

     

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

     

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

     

    Section
      2.9 Outstanding Securities. 

     

    The
      Securities outstanding at any time are all the Securities authenticated by
      the
      Trustee except for those canceled by it, those delivered to it for cancellation,
      those reductions in the interest on a Global Security effected by the Trustee
      in
      accordance with the provisions hereof and those described in this Section as
      not
      outstanding. 

     

    If
      a
      Security is replaced pursuant to Section 2.8, it ceases to be outstanding until
      the Trustee receives proof satisfactory to it that the replaced Security is
      held
      by a bona fide purchaser. 

     

    
      
         

      

      
        10

        
          

        

      

      
         

      

    

     

    If
      the
      Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
      thereof) holds on the Maturity of Securities of a Series money sufficient to
      pay
      such Securities payable on that date, then on and after that date such
      Securities of the Series cease to be outstanding and interest on them ceases
      to
      accrue. 

     

    A
      Security does not cease to be outstanding because the Company or an Affiliate
      holds the Security. 

     

    In
      determining whether the Holders of the requisite principal amount of outstanding
      Securities have given any request, demand, authorization, direction, notice,
      consent or waiver hereunder, the principal amount of a Discount Security that
      shall be deemed to be outstanding for such purposes shall be the amount of
      the
      principal thereof that would be due and payable as of the date of such
      determination upon a declaration of acceleration of the Maturity thereof
      pursuant to Section 6.2. 

     

    Section
      2.10 Treasury Securities. 

     

    In
      determining whether the Holders of the required principal amount of Securities
      of a Series have concurred in any request, demand, authorization, direction,
      notice, consent or waiver Securities of a Series owned by the Company or an
      Affiliate shall be disregarded, except that for the purposes of determining
      whether the Trustee shall be protected in conclusively relying on any such
      request, demand, authorization, direction, notice, consent or waiver only
      Securities of a Series that the Trustee knows are so owned shall be so
      disregarded. 

     

    Section
      2.11 Temporary Securities. 

     

    Until
      definitive Securities are ready for delivery, the Company may prepare and the
      Trustee shall authenticate temporary Securities upon a Company Order. Temporary
      Securities shall be substantially in the form of definitive Securities but
      may
      have variations that the Company considers appropriate for temporary Securities.
      Without unreasonable delay, the Company shall prepare and the Trustee upon
      request shall authenticate definitive Securities of the same Series and date
      of
      maturity in exchange for temporary Securities. Until so exchanged, temporary
      securities shall have the same rights under this Indenture as the definitive
      Securities. 

     

    Section
      2.12 Cancellation. 

     

    The
      Company at any time may deliver Securities to the Trustee for cancellation.
      The
      Registrar and the Paying Agent shall forward to the Trustee any Securities
      surrendered to them for registration of transfer, exchange or payment. The
      Trustee shall cancel all Securities surrendered for transfer, exchange, payment,
      replacement or cancellation and shall destroy such canceled Securities (subject
      to the record retention requirement of the Exchange Act) and deliver a
      certificate of such destruction to the Company, unless the Company otherwise
      directs. The Company may not issue new Securities to replace Securities that
      it
      has paid or delivered to the Trustee for cancellation. 

     

    Section
      2.13 Defaulted Interest. 

     

    If
      the
      Company defaults in a payment of interest on a Series of Securities, it shall
      pay the defaulted interest, plus, to the extent permitted by law, any interest
      payable on the defaulted interest, to the persons who are Securityholders of
      the
      Series on a subsequent special record date. The Company shall fix the record
      date and payment date. At least 30 days before the record date, the Company
      shall mail to the Trustee and to each Securityholder of the Series a notice
      that
      states the record date, the payment date and the amount of interest to be paid.
      The Company may pay defaulted interest in any other lawful manner. 

     

    Section
      2.14 Global Securities. 

     

    2.14.1
      Terms of Securities. A
      Board
      Resolution, a supplemental indenture hereto or an Officers’ Certificate shall
      establish whether the Securities of a Series shall be issued in whole or in
      part
      in the form of one or more Global Securities and the Depositary for such Global
      Security or Securities. 

     

    
      
         

      

      
        11

        
          

        

      

      
         

      

    

     

    2.14.2
      Transfer and Exchange. Notwithstanding
      any provisions to the contrary contained in Section 2.7 of the Indenture and
      in
      addition thereto, any Global Security shall be exchangeable pursuant to Section
      2.7 of the Indenture for Securities registered in the names of Holders other
      than the Depositary for such Security or its nominee only if (i) such Depositary
      notifies the Company that it is unwilling or unable to continue as Depositary
      for such Global Security or if at any time such Depositary ceases to be a
      clearing agency registered under the Exchange Act, and, in either case, the
      Company fails to appoint a successor Depositary within 90 days of such event,
      (ii) the Company executes and delivers to the Trustee an Officers’ Certificate
      to the effect that such Global Security shall be so exchangeable or (iii) an
      Event of Default with respect to the Securities represented by such Global
      Security shall have happened and be continuing. Any Global Security that is
      exchangeable pursuant to the preceding sentence shall be exchangeable for
      Securities registered in such names as the Depositary shall direct in writing
      in
      an aggregate principal amount equal to the principal amount of the Global
      Security with like tenor and terms. 

     

    Except
      as
      provided in this Section 2.14.2, a Global Security may not be transferred except
      as a whole by the Depositary with respect to such Global Security to a nominee
      of such Depositary, by a nominee of such Depositary to such Depositary or
      another nominee of such Depositary or by the Depositary or any such nominee
      to a
      successor Depositary or a nominee of such a successor Depositary. 

     

    2.14.3
      Legend. Unless
      otherwise provided pursuant to Section 2.2, any Global Security issued hereunder
      shall bear a legend in substantially the following form: 

     

    “This
      Security is a Global Security within the meaning of the Indenture hereinafter
      referred to and is registered in the name of the Depositary or a nominee of
      the
      Depositary. This Security is exchangeable for Securities registered in the
      name
      of a person other than the Depositary or its nominee only in the limited
      circumstances described in the Indenture, and may not be transferred except
      as a
      whole by the Depositary to a nominee of the Depositary, by a nominee of the
      Depositary to the Depositary or another nominee of the Depositary or by the
      Depositary or any such nominee to a successor Depositary or a nominee of such
      a
      successor Depositary.” 

     

    2.14.4
      Acts of Holders. The
      Depositary, as a Holder, may appoint agents and otherwise authorize participants
      to give or take any request, demand, authorization, direction, notice, consent,
      waiver or other action which a Holder is entitled to give or take under the
      Indenture. 

     

    2.14.5
      Payments. Notwithstanding
      the other provisions of this Indenture, unless otherwise specified as
      contemplated by Section 2.2, payment of the principal of, premium, if any,
      and
      interest, if any, on any Global Security shall be made to the Holder thereof.
      

     

    2.14.6
      Consents, Declaration and Directions. With
      respect to a Global Security, the Depositary may be treated by the Company,
      the
      Trustee and any agent of the Company or the Trustee as the absolute owner of
      the
      Global Security for all purposes whatsoever. Notwithstanding the foregoing,
      nothing herein shall prevent the Company, the Trustee or any agent of the
      Company or the Trustee, from giving effect to any written certification, proxy
      or other authorization furnished by the Depositary or impair, as between the
      Depositary and its agent members, the operation of customary practices governing
      the exercise of the rights of a holder of any Note.

    


    2.14.7
      Trustee Protections.
      Each
      Holder of a Security agrees to indemnify the Company and the Trustee against
      any
      liability that may result from the transfer, exchange or assignment of such
      Holder's Security in violation of any provision of this Indenture and/or
      applicable United States Federal or state securities law.

    


    The
      Trustee shall have no obligation or duty to monitor, determine or inquire as
      to
      compliance with any restrictions on transfer imposed under this Indenture or
      under applicable law with respect to any transfer of any interest in any
      Security (including any transfers between or among depositary participants
      or
      beneficial owners of interests in any Global Security) other than to require
      delivery of such certificates and other documentation or evidence as are
      expressly required by, and to do so if and when expressly required by the terms
      of, this Indenture, and to examine the same to determine substantial compliance
      as to form with the express requirements hereof.

     

    
      
         

      

      
        12

        
          

        

      

      
         

      

    

     

    Neither
      the Trustee nor any agent thereof shall have any responsibility for any actions
      taken or not taken by the Depositary. 

     

    Section
      2.15 CUSIP Numbers. 

     

    The
      Company in issuing the Securities may use CUSIP numbers (if then generally
      in
      use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption
      as a convenience to Holders; provided that any such notice may state that no
      representation is made as to the correctness of such numbers either as printed
      on the Securities or as contained in any notice of a redemption and that
      reliance may be placed only on the other elements of identification printed
      on
      the Securities, and any such redemption shall not be affected by any defect
      in
      or omission of such numbers. The Company will promptly notify the Trustee in
      writing of any change in the CUSIP numbers.

     

    ARTICLE
      III 

     

    REDEMPTION
      

     

    Section
      3.1 Notice to Trustee. 

     

    The
      Company may, with respect to any Series of Securities, reserve the right to
      redeem and pay the Series of Securities or may covenant to redeem and pay the
      Series of Securities or any part thereof prior to the Stated Maturity thereof
      at
      such time and on such terms as provided for in such Securities. If a Series
      of
      Securities is redeemable and the Company wants or is obligated to redeem prior
      to the Stated Maturity thereof all or part of the Series of Securities pursuant
      to the terms of such Securities, it shall notify the Trustee in writing of
      the
      redemption date and the principal amount of Series of Securities to be redeemed.
      The Company shall give the notice at least 45 days before the redemption date
      (or such shorter notice as may be acceptable to the Trustee). 

     

    Section
      3.2 Selection of Securities to be Redeemed. 

     

    Unless
      otherwise indicated for a particular Series by a Board Resolution, a
      supplemental indenture or an Officers’ Certificate, if less than all the
      Securities of a Series are to be redeemed, the Trustee shall select the
      Securities of the Series to be redeemed by lot, pro rata or in any manner that
      the Trustee deems fair and appropriate. The Trustee shall make the selection
      from Securities of the Series outstanding not previously called for redemption.
      The Trustee may select for redemption portions of the principal of Securities
      of
      the Series that have denominations larger than $1,000. Securities of the Series
      and portions of them it selects shall be in amounts of $1,000 or whole multiples
      of $1,000 or, with respect to Securities of any Series issuable in other
      denominations pursuant to Section 2.2.10, the minimum principal denomination
      for
      each Series and integral multiples thereof. Provisions of this Indenture that
      apply to Securities of a Series called for redemption also apply to portions
      of
      Securities of that Series called for redemption. 

     

    Section
      3.3 Notice of Redemption. 

     

    Unless
      otherwise indicated for a particular Series by Board Resolution, a supplemental
      indenture hereto or an Officers’ Certificate, at least 30 days but not more than
      90 days before a redemption date, the Company shall mail a notice of redemption
      by first-class mail to each Holder whose Securities are to be redeemed and
      if
      any Bearer Securities are outstanding, publish on one occasion a notice in
      an
      Authorized Newspaper. 

     

    The
      notice shall identify the Securities of the Series to be redeemed (including
      the
      CUSIP numbers thereof) and shall state: 

     

    (a)
      the
      redemption date; 

     

    (b)
      the
      redemption price; 

     

    
      
         

      

      
        13

        
          

        

      

      
         

      

    

     

    (c)
      the
      name
      and address of the Paying Agent; 

     

    (d)
      that
      Securities of the Series called for redemption must be surrendered to the Paying
      Agent to collect the redemption price; 

     

    (e)
      that
      interest on Securities of the Series called for redemption ceases to accrue
      on
      and after the redemption date; and 

     

    (f)
      any
      other
      information as may be required by the terms of the particular Series or the
      Securities of a Series being redeemed. 

