Exhibit
4.9


 


ALLOS THERAPEUTICS,
INC.,


Issuer


 


AND


 


U.S. BANK NATIONAL ASSOCIATION,


Trustee


 


 












 


INDENTURE


 


Dated as of [•], 2004


 












Subordinated Debt
Securities


 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE
  1

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.01

  	
  Definitions of Terms

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.01

  	
  Designation and Terms
  of Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.02

  	
  Form of Securities and
  Trustee’s Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.03

  	
  Denominations:
  Provisions for Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.04

  	
  Execution and
  Authentications

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.05

  	
  Registration of
  Transfer and Exchange

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.06

  	
  Temporary Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.07

  	
  Mutilated, Destroyed,
  Lost or Stolen Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.08

  	
  Cancellation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.09

  	
  Benefits of Indenture

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.10

  	
  Authenticating Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.11

  	
  Global Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  REDEMPTION OF
  SECURITIES AND SINKING FUND PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.01

  	
  Redemption

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.02

  	
  Notice of Redemption

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.03

  	
  Payment Upon
  Redemption

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.04

  	
  Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.05

  	
  Satisfaction of
  Sinking Fund Payments with Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.06

  	
  Redemption of
  Securities for Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.01

  	
  Payment of Principal,
  Premium and Interest

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.02

  	
  Maintenance of Office
  or Agency

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.03

  	
  Paying Agents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.04

  	
  Appointment to Fill
  Vacancy in Office of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.05

  	
  Compliance with
  Consolidation Provisions

  	
   

  
					



 


i

















 


	
  ARTICLE 5

  	
  SECURITYHOLDERS’
  LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.01

  	
  Company to Furnish
  Trustee Names and Addresses of Securityholders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.02

  	
  Preservation Of
  Information; Communications With Securityholders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.03

  	
  Reports by the Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.04

  	
  Reports by the Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  REMEDIES OF THE
  TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.01

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.02

  	
  Collection of
  Indebtedness and Suits for Enforcement by Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.03

  	
  Application of Moneys
  Collected

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.04

  	
  Limitation on Suits

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.05

  	
  Rights and Remedies
  Cumulative; Delay or Omission Not Waiver

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.06

  	
  Control by
  Securityholders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.07

  	
  Undertaking to Pay
  Costs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  CONCERNING THE
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.01

  	
  Certain Duties and
  Responsibilities of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.02

  	
  Certain Rights of
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.03

  	
  Trustee Not
  Responsible for Recitals or Issuance or Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.04

  	
  May Hold Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.05

  	
  Moneys Held in Trust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.06

  	
  Compensation and
  Reimbursement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.07

  	
  Reliance on Officers’
  Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.08

  	
  Disqualification;
  Conflicting Interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.09

  	
  Corporate Trustee
  Required; Eligibility

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.10

  	
  Resignation and
  Removal; Appointment of Successor

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.11

  	
  Acceptance of
  Appointment By Successor

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.12

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.13

  	
  Preferential
  Collection of Claims Against the Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.14

  	
  Notice of Default

  	
   

  
					



 


ii

















 


	
  ARTICLE 8

  	
  CONCERNING THE
  SECURITYHOLDERS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.01

  	
  Evidence of Action by
  Securityholders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.02

  	
  Proof of Execution by
  Securityholders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.03

  	
  Who May be Deemed
  Owners

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.04

  	
  Certain Securities
  Owned by Company Disregarded

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.05

  	
  Actions Binding on
  Future Securityholders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  SUPPLEMENTAL
  INDENTURES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.01

  	
  Supplemental
  Indentures Without the Consent of Securityholders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.02

  	
  Supplemental
  Indentures With Consent of Securityholders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.03

  	
  Effect of Supplemental
  Indentures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.04

  	
  Securities Affected by
  Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.05

  	
  Execution of
  Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  SUCCESSOR ENTITY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.01

  	
  Company May
  Consolidate, Etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.02

  	
  Successor Entity
  Substituted

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.03

  	
  Evidence of
  Consolidation, Etc. to Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  SATISFACTION AND
  DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.01

  	
  Satisfaction and
  Discharge of Indenture

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.02

  	
  Discharge of
  Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.03

  	
  Deposited Moneys to
  be Held in Trust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.04

  	
  Payment of Moneys Held
  by Paying Agents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.05

  	
  Repayment to Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  IMMUNITY OF
  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 12.01

  	
  No Recourse

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  MISCELLANEOUS
  PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.01