     

    At
      the
      Company’s request, the Trustee shall give the notice of redemption in the
      Company’s name and at its expense. 

     

    Section
      3.4 Effect of Notice of Redemption. 

     

    Once
      notice of redemption is mailed or published as provided in Section 3.3,
      Securities of a Series called for redemption become due and payable on the
      redemption date and at the redemption price. A notice of redemption may not
      be
      conditional. Upon surrender to the Paying Agent, such Securities shall be paid
      at the redemption price plus accrued interest to the redemption date.


     

    Section
      3.5 Deposit of Redemption Price. 

     

    On
      or
      before the redemption date, the Company shall deposit with the Paying Agent
      money sufficient to pay the redemption price of and accrued interest, if any,
      on
      all Securities to be redeemed on that date. 

     

    Section
      3.6 Securities Redeemed in Part. 

     

    Upon
      surrender of a Security that is redeemed in part, the Trustee shall authenticate
      for the Holder a new Security of the same Series and the same maturity equal
      in
      principal amount to the unredeemed portion of the Security surrendered.


     

    ARTICLE
      IV 

     

    COVENANTS
      

     

    Section
      4.1 Payment of Principal and Interest. 

     

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

     

    Section
      4.2 SEC Reports. 

     

    The
      Company shall deliver to the Trustee after it files them with the SEC 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 SEC may by rules and
      regulations prescribe) which the Company is required to file with the SEC
      pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
      comply with the other provisions of TIA Section 314(a). 

     

    Section
      4.3 Compliance Certificate. 

     

    The
      Company shall deliver to the Trustee, within 120 days after the end of each
      fiscal year of the Company, an Officers’ Certificate stating that a review of
      the activities of the Company and its Subsidiaries during the preceding fiscal
      year has been made under the supervision of the signing Officers with a view
      to
      determining whether the Company has kept, observed, performed and fulfilled
      its
      obligations under this Indenture, and further stating, as to each such Officer
      signing such certificate, that to the best of his knowledge the Company has
      kept, observed, performed and fulfilled each and every covenant contained in
      this Indenture and is not in default in the performance or observance of any
      of
      the terms, provisions and conditions hereof (or, if a Default or Event of
      Default shall have occurred, describing all such Defaults or Events of Default
      of which he may have knowledge). 

     

    
      
         

      

      
        14

        
          

        

      

      
         

      

    

     

    The
      Company will, so long as any of the Securities are outstanding, deliver to
      the
      Trustee, forthwith upon becoming aware of any Default or Event of Default,
      an
      Officers’ Certificate specifying such Default or Event of Default and what
      action the Company is taking or proposes to take with respect thereto.


     

    Section
      4.4 Corporate Existence. 

     

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

     

    Section
      4.5 Taxes. 

     

    The
      Company shall pay prior to delinquency all taxes, assessments and governmental
      levies, except as contested in good faith and by appropriate proceedings.


     

    ARTICLE
      V 

     

    SUCCESSORS
      

     

    Section
      5.1 When Company May Merge, Etc. 

     

    The
      Company shall not consolidate with or merge into, or convey, transfer or lease
      all or substantially all of its properties and assets to, any person (a
“successor person”), and may not permit any person to merge into, or convey,
      transfer or lease its properties and assets substantially as an entirety to,
      the
      Company, unless: 

     

    (a)
      the
      successor person (if any) is a corporation, partnership, trust or other entity
      organized and validly existing under the laws of any U.S. domestic jurisdiction
      and expressly assumes the Company’s obligations on the Securities and under this
      Indenture and 

     

    (b)
      immediately
      after giving effect to the transaction, no Default or Event of Default, shall
      have occurred and be continuing. 

     

    The
      Company shall deliver to the Trustee prior to the consummation of the proposed
      transaction an Officers’ Certificate to the foregoing effect and an Opinion of
      Counsel stating that the proposed transaction and such supplemental indenture
      comply with this Indenture. 

     

    Section
      5.2 Successor Corporation Substituted. 

     

    Upon
      any
      consolidation or merger, or any sale, lease, conveyance or other disposition
      of
      all or substantially all of the assets of the Company in accordance with Section
      5.1, the successor corporation formed by such consolidation or into or with
      which the Company is merged or to which such sale, lease, conveyance or other
      disposition is made shall succeed to, and be substituted for, and may exercise
      every right and power of, the Company under this Indenture with the same effect
      as if such successor person has been named as the Company herein; provided,
      however, that the predecessor Company in the case of a sale, lease, conveyance
      or other disposition shall not be released from the obligation to pay the
      principal of and interest, if any, on the Securities. 

     

    
      
         

      

      
        15

        
          

        

      

      
         

      

    

     

    ARTICLE
      VI 

     

    DEFAULTS
      AND REMEDIES 

     

    Section
      6.1 Events of Default. 

     

    “Event
      of
      Default,” wherever used herein with respect to Securities of any Series, means
      any one of the following events, unless in the establishing Board Resolution,
      supplemental indenture or Officers’ Certificate, it is provided that such Series
      shall not have the benefit of said Event of Default: 

     

    (a)
      default
      in the payment of any interest on any Security of that Series when it becomes
      due and payable, and continuance of such default for a period of 90 days (unless
      the entire amount of such payment is deposited by the Company with the Trustee
      or with a Paying Agent prior to the expiration of such period of 90 days);
      or


     

    (b)
      default
      in the payment of the principal of any Security of that Series at its Maturity;
      or 

     

    (c)
      default
      in the deposit of any sinking fund payment, when and as due in respect of any
      Security of that Series; or 

     

    (d)
      default
      in the performance or breach of any covenant or warranty of the Company in
      this
      Indenture (other than a covenant or warranty that has been included in this
      Indenture solely for the benefit of Series of Securities other than that
      Series), which default continues uncured for a period of 90 days after there
      has
      been given, by registered or certified mail, to the Company by the Trustee
      or to
      the Company and the Trustee by the Holders of at least 25% in principal amount
      of the outstanding Securities of that Series a written notice specifying such
      default or breach and requiring it to be remedied and stating that such notice
      is a “Notice of Default” hereunder; or 

     

    (e)
      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, 

     

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

     

    (v)
      generally
      is unable to pay its debts as the same become due; or 

     

    (f)
      a
      court
      of competent jurisdiction enters an order or decree under any Bankruptcy Law
      that: 

     

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

     

    (ii)
      appoints
      a Custodian for the Company or 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; or 

     

    (g)
      any
      other
      Event of Default provided with respect to Securities of that Series, which
      is
      specified in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with Section 2.2.19. 

     

    The
      term
“Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law
      for the relief of debtors. The term “Custodian” means any receiver, trustee,
      assignee, liquidator or similar official under any Bankruptcy Law. 

     

    
      
         

      

      
        16

        
          

        

      

      
         

      

    

     

    Section
      6.2 Acceleration of Maturity; Rescission and Annulment. 

     

    If
      an
      Event of Default with respect to Securities of any Series at the time
      outstanding occurs and is continuing (other than an Event of Default referred
      to
      in Section 6.1(e) or (f) ) then in every such case the Trustee or the Holders
      of
      not less than 25% in principal amount of the outstanding Securities of that
      Series may declare the principal amount (or, if any Securities of that Series
      are Discount Securities, such portion of the principal amount as may be
      specified in the terms of such Securities) of and accrued and unpaid interest,
      if any, on all of the Securities of that Series to be due and payable
      immediately, by a notice in writing to the Company (and to the Trustee if given
      by Holders), and upon any such declaration such principal amount (or specified
      amount) and accrued and unpaid interest, if any, shall become immediately due
      and payable. If an Event of Default specified in Section 6.1(e) or (f) shall
      occur, the principal amount (or specified amount) of and accrued and unpaid
      interest, if any, on all outstanding Securities shall ipso facto become and
      be
      immediately due and payable without any declaration or other act on the part
      of
      the Trustee or any Holder. 

     

    At
      any
      time after such a declaration of acceleration with respect to any Series has
      been made and before a judgment or decree for payment of the money due has
      been
      obtained by the Trustee as hereinafter in this Article provided, the Holders
      of
      a majority in principal amount of the outstanding Securities of that Series,
      by
      written notice to the Company and the Trustee, may rescind and annul such
      declaration and its consequences if: 

     

    (a)
      the
      Company has paid or deposited with the Trustee a sum sufficient to pay


     

    (i)
      all
      overdue interest, if any, on all Securities of that Series, 

     

    (ii)
      the
      principal of any Securities of that Series which have become due otherwise
      than
      by such declaration of acceleration and interest thereon at the rate or rates
      prescribed therefor in such Securities, 

     

    (iii)
      to
      the
      extent that payment of such interest is lawful, interest upon any overdue
      principal and overdue interest at the rate or rates prescribed therefor in
      such
      Securities, and 

     

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


     

    (b)
      all
      Events of Default with respect to Securities of that Series, other than the
      non-payment of the principal of Securities of that Series which have become
      due
      solely by such declaration of acceleration, have been cured or waived as
      provided in Section 6.13. 

     

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

     

    Section
      6.3 Collection of Indebtedness and Suits for Enforcement by Trustee.


     

    The
      Company covenants that if 

     

    (a)
      default
      is made in the payment of any interest on any Security when such interest
      becomes due and payable and such default continues for a period of 90 days,
      or


     

    (b)
      default
      is made in the payment of principal of any Security at the Maturity thereof,
      or


     

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

     

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

     

    
      
         

      

      
        17

        
          

        

      

      
         

      

    

     

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

     

    Section
      6.4 Trustee May File Proofs of Claim. 

     

    In
      case
      of the pendency of any receivership, insolvency, liquidation, bankruptcy,
      reorganization, arrangement, adjustment, composition or other judicial
      proceeding relative to the Company or any other obligor upon the Securities
      or
      the property of the Company or of such other obligor or their creditors, the
      Trustee (irrespective of whether the principal of the Securities shall then
      be
      due and payable as therein expressed or by declaration or otherwise and
      irrespective of whether the Trustee shall have made any demand on the Company
      for the payment of overdue principal or interest) shall be entitled and
      empowered, by intervention in such proceeding or otherwise, 

     

    (a)
      to
      file
      and prove a claim for the whole amount of principal and interest owing and
      unpaid in respect of the Securities and to file such other papers or documents
      as may be necessary or advisable in order to have the claims of the Trustee
      (including any claim for the reasonable compensation, expenses, fees,
      disbursements and advances of the Trustee, its agents and counsel) and of the
      Holders allowed in such judicial proceeding, and 

     

    (b)
      to
      collect and receive any moneys or other property payable or deliverable on
      any
      such claims and to distribute the same, and any custodian, receiver, assignee,
      trustee, liquidator, sequestrator or other similar official in any such judicial
      proceeding is hereby authorized by each Holder to make such payments to the
      Trustee and, in the event that the Trustee shall consent to the making of such
      payments directly to the Holders, to pay to the Trustee any amount due it for
      the reasonable compensation, expenses, fees, disbursements and advances of
      the
      Trustee, its agents and counsel, and any other amounts due the Trustee under
      Section 7.7. 

     

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

     

    Section
      6.5 Trustee May Enforce Claims Without Possession of Securities.


     

    All
      rights of action and claims under this Indenture or the Securities may be
      prosecuted and enforced by the Trustee without the possession of any of the
      Securities or the production thereof in any proceeding relating thereto, and
      any
      such proceeding instituted by the Trustee shall be brought in its own name
      as
      trustee of an express trust, and any recovery of judgment shall, after provision
      for the payment of the reasonable compensation, expenses, disbursements and
      advances of the Trustee, its agents and counsel, be for the ratable benefit
      of
      the Holders of the Securities in respect of which such judgment has been
      recovered. 

     

    Section
      6.6 Application of Money Collected. 

     

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

     

    First:
      To
      the payment of all amounts due the Trustee under Section 7.7; and 

     

    Second:
      To the payment of the amounts then due and unpaid for principal of and interest
      on the Securities 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 interest,
      respectively; and 

     

    
      
         

      

      
        18

        
          

        

      

      
         

      

    

     

    Third:
      To
      the Company. 

     

    Section
      6.7 Limitation on Suits. 

     

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

     

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

     

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

     

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

     

    (d)
      the
      Trustee for 90 days after its receipt of such notice, request and offer of
      indemnity has failed to institute any such proceeding; and 

     

    (e)
      no
      direction inconsistent with such written request has been given to the Trustee
      during such 90-day period by the Holders of a majority in principal amount
      of
      the outstanding Securities of that Series; 

    


    it
      being
      understood and intended that no one or more of such Holders shall have any
      right
      in any manner whatever by virtue of, or by availing of, any provision of this
      Indenture to affect, disturb or prejudice the rights of any other of such
      Holders, or to obtain or to seek to obtain priority or preference over any
      other
      of such Holders or to enforce any right under this Indenture, except in the
      manner herein provided and for the equal and ratable benefit of all such Holders
      (it being understood that the Trustee does not have an affirmative duty to
      ascertain whether or not such actions or forbearances are unduly prejudicial
      to
      such Holders). 

     

    Section
      6.8 Unconditional Right of Holders to Receive Principal and Interest.


     

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


     

    Section
      6.9 Restoration of Rights and Remedies. 

     

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

     

    Section
      6.10 Rights and Remedies Cumulative. 

     

    Except
      as
      otherwise provided with respect to the replacement or payment of mutilated,
      destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein
      conferred upon or reserved to the Trustee or to the Holders is intended to
      be
      exclusive of any other right or remedy, and every right and remedy shall, to
      the
      extent permitted by law, be cumulative and in addition to every other right
      and
      remedy given hereunder or now or hereafter existing at law or in equity or
      otherwise. The assertion or employment of any right or remedy hereunder, or
      otherwise, shall not prevent the concurrent assertion or employment of any
      other
      appropriate right or remedy. 

     

    
      
         

      

      
        19

        
          

        

      

      
         

      

    

     

    Section
      6.11 Delay or Omission Not Waiver. 

     

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


     

    Section
      6.12 Control by Holders. 

     

    The
      Holders of a majority in principal amount of the outstanding Securities of
      any
      Series shall have the right to direct the time, method and place of conducting
      any proceeding for any remedy available to the Trustee, or exercising any trust
      or power conferred on the Trustee, with respect to the Securities of such
      Series, provided that 

     

    (a)
      such
      direction shall not be in conflict with any rule of law or with this Indenture,
      

     

    (b)
      the
      Trustee may take any other action deemed proper by the Trustee which is not
      inconsistent with such direction, and 

     

    (c)
      subject
      to the provisions of Section 6.1, the Trustee shall have the right to decline
      to
      follow any such direction if the Trustee in good faith shall, by a Responsible
      Officer of the Trustee, determine that the proceeding so directed would involve
      the Trustee in personal liability. 

     

    Section
      6.13 Waiver of Past Defaults. 

     

    Subject
      to Section 6.2, the Holders of not less than a majority in principal amount
      of
      the outstanding Securities of any Series may on behalf of the Holders of all
      the
      Securities of such Series waive any past Default hereunder with respect to
      such
      Series and its consequences, except a Default in the payment of the principal
      of
      or interest on any Security of such Series (provided, however, that the Holders
      of a majority in principal amount of the outstanding Securities of any Series
      may rescind an acceleration and its consequences, including any related payment
      default that resulted from such acceleration). Upon any such waiver, such
      Default shall cease to exist, and any Event of Default arising therefrom shall
      be deemed to have been cured, for every purpose of this Indenture; but no such
      waiver shall extend to any subsequent or other Default or impair any right
      consequent thereon. 

     

    Section
      6.14 Undertaking for Costs. 

     

    All
      parties to this Indenture agree, and each Holder of any Security by his
      acceptance thereof shall be deemed to have agreed, that any court may in its
      discretion require, in any suit for the enforcement of any right or remedy
      under
      this Indenture, or in any suit against the Trustee for any action taken,
      suffered or omitted by it as Trustee, 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
      Company, to any suit instituted by the Trustee, to any suit instituted by any
      Holder, or group of Holders, holding in the aggregate more than 10% in principal
      amount of the outstanding Securities of any Series, or to any suit instituted
      by
      any Holder for the enforcement of the payment of the principal of or interest
      on
      any Security on or after the Stated Maturity or Stated Maturities expressed
      in
      such Security (or, in the case of redemption, on the redemption date).


     

    
      
         

      

      
        20

        
          

        

      

      
         

      

    

     

    ARTICLE
      VII 

     

    TRUSTEE
      

     

    Section
      7.1 Duties of Trustee. 

     

    (a)
      If
      an
      Event of Default has occurred and is continuing, the Trustee shall exercise
      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 such person’s own affairs. 

     

    (b)
      Except
      during the continuance of an Event of Default: 

     

    (i)
      The
      Trustee need perform only those duties that are specifically set forth in this
      Indenture and no implied covenants or obligations shall be read into this
      Indenture against the Trustee. 

     

    (ii)
      In
      the
      absence of bad faith on its part, the Trustee may conclusively rely, as to
      the
      truth of the statements and the correctness of the opinions expressed therein,
      upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and
      conforming to the requirements of this Indenture; however, in the case of any
      such Officers’ Certificates or Opinions of Counsel which by any provisions
      hereof are specifically required to be furnished to the Trustee, the Trustee
      shall examine such Officers’ Certificates and Opinions of Counsel to determine
      whether or not they conform to the requirements of this Indenture (but need
      not
      confirm or investigate the accuracy of mathematical calculations or other facts
      stated therein). 

     

    (c)
      The
      Trustee may not be relieved from liability for its own negligent action, its
      own
      negligent failure to act or its own willful misconduct, except that:


     

    (i)
      This
      paragraph does not limit the effect of paragraph (b) of this Section.


     

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

     

    (iii)
      The
      Trustee shall not be liable with respect to any action taken, suffered or
      omitted to be taken by it with respect to Securities of any Series in good
      faith
      in accordance with the direction of the Holders of a majority in principal
      amount of the outstanding Securities of such Series 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 such Series. 

     

    (d)
      Every
      provision of this Indenture that in any way relates to the Trustee is subject
      to
      paragraph (a), (b) and (c) of this Section. 

     

    (e)
      The
      Trustee may refuse to perform any duty or exercise any right or power unless
      it
      receives indemnity satisfactory to it against any loss, liability, damage,
      claim
      or expense. 

     

    (f)
      The
      Trustee shall not be liable for interest on any money received by it except
      as
      the Trustee may agree in writing with the Company. Money held in trust by the
      Trustee need not be segregated from other funds except to the extent required
      by
      law. 

     

    (g)
      No
      provision of this Indenture shall require the Trustee to risk its own funds
      or
      otherwise incur any financial liability in the performance of any of its duties,
      or in the exercise of any of its rights or powers, if it shall have reasonable
      grounds for believing that repayment of such funds or adequate indemnity against
      such risk is not reasonably assured to it. 

     

    (h)
      The
      Paying Agent, the Registrar and any authenticating agent shall be entitled
      to
      the protections and immunities as are set forth in paragraphs (a), (b) and
      (c)
      of this Section with respect to the Trustee. 

     

    Section
      7.2 Rights of Trustee. 

     

    (a)
      The
      Trustee may conclusively rely on and shall be protected in acting or refraining
      from acting upon any document believed by it to be genuine and to have been
      signed or presented by the proper person. The Trustee need not investigate any
      fact or matter stated in the document. 

     

    
      
         

      

      
        21

        
          

        

      

      
         

      

    

     

    (b)
      Before
      the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any
      action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel. 

     

    (c)
      The
      Trustee may act through agents and shall not be responsible for the misconduct
      or negligence of any agent appointed with due care. No Depositary shall be
      deemed an agent of the Trustee and the Trustee shall not be responsible for
      any
      act or omission by any Depositary. 

     

    (d)
      The
      Trustee shall not be liable for any action it takes or omits to take in good
      faith which it believes to be authorized or within its rights or powers;
provided,
      however,
      that
      the Trustee’s conduct does not constitute willful misconduct, gross negligence
      or bad faith. 

     

    (e)
      The
      Trustee may consult with counsel of its selection and the advice of such counsel
      or any Opinion of Counsel shall be full and complete authorization and
      protection in respect of any action taken, suffered or omitted by it hereunder
      in good faith and in reliance thereon. 

     

    (f)
      The
      Trustee shall be under no obligation to exercise any of the rights or powers
      vested in it by this Indenture at the request or direction of any of the Holders
      of Securities unless such Holders shall have offered to the Trustee security
      or
      indemnity satisfactory to it against the costs, expenses and liabilities which
      might be incurred by it in compliance with such request or direction.


    


    (g)
      The
      Trustee shall not be bound to make any investigation into the facts or matters
      stated in any resolution, certificate, statement, instrument, opinion, report,
      notice, request, direction, consent, order, bond, debenture, note, other
      evidence of indebtedness or other paper or document, but the Trustee, in its
      discretion, may make such further inquiry or investigation into such facts
      or
      matters as it may see fit, and, if the Trustee shall determine to make such
      further inquiry or investigation, it shall be entitled to examine the books,
      records and premises of the Company, at reasonable times during normal business
      hours, personally or by agent or attorney at the sole cost of the Company and
      shall incur no liability or additional liability of any kind by reason of such
      inquiry or investigation.

    


    (h)
      The
      rights, privileges, protections, immunities and benefits given to the Trustee,
      including, without limitation, its right to be indemnified, are extended to,
      and
      shall be enforceable by, the Trustee in each of its capacities hereunder, and
      each agent, custodian and other Person employed to act hereunder.

    


    (i)
      In
      no
      event shall the Trustee be responsible or liable for special, indirect, or
      consequential loss or damage of any kind whatsoever (including, but not limited
      to, loss of profit) irrespective of whether the Trustee has been advised of
      the
      likelihood of such loss or damage and regardless of the form of
      action.

    


    (j)
      The
      Trustee may request that the Company deliver a certificate setting forth the
      names of individuals and/or titles of officers authorized at such time to take
      specified actions pursuant to this Indenture.

     

    In
      addition, the Trustee shall not be deemed to have knowledge of any Default
      or
      Event of Default until the Trustee shall have received written notification
      in
      the manner set forth in this Indenture or a Responsible Officer of the Trustee
      shall have obtained actual knowledge. Delivery of reports, information and
      documents to the Trustee under Section 4.2 is for informational purposes only
      and the information and the Trustee’s receipt of the foregoing shall not
      constitute constructive notice of any information contained therein, or
      determinable from information contained therein including the Company’s
      compliance with any of their covenants thereunder (as to which the Trustee
      is
      entitled to rely exclusively on an Officers’ Certificate). 

     

    Section
      7.3 Individual Rights of Trustee. 