  	
  Effect on Successors
  and Assigns

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.02

  	
  Actions by Successor

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.03

  	
  Surrender of Company
  Powers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.04

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.05

  	
  Governing Law

  	
   

  
					



 


iii

















 


	
   

  	
  Section 13.06

  	
  Treatment of
  Securities as Debt

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.07

  	
  Certificates and
  Opinions as to Conditions Precedent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.08

  	
  Payments on Business
  Days

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.09

  	
  Conflict with Trust
  Indenture Act

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.10

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.11

  	
  Separability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.12

  	
  Compliance
  Certificates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
  SUBORDINATION OF
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 14.01

  	
  Subordination Terms

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (1)

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

  	
   

  
					



 


iv

















 


INDENTURE


 


INDENTURE, dated as of [•], 2004 among ALLOS THERAPEUTICS, INC., a Delaware
corporation (the “Company”), and U.S. BANK NATIONAL ASSOCIATION, as trustee
(the “Trustee”):


 


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


 


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


 


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


 


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


 


ARTICLE
1


 


DEFINITIONS


 


Section 1.01         Definitions of
Terms.


 


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


 


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


 


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


 


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


 


1

















 


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


 


“Business
Day” means, with respect to any series of Securities, any day
other than a day on which federal or state banking institutions in the Borough
of Manhattan, the City of New York, or in the city of the Corporate Trust
Office of the Trustee, are authorized or obligated by law, executive order or
regulation to close.


 


“Certificate”
means a certificate signed by any Officer. 
The Certificate need not comply with the provisions of Section 13.07.


 


“Company”
means ALLOS THERAPEUTICS, INC., a
corporation duly organized and existing under the laws of the State of
Delaware, and, subject to the provisions of Article Ten, shall also include its
successors and assigns.


 


“Corporate
Trust Office” means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at U.S. Bank National
Association, 60 Livingston Avenue, St. Paul, MN 55107-2292; Attention:
Corporate Trust Department.


 


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


 


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


 


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


 


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


 


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


 


“Governmental
Obligations” means securities that are (a) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in either case, are
not callable or redeemable at


 


2

















 


the option of the
issuer thereof at any time prior to the stated maturity of the Securities, and
shall also include a depositary receipt issued by a bank or trust company as
custodian with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental Obligation held by
such custodian for the account of the holder of such depositary receipt;
provided, however, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the
Governmental Obligation or the specific payment of principal of or interest on
the Governmental Obligation evidenced by such depositary receipt.


 


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


 


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


 


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


 


“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a
chief executive officer, a president, a chief operating officer, any senior
vice president, any vice president or a chief financial officer, the treasurer
or any assistant treasurer, the controller or any assistant controller or the
secretary or any assistant secretary.


 


“Officers’
Certificate” means a certificate signed by any two
Officers.  Each such certificate shall
include the statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.


 


“Opinion
of Counsel” means an opinion in writing subject to customary
exceptions of legal counsel, who may be an employee of or counsel for the
Company, that is delivered to the Trustee in accordance with the terms
hereof.  Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent required by
the provisions thereof.


 


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


 


3

















 


made for giving
such notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.07.


 


“Person”
means any individual, corporation, partnership, joint venture, joint-stock
company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a  government or political subdivision or an
agency or instrumentality thereof.


 


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


 


“Responsible
Officer” when used with respect to the Trustee means the
chairman of its board of directors, the chief executive officer, the president,
any vice president, the secretary, the treasurer, any trust officer, any
corporate trust officer or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.


 


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


 


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


 


“Security
Register” and “Security Registrar” shall have the meanings as set forth
in Section 2.05.


 


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


 


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


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, as
amended.


 


4

















 


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


 


ARTICLE
2


 


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


 


Section 2.01         Designation and
Terms of Securities.