     

    The
      Trustee in its individual or any other capacity may become the owner or pledgee
      of Securities and may otherwise deal with the Company or an Affiliate with
      the
      same rights it would have if it were not Trustee. Any Agent may do the same
      with
      like rights. The Trustee is also subject to Sections 7.10 and 7.11.


     

    
      
         

      

      
        22

        
          

        

      

      
         

      

    

     

    Section
      7.4 Trustee’s Disclaimer. 

     

    The
      Trustee makes no representation as to the validity or adequacy of this Indenture
      or the Securities, it shall not be accountable for the Company’s use of the
      proceeds from the Securities, and it shall not be responsible for any statement
      in the Securities other than its authentication. 

     

    Section
      7.5 Notice of Defaults. 

     

    If
      a
      Default or Event of Default occurs and is continuing with respect to the
      Securities of any Series and if it is known to the Trustee, the Trustee shall
      mail to each Securityholder of the Securities of that Series and, if any Bearer
      Securities are outstanding, publish on one occasion in an Authorized Newspaper,
      notice of a Default or Event of Default within 90 days after it occurs or,
      if
      later, after the Trustee has knowledge of such Default or Event of Default.
      Except in the case of a Default or Event of Default in payment of principal
      of
      or interest on any Security of any Series, the Trustee may withhold the notice
      if and so long as its corporate trust committee or a committee of its
      Responsible Officers in good faith determines that withholding the notice is
      in
      the interests of Securityholders of that Series. 

     

    Section
      7.6 Reports by Trustee to Holders. 

     

    Within
      60
      days after May 15 in each year, the Trustee shall transmit by mail to all
      Securityholders, as their names and addresses appear on the register kept by
      the
      Registrar and, if any Bearer Securities are outstanding, publish in an
      Authorized Newspaper, a brief report dated as of such May 15, in accordance
      with, and to the extent required under, TIA Section 313. 

     

    A
      copy of
      each report at the time of its mailing to Securityholders of any Series shall
      be
      filed with the SEC and each stock exchange on which the Securities of that
      Series are listed. The Company shall promptly notify the Trustee when Securities
      of any Series are listed on any stock exchange. 

     

    Section
      7.7 Compensation and Indemnity. 

     

    The
      Company shall pay to the Trustee from time to time such compensation for its
      services as shall be agreed from time to time in writing. The Trustee’s
      compensation shall not be limited by any law on compensation of a trustee of
      an
      express trust. The Company shall reimburse the Trustee upon request for all
      reasonable disbursements, advance and expenses incurred by it, including the
      reasonable compensation and expenses of the Trustee’s agents and
      counsel.

     

    The
      Company shall indemnify the Trustee (including the cost of defending itself)
      against any loss, liability, damage, claim or expense incurred by it except
      as
      set forth in the next paragraph in the performance of its duties under this
      Indenture as Trustee or Agent. The Trustee shall notify the Company promptly
      of
      any claim for which it may seek indemnity. The Company shall defend the claim
      and the Trustee shall cooperate in the defense. The Trustee may have separate
      counsel and the Company shall pay the reasonable fees and expenses of such
      counsel. The Company need not pay for any settlement made without its consent,
      which consent shall not be unreasonably withheld. This indemnification shall
      apply to officers, directors, employees, shareholders and agents of the Trustee.
      

     

    The
      Company need not reimburse any expense or indemnify against any loss, liability,
      damage, claim or expense determined by a court of competent jurisdiction to
      have
      been incurred by the Trustee through negligence or bad faith. 

     

    To
      secure
      the Company’s payment obligations in this Section, the Trustee shall have a lien
      prior to the Securities of any Series on all money or property held or collected
      by the Trustee, except that held in trust to pay principal and interest on
      particular Securities of that Series. 

     

    When
      the
      Trustee incurs expenses or renders services after an Event of Default specified
      in Section 6.1(e) or (f) occurs, the expenses and the compensation for the
      services are intended to constitute expenses of administration under any
      Bankruptcy Law.

     

    
      
         

      

      
        23

        
          

        

      

      
         

      

    

     

    The
      obligations of the Company in this section shall survive the discharge of the
      Indenture or resignation of the Trustee.

     

    Section
      7.8 Replacement of Trustee. 

     

    A
      resignation or removal of the Trustee and appointment of a successor Trustee
      shall become effective only upon the successor Trustee’s acceptance of
      appointment as provided in this Section. 

     

    The
      Trustee may resign with respect to the Securities of one or more Series by
      so
      notifying the Company. The Holders of a majority in principal amount of the
      Securities of any Series may remove the Trustee with respect to that Series
      by
      so notifying the Trustee and the Company in writing. The Company may remove
      the
      Trustee with respect to Securities of one or more Series if: 

     

    (a)
      the
      Trustee fails to comply with Section 7.10; 

     

    (b)
      the
      Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
      with respect to the Trustee under any Bankruptcy Law; 

     

    (c)
      a
      Custodian or public officer takes charge of the Trustee or its property; or
      

     

    (d)
      the
      Trustee becomes incapable of acting. 

     

    If
      the
      Trustee resigns or is removed or if a vacancy exists in the office of Trustee
      for any reason, the Company shall promptly appoint a successor Trustee. Within
      one year after the successor Trustee takes office, the Holders of a majority
      in
      principal amount of the then outstanding Securities may appoint a successor
      Trustee to replace the successor Trustee appointed by the Company. 

     

    If
      a
      successor Trustee with respect to the Securities of any one or more Series
      does
      not take office within 30 days after the retiring Trustee resigns or is removed,
      the retiring Trustee, the Company or the Holders of at least 10% in principal
      amount of the Securities of the applicable Series may petition any court of
      competent jurisdiction for the appointment of a successor Trustee. 

     

    If
      the
      Trustee with respect to the Securities of any one or more Series fails to comply
      with Section 7.10, any Securityholder of the applicable Series may petition
      any
      court of competent jurisdiction for the removal of the Trustee and the
      appointment of a successor Trustee. 

     

    A
      successor Trustee shall deliver a written acceptance of its appointment to
      the
      retiring Trustee and to the Company. Immediately after that, the retiring
      Trustee shall transfer all property held by it as Trustee to the successor
      Trustee subject to the lien provided for in Section 7.7, the resignation or
      removal of the retiring Trustee shall become effective, and the successor
      Trustee shall have all the rights, powers and duties of the Trustee with respect
      to each Series of Securities for which it is acting as Trustee under this
      Indenture. A successor Trustee shall mail a notice of its succession to each
      Securityholder of each such Series and, if any Bearer Securities are
      outstanding, publish such notice on one occasion in an Authorized Newspaper.
      Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
      Company’s obligations under Section 7.7 hereof shall continue for the benefit of
      the retiring trustee with respect to expenses and liabilities incurred by it
      prior to such replacement. 

     

    Section
      7.9 Successor Trustee by Merger, etc. 

     

    If
      the
      Trustee consolidates with, merges or converts into, or transfers all or
      substantially all of its corporate trust business to, another corporation,
      the
      successor corporation without any further act shall be the successor Trustee.
      

     

    
      
         

      

      
        24

        
          

        

      

      
         

      

    

     

    Section
      7.10 Eligibility; Disqualification. 

     

    This
      Indenture shall always have a Trustee who satisfies the requirements of TIA
      Section 310(a) (1), (2) and (5). The Trustee shall always have a combined
      capital and surplus of at least $25,000,000 as set forth in its most recent
      published annual report of condition. The Trustee shall comply with TIA Section
      310(b). 

     

    Section
      7.11 Preferential Collection of Claims Against Company. 

     

    The
      Trustee is subject to TIA Section 311(a), excluding any creditor relationship
      listed in TIA Section 311(b). A Trustee who has resigned or been removed shall
      be subject to TIA Section 311(a) to the extent indicated. 

     

    ARTICLE
      VIII 

     

    SATISFACTION
      AND DISCHARGE; DEFEASANCE 

     

    Section
      8.1 Satisfaction and Discharge of Indenture. 

     

    This
      Indenture shall upon Company Order cease to be of further effect (except as
      hereinafter provided in this Section 8.1), and the Trustee, at the expense
      of
      the Company, shall execute proper instruments acknowledging satisfaction and
      discharge of this Indenture, when 

     

    (a)
      either
      

     

    (i)
      all
      Securities theretofore authenticated and delivered (other than Securities that
      have been destroyed, lost or stolen and that have been replaced or paid) have
      been delivered to the Trustee for cancellation; or 

     

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


     

    (1)
      have
      become due and payable, or 

     

    (2)
      will
      become due and payable at their Stated Maturity within one year, or


     

    (3)
      are
      to be
      called for redemption within one year under arrangements satisfactory to the
      Trustee for the giving of notice of redemption by the Trustee in the name,
      and
      at the expense, of the Company, or 

     

    (4)
      are
      deemed paid and discharged pursuant to Section 8.3, as applicable; 

     

    and
      the
      Company, in the case of (1), (2) or (3) above, has deposited or caused to be
      deposited with the Trustee as trust funds in trust an amount sufficient for
      the
      purpose of paying and discharging the entire indebtedness on such Securities
      not
      theretofore delivered to the Trustee for cancellation, for principal and
      interest to the date of such deposit (in the case of Securities which have
      become due and payable on or prior to the date of such deposit) or to the Stated
      Maturity or redemption date, as the case may be; 

     

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

     

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

     

    Notwithstanding
      the satisfaction and discharge of this Indenture, the obligations of the Company
      to the Trustee under Section 7.7, and, if money shall have been deposited with
      the Trustee pursuant to clause (a) of this Section, the provisions of Sections
      2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive. 

     

    
      
         

      

      
        25

        
          

        

      

      
         

      

    

     

    Section
      8.2 Application of Trust Funds; Indemnification. 

     

    (a)
      Subject
      to the provisions of Section 8.5, all money deposited with the Trustee pursuant
      to Section 8.1, all money and U.S. Government Obligations or Foreign Government
      Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all
      money received by the Trustee in respect of U.S. Government Obligations or
      Foreign Government Obligations deposited with the Trustee pursuant to Section
      8.3 or 8.4, shall be held in trust and applied by it, in accordance with the
      provisions of the Securities and this Indenture, to the payment, either directly
      or through any Paying Agent (including the Company acting as its own Paying
      Agent) as the Trustee may determine, to the persons entitled thereto, of the
      principal and interest for whose payment such money has been deposited with
      or
      received by the Trustee or to make mandatory sinking fund payments or analogous
      payments as contemplated by Sections 8.3 or 8.4. 

     

    (b)
      The
      Company shall pay and shall indemnify the Trustee against any tax, fee or other
      charge imposed on or assessed against U.S. Government Obligations or Foreign
      Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest
      and principal received in respect of such obligations other than any payable
      by
      or on behalf of Holders. 

     

    (c)
      The
      Trustee shall deliver or pay to the Company from time to time upon Company
      Request any U.S. Government Obligations or Foreign Government Obligations or
      money held by it as provided in Sections 8.3 or 8.4 which are then in excess
      of
      the amount thereof which then would have been required to be deposited for
      the
      purpose for which such U.S. Government Obligations or Foreign Government
      Obligations or money were deposited or received. This provision shall not
      authorize the sale by the Trustee of any U.S. Government Obligations or Foreign
      Government Obligations held under this Indenture. 

     

    Section
      8.3 Legal Defeasance of Securities of any Series. 

     

    Unless
      this Section 8.3 is otherwise specified, pursuant to Section 2.2.21, to be
      inapplicable to Securities of any Series, the Company shall be deemed to have
      paid and discharged the entire indebtedness on all the outstanding Securities
      of
      such Series on the 91st day after the date of the deposit referred to in
      subparagraph (d) hereof, and the provisions of this Indenture, as it relates
      to
      such outstanding Securities of such Series, shall no longer be in effect (and
      the Trustee, at the expense of the Company, shall, at Company Request, execute
      proper instruments acknowledging the same), except as to: 

     

    (a)
      the
      rights of Holders of Securities of such Series to receive, from the trust funds
      described in subparagraph (d) hereof, (i) payment of the principal of and each
      installment of principal of and interest on the outstanding Securities of such
      Series on the Stated Maturity of such principal or installment of principal
      or
      interest and (ii) the benefit of any mandatory sinking fund payments applicable
      to the Securities of such Series on the day on which such payments are due
      and
      payable in accordance with the terms of this Indenture and the Securities of
      such Series; 

     

    (b)
      the
      provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and 

     

    (c)
      the
      rights, powers, trust and immunities of the Trustee hereunder; 

     

    provided
      that, the following conditions shall have been satisfied: 

     

    (d)
      the
      Company shall have deposited or caused to be deposited irrevocably with the
      Trustee as trust funds in trust for the purpose of making the following
      payments, specifically pledged as security for and dedicated solely to the
      benefit of the Holders of such Securities (i) in the case of Securities of
      such
      Series denominated in Dollars, cash in Dollars (or such other money or
      currencies as shall then be legal tender in the United States) and/or U.S.
      Government Obligations, or (ii) in the case of Securities of such Series
      denominated in a Foreign Currency (other than a composite currency), money
      and/or Foreign Government Obligations, which through the payment of interest
      and
      principal in respect thereof, in accordance with their terms, will provide
      (and
      without reinvestment and assuming no tax liability will be imposed on such
      Trustee), not later than one day before the due date of any payment of money,
      an
      amount in cash, sufficient, in the opinion of a nationally recognized firm
      of
      independent public accountants expressed in a written certification thereof
      delivered to the Trustee, to pay and discharge each installment of principal
      (including mandatory sinking fund or analogous payments) of and interest, if
      any, on all the Securities of such Series on the dates such installments of
      interest or principal are due; 

     

    
      
         

      

      
        26

        
          

        

      

      
         

      

    

     

    (e)
      such
      deposit will not result in a breach or violation of, or constitute a default
      under, this Indenture or any other agreement or instrument to which the Company
      is a party or by which it is bound; 

     

    (f)
      no
      Default or Event of Default with respect to the Securities of such Series shall
      have occurred and be continuing on the date of such deposit or during the period
      ending on the 91st day after such date; 

     

    (g)
      the
      Company shall have delivered to the Trustee an Officers’ Certificate and an
      Opinion of Counsel to the effect that (i) the Company has received from, or
      there has been published by, the Internal Revenue Service a ruling, or (ii)
      since the date of execution of this Indenture, there has been a change in the
      applicable Federal income tax law, in either case to the effect that, and based
      thereon such Opinion of Counsel shall confirm that, the Holders of the
      Securities of such Series will not recognize income, gain or loss for Federal
      income tax purposes as a result of such deposit, defeasance and discharge and
      will be subject to Federal income tax on the same amount and in the same manner
      and at the same times as would have been the case if such deposit, defeasance
      and discharge had not occurred; 

     

    (h)
      the
      Company shall have delivered to the Trustee an Officers’ Certificate stating
      that the deposit was not made by the Company with the intent of preferring
      the
      Holders of the Securities of such Series over any other creditors of the company
      or with the intent of defeating, hindering, delaying or defrauding any other
      creditors of the Company; 

     

    (i)
      such
      deposit shall not result in the trust arising from such deposit constituting
      an
      investment company (as defined in the Investment Company Act of 1940, as
      amended), or such trust shall be qualified under such Act or exempt from
      regulation thereunder; and 

     

    (j)
      the
      Company shall have delivered to the Trustee an Officers’ Certificate and an
      Opinion of Counsel, each stating that all conditions precedent provided for
      relating to the defeasance contemplated by this Section have been complied
      with.


     

    Section
      8.4 Covenant Defeasance. 

     

    Unless
      this Section 8.4 is otherwise specified pursuant to Section 2.2.21 to be
      inapplicable to Securities of any Series, on and after the 91st day after the
      date of the deposit referred to in subparagraph (a) hereof, the Company may
      omit
      to comply with any term, provision or condition set forth under Sections 4.2,
      4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional covenants contained in
      a
      supplemental indenture hereto for a particular Series of Securities or a Board
      Resolution or an Officers’ Certificate delivered pursuant to Section 2.2.21 (and
      the failure to comply with any such covenants shall not constitute a Default
      or
      Event of Default under Section 6.1) and the occurrence of any event described
      in
      clause (e) of Section 6.1 shall not constitute a Default or Event of Default
      hereunder, with respect to the Securities of such Series, provided that the
      following conditions shall have been satisfied: 

     

    (a)
      With
      reference to this Section 8.4, the Company has deposited or caused to be
      irrevocably deposited (except as provided in Section 8.2(c) ) with the Trustee
      as trust funds in trust, specifically pledged as security for, and dedicated
      solely to, the benefit of the Holders of such Securities (i) in the case of
      Securities of such Series denominated in Dollars, cash in Dollars (or such
      other
      money or currencies as shall then be legal tender in the United States) and/or
      U.S. Government Obligations, or (ii) in the case of Securities of such Series
      denominated in a Foreign Currency (other than a composite currency), money
      and/or Foreign Government Obligations, which through the payment of interest
      and
      principal in respect thereof, in accordance with their terms, will provide
      (and
      without reinvestment and assuming no tax liability will be imposed on such
      Trustee), not later than one day before the due date of any payment of money,
      an
      amount in cash, sufficient, in the opinion of a nationally recognized firm
      of
      independent certified public accountants expressed in a written certification
      thereof delivered to the Trustee, to pay principal and interest, if any, on
      and
      any mandatory sinking fund in respect of the Securities of such Series on the
      dates such installments of interest or principal are due; 

     

    (b)
      Such
      deposit will not result in a breach or violation of, or constitute a default
      under, this Indenture or any other agreement or instrument to which the Company
      is a party or by which it is bound; 

     

    
      
         

      

      
        27

        
          

        

      

      
         

      

    

     

    (c)
      No
      Default or Event of Default with respect to the Securities of such Series shall
      have occurred and be continuing on the date of such deposit or during the period
      ending on the 91st day after such date; 

     

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

     

    (e)
      the
      Company shall have delivered to the Trustee an Officers’ Certificate stating the
      deposit was not made by the Company with the intent of preferring the Holders
      of
      the Securities of such Series over any other creditors of the Company or with
      the intent of defeating, hindering, delaying or defrauding any other creditors
      of the Company; and 

    


    (f)
      The
      Company shall have delivered to the Trustee an Officers’ Certificate and an
      Opinion of Counsel, each stating that all conditions precedent herein provided
      for relating to the defeasance contemplated by this Section have been complied
      with. 

     

    Section
      8.5 Repayment to Company. 

     

    The
      Trustee and the Paying Agent shall pay to the Company upon request any money
      held by them for the payment of principal and interest that remains unclaimed
      for two years or such other shorter period set forth in applicable escheat
      or
      abandoned or unclaimed property law. After that, Securityholders entitled to
      the
      money must look to the Company for payment as general creditors unless an
      applicable abandoned property law designates another person. 

     

    Section
      8.6 Reinstatement. 

     

    If
      the
      Trustee or Paying Agent is unable to apply any money or U.S. Government
      Obligations in accordance with Sections 8.1, 8.3 or 8.4, as the case may be,
      by
      reason of any legal proceeding or by reason of any order or judgment of any
      court or governmental authority enjoining, restraining or otherwise prohibiting
      such application, the Company’s obligations under this Indenture and the
      Securities shall be revived and reinstated as though no deposit had occurred
      pursuant to Section 8.1, 8.3 or 8.4, as the case may be, until such time as
      the
      Trustee or Paying Agent is permitted to apply all such money or U.S. Government
      Obligations in accordance with Section 8.1, 8.3 or 8.4, as the case may be;
      provided, however, that if the Company makes any payment of principal of,
      premium, if any, or interest on any Securities because of reinstatement of
      its
      obligations, the Company shall be subrogated to the rights of the holders of
      such Securities to receive such payment from the money or U.S. Government
      Obligations held by the Trustee or Paying Agent. 

     

    ARTICLE
      IX 

     

    AMENDMENTS
      AND WAIVERS 

     

    Section
      9.1 Without Consent of Holders. 

     

    The
      Company and the Trustee may amend or supplement this Indenture or the Securities
      of one or more Series without the consent of any Securityholder: 

     

    (a)
      to
      cure
      any ambiguity, defect or inconsistency; 

     

    (b)
      to
      comply
      with Article V; 

     

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

     

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

     

    
      
         

      

      
        28

        
          

        

      

      
         

      

    

     

    (e)
      to
      provide for the issuance of and establish the form and terms and conditions
      of
      Securities of any Series as permitted by this Indenture; 

     

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

     

    (g)
      to
      comply
      with requirements of the SEC in order to effect or maintain the qualification
      of
      this Indenture under the TIA. 

     

    Section
      9.2 With Consent of Holders. 

     

    The
      Company and the Trustee may enter into a supplemental indenture with the written
      consent of the Holders of at least a majority in principal amount of the
      outstanding Securities of each Series affected by such supplemental indenture
      (including consents obtained in connection with a tender offer or exchange
      offer
      for the Securities of such Series), 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 the rights of
      the
      Securityholders of each such Series. Except as provided in Section 6.13, the
      Holders of at least a majority in principal amount of the outstanding Securities
      of each Series affected by such waiver by notice to the Trustee (including
      consents obtained in connection with a tender offer or exchange offer for the
      Securities of such Series) may waive compliance by the Company with any
      provision of this Indenture or the Securities with respect to such Series.
      

     

    It
      shall
      not be necessary for the consent of the Holders of Securities under this Section
      9.2 to approve the particular form of any proposed supplemental indenture or
      waiver, but it shall be sufficient if such consent approves the substance
      thereof. After a supplemental indenture or waiver under this Section becomes
      effective, the Company shall mail to the Holders of Securities affected thereby
      and, if any Bearer Securities affected thereby are outstanding, publish on
      one
      occasion in an Authorized Newspaper, a notice briefly describing the
      supplemental indenture or waiver. Any failure by the Company to mail or publish
      such notice, or any defect therein, shall not, however, in any way impair or
      affect the validity of any such supplemental indenture or waiver. 

     

    Section
      9.3 Limitations. 

     

    Without
      the consent of each Securityholder affected, an amendment or waiver may not:
      

     

    (a)
      change
      the amount of Securities whose Holders must consent to an amendment, supplement
      or waiver; 

     

    (b)
      reduce
      the rate of or extend the time for payment of interest (including default
      interest) on any Security; 

     

    (c)
      reduce
      the principal or change the Stated Maturity of any Security or reduce the amount
      of, or postpone the date fixed for, the payment of any sinking fund or analogous
      obligation; 

     

    (d)
      reduce
      the principal amount of Discount Securities payable upon acceleration of the
      maturity thereof; 

     

    (e)
      waive
      a
      Default or Event of Default in the payment of the principal of or interest,
      if
      any, on any Security (except a rescission of acceleration of the Securities
      of
      any Series by the Holders of at least a majority in principal amount of the
      outstanding Securities of such Series and a waiver of the payment default that
      resulted from such acceleration); 

     

    (f)
      make
      the
      principal of or interest, if any, on any Security payable in any currency other
      than that stated in the Security; 

     

    (g)
      make
      any
      change in Sections 6.8, 6.13, 9.3, 10.15 or 10.16; or 

     

    
      
         

      

      
        29

        
          

        

      

      
         

      

    

     

    (h)
      waive
      a
      redemption payment with respect to any Security or change any of the provisions
      with respect to the redemption of any Securities. 