 


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


 


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


 


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


 


(3)           the date or dates on which the principal of the
Securities of the series is payable, any original issue discount that may apply
to the Securities of that series upon their issuance, the principal amount due
at maturity, and the place(s) of payment;


 


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


 


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


 


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


 


5

















 


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


 


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


 


(9)           the form of the Securities of the series including the
form of the Certificate of Authentication for such series;


 


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


 


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


 


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


 


(13)         whether the Securities will be convertible into or
exchangeable for shares of common stock or other securities of the Company or
any other Person and, if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, including the conversion or
exchange price, as applicable, or how it will be calculated and may be
adjusted, any mandatory or optional (at the Company’s option or the holders’
option) conversion or exchange features, and the applicable conversion or
exchange period;


 


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


 


(15)         any additional or different Events of Default or
restrictive covenants (which may include, among other restrictions,
restrictions on the Company’s ability or the ability of the Company’s
Subsidiaries to:  incur additional
indebtedness; issue additional securities; create liens; pay dividends or make
distributions in respect of their capital stock; redeem capital stock; place
restrictions on such Subsidiaries placing restrictions on their ability to pay
dividends, make distributions or transfer assets; make investments or other
restricted payments; sell or otherwise dispose of assets; enter into
sale-leaseback transactions; engage in transactions with stockholders and
affiliates; issue or sell stock of their Subsidiaries; or effect a


 


6

















 


consolidation or merger) or financial covenants (which
may include, among other financial covenants, financial covenants that require
the Company and its Subsidiaries to maintain specified interest coverage, fixed
charge, cash flow-based or asset-based ratios) provided for with respect to the
Securities of the series;


 


(16)         if other than dollars, the coin or currency in which
the Securities of the series are denominated (including, but not limited to,
foreign currency);


 


(17)         the terms and conditions, if any, upon which the
Company shall pay amounts in addition to the stated interest, premium, if any
and principal amounts of the Securities of the series to any Securityholder
that is not a “United States person” for federal tax purposes;


 


(18)         any restrictions on transfer, sale or assignment of
the Securities of the series; and


 


(19)         the subordination terms of the
Securities of the series.


 


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


 


If any of the terms of the series are established by
action taken pursuant to a Board Resolution of the Company, a copy of an
appropriate record of such action shall be certified by the secretary or an
assistant secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers’ Certificate of the Company setting forth the
terms of the series.


 


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


 


Section
2.02         Form
of Securities and Trustee’s Certificate.


 


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


 


7

















 


Section
2.03         Denominations:
Provisions for Payment.


 


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


 


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


 


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


 


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


 


8

















 


Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor Securities) are
registered on such special record date.


 


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


 


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


 


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


 


Section
2.04         Execution
and Authentications.


 


The Securities shall be signed on behalf of the
Company by one of its Officers. 
Signatures may be in the form of a manual or facsimile signature.


 


The Company may use the
facsimile signature of any Person who shall have been an Officer, notwithstanding
the fact that at the time the Securities shall be authenticated and delivered
or disposed of such Person shall have ceased to be such an officer of the
Company.  The Securities may contain
such notations, legends or endorsements required by law, stock exchange rule or
usage.  Each Security shall be dated the
date of its authentication by the Trustee.


 


A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating
Agent.  Such signature shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.  At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the
Trustee for authentication, together with a written order of the Company for
the authentication and delivery of such Securities, signed by an Officer, and
the Trustee in accordance with such written order shall authenticate and
deliver such Securities.


 


In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to


 


9

















 


Section 7.01)
shall be fully protected in relying upon, an Opinion of Counsel stating that
the form and terms thereof have been established in conformity with the
provisions of this Indenture.


 


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


 


Section
2.05         Registration
of Transfer and Exchange.


 


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


 


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


 


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


 


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


 


(c)           Except as provided pursuant to Section 2.01 pursuant
to a Board Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental to this Indenture, no
service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any
series, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any
transfer.


 


10

















 


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


 


Section
2.06         Temporary
Securities.


 


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


 


Section 2.07         Mutilated,
Destroyed, Lost or Stolen Securities.


 


In case any temporary or
definitive Security shall become mutilated or be destroyed, lost or stolen, the
Company (subject to the next succeeding sentence) shall execute, and upon the
Company’s request the Trustee (subject as aforesaid) shall authenticate and
deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen.  In every case the applicant
for a substituted Security shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant’s Security and of the ownership
thereof.  The Trustee may authenticate
any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. 
Upon the issuance of any substituted Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.


 


11

















 


In case any Security that has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Security) if
the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as they may require to save them harmless, and, in
case of destruction, loss or theft, evidence to the satisfaction of the Company
and the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.


 


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


 


Section
2.08         Cancellation.


 


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


 


Section
2.09         Benefits
of Indenture.