     

    Section
      9.4 Compliance with Trust Indenture Act. 

     

    Every
      amendment to this Indenture or the Securities of one or more Series shall be
      set
      forth in a supplemental indenture hereto that complies with the TIA as then
      in
      effect. 

     

    Section
      9.5 Revocation and Effect of Consents. 

     

    Until
      an
      amendment or waiver becomes effective, a consent to it by a Holder of a Security
      is a continuing consent by the Holder and every subsequent Holder of a Security
      or portion of a Security that evidences the same debt as the consenting Holder’s
      Security, even if notation of the consent is not made on any Security. However,
      any such Holder or subsequent Holder may revoke the consent as to his Security
      or portion of a Security if the Trustee receives the notice of revocation before
      the date the amendment or waiver becomes effective. 

     

    Any
      amendment or waiver once effective shall bind every Securityholder of each
      Series affected by such amendment or waiver unless it is of the type described
      in any of clauses (a) through (g) of Section 9.3. In that case, the amendment
      or
      waiver shall bind each Holder of a Security who has consented to it and every
      subsequent Holder of a Security or portion of a Security that evidences the
      same
      debt as the consenting Holder’s Security. 

     

    Section
      9.6 Notation on or Exchange of Securities. 

     

    The
      Trustee may place an appropriate notation about an amendment or waiver on any
      Security of any Series thereafter authenticated. The Company in exchange for
      Securities of that Series may issue and the Trustee shall authenticate upon
      request new Securities of that Series that reflect the amendment or waiver.
      

     

    Section
      9.7 Trustee Protected. 

     

    In
      executing, or accepting the additional trusts created by, any supplemental
      indenture permitted by this Article or the modifications thereby of the trusts
      created by this Indenture, the Trustee shall be entitled to receive, and
      (subject to Section 7.1) shall be fully protected in conclusively relying upon,
      an Officers’ Certificate and an Opinion of Counsel stating that the execution of
      such supplemental indenture is authorized or permitted by this Indenture. The
      Trustee shall sign all supplemental indentures, except that the Trustee need
      not
      sign any supplemental indenture that adversely affects its rights. 

     

    ARTICLE
      X 

     

    MISCELLANEOUS
      

     

    Section
      10.1 Trust Indenture Act Controls. 

     

    If
      any
      provision of this Indenture limits, qualifies, or conflicts with another
      provision which is required or deemed to be included in this Indenture by the
      TIA, such required or deemed provision shall control. 

     

    Section
      10.2 Notices. 

     

    Any
      notice or communication by the Company or the Trustee to the other is duly
      given
      if in writing and delivered in person or mailed by first-class mail

     

    if
      to the
      Company: 

     

    Discovery
      Laboratories, Inc. 

    2600
      Kelly Road, Suite 100

    Warrington,
      Pennsylvania 18976-3646

     

    
      
         

      

      
        30

        
          

        

      

      
         

      

    

     

    Attention:
      General Counsel 

     

    if
      to the
      Trustee: 

     

    The
      Bank
      of New York

    101
      Barclay Street, Floor 8W

    New
      York,
      New York 10286

    Attention:
      Corporate Trust Administration 

     

    The
      Company or the Trustee by notice to the other may designate additional or
      different addresses for subsequent notices or communications. 

     

    Any
      notice or communication to a Securityholder shall be mailed by first-class
      mail
      to his address shown on the register kept by the Registrar and, if any Bearer
      Securities are outstanding, published in an Authorized Newspaper. Failure to
      mail a notice or communication to a Securityholder of any Series or any defect
      in it shall not affect its sufficiency with respect to other Securityholders
      of
      that or any other Series. 

     

    If
      a
      notice or communication is mailed or published in the manner provided above,
      within the time prescribed, it is duly given, whether or not the Securityholder
      receives it. 

     

    If
      the
      Company mails a notice or communication to Securityholders, it shall mail a
      copy
      to the Trustee and each Agent at the same time. 

     

    Section
      10.3 Communication by Holders with Other Holders. 

     

    Securityholders
      of any Series may communicate pursuant to TIA Section 312(b) with other
      Securityholders of that Series or any other Series with respect to their rights
      under this Indenture or the Securities of that Series or all Series. The
      Company, the Trustee, the Registrar and anyone else shall have the protection
      of
      TIA Section 312(c). 

     

    Section
      10.4 Certificate and Opinion as to Conditions Precedent. 

     

    Upon
      any
      request or application by the Company to the Trustee to take any action under
      this Indenture, the Company shall furnish to the Trustee: 

     

    (a)
      an
      Officers’ Certificate stating that, in the opinion of the signers, all
      conditions precedent, if any, provided for in this Indenture relating to the
      proposed action have been complied with; and 

     

    (b)
      an
      Opinion of Counsel stating that, in the opinion of such counsel, all such
      conditions precedent have been complied with. 

     

    Section
      10.5 Statements Required in Certificate or Opinion. 

     

    Each
      certificate or opinion with respect to compliance with a condition or covenant
      provided for in this Indenture (other than a certificate provided pursuant
      to
      TIA Section 314(a) (4)) shall comply with the provisions of TIA Section 314(e)
      and shall include: 

     

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

     

    (b)
      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; 

     

    (c)
      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


     

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

     

    
      
         

      

      
        31

        
          

        

      

      
         

      

    

     

    Section
      10.6 Rules by Trustee and Agents. 

     

    The
      Trustee may make reasonable rules for action by or a meeting of Securityholders
      of one or more Series. Any Agent may make reasonable rules and set reasonable
      requirements for its functions. 

     

    Section
      10.7 Legal Holidays. 

     

    Unless
      otherwise provided by Board Resolution, Officers’ Certificate or supplemental
      indenture for a particular Series, a “Legal Holiday” is any day that is not a
      Business Day. If a payment date is a Legal Holiday at a place of payment,
      payment may be made at that place on the next succeeding day that is not a
      Legal
      Holiday, and no interest shall accrue for the intervening period. 

     

    Section
      10.8 No Recourse Against Others. 

     

    A
      director, officer, employee or stockholder, as such, of the Company shall not
      have any liability for any obligations of the Company under the Securities
      or
      the Indenture or for any claim based on, in respect of or by reason of such
      obligations or their creation. Each Securityholder by accepting a Security
      waives and releases all such liability. The waiver and release are part of
      the
      consideration for the issue of the Securities. 

     

    Section
      10.9 Counterparts. 

     

    This
      Indenture may be executed in any number of counterparts and by the parties
      hereto in separate counterparts, each of which when so executed shall be deemed
      to be an original and all of which taken together shall constitute one and
      the
      same agreement. 

     

    Section
      10.10 Governing Laws; Waiver of Jury Trial. 

     

    THIS
      INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
      NEW
      YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT
      REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. EACH OF THE COMPANY AND
      THE
      TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
      LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
      OF
      OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED
      HEREBY.

     

    Section
      10.11 No Adverse Interpretation of Other Agreements. 

     

    This
      Indenture may not be used to interpret another indenture, loan or debt agreement
      of the Company or a Subsidiary. Any such indenture, loan or debt agreement
      may
      not be used to interpret this Indenture. 

     

    Section
      10.12 Successors. 

     

    All
      agreements of the Company in this Indenture and the Securities shall bind its
      successor. All agreements of the Trustee in this Indenture shall bind its
      successor. 

     

    Section
      10.13 Severability. 

     

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

     

    Section
      10.14 Table of Contents, Headings, Etc. 

     

    The
      Table
      of Contents, Cross Reference Table, and headings of the Articles and Sections
      of
      this Indenture have been inserted for convenience of reference only, are not
      to
      be considered a part hereof, and shall in no way modify or restrict any of
      the
      terms or provisions hereof. 

     

    
      
         

      

      
        32

        
          

        

      

      
         

      

    

     

    Section
      10.15 Securities in a Foreign Currency or in ECU. 

     

    Unless
      otherwise specified in a Board Resolution, a supplemental indenture hereto
      or an
      Officers’ Certificate delivered pursuant to Section 2.2 of this Indenture with
      respect to a particular Series of Securities, whenever for purposes of this
      Indenture any action may be taken by the Holders of a specified percentage
      in
      aggregate principal amount of Securities of all Series or all Series affected
      by
      a particular action at the time outstanding and, at such time, there are
      outstanding Securities of any Series which are denominated in a coin or currency
      other than Dollars (including ECUs), then the principal amount of Securities
      of
      such Series which shall be deemed to be outstanding for the purpose of taking
      such action shall be that amount of Dollars that could be obtained for such
      amount at the Market Exchange Rate at such time. For purposes of this Section
      10.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York
      City for cable transfers of that currency as published by the Federal Reserve
      Bank of New York; provided, however, in the case of ECUs, Market Exchange Rate
      shall mean the rate of exchange determined by the Commission of the European
      Union (or any successor thereto) as published in the Official Journal of the
      European Union (such publication or any successor publication, the “Journal”).
      If such Market Exchange Rate is not available for any reason with respect to
      such currency, the Trustee shall use, in its sole discretion and without
      liability on its part, such quotation of the Federal Reserve Bank of New York
      or, in the case of ECUs, the rate of exchange as published in the Journal,
      as of
      the most recent available date, or quotations or, in the case of ECUs, rates
      of
      exchange from one or more major banks in The City of New York or in the country
      of issue of the currency in question or, in the case of ECUs, in Luxembourg
      or
      such other quotations or, in the case of ECUs, rates of exchange as the Trustee,
      upon consultation with the Company, shall deem appropriate. The provisions
      of
      this paragraph shall apply in determining the equivalent principal amount in
      respect of Securities of a Series denominated in currency other than Dollars
      in
      connection with any action taken by Holders of Securities pursuant to the terms
      of this Indenture. 

     

    All
      decisions and determinations of the Trustee regarding the Market Exchange Rate
      or any alternative determination provided for in the preceding paragraph shall
      be in its sole discretion and shall, in the absence of manifest error, be
      conclusive to the extent permitted by law for all purposes and irrevocably
      binding upon the Company and all Holders. 

     

    Section
      10.16 Judgment Currency. 

     

    The
      Company agrees, to the fullest extent that it may effectively do so under
      applicable law, that (a) if for the purpose of obtaining judgment in any court
      it is necessary to convert the sum due in respect of the principal of or
      interest or other amount on the Securities of any Series (the “Required
      Currency”) into a currency in which a judgment will be rendered (the “Judgment
      Currency”), the rate of exchange used shall be the rate at which in accordance
      with normal banking procedures the Trustee could purchase in The City of New
      York the Required Currency with the Judgment Currency on the day on which final
      unappealable judgment is entered, unless such day is not a New York Banking
      Day,
      then, the rate of exchange used shall be the rate at which in accordance with
      normal banking procedures the Trustee could purchase in The City of New York
      the
      Required Currency with the Judgment Currency on the New York Banking Day
      preceding the day on which final unappealable judgment is entered and (b) its
      obligations under this Indenture to make payments in the Required Currency
      (i)
      shall not be discharged or satisfied by any tender, any recovery pursuant to
      any
      judgment (whether or not entered in accordance with clause (a) ), in any
      currency other than the Required Currency, except to the extent that such tender
      or recovery shall result in the actual receipt, by the payee, of the full amount
      of the Required Currency expressed to be payable in respect of such payments,
      (ii) shall be enforceable as an alternative or additional cause of action for
      the purpose of recovering in the Required Currency the amount, if any, by which
      such actual receipt shall fall short of the full amount of the Required Currency
      so expressed to be payable, and (iii) shall not be affected by judgment being
      obtained for any other sum due under this Indenture. For purposes of the
      foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a
      legal holiday in The City of New York on which banking institutions are
      authorized or required by law, regulation or executive order to close.


     

    
      
         

      

      
        33

        
          

        

      

      
         

      

    

     

    Section
      10.17 Force Majeure.

    


    In
      no
      event shall the Trustee be responsible or liable for any failure or delay in
      the
      performance of its obligations hereunder arising out of or caused by, directly
      or indirectly, forces beyond its control, including, without limitation,
      strikes, work stoppages, accidents, acts of war or terrorism, civil or military
      disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
      loss or malfunctions of utilities, communications or computer (software and
      hardware) services; it being understood that the Trustee shall use reasonable
      efforts which are consistent with accepted practices in the banking industry
      to
      resume performance as soon as practicable under the circumstances.

    


    ARTICLE
      XI 

     

    SINKING
      FUNDS 

     

    Section
      11.1 Applicability of Article. 

     

    The
      provisions of this Article shall be applicable to any sinking fund for the
      retirement of the Securities of a Series, except as otherwise permitted or
      required by any form of Security of such Series issued pursuant to this
      Indenture. 

     

    The
      minimum amount of any sinking fund payment provided for by the terms of the
      Securities of any Series is herein referred to as a “mandatory sinking fund
      payment” and any other amount provided for by the terms of Securities of such
      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 11.2. Each
      sinking fund payment shall be applied to the redemption of Securities of any
      Series as provided for by the terms of the Securities of such Series.


     

    Section
      11.2 Satisfaction of Sinking Fund Payments with Securities.


     

    The
      Company may, in satisfaction of all or any part of any sinking fund payment
      with
      respect to the Securities of any Series to be made pursuant to the terms of
      such
      Securities (1) deliver outstanding Securities of such Series to which such
      sinking fund payment is applicable (other than any of such Securities previously
      called for mandatory sinking fund redemption) and (2) apply as credit Securities
      of such Series to which such sinking fund payment is applicable and which have
      been redeemed either at the election of the Company pursuant to the terms of
      such Series of Securities (except pursuant to any mandatory sinking fund) or
      through the application of permitted optional sinking fund payments or other
      optional redemptions pursuant to the terms of such Securities, provided that
      such Securities have not been previously so credited. Such Securities shall
      be
      received by the Trustee, together with an Officers’ Certificate with respect
      thereto, not later than 15 days prior to the date on which the Trustee begins
      the process of selecting Securities for redemption, and shall be credited for
      such purpose by the Trustee at the 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. If as a result of the delivery or
      credit of Securities in lieu of cash payments pursuant to this Section 11.2,
      the
      principal amount of Securities of such Series to be redeemed in order to exhaust
      the aforesaid cash payment shall be less than $100,000, the Trustee need not
      call Securities of such Series for redemption, except upon receipt of a Company
      Order that such action be taken, and such cash payment shall be held by the
      Trustee or a Paying Agent and applied to the next succeeding sinking fund
      payment, provided, however, that the Trustee or such Paying Agent shall from
      time to time upon receipt of a Company Order pay over and deliver to the Company
      any cash payment so being held by the Trustee or such Paying Agent upon delivery
      by the Company to the Trustee of Securities of that Series purchased by the
      Company having an unpaid principal amount equal to the cash payment required
      to
      be released to the Company. 

     

    
      
         

      

      
        34

        
          

        

      

      
         

      

    

     

    Section
      11.3 Redemption of Securities for Sinking Fund. 

     

    Not
      less
      than 45 days (unless otherwise indicated in the Board Resolution, supplemental
      indenture hereto or Officers’ Certificate in respect of a particular Series of
      Securities) 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 mandatory sinking fund payment for
      that Series pursuant to the terms of that Series, the portion thereof, if any,
      which is to be satisfied by payment of cash and the portion thereof, if any,
      which is to be satisfied by delivering and crediting of Securities of that
      Series pursuant to Section 11.2, and the optional amount, if any, to be added
      in
      cash to the next ensuing mandatory sinking fund payment, and the Company shall
      thereupon be obligated to pay the amount therein specified. Not less than 30
      days (unless otherwise indicated in the Board Resolution, Officers’ Certificate
      or supplemental indenture in respect of a particular Series of Securities)
      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 3.2 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 3.3. Such notice having been duly given, the redemption of such
      Securities shall be made upon the terms and in the manner stated in Sections
      3.4, 3.5 and 3.6. 

     

    ARTICLE
      XII 

     

    SUBORDINATION
      OF SECURITIES 

     

    Section
      12.1 Agreement of Subordination. 

     

    The
      Company covenants and agrees, and each Holder of Securities issued hereunder
      by
      his acceptance thereof likewise covenants and agrees, that all Securities shall
      be issued subject to the provisions of this Article XII; and each Person holding
      any Security, whether upon original issue or upon transfer, assignment or
      exchange thereof, accepts and agrees to be bound by such provisions.


     

    The
      payment of the principal of, premium, if any, and interest on all Securities
      (including, but not limited to, the redemption price with respect to the
      Securities called for redemption in accordance with Article III as provided
      in
      the Indenture) issued hereunder shall, to the extent and in the manner
      hereinafter set forth, be subordinated and subject in right of payment to the
      prior payment in full of all Senior Indebtedness, whether outstanding at the
      date of this Indenture or thereafter incurred. 

     

    No
      provision of this Article XII shall prevent the occurrence of any default or
      Event of Default hereunder. 

     

    Section
      12.2 Payments to Holders. 

     

    No
      payment shall be made with respect to the principal of, or premium, if any,
      or
      interest on the Securities (including, but not limited to, the redemption price
      with respect to the Securities to be called for redemption in accordance with
      Article III as provided in the Indenture), except payments and distributions
      made by the Trustee as permitted by the first or second paragraph of Section
      12.5, if: 

     

    (i)
      a
      default
      in the payment of principal, premium, interest, rent or other obligations due
      on
      any Senior Indebtedness occurs and is continuing (or, in the case of Senior
      Indebtedness for which there is a period of grace, in the event of such a
      default that continues beyond the period of grace, if any, specified in the
      instrument or lease evidencing such Senior Indebtedness), unless and until
      such
      default shall have been cured or waived or shall have ceased to exist; or


     

    (ii)
      a
      default, other than a payment default, on a Designated Senior Indebtedness
      occurs and is continuing that then permits holders of such Designated Senior
      Indebtedness to accelerate its maturity and the Trustee receives a notice of
      the
      default (a “Payment Blockage Notice”) from a Representative or the Company.


     

    If
      the
      Trustee receives any Payment Blockage Notice pursuant to clause (ii) above,
      no
      subsequent Payment Blockage Notice shall be effective for purposes of this
      Section unless and until (a) at least 365 days shall have elapsed since the
      initial effectiveness of the immediately prior Payment Blockage Notice, and
      (b)
      all scheduled payments of principal, premium, if any, and interest on the
      Securities that have come due have been paid in full in cash. No nonpayment
      default that existed or was continuing on the date of delivery of any Payment
      Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
      Payment Blockage Notice. 

     

    
      
         

      

      
        35

        
          

        

      

      
         

      

    

     

    The
      Company may and shall resume payments on and distributions in respect of the
      Securities upon the earlier of: 

     

    (1)
      the
      date
      upon which the default is cured or waived or ceases to exist, or 

     

    (2)
      in
      the
      case of a default referred to in clause (ii) above, 179 days pass after notice
      is received if the maturity of such Designated Senior Indebtedness has not
      been
      accelerated, unless this Article XII otherwise prohibits the payment or
      distribution at the time of such payment or distribution. 

     

    Upon
      any
      payment by the Company, or distribution of assets of the Company of any kind
      or
      character, whether in cash, property or securities, to creditors upon any
      dissolution or winding-up or liquidation or reorganization of the Company,
      whether voluntary or involuntary or in bankruptcy, insolvency, receivership
      or
      other proceedings, all amounts due or to become due upon all Senior Indebtedness
      shall first be paid in full in cash or other payment satisfactory to the holders
      of such Senior Indebtedness, or payment thereof in accordance with its terms
      provided for in cash or other payment satisfactory to the holders of such Senior
      Indebtedness, before any payment is made on account of the principal of,
      premium, if any, or interest on the Securities (except payments made pursuant
      to
      Article VI from monies deposited with the Trustee pursuant thereto prior to
      commencement of proceedings for such dissolution, winding-up, liquidation or
      reorganization); and upon any such dissolution or winding-up or liquidation
      or
      reorganization of the Company or bankruptcy, insolvency, receivership or other
      proceeding, any payment by the Company, or distribution of assets of the Company
      of any kind or character, whether in cash, property or securities, to which
      the
      Holders of the Securities or the Trustee would be entitled, except for the
      provision of this Article XII, shall (except as aforesaid) be paid by the
      Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent
      or
      other Person making such payment or distribution, or by the Holders of the
      Securities or by the Trustee under this Indenture if received by them or it,
      directly to the holders of Senior Indebtedness (pro rata to such holders on
      the
      basis of the respective amounts of Senior Indebtedness held by such holders,
      or
      as otherwise required by law or a court order) or their representative or
      representatives, or to the trustee or trustees under any indenture pursuant
      to
      which any instruments evidencing any Senior Indebtedness may have been issued,
      as their respective interests may appear, to the extent necessary to pay all
      Senior Indebtedness in full, in cash or other payment satisfactory to the
      holders of such Senior Indebtedness, after giving effect to any concurrent
      payment or distribution to or for the holders of Senior Indebtedness, before
      any
      payment or distribution or provision therefor is made to the Holders of the
      Securities or to the Trustee. 

     

    For
      purposes of this Article XII, the words, “cash, property or securities” shall
      not be deemed to include shares of stock of the Company as reorganized or
      readjusted, or securities of the Company or any other corporation provided
      for
      by a plan of reorganization or readjustment, the payment of which is
      subordinated at least to the extent provided in this Article XII with respect
      to
      the Securities to the payment of all Senior Indebtedness which may at the time
      be outstanding; provided that (i) the Senior Indebtedness is assumed by the
      new
      corporation, if any, resulting from any reorganization or readjustment, and
      (ii)
      the rights of the holders of Senior Indebtedness (other than leases which are
      not assumed by the Company or the new corporation, as the case may be) are
      not,
      without the consent of such holders, altered by such reorganization or
      readjustment. The consolidation of the Company with, or the merger of the
      Company into, another corporation or the liquidation or dissolution of the
      Company following the conveyance or transfer of its property as an entirety,
      or
      substantially as an entirety, to another corporation upon the terms and
      conditions provided for in Article V shall not be deemed a dissolution,
      winding-up, liquidation or reorganization for the purposes of this Section
      12.2
      if such other corporation shall, as a part of such consolidation, merger,
      conveyance or transfer, comply with the conditions stated in Article V.