 


Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other
than the parties hereto and the holders of the Securities (and, with respect to
the provisions of Article Fourteen, the holders of any indebtedness of the
Company to which the Securities of any series are subordinated) any legal or
equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Securities (and, with respect to the
provisions of Article Fourteen, the holders of any indebtedness of the Company
to which the Securities of any series are subordinated).


 


12

















 


Section
2.10         Authenticating
Agent.


 


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


 


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


 


Section
2.11         Global
Securities.


 


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


 


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


 


13

















 


(c)           If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, or if an Event
of Default has occurred and is continuing and the Company has received a
request from the Depositary, this Section 2.11 shall no longer be applicable to
the Securities of such series and the Company will execute, and subject to
Section 2.04, the Trustee will authenticate and deliver the Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security.  In addition, the Company may
at any time determine that the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this Section 2.11
shall no longer apply to the Securities of such series.  In such event the Company will execute and,
subject to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate
evidencing such determination by the Company, will authenticate and deliver the
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security.  Upon the exchange of
the Global Security for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled by the
Trustee.  Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee.  The Trustee shall deliver such Securities to
the Depositary for delivery to the Persons in whose names such Securities are
so registered.


 


ARTICLE
3


 


REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS


 


Section
3.01         Redemption.


 


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


 


Section
3.02         Notice
of Redemption.


 


(a)           In case the Company shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Securities of any
series in accordance with any right the Company reserved for itself to do so
pursuant to Section 2.01 hereof, the Company shall, or shall cause the
Trustee to, give notice of such redemption to holders of the Securities of such
series to be redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 90 days before the date
fixed for redemption of that series to such holders at their last addresses as
they shall appear upon the Security Register, unless a shorter period is specified
in the Securities to be redeemed.  Any
notice that is mailed in the manner herein


 


14

















 


provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the notice.  In any case, failure duly to give such
notice to the holder of any Security of any series designated for redemption in
whole or in part, or any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Securities of such series or
any other series.  In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with any such restriction.


 


Each such notice of redemption shall specify the date
fixed for redemption and the redemption price at which Securities of that
series are to be redeemed, and shall state that payment of the redemption price
of such Securities to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from
and after said date interest will cease to accrue and that the redemption is
for a sinking fund, if such is the case. 
If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in part shall
specify the particular Securities to be so redeemed.


 


In case any Security is to be redeemed in part only,
the notice that relates to such Security shall state the portion of the
principal amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will
be issued.


 


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


 


Section
3.03         Payment
Upon Redemption.


 


(a)           If the giving of notice of redemption shall have been
completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such


 


15

















 


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


 


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


 


Section
3.04         Sinking
Fund.


 


The provisions of Sections 3.04, 3.05 and 3.06 shall
be applicable to any sinking fund for the retirement of Securities of a series,
except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.


 


The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as
a “mandatory sinking fund payment,” and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein referred
to as an “optional sinking fund payment”. 
If provided for by the terms of Securities of any series, the cash amount
of any sinking fund payment may be subject to reduction as provided in Section
3.05.  Each sinking fund payment shall
be applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.


 


Section
3.05         Satisfaction
of Sinking Fund Payments with Securities.


 


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


 


16

















 


Section
3.06         Redemption
of Securities for Sinking Fund.


 


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


 


ARTICLE
4


 


COVENANTS


 


Section 4.01         Payment of
Principal, Premium and Interest.


 


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


 


Section
4.02         Maintenance
of Office or Agency.


 


So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency in the Borough
of Manhattan, the City and State of New York, with respect to each such series
and at such other location or locations as may be designated as provided in
this Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as herein above
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by written notice
signed by any officer authorized to sign an Officers’ Certificate and delivered
to the Trustee, designate some other office or agency for such purposes or any
of them.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands.  The
Company initially appoints the Corporate Trust Office of the Trustee located in
the Borough of Manhattan, the City of New York as its paying agent with respect
to the Securities.


 


17

















 


Section
4.03         Paying
Agents.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


18

















 


Section 4.04         Appointment to
Fill Vacancy in Office of Trustee.


 


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


 


Section
4.05         Compliance
with Consolidation Provisions.


 


The Company will not, while any of the Securities
remain Outstanding, consolidate with or merge into any other Person, in either
case where the Company is not the survivor of such transaction, or sell or
convey all or substantially all of its property to any other Person unless the
provisions of Article Ten hereof are complied with.


 


ARTICLE
5


 


SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE


 


Section 5.01         Company to
Furnish Trustee Names and Addresses of Securityholders.


 


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


 


Section 5.02         Preservation Of
Information; Communications With Securityholders.


 


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


 


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


 


(c)           Securityholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Securityholders with respect to
their rights under this Indenture or under the Securities, and, in connection
with any such communications, the Trustee shall satisfy


 


19

















 


its obligations under Section 312(b) of the Trust
Indenture Act in accordance with the provisions of Section 312(b) of the Trust
Indenture Act.


 


Section
5.03         Reports
by the Company.


 


The Company covenants and
agrees to provide a copy to the Trustee, after the Company is required to file
the same with the Securities and Exchange Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Securities and Exchange Commission may
from time to time by rules and regulations prescribe) that the Company may be
required to file with the Securities and Exchange Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act.


 


Section
5.04         Reports
by the Trustee.


 


(a)           On or before July 15 in each year in which any of the
Securities are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register, a brief report dated as of the preceding May 15, if
and to the extent required under Section 313(a) of the Trust Indenture Act.


 


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


 


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


 


ARTICLE
6


 


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT


 


Section
6.01         Events
of Default.


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


(b)           In each and every such case (other than an Event of
Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by notice
in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal of (and premium, if any, on) and
accrued and unpaid interest on all the Securities of that series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable. 
If an Event of Default specified in clause (4) or clause (5) above
occurs, the principal of and accrued and unpaid interest on all the Securities
of that series shall automatically be immediately due and payable without any
declaration or other act on the part of the Trustee or the holders of the
Securities.


 


(c)           At any time after the principal of (and premium, if
any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for
the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate principal amount
of the Securities of that series then Outstanding hereunder, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has


 


21

















 


paid or deposited with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that
series that shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that such payment
is enforceable under applicable law, upon overdue installments of interest, at
the rate per annum expressed in the Securities of that series to the date of
such payment or deposit) and the amount payable to the Trustee under Section
7.06, and (ii) any and all Events of Default under the Indenture with respect
to such series, other than the nonpayment of principal on (and premium, if any,
on) and accrued and unpaid interest on Securities of that series that shall not
have become due by their terms, shall have been remedied or waived as provided
in Section 6.06.


 


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


 


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


 


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


 


(a)           The Company covenants that (i) in case it shall
default in the payment of any installment of interest on any of the Securities
of a series, or in any payment required by any sinking or analogous fund
established with respect to that series as and when the same shall have become
due and payable, and such default shall have continued for a period of 90
Business Days, or (ii) in case it shall default in the payment of the
principal of (or premium, if any, on) any of the Securities of a series when
the same shall have become due and payable, whether upon maturity of the Securities
of a series or upon redemption or upon declaration or otherwise then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit of
the holders of the Securities of that series, the whole amount that then shall
have been become due and payable on all such Securities for principal (and
premium, if any) or interest, or both, as the case may be, with interest upon
the overdue principal (and premium, if any) and (to the extent that payment of
such interest is enforceable under applicable law) upon overdue installments of
interest at the rate per annum expressed in the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.


 


(b)           If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Securities of that series and collect the moneys
adjudged or decreed to be payable in the


 


22

















 


manner provided by law or equity out of the property
of the Company or other obligor upon the Securities of that series, wherever
situated.


 


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


 


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


 


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


 


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


 


Section
6.03         Application
of Moneys Collected.


 


Any moneys collected by the Trustee pursuant to this
Article with respect to a particular series of Securities shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal (or premium, if


 


23

















 


any) or interest,
upon presentation of the Securities of that series, and notation thereon of the
payment, if only partially paid, and upon surrender thereof if fully paid:


 


FIRST: To the payment of all indebtedness of the Company
to which such series of Securities is subordinated to the extent required by
Section 7.06 and Article Fourteen;


 


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


 


THIRD: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.


 


Section
6.04         Limitation
on Suits.


 


No holder of any Security of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless (i) such holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series specifying
such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be incurred
therein or thereby; (iv) the Trustee for 90 days after its receipt of such
notice, request and offer of indemnity, shall have failed to institute any such
action, suit or proceeding and (v) during such 90 day period, the holders of a
majority in principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.


 


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


 


24

















 


Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.


 


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


 


(a)           Except as otherwise provided in Section 2.07, all
powers and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.


 


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


 


Section
6.06         Control
by Securityholders.


 


The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in
accordance with Section 8.04, shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture. 
Subject to the provisions of Section 7.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or officers of the Trustee, determine that the
proceeding so directed, subject to the Trustee’s duties under the Trust
Indenture Act, would involve the Trustee in personal liability or might be
unduly prejudicial to the Securityholders not involved in the proceeding.  The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of
the holders of all of the Securities of such series waive any past default in
the performance of any of the covenants contained herein or established
pursuant to Section 2.01 with respect to such series and its consequences,
except a default in the payment of the principal of, or premium, if any, or interest
on, any of the Securities of that series as and when the same shall become due
by the terms of such Securities otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments of
interest and principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)).  Upon
any such waiver, the default covered thereby shall be deemed to be cured for
all purposes of this Indenture and the Company, the Trustee and the holders of
the Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.


 


25

















 


Section
6.07         Undertaking
to Pay Costs.


 


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


 


ARTICLE
7


 


CONCERNING THE TRUSTEE


 


Section 7.01         Certain Duties
and Responsibilities of Trustee.


 


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


 


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


 


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


 


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


 


26

















 


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


 


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


 


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


 


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


 


Section
7.02         Certain
Rights of Trustee.


 


Except as otherwise provided in Section 7.01:


 


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


 


(b)           Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by any authorized officer of the
Company (unless other evidence in respect thereof is specifically prescribed
herein);


 


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


 


(d)           The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and


 


27

















 


liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived), to exercise with respect to
Securities of that series such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;


 


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


 


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


 


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


 


In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default except
(1) any Event of Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2)
and 4.01 hereof or (2) any Default or Event of Default of which 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 5.03 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
7.03         Trustee
Not Responsible for Recitals or Issuance or Securities.


 


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


 


28

















 


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


 


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


 


Section
7.04         May
Hold Securities.


 


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


 


Section
7.05         Moneys
Held in Trust.


 


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


 


Section
7.06         Compensation
and Reimbursement.


 


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


 


(b)           The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall constitute indebtedness
of the Company to which the Securities are subordinated.  Such additional indebtedness shall be
secured by a lien prior to that


 


29

















 


of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Securities.


 


Section
7.07         Reliance
on Officers’ Certificate.


 


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


 


Section
7.08         Disqualification;
Conflicting Interests.


 


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


 


Section
7.09         Corporate
Trustee Required; Eligibility.


 


There shall at all times be a Trustee with respect to
the Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia, or a corporation
or other Person permitted to act as trustee by the Securities and Exchange
Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority.


 


If such corporation or other Person publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.  In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.


 


Section
7.10         Resignation
and Removal; Appointment of Successor.


 


(a)           The Trustee or any successor hereafter appointed may
at any time resign with respect to the Securities of one or more series by
giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security Register.


 


30

















 


Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Securities of such
series by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. 
If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of such series,
or any Securityholder of that series who has been a bona fide holder of a
Security or Securities for at least six months may on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee.  Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.


 


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


 


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


 


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


 


(iii)         the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be appointed
or consented to, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;


 


then, in any such case, the Company may remove the Trustee
with respect to all Securities and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or any Securityholder who has been a bona fide holder
of a Security or Securities for at least six months may, on behalf of that
holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee.  Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.


 


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


 


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


 


31

















 


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


 


Section
7.11         Acceptance
of Appointment By Successor.


 


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


 


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


 


32

















 


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


 


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


 


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


 


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


 


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


 


Section
7.13         Preferential
Collection of Claims Against the Company.


 


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


 


Section
7.14         Notice
of Default


 


If any Default or any
Event of Default occurs and is continuing and if such Default or Event of
Default is known to a Responsible Officer of the Trustee, the Trustee shall
mail to each Securityholder in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act notice of the Default or Event of Default
within 45 days after it occurs, unless such Default or Event of Default has
been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Securityholders.


 


33

















 


ARTICLE
8


 


CONCERNING THE SECURITYHOLDERS


 


Section
8.01         Evidence
of Action by Securityholders.


 


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


 


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


 


Section
8.02         Proof
of Execution by Securityholders.


 


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


 


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


 


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


 


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


 


34

















 


Section
8.03         Who
May be Deemed Owners.


 


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


 


Section
8.04         Certain
Securities Owned by Company Disregarded.


 


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


 


Section
8.05         Actions
Binding on Future Securityholders.


 


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


 


35

















 


ARTICLE
9


 


SUPPLEMENTAL INDENTURES


 


Section
9.01         Supplemental
Indentures Without the Consent of Securityholders.


 


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


 


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


 


(b)           to comply with Article Ten;


 


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


 


(d)           to add to the covenants, restrictions, conditions or
provisions relating to the Company for the benefit of the holders of all or any
series of Securities (and if such covenants, restrictions, conditions or
provisions are to be for the benefit of less than all series of Securities,
stating that such covenants, restrictions, conditions or provisions are
expressly being included solely for the benefit of such series), to make the
occurrence, or the occurrence and the continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of
Default, or to surrender any right or power herein conferred upon the Company;


 


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


 


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


 


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


 


(h)           to evidence and provide for the acceptance of
appointment hereunder by a successor trustee; or


 


(i)            to comply with any requirements of the Securities and
Exchange Commission or any successor in connection with the qualification of
this Indenture under the Trust Indenture Act.


 


36

















 


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


 


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


 


Section
9.02         Supplemental
Indentures With Consent of Securityholders.


 


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


 


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


 


Section
9.03         Effect
of Supplemental Indentures.


 


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


 


Section
9.04         Securities
Affected by Supplemental Indentures.


 


Securities of any series affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Company, provided such form meets


 


37

















 


the requirements
of any securities exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture.  If the Company shall so determine, new Securities of that series
so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Securities of that series then Outstanding.


 


Section
9.05         Execution
of Supplemental Indentures.


 


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


 


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


 


ARTICLE
10


 


SUCCESSOR ENTITY


 


Section 10.01       Company May Consolidate, Etc.


 


Except as provided
pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an
Officers’ Certificate, or established in one or more indentures supplemental to
this Indenture, nothing contained in this Indenture shall prevent any
consolidation or merger of the Company with or into any other Person (whether
or not affiliated with the Company) or successive consolidations or mergers in
which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the
property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation or merger (in each case, if the
Company


 


38

















 


is not the
survivor of such transaction), sale, conveyance, transfer or other disposition,
the due and punctual payment of the principal of (premium, if any) and interest
on all of the Securities of all series in accordance with the terms of each
series, according to their tenor, and the due and punctual performance and
observance of all the covenants and conditions of this Indenture with respect
to each series or established with respect to such series pursuant to Section
2.01 to be kept or performed by the Company shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) reasonably satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.


 


Section 10.02       Successor Entity Substituted.


 


(a)           In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor entity by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the obligations set forth
under Section 10.01 on all of the Securities of all series Outstanding, such
successor entity shall succeed to and be substituted for the Company with the
same effect as if it had been named as the Company herein, and thereupon the
predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.


 


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


 


(c)           Nothing contained in this Article shall require any
action by the Company in the case of a consolidation or merger of any Person
into the Company where the Company is the survivor of such transaction, or the
acquisition by the Company, by purchase or otherwise, of all or any part of the
property of any other Person (whether or not affiliated with the Company).


 


Section 10.03       Evidence of Consolidation, Etc. to
Trustee.


 


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


 


ARTICLE
11


 


SATISFACTION AND DISCHARGE


 


Section 11.01       Satisfaction and Discharge of Indenture.


 


If at any time: (a) the Company shall have delivered
to the Trustee for cancellation all Securities of a series theretofore
authenticated and not delivered to the Trustee for cancellation (other than any
Securities that shall have been destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.07 and Securities for whose
payment money or


 


39

















 


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


 


Section 11.02       Discharge of Obligations.


 


If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have
not become due and payable as described in Section 11.01 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust funds moneys
or an amount of Governmental Obligations sufficient to pay at maturity or upon
redemption all such Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of the Company
under this Indenture with respect to such series shall cease to be of further
effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02,
4,03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities
shall mature and be paid.


 


Thereafter, Sections 7.06 and 11.05 shall survive.


 


Section 11.03       Deposited Moneys to be Held in Trust.


 


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


 


40

















 


Section 11.04       Payment of Moneys Held by Paying Agents.


 


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


 


Section 11.05       Repayment to Company.


 


Any moneys or Governmental Obligations deposited with
any paying agent or the Trustee, or then held by the Company, in trust for
payment of principal of or premium, if any, or interest on the Securities of a
particular series that are not applied but remain unclaimed by the holders of
such Securities for at least two years after the date upon which the principal
of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, or such other shorter period set forth in applicable
escheat or abandoned or unclaimed property law, shall be repaid to the Company
on May 31 of each year or upon the Company’s request or (if then held by the
Company) shall be discharged from such trust; and thereupon the paying agent
and the Trustee shall be released from all further liability with respect to
such moneys or Governmental Obligations, and the holder of any of the
Securities entitled to receive such payment shall thereafter, as a general
creditor, look only to the Company for the payment thereof.


 


ARTICLE
12


 


IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS


 


Section 12.01       No Recourse.


 


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


 


41

















 


ARTICLE
13


 


MISCELLANEOUS PROVISIONS


 


Section 13.01       Effect on Successors and Assigns.


 


All the covenants,
stipulations, promises and agreements in this Indenture made by or on behalf of
the Company shall bind its successors and assigns, whether so expressed or not.


 


Section 13.02       Actions by Successor.


 


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


 


Section 13.03       Surrender of Company Powers.


 


The Company by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company and as to any successor
corporation.


 


Section 13.04       Notices.


 


Except as otherwise expressly provided herein, any
notice, request or demand that by any provision of this Indenture is required
or permitted to be given, made or served by the Trustee or by the holders of
Securities or by any other Person pursuant to this Indenture to or on the
Company may be given or served by being deposited in first class mail, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Trustee), as follows: ALLOS
THERAPEUTICS, INC., 11080 CirclePoint Road, Suite 200, Westminster,
Colorado 80020.  Any notice, election,
request or demand by the Company or any Securityholder or by any other Person
pursuant to this Indenture to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.


 


Section 13.05       Governing Law.


 


This Indenture and each Security shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State, except
to the extent that the Trust Indenture Act is applicable.


 


Section 13.06       Treatment of Securities as Debt.


 


It is intended that the Securities will be treated as
indebtedness and not as equity for federal income tax purposes.  The provisions of this Indenture shall be
interpreted to further this intention.


 


42

















 


Section 13.07       Certificates and Opinions as to
Conditions Precedent.


 


(a)           Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate stating that all
conditions precedent provided for in this Indenture (other than the certificate
to be delivered pursuant to Section 13.12) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that
in the case of any such application or demand as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.


 


(b)           Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (i) a statement that the
Person making such certificate or opinion has read such covenant or condition;
(ii) 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; (iii) a statement that, in the opinion of
such Person, he has made such examination or investigation as is reasonably
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement as to
whether or not, in the opinion of such Person, such condition or covenant has
been complied with.


 


Section 13.08       Payments on Business Days.


 


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


 


Section 13.09       Conflict with Trust Indenture Act.


 


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


 


Section 13.10       Counterparts.


 


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


 


Section 13.11       Separability.


 


In case any one or more of the provisions contained in
this Indenture or in the Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect,


 


43

















 


such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such Securities shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.


 


Section 13.12       Compliance Certificates.


 


The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year during which any Securities of any
series were outstanding, an officer’s certificate stating whether or not the
signers know of any Default or Event of Default that occurred during such
fiscal year.  Such certificate shall
contain a certification from the principal executive officer, principal
financial officer or principal accounting officer of the Company that a review
has been conducted of the activities of the Company and the Company’s
performance under this Indenture and that the Company has complied with all
conditions and covenants under this Indenture. 
For purposes of this Section 13.12, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.  If the officer of the
Company signing such certificate has knowledge of such a Default or Event of
Default, the certificate shall describe any such Default or Event of Default
and its status.


 


ARTICLE 14


 


SUBORDINATION
OF SECURITIES


 


Section
14.01       Subordination
Terms.


 


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


 


44

















 


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


 


	
   

  	
  ALLOS THERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


45

















 


CROSS-REFERENCE TABLE (1)


 


	
  Section of Trust Indenture Act Of 1939, as Amended

  	
   

  	
  Section of
  Indenture

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13

  
	
  311(b)

  	
   

  	
  7.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.01

  
	
   

  	
   

  	
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(c)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a)

  
	
   

  	
   

  	
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  
	
   

  	
   

  	
  13.12

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.07(a)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.07(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a)

  
	
   

  	
   

  	
  7.01(b)

  
	
  315(b)

  	
   

  	
  7.14

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
  315(e)

  	
   

  	
  6.07

  
	
  316(a)

  	
   

  	
  6.06

  
	
   

  	
   

  	
  8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  13.09

  



 












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


 


46