     

    In
      the
      event of the acceleration of the Securities because of an Event of Default,
      no
      payment or distribution shall be made to the Trustee or any Holder of Securities
      in respect of the principal of, premium, if any, or interest on the Securities
      (including, but not limited to, the redemption price with respect to the
      Securities called for redemption in accordance with Article 3 as provided in
      the
      Indenture), except payments and distributions made by the Trustee as permitted
      by the first or second paragraph of Section 12.5, until all Senior Indebtedness
      has been paid in full in cash or other payment satisfactory to the holders
      of
      Senior Indebtedness or such acceleration is rescinded in accordance with the
      terms of this Indenture. If payment of the Securities is accelerated because
      of
      an Event of Default, the Company shall promptly notify holders of Senior
      Indebtedness of the acceleration at the address set forth in the notice from
      the
      Agent (or successor agent) to the Trustee as being the address to which the
      Trustee should send its notice pursuant to this Section 12.2, unless there
      are
      no payment obligations of the Company thereunder and all obligations thereunder
      to extend credit have been terminated or expired. 

     

    
      
         

      

      
        36

        
          

        

      

      
         

      

    

     

    In
      the
      event that, notwithstanding the foregoing provisions, any payment or
      distribution of assets of the Company of any kind or character, whether in
      cash,
      property or securities (including, without limitation, by way of setoff or
      otherwise), prohibited by the foregoing, shall be received by the Trustee or
      the
      Holders of the Securities before all Senior Indebtedness is paid in full in
      cash
      or other payment satisfactory to the holders of such Senior Indebtedness, or
      provision is made for such payment thereof in accordance with its terms in
      cash
      or other payment satisfactory to the holders of such Senior Indebtedness, such
      payment or distribution shall be held in trust for the benefit of and shall
      be
      paid over or delivered to the holders of Senior Indebtedness or their
      representative or representatives, or to the trustee or trustees under any
      indenture pursuant to which any instruments evidencing any Senior Indebtedness
      may have been issued, as their respective interests may appear, as calculated
      by
      the Company, for application to the payment of all Senior Indebtedness remaining
      unpaid to the extent necessary to pay all Senior Indebtedness in full in cash
      or
      other payment satisfactory to the holders of such Senior Indebtedness, after
      giving effect to any concurrent payment or distribution to or for the holders
      of
      such Senior Indebtedness. 

     

    Nothing
      in Section 12.1 or 12.2 shall apply to claims of, or payments to, the Trustee
      under or pursuant to Section 7.7. This Section 12.2 shall be subject to the
      further provisions of Section 12.5. 

     

    Section
      12.3 Subrogation of Securities. 

     

    Subject
      to the payment in full of all Senior Indebtedness, the rights of the Holders
      of
      the Securities shall be subrogated to the extent of the payments or
      distributions made to the holders of such Senior Indebtedness pursuant to the
      provisions of this Article XII (equally and ratably with the holders of all
      indebtedness of the Company which by its express terms is subordinated to other
      indebtedness of the Company to substantially the same extent as the Securities
      are subordinated and is entitled to like rights of subrogation) to the rights
      of
      the holders of Senior Indebtedness to receive payments or distributions of
      cash,
      property or securities of the Company applicable to the Senior Indebtedness
      until the principal, premium, if any, and interest on the Securities shall
      be
      paid in full; and, for the purposes of such subrogation, no payments or
      distributions to the holders of the Senior Indebtedness of any cash, property
      or
      securities to which the Holders of the Securities or the Trustee would be
      entitled except for the provisions of this Article XII, and no payment over
      pursuant to the provisions of this Article XII, to or for the benefit of the
      holders of Senior Indebtedness by Holders of the Securities or the Trustee,
      shall, as between the Company, its creditors other than holders of Senior
      Indebtedness, and the Holders of the Securities, be deemed to be a payment
      by
      the Company to or on account of the Senior Indebtedness; and no payments or
      distributions of cash, property or securities to or for the benefit of the
      Holders of the Securities pursuant to the subrogation provisions of this Article
      XII, which would otherwise have been paid to the holders of Senior Indebtedness
      shall be deemed to be a payment by the Company to or for the account of the
      Securities. It is understood that the provisions of this Article XII are and
      are
      intended solely for the purposes of defining the relative rights of the Holders
      of the Securities, on the one hand, and the holders of the Senior Indebtedness,
      on the other hand. 

     

    Nothing
      contained in this Article XII or elsewhere in this Indenture or in the
      Securities is intended to or shall impair, as among the Company, its creditors
      other than the holders of Senior Indebtedness, and the Holders of the
      Securities, the obligation of the Company, which is absolute and unconditional,
      to pay to the Holders of the Securities the principal of (and premium, if any)
      and interest on the Securities as and when the same shall become due and payable
      in accordance with their terms, or is intended to or shall affect the relative
      rights of the Holders of the Securities and creditors of the Company other
      than
      the holders of the Senior Indebtedness, nor shall anything herein or therein
      prevent the Trustee or the Holder of any Security from exercising all remedies
      otherwise permitted by applicable law upon default under this Indenture, subject
      to the rights, if any, under this Article XII of the holders of Senior
      Indebtedness in respect of cash, property or securities of the Company received
      upon the exercise of any such remedy. 

     

    
      
         

      

      
        37

        
          

        

      

      
         

      

    

     

    Upon
      any
      payment or distribution of assets of the Company referred to in this Article
      XII, the Trustee, subject to the provisions of Section 7.1, and the Holders
      of
      the Securities shall be entitled to rely upon any order or decree made by any
      court of competent jurisdiction in which such bankruptcy, dissolution,
      winding-up, liquidation or reorganization proceedings are pending, or a
      certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
      or other person making such payment or distribution, delivered to the Trustee
      or
      to the Holders of the Securities, for the purpose of ascertaining the persons
      entitled to participate in such distribution, the holders of the Senior
      Indebtedness and other indebtedness of the Company, the amount thereof or
      payable thereon and all other facts pertinent thereto or to this Article XII.
      

     

    Section
      12.4 Authorization to Effect Subordination. 

     

    Each
      Holder of a Security by the holder’s acceptance thereof authorizes and directs
      the Trustee on the holder’s behalf to take such action as may be necessary or
      appropriate to effectuate the subordination as provided in this Article XII
      and
      appoints the Trustee to act as the holder’s attorney-in-fact for any and all
      such purposes. If the Trustee does not file a proper proof of claim or proof
      of
      debt in the form required in any proceeding referred to in Section 6.3 hereof
      at
      least 30 days before the expiration of the time to file such claim, the holders
      of any Senior Indebtedness or their representatives are hereby authorized to
      file an appropriate claim for and on behalf of the Holders of the Securities.
      

     

    Section
      12.5 Notice to Trustee. 

     

    The
      Company shall give prompt written notice in the form of an Officers’ Certificate
      to a Responsible Officer of the Trustee and to any paying agent of any fact
      known to the Company which would prohibit the making of any payment of monies
      to
      or by the Trustee or any paying agent in respect of the Securities pursuant
      to
      the provisions of this Article XII. Notwithstanding the provisions of this
      Article XII or any other provision of this Indenture, the Trustee shall not
      be
      charged with knowledge of the existence of any facts which would prohibit the
      making of any payment of monies to or by the Trustee in respect of the
      Securities pursuant to the provisions of this Article XII, unless and until
      a
      Responsible Officer of the Trustee shall have received written notice thereof
      at
      the Corporate Trust Office from the Company (in the form of an Officers’
Certificate) or a Representative or a holder or holders of Senior Indebtedness
      or from any trustee thereof; and before the receipt of any such written notice,
      the Trustee, subject to the provisions of Section 7.1, shall be entitled in
      all
      respects to assume that no such facts exist; provided that if on a date not
      fewer than two Business Days prior to the date upon which by the terms hereof
      any such monies may become payable for any purpose (including, without
      limitation, the payment of the principal of, or premium, if any, or interest
      on
      any Security) the Trustee shall not have received, with respect to such monies,
      the notice provided for in this Section 12.5, then, anything herein contained
      to
      the contrary notwithstanding, the Trustee shall have full power and authority
      to
      receive such monies and to apply the same to the purpose for which they were
      received, and shall not be affected by any notice to the contrary which may
      be
      received by it on or after such prior date. 

     

    Notwithstanding
      anything in this Article XII to the contrary, nothing shall prevent any payment
      by the Trustee to the Holders of monies deposited with it pursuant to Section
      8.1, and any such payment shall not be subject to the provisions of Section
      12.1
      or 12.2. 

     

    The
      Trustee, subject to the provisions of Section 7.1, shall be entitled to rely
      on
      the delivery to it of a written notice by a Representative or a person
      representing himself to be a holder of Senior Indebtedness (or a trustee on
      behalf of such holder) to establish that such notice has been given by a
      Representative or a holder of Senior Indebtedness or a trustee on behalf of
      any
      such holder or holders. In the event that the Trustee determines in good faith
      that further evidence is required with respect to the right of any person as
      a
      holder of Senior Indebtedness to participate in any payment or distribution
      pursuant to this Article XII, the Trustee may request such person to furnish
      evidence to the reasonable satisfaction of the Trustee as to the amount of
      Senior Indebtedness held by such person, the extent to which such person is
      entitled to participate in such payment or distribution and any other facts
      pertinent to the rights of such person under this Article XII, and if such
      evidence is not furnished the Trustee may defer any payment to such person
      pending judicial determination as to the right of such person to receive such
      payment. 

     

    
      
         

      

      
        38

        
          

        

      

      
         

      

    

     

    Section
      12.6 Trustee’s Relation to Senior Indebtedness. 

     

    The
      Trustee in its individual capacity shall be entitled to all the rights set
      forth
      in this Article XII in respect of any Senior Indebtedness at any time held
      by
      it, to the same extent as any other holder of Senior Indebtedness, and nothing
      in Section 7.11 or elsewhere in this Indenture shall deprive the Trustee of
      any
      of its rights as such holder. 

     

    With
      respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
      or to observe only such of its covenants and obligations as are specifically
      set
      forth in this Article XII, and no implied covenants or obligations with respect
      to the holders of Senior Indebtedness shall be read into this Indenture against
      the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
      holders of Senior Indebtedness and, subject to the provisions of Section 7.1,
      the Trustee shall not be liable to any holder of Senior Indebtedness if it
      shall
      pay over or deliver to Holders of Securities, the Company or any other person
      money or assets to which any holder of Senior Indebtedness shall be entitled
      by
      virtue of this Article XII or otherwise. 

     

    Section
      12.7 No Impairment of Subordination. 

     

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

     

    Section
      12.8 Article Applicable to Paying Agents. 

     

    If
      at any
      time any Paying Agent other than the Trustee shall have been appointed by the
      Company and be then acting hereunder, the term “Trustee” as used in this Article
      shall (unless the context otherwise requires) be construed as extending to
      and
      including such Paying Agent within its meaning as fully for all intents and
      purposes as if such Paying Agent were named in this Article in addition to
      or in
      place of the Trustee; provided, however, that the first paragraph of Section
      12.5 shall not apply to the Company or any Affiliate of the Company if it or
      such Affiliate acts as Paying Agent. 

     

    Section
      12.9 Senior Indebtedness Entitled to Rely. 

     

    The
      holders of Senior Indebtedness (including, without limitation, Designated Senior
      Indebtedness) shall have the right to rely upon this Article XII, and no
      amendment or modification of the provisions contained herein shall diminish
      the
      rights of such holders unless such holders shall have agreed in writing thereto.
      

     

    
      
         

      

      
        39

        
          

        

      

      
         

      

    


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

     

    
      	
              DISCOVERY
                LABORATORIES, INC.

            
	 	 
	
              By:

            	
               

            
	
              Name:

            	 
	
              Title:

            	 
	 	 
	
              THE
                BANK OF NEW YORK, as Trustee

            
	 	 
	
              By:

            	
               

            
	
              Name:

            	 
	
              Title: