Exhibit
4.1


 


EXECUTION COPY


 


Confidential
Treatment Requested.


 


Confidential
portions of this document have been redacted and have been separately 

filed with the Commission.


 


 


VERTEX
PHARMACEUTICALS INCORPORATED


 


$155,000,000


 


SECURED
NOTES DUE 2012


 


INDENTURE


 


DATED
AS OF SEPTEMBER 30, 2009


 


U.S.
BANK NATIONAL ASSOCIATION,


 


AS
TRUSTEE AND COLLATERAL AGENT


 

















 


Information redacted pursuant to a
confidential treatment request.  An
unredacted version 

of this exhibit has been filed separately with the Commission.


 


Table of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  LIST OF EXHIBITS

  	
  V

  
	
   

  	
   

  	
   

  
	
  ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE

  	
  1

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  14

  
	
  Section 1.03.

  	
  Rules of Construction

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. THE NOTES

  	
  15

  
	
  Section 2.01.

  	
  Form and Dating

  	
  15

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
  16

  
	
  Section 2.03.

  	
  Registrar and Paying Agent

  	
  16

  
	
  Section 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  17

  
	
  Section 2.05.

  	
  Holder Lists

  	
  17

  
	
  Section 2.06.

  	
  Transfer and Exchange

  	
  17

  
	
  Section 2.07.

  	
  Replacement Notes

  	
  33

  
	
  Section 2.08.

  	
  Outstanding Notes

  	
  33

  
	
  Section 2.09.

  	
  Treasury Notes

  	
  34

  
	
  Section 2.10.

  	
  Temporary Notes

  	
  34

  
	
  Section 2.11.

  	
  Cancellation

  	
  34

  
	
  Section 2.12.

  	
  Defaulted Interest

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE III. REDEMPTION AND PREPAYMENT

  	
  35

  
	
  Section 3.01.

  	
  Notices to Trustee

  	
  35

  
	
  Section 3.02.

  	
  Selection of Notes to Be Redeemed

  	
  35

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
  36

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
  37

  
	
  Section 3.05.

  	
  Deposit of Redemption Price

  	
  37

  
	
  Section 3.06.

  	
  Notes Redeemed in Part

  	
  38

  
	
  Section 3.07.

  	
  Optional Redemption

  	
  38

  
	
  Section 3.08.

  	
  Mandatory Redemption

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV. COVENANTS

  	
  39

  
	
  Section 4.01.

  	
  Payment of Notes

  	
  39

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
  40

  
	
  Section 4.03.

  	
  Compliance Certificate

  	
  40

  
	
  Section 4.04.

  	
  [Reserved.]

  	
  41

  
	
  Section 4.05.

  	
  Stay, Extension and Usury Laws

  	
  41

  
	
  Section 4.06.

  	
  Collateral

  	
  41

  
	
  Section 4.07.

  	
  Corporate Existence

  	
  41

  
	
  Section 4.08.

  	
  Offer to Repurchase upon Change of Control

  	
  42

  
	
  Section 4.09.

  	
  Guarantees

  	
  44

  



 


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  Section 4.10.

  	
  Reports

  	
  44

  
	
  Section 4.11.

  	
  Creation and Perfection of Liens Securing Collateral; Further
  Assurances

  	
  44

  
	
  Section 4.12.

  	
  Janssen Agreement

  	
  45

  
	
  Section 4.13.

  	
  Indemnification

  	
  45

  
	
  Section 4.14.

  	
  Tax Matters

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. SUCCESSORS

  	
  50

  
	
  Section 5.01.

  	
  Merger, Consolidation or Sale of Assets

  	
  50

  
	
  Section 5.02.

  	
  Successor Corporation Substituted

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI. DEFAULTS AND REMEDIES

  	
  51

  
	
  Section 6.01.

  	
  Events of Default

  	
  51

  
	
  Section 6.02.

  	
  Acceleration

  	
  52

  
	
  Section 6.03.

  	
  Other Remedies

  	
  54

  
	
  Section 6.04.

  	
  Waiver of Past Defaults

  	
  54

  
	
  Section 6.05.

  	
  Control by Majority

  	
  54

  
	
  Section 6.06.

  	
  Limitation on Suits

  	
  55

  
	
  Section 6.07.

  	
  Rights of Holders of Notes to Receive Payment

  	
  55

  
	
  Section 6.08.

  	
  Collection Suit by Trustee

  	
  55

  
	
  Section 6.09.

  	
  Trustee May File Proofs of Claim

  	
  56

  
	
  Section 6.10.

  	
  Priorities

  	
  56

  
	
  Section 6.11.

  	
  Undertaking for Costs

  	
  57

  
	
  Section 6.12.

  	
  Restoration of Rights and Remedies

  	
  57

  
	
  Section 6.13.

  	
  Rights and Remedies Cumulative; Limitation on Damages

  	
  57

  
	
  Section 6.14.

  	
  Delay or Omission Not Waiver

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. TRUSTEE

  	
  58

  
	
  Section 7.01.

  	
  Duties of Trustee

  	
  58

  
	
  Section 7.02.

  	
  Rights of Trustee

  	
  59

  
	
  Section 7.03.

  	
  Individual Rights of Trustee

  	
  60

  
	
  Section 7.04.

  	
  Trustee’s Disclaimer

  	
  61

  
	
  Section 7.05.

  	
  Notice of Defaults

  	
  61

  
	
  Section 7.06.

  	
  Reports by Trustee to Holders of the Notes

  	
  61

  
	
  Section 7.07.

  	
  Compensation and Indemnity

  	
  61

  
	
  Section 7.08.

  	
  Replacement of Trustee

  	
  62

  
	
  Section 7.09.

  	
  Successor Trustee by Merger, Etc.

  	
  63

  
	
  Section 7.10.

  	
  Eligibility; Disqualification

  	
  64

  
	
  Section 7.11.

  	
  Preferential Collection of Claims Against Company

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
  65

  
	
  Section 8.01.

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
  65

  
	
  Section 8.02.

  	
  Legal Defeasance and Discharge

  	
  65

  
	
  Section 8.03.

  	
  Covenant Defeasance

  	
  65

  



 


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of this exhibit has been filed separately with the Commission.


 


	
  Section 8.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
  66

  
	
  Section 8.05.

  	
  Deposited Money and Government Securities to Be Held in Trust; Other
  Miscellaneous Provisions

  	
  68

  
	
  Section 8.06.

  	
  Repayment to Company

  	
  68

  
	
  Section 8.07.

  	
  Reinstatement

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER

  	
  69

  
	
  Section 9.01.

  	
  Without Consent of Holders of Notes

  	
  69

  
	
  Section 9.02.

  	
  With Consent of Holders of Notes

  	
  70

  
	
  Section 9.03.

  	
  Compliance with Trust Indenture Act

  	
  72

  
	
  Section 9.04.

  	
  Revocation and Effect of Consents

  	
  73

  
	
  Section 9.05.

  	
  Notation on or Exchange of Notes

  	
  73

  
	
  Section 9.06.

  	
  Trustee to Sign Amendments, Etc

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE X. NOTE GUARANTEES

  	
  73

  
	
  Section 10.01.

  	
  Note Guarantees

  	
  73

  
	
  Section 10.02.

  	
  Execution and Delivery of Note Guarantee

  	
  75

  
	
  Section 10.03.

  	
  Guarantors May Consolidate or Merge on Certain Terms

  	
  75

  
	
  Section 10.04.

  	
  Releases of Note Guarantees

  	
  76

  
	
  Section 10.05.

  	
  Trustee to Include Paying Agent

  	
  76

  
	
  Section 10.06.

  	
  Limits on Note Guarantees

  	
  77

  
	
  Section 10.07.

  	
  Article XIV Not To Prevent Events of Default or Limit Right To
  Demand Payment

  	
  77

  
	
  Section 10.08.

  	
  Trustee Not Fiduciary for Holders of Senior Indebtedness of Note
  Guarantors

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI. COLLATERAL AND SECURITY

  	
  77

  
	
  Section 11.01.

  	
  Collateral Documents

  	
  77

  
	
  Section 11.02.

  	
  Recording and Opinions

  	
  79

  
	
  Section 11.03.

  	
  Release of Collateral

  	
  79

  
	
  Section 11.04.

  	
  Authorization of Actions to Be Taken by the Trustee and the
  Collateral Agent Under the Collateral Documents

  	
  80

  
	
  Section 11.05.

  	
  Authorization of Receipt of Funds by the Trustee or the Collateral
  Agent under the Security Agreement

  	
  81

  
	
  Section 11.06.

  	
  Limitation on Duty of Trustee and Collateral Agent in Respect of
  Collateral

  	
  81

  
	
  Section 11.07.

  	
  Powers Exercisable by Receiver or Trustee

  	
  82

  
	
  Section 11.08.

  	
  Collateral Agent

  	
  82

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII. SATISFACTION AND DISCHARGE

  	
  88

  
	
  Section 12.01.

  	
  Satisfaction And Discharge Of Indenture

  	
  88

  
	
  Section 12.02.

  	
  Application of Trust Money

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII. MISCELLANEOUS

  	
  89

  



 


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of this exhibit has been filed separately with the Commission.


 


	
  Section 13.01.

  	
  Trust Indenture Act Controls

  	
  89

  
	
  Section 13.02.

  	
  Notices

  	
  89

  
	
  Section 13.03.

  	
  Communication by Holders of Notes with Other Holders of Notes

  	
  91

  
	
  Section 13.04.

  	
  Certificate and Opinion As to Conditions Precedent

  	
  91

  
	
  Section 13.05.

  	
  Statements Required in Certificate or Opinion

  	
  92

  
	
  Section 13.06.

  	
  Rules by Trustee and Agents

  	
  92

  
	
  Section 13.07.

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
  92

  
	
  Section 13.08.

  	
  Governing Law

  	
  93

  
	
  Section 13.09.

  	
  No Adverse Interpretation of Other Agreements

  	
  93

  
	
  Section 13.10.

  	
  Successors

  	
  93

  
	
  Section 13.11.

  	
  Severability

  	
  93

  
	
  Section 13.12.

  	
  Counterpart Originals

  	
  93

  
	
  Section 13.13.

  	
  Table of Contents, Headings, Etc.

  	
  93

  
	
  Section 13.14.

  	
  Further Instruments and Acts

  	
  93

  
	
  Section 13.15.

  	
  Limitation on Agreements

  	
  94

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV. SUBORDINATION

  	
  94

  
	
  Section 14.01.

  	
  Subordination.

  	
  94

  
	
  Section 14.02.

  	
  Absolute and Unconditional Obligation; Realizations from Collateral
  Not Subordinated

  	
  96

  
	
  Section 14.03.

  	
  Article XIV Not To Prevent Events of Default or Limit Right To
  Accelerate

  	
  98

  
	
  Section 14.04.

  	
  Trustee Not Fiduciary for Holders of Senior Debt of the Issuer

  	
  98

  
	
  Section 14.05.

  	
  Rights of Holders of Senior Debt Not Impaired

  	
  98

  
	
  Section 14.06.

  	
  Modification of Terms of Senior Debt

  	
  98

  



 


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Information redacted pursuant to a confidential treatment request.  An unredacted version 

of this exhibit has been filed separately with the Commission.


 


LIST OF EXHIBITS


 


	
  Exhibit A

  	
   

  	
  FORM OF NOTE

  
	
  Exhibit B

  	
   

  	
  FORM OF CERTIFICATE OF
  TRANSFER

  
	
  Exhibit C

  	
   

  	
  FORM OF CERTIFICATE OF
  EXCHANGE

  
	
  Exhibit D

  	
   

  	
  FORM OF CERTIFICATE OF
  ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  
	
  Exhibit E

  	
   

  	
  FORM OF NOTE GUARANTEE

  
	
  Exhibit F

  	
   

  	
  FORM OF SUPPLEMENTAL
  INDENTURE

  
	
  Exhibit G

  	
   

  	
  FORM OF
  SECURITY AGREEMENT

  



 


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Information redacted pursuant to a
confidential treatment request.  An
unredacted version 

of this exhibit has been filed separately with the Commission.


 


CROSS-REFERENCE TABLE


 


Reconciliation and tie between the Trust Indenture
Act of 1939, as amended, and the Indenture, dated as of September 30,
2009.


 


	
  TRUST INDENTURE

  	
   

  	
  INDENTURE

  	
   

  
	
  ACT
  SECTION

  	
   

  	
  SECTION

  	
   

  
	
  §310(a)(l)

  	
   

  	
  7.10

  	
   

  
	
  (a)(2)

  	
   

  	
  7.10

  	
   

  
	
  (a)(3)

  	
   

  	
  N.A.

  	
   

  
	
  (a)(4)

  	
   

  	
  N.A.

  	
   

  
	
  (a)(5)

  	
   

  	
  7.10

  	
   

  
	
  (b)

  	
   

  	
  7.03; 7.08; 7.10

  	
   

  
	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  §311(a)

  	
   

  	
  7.11

  	
   

  
	
  (b)

  	
   

  	
  7.11

  	
   

  
	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  §312(a)

  	
   

  	
  2.05

  	
   

  
	
  (b)

  	
   

  	
  13.03

  	
   

  
	
  (c)

  	
   

  	
  13.03

  	
   

  
	
  §313(a)

  	
   

  	
  7.06

  	
   

  
	
  (b)

  	
   

  	
  7.06

  	
   

  
	
  (c)

  	
   

  	
  7.06

  	
   

  
	
  (d)

  	
   

  	
  7.06

  	
   

  
	
  §314(a)

  	
   

  	
  4.04; 4.11

  	
   

  
	
  (b)

  	
   

  	
  11.02

  	
   

  
	
  (c)(1)

  	
   

  	
  13.04

  	
   

  
	
  (c)(2)

  	
   

  	
  13.04

  	
   

  
	
  (c)(3)

  	
   

  	
  11.03

  	
   

  
	
  (d)

  	
   

  	
  11.03

  	
   

  
	
  (e)

  	
   

  	
  13.05

  	
   

  
	
  (f)

  	
   

  	
  13.14

  	
   

  
	
  §315(a)

  	
   

  	
  7.01  (b)

  	
   

  
	
  (b)

  	
   

  	
  7.05

  	
   

  
	
  (c)

  	
   

  	
  7.01  (a)

  	
   

  
	
  (d)

  	
   

  	
  7.01  (c)

  	
   

  
	
  (e)

  	
   

  	
  6.11

  	
   

  
	
  §316(a)

  	
   

  	
  2.08

  	
   

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  	
   

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  	
   

  
	
  (a)(2)

  	
   

  	
  N.A.

  	
   

  



 


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Information redacted pursuant to a
confidential treatment request.  An
unredacted version 

of this exhibit has been filed separately with the Commission.


 


	
  (b)

  	
   

  	
  6.07

  	
   

  
	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  §317(a)(1)

  	
   

  	
  6.08

  	
   

  
	
  (a)(2)

  	
   

  	
  6.09

  	
   

  
	
  (b)

  	
   

  	
  2.04

  	
   

  
	
  §318(a)

  	
   

  	
  13.01

  	
   

  



 


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


 


vii

















 


Information redacted pursuant to
a confidential treatment request.  An
unredacted version 

of this exhibit has been filed separately with the Commission.


 


INDENTURE


 


THIS INDENTURE
is dated as of September 30, 2009 (this “Indenture”), by and among VERTEX
PHARMACEUTICALS INCORPORATED, a Massachusetts corporation (the “Company”), the
corporations and other entities, if any, from time to time parties hereto as
Guarantors (each, a “Guarantor” and collectively, the “Guarantors”, as more
fully defined below) and U.S. BANK NATIONAL ASSOCIATION, as trustee (the “Trustee”)
and as collateral agent (the “Collateral Agent”).


 


RECITALS


 


The Company
has duly authorized the creation and issue of its Secured Notes due 2012 (the “Notes”)
of substantially the tenor and amount hereinafter set forth, and to provide
therefor, the Company has duly authorized the execution and delivery of this
Indenture.


 


All things
necessary to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee hereunder and duly issued by the Company, the valid
obligations of the Company and this Indenture a valid instrument of the
Company, in accordance with their respective terms, have been done.


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH, that, for and in consideration of the
premises and the purchase of the Notes by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Notes, as follows:


 


ARTICLE I.


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


Section 1.01.          Definitions.


 


“144A Global
Note” means a global note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of, and registered in the name of, the Depositary or its
nominee that will be issued in a denomination equal to the outstanding
principal amount at maturity of the Notes sold in reliance on Rule 144A.


 


“Accreted
Value” means an amount per $1,000 principal amount at maturity of the Notes
that is equal to (a) as of any date prior to October 31, 2012,
$788.49 accreted at the daily compounding rate equivalent to 8% per year from
the Issue Date through the date of determination, computed on the basis of a
365-day year, and (b) as of October 31, 2012, or any date thereafter,
$1,000.


 


1

















 


Information redacted pursuant to a
confidential treatment request.  An
unredacted version


of this exhibit has been filed separately
with the Commission.


 


“Affiliate” of any specified
Person shall mean any Person that directly, or indirectly through one or
more intermediaries, controls, is controlled by or is under common control with
another Person.  For purposes of this
definition, “control” (or its derivatives) shall mean the possession, direct or
indirect, of the power or ability to direct or cause the direction of the
management and policies of a Person, whether through ownership of equity,
voting securities or beneficial interest, by contract or otherwise.


 


“Agent” means
any Registrar, Paying Agent or co-registrar.


 


“Applicable
Procedures” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.


 


“Authentication
Order” has the meaning set forth in Section 2.02 hereof


 


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


 


“Board of
Directors” means (1) with respect to a corporation, the board of directors
of the corporation, (2) with respect to a partnership, the Board of
Directors of the general partner of the partnership or, if the partnership has
more than one general partner, the managing general partner of the partnership
and (3) with respect to any other Person, the board or committee of such
Person serving a similar function.


 


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


 


“Business Day”
means any day other than a Legal Holiday.


 


“Capital Stock”
means (i) in the case of a corporation, corporate stock, (ii) in the
case of an association or other business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.


 


“Change of
Control” means the occurrence of any of the following events from and after the
Issue Date:


 


(i)            any “person” or “group”
(as such terms are used in Section 13(d)(3) of the Exchange Act or
any successor provision to the foregoing), including any group acting for the
purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d—5(b)(1) under
the


 


2






 










 


Information redacted pursuant to a
confidential treatment request.  An
unredacted version 

of this exhibit has been filed separately with the Commission.


 


Exchange
Act, other than the Company, any of its Subsidiaries or any of its employee
benefit plans, is or becomes the “beneficial owner” (as defined in Rule 13d—3
under the Exchange Act), directly or indirectly, through a purchase, merger or
other acquisition transaction or series of transactions, of 50% or more of the
total voting power of all classes of the Company’s Voting Stock;


 


(ii)           the Company
consolidates with, or merges with or into, another person (as such term is used
in Sections 13(d)(3) of the Exchange Act) or any person consolidates or
merges with or into the Company, or the Company conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any person,
other than (x) any transaction that (A) does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
the Company’s Capital Stock, and (B) pursuant to which holders of the
Company’s Capital Stock immediately prior to the transaction have the
entitlement to exercise, directly or indirectly, 50% or more of the total
voting power of all shares of the Voting Stock of the continuing or surviving
entity of such transaction; or (y) any merger solely for the purpose of
changing the Company’s jurisdiction of formation and resulting in a
reclassification, conversion or exchange of outstanding shares of Common Stock
solely into shares of common stock of the surviving entity;


 


(iii)          during any
consecutive two-year period, individuals who at the beginning of that two-year
period constituted the Board of Directors (together with any new directors
whose election to such Board of Directors, or whose nomination for election by
stockholders of the Company, was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason (other than death) to constitute a majority of
the Board of Directors then in office; or


 


(iv)          the Company’s
stockholders approve a plan of liquidation or dissolution.


 


“Change of
Control Offer” has the meaning set forth in Section 4.08 hereof.


 


“Change of
Control Payment” has the meaning set forth in Section 4.08 hereof.


 


“Change of
Control Payment Date” has the meaning set forth in Section 4.08 hereof.


 


3

















 


Information redacted pursuant to a
confidential treatment request.  An
unredacted version 

of this exhibit has been filed separately with the Commission.


 


“Clearstream”
means Clearstream, société anonyme Luxembourg (or any successor securities
clearing agency).


 


“Code” means
the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated thereunder.


 


“Collateral”
means, collectively, the assets and property (and rights and interests in
assets and property), now owned or hereafter acquired, of any Person, subject
to, or intended or required to be subject to, the Liens created by the
Collateral Documents.


 


“Collateral
Agent” means the party named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.


 


“Collateral
Documents” means, collectively, the Security Agreement and all other pledges,
agreements, financing statements, mortgages or other filings or documents that
create or perfect or purport to create or perfect a Lien in any property or
assets in favor of the Collateral Agent (for the benefit of the Trustee and the
Holders of Notes), as they may be amended, modified, supplemented, restated,
amended and restated or replaced from time to time, and any instruments of
assignment or other instruments or agreements executed pursuant to the
foregoing.


 


“Commission”
means the United States Securities and Exchange Commission.


 


“Company”
means Vertex Pharmaceuticals Incorporated, a Massachusetts corporation, its
successors and assigns.


 


“Corporate
Trust Office of the Trustee” shall be at the address of the Trustee specified
in Section 13.02 hereof or such other address as to which the Trustee may
give notice to the Company.


 


“Covenant
Defeasance” has the meaning set forth in Section 8.03 hereof.


 


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


 


“Debtor Relief
Laws” means the Title 11 of the U.S. Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.


 


4

















 


Information redacted pursuant to a
confidential treatment request.  An
unredacted version 

of this exhibit has been filed separately with the Commission.


 


“Default”
means any event that is, or with the passage of time or the giving of notice or
both would be, an Event of Default.


 


“Definitive
Note” means a Note registered in the name of the Holder thereof and issued in
accordance with Section 2.06 hereof, substantially in the form of the
Notes attached hereto as Exhibit A and that does not include the
information called for by footnotes 1, 2 and 4 thereof.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03 hereof as the Depositary
with respect to the Notes, until a successor shall have been appointed and
become such pursuant to the applicable provision of this Indenture, and,
thereafter, “Depositary” shall mean or include such successor.


 


“Documents”
has the meaning set forth in Section 13.15 hereof.


 


“DTC” has the
meaning set forth in Section 2.03 hereof.


 


“Euroclear”
means Euroclear Bank, SA/NV as operator of the Euroclear Clearance System (or
any successor securities clearing agency).


 


“Event of
Default” has the meaning set forth in Section 6.01 hereof.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, or any successor
statute.


 


“Existing
Notes” shall mean Vertex’s 4.75% Convertible Senior Subordinated Notes due
2013.


 


“GAAP” means
generally accepted accounting principles in the United States of America as in
effect from time to time, including those set forth in (1) the opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants, (2) the statements and pronouncements of
the Financial Accounting Standards Board and (3) such other statements by
such other entity as approved by a significant segment of the accounting
profession.


 


“Global Note”
means a Note that contains the information called for by footnote 1, the
paragraphs referred to in footnote 2 and the additional schedule referred to in
footnote 4 to the form of the Note attached hereto as Exhibit A.


 


“Global Note
Legend” means the legend set forth in Section 2.06(g)(iv), which is
required to be placed on all Global Notes issued under this Indenture.


 


5

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version 

of this exhibit has been filed separately with the Commission.


 


“Government
Securities” means securities that are direct obligations of the United States
of America for the timely payment of which its full faith and credit are
pledged.


 


“Governmental
Authority” shall mean any government, court, regulatory or administrative
agency or commission, or other governmental authority, agency or
instrumentality, whether foreign, federal, state or local (domestic or
foreign).


 


“Guarantee”
means, as to any Person, a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness of another Person.


 


“Guarantor”
means any Subsidiary that executes a Note Guarantee in accordance with the
provisions of this Indenture, and its respective successors and assigns until
released from its obligations under its Note Guarantee and this Indenture in
accordance with the terms of this Indenture. 
As of the Issue Date, there are no Guarantors.


 


“Holder” means
a Person in whose name a Note is registered.


 


“IAI Global
Note” mean the global Note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of and registered in the name of the Depositary or its
nominee that will be issued on the Issue Date or thereafter in a denomination
equal to the outstanding principal amount at maturity of the Notes sold to
Institutional Accredited Investors.


 


“Indebtedness”
when used with respect to any Person, and without duplication, means:


 


(i)            all indebtedness,
obligations and other liabilities (contingent or otherwise) of such Person for
borrowed money (including obligations of such person in respect of overdrafts
and any loans or advances from banks, whether or not evidenced by notes or
similar instruments) or evidenced by bonds, notes or other instruments for the
payment of money, or incurred in connection with the acquisition of any
property, services or assets (whether or not the recourse of the lender is to
the whole of the assets of such Person or to only a portion thereof), other
than any account payable or other accrued current liability or obligation to
trade creditors incurred in the ordinary course of business in connection with
the obtaining of goods, materials or services;


 


6

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version 

of this exhibit has been filed separately with the Commission.


 


(ii)           all reimbursement
obligations and other liabilities (contingent or otherwise) of such Person with
respect to letters of credit, bank guarantees, bankers’ acceptances, surety
bonds, performance bonds or other guaranty of contractual performance;


 


(iii)          all obligations and
liabilities (contingent or otherwise) in respect of (a) leases of such
Person required, in conformity with GAAP, to be accounted for as capitalized
lease obligations on the balance sheet of such Person and (b) any lease or
related documents, including a purchase agreement, in connection with the lease
of real property which provides that such Person is contractually obligated to
purchase or cause a third party to purchase the leased property and thereby
guarantee a minimum residual value of the leased property to the landlord and
the obligations of such Person under such lease or related document to purchase
or to cause a third party to purchase the leased property;


 


(iv)          all obligations of
such Person (contingent or otherwise) with respect to an interest rate or other
swap, cap or collar agreement or other similar instrument or agreement or
foreign currency hedge, exchange, purchase or similar instrument or agreement;


 


(v)           all direct or
indirect guaranties or similar agreements by such Person in respect of, and
obligations or liabilities (contingent or otherwise) of such Person to purchase
or otherwise acquire or otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of another Person of the kind
described in clauses (i) through (iv);


 


(vi)          any indebtedness or
other obligations described in clauses (i) through (iv) secured by
any mortgage, pledge, lien or other encumbrance existing on property which is
owned or held by such Person, regardless of whether the indebtedness or other
obligation secured thereby shall have been assumed by such Person; and


 


(vii)         any and all
deferrals, renewals, extensions, refinancings, replacements, restatements and
refundings of, or amendments, modifications or supplements to, any
indebtedness, obligation or liability of the kind described in clauses (i) through
(vi).


 


“Indenture”
means this Indenture, as amended or supplemented from time to time.


 


“Indirect
Participant” means a Person who holds a beneficial interest in a Global Note
through a Participant.


 


7

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version 

of this exhibit has been filed separately with the Commission.


 


“Institutional
Accredited Investor” means an institution that is an “accredited investor” as defined
in Rule 501 (a) (1), (2), (3), (7) under the Securities Act, who
is not also a QIB.


 


“Issue Date”
means the date of original issuance of the Notes under this Indenture.


 


“Janssen” shall mean Janssen
Pharmaceutica, N.V., a Belgium corporation, including its successors and
assigns.


 


“Janssen Agreement” shall
mean the License, Development, Manufacturing and Commercialization Agreement by
and between the Company and Janssen effective as of June 30, 2006, as such
agreement is amended and in effect on the date hereof, together with the
Janssen Consent, except as expressly set forth herein, as each may be amended
and/or restated from time to time after the date hereof in accordance with the
terms of this Indenture and any new, substitute or amended agreement by and
between the Company and Janssen relating to the Milestone Payments to be made
after the date hereof in accordance with the terms of this Indenture.


 


“Janssen Consent” means all
consents and other agreements necessary under the Jansen Agreement for the
Company to grant a security interest in favor of the Collateral Agent in
accordance with the terms of this Indenture and the Collateral Documents and
the consummation of the other transactions contemplated by the Indenture and
the Collateral Documents, including any consents required under Section 15.2
of the Janssen Agreement.


 


“Legal
Defeasance” has the meaning set forth in Section 8.02 hereof.


 


“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in The City
of New York, The Grand Duchy of Luxembourg  or at a place of payment are authorized or
required by law, regulation or executive order to remain closed.


 


“Lien” shall
mean any lien, hypothecation, charge, instrument, license, preference,
priority, security agreement, security interest, mortgage, option, right of
first refusal, privilege, pledge, liability, covenant or order, or any
encumbrance, restriction, right or claim of any other Person or Governmental
Authority of any kind whatsoever, whether choate or inchoate, filed or unfiled,
noticed or unnoticed, recorded or unrecorded, contingent or non-contingent,
material or non-material, known or unknown, provided that nothing herein shall
prohibit any of the above created solely in favor of the Collateral Agent for
the benefit of the Trustee and the Holders by the Collateral Documents.


 


“Liquidated
Damages” means as
of the respective date of determination, a Dollar amount that is
equal to (a) as of any date prior to October 31, 2012,  an 


 


8

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version 

of this exhibit has been filed separately with the Commission.


 


amount calculated using
the formula “1000 times (1-(1/ert))”
where “e” and “r” have the meaning given such term in Section 4.14 hereof
and “t” is a number that is equal to 1/365th of the difference between (i) 1,127 and (ii) the
total number of days elapsed from the Issue Date to the date of
determination and (b) as of October 31, 2012, or any date thereafter,
$0.


 


“Maturity Date”
means October 31, 2012.


 


[***].


 


[***].


 


[***].


 


[***].


 


“Milestone Payments” shall
mean collectively [***]; (ii) (a) all additional amounts added to any of the
milestone payments described above in clauses (i)(a) and (b) under
any provision of the Janssen Agreement, including any interest assessed in
connection with a delay in the payment by Janssen of the milestone payments
described above in clauses (i)(a) and (b) pursuant to Section 9.10
of the Janssen Agreement and (b) the Holders’ Pro Rata Portion of all
additional amounts added to the milestone payment described above in clause (i)(c) under
any provision of the Janssen Agreement, including any interest assessed in
connection with a delay in the payment by Janssen of the milestone payment
described above in clause (i)(c) pursuant to Section 9.10 of the
Janssen Agreement; (iii) all accounts (as defined under the UCC)
evidencing the rights to the payments and amounts described in clauses (i) and
(ii) above; and (iv) all proceeds (as defined under the UCC) of the
foregoing.


 


“Note Custodian” means the Trustee, as custodian with respect to the
Global Notes, or any successor entity thereto.


 


“Note
Guarantee” means a Guarantee of the Notes pursuant to Article X hereof,
including a notation in the Notes substantially in the form included in Exhibit E,
and any supplemental indenture pursuant to which any Person becomes a
Guarantor.


 


“Note Purchase
Agreement” means the note purchase agreement dated as of the date of this
Indenture by and between the Company and Olmsted Park S.A., as such agreement
may be amended, supplemented, restated, amended and restated, or otherwise
modified from time to time.


 


“Note
Obligations” means (i) all Accreted Value of, interest (including, without
limitation, any interest which accrues after the commencement of any proceeding
under any Debtor Relief Law with respect to any of the Company or any
Guarantor, whether or not allowed or allowable as a claim in any such
proceeding), and Liquidated Damages, if any, on any Note, (ii) all fees,
expenses, indemnification obligations and other amounts of whatever nature now
or hereafter payable by the Company or any 


 


9

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version 

of this exhibit has been filed separately with the Commission.


 


Guarantor
(including, without limitation, any amounts which accrue after the commencement
of any proceeding under any Debtor Relief Law with respect to the Company or
any Guarantor, whether or not allowed or allowable as a claim in any such
proceeding) pursuant to this Indenture, the Notes or any Collateral Document, (iii) all
expenses of the Trustee or the Collateral Agent (or any agent or sub-agent
thereof) under this Indenture as to which the Trustee or the Collateral Agent
or one or more of such agents have a right to reimbursement or under any other
similar provision of any Collateral Document, including, without limitation,
any and all sums advanced by the Trustee or the Collateral Agent to preserve
the Collateral or preserve its security interests, mortgages or Liens in the
Collateral to the extent permitted under this Indenture, the Notes or any other
Collateral Document or applicable law, and (iv)  in the case of each
Guarantor, all amounts now or hereafter payable by such Guarantor and all other
obligations or liabilities now existing or hereafter arising or incurred
(including, without limitation, any amounts which accrue after the commencement
of any proceeding under any Debtor Relief Law with respect to the Company or
such Guarantor, whether or not allowed or allowable as a claim in any such
proceeding) on the part of such Guarantor pursuant to the Notes, this
Indenture, the Note Guarantees or any other Collateral Document, together in
each case with all renewals, modifications, consolidations or extensions
thereof.


 


“Obligations”
means any principal, interest, penalties, fees, expenses, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary, the Assistant Secretary or any Senior Vice-President of such Person.


 


“Officers’
Certificate” means a certificate signed on behalf of the Company by at least
two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the controller, the treasurer, the
assistant treasurer or the principal accounting officer of the Company, that
meets the requirements of Section 13.05 hereof.


 


“Opinion of
Counsel” means an opinion from legal counsel (who may be counsel to, in-house
counsel for or an employee of the Company) that meets the requirements of Section 13.05
hereof.


 


“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively
(and, with respect to DTC, shall include Euroclear and Clearstream).


 


“Paying Agent”
has the meaning set forth in Section 2.03 hereof.


 


10

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version 

of this exhibit has been filed separately with the Commission.


 


“Payment
Default” has the meaning set forth in Section 6.01 hereof.


 


“Payments from
Collateral” has the meaning set forth in Section 14.02(b).


 


“Person” shall mean an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization of any
kind.


 


“Private
Placement Legend” means the legend set forth in Section 2.06(g)(iii) to
be placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.


 


“Prohibited Amendment” shall
mean any amendment, modification, restatement or supplement of any provision of
the Janssen Agreement that changes in any way (i) the event underlying any
of the Milestone Events, (ii) the amount of any of the Milestone Payments
or (iii) the timing of the payment of any of the Milestone Payments by
Janssen after achievement of the applicable Milestone Event by Janssen.  For avoidance of doubt, any termination of
the Janssen Agreement shall not be deemed a Prohibited Amendment.


 


“Pro Rata Portion” shall
mean, with respect to the Holders[***] and, with respect to the Company[***].


 


“Purchase
Documents” means the Note Purchase Agreement and all related documents.


 


“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.


 


“Registrar”
has the meaning set forth in Section 2.03 hereof.


 


“Regulations S” means Regulation S promulgated under the Securities
Act.


 


“Regulation S
Global Note” means a Global Note bearing the Private Placement Legend and
deposited with or on behalf of the Depositary and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount at maturity of the Notes initially sold in reliance on Rule 903
of Regulation S.


 


“Related Parties” means,
with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.


 


“Responsible
Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with 


 


11

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version 

of this exhibit has been filed separately with the Commission.


 


respect to a
particular corporate trust matter, any other officer or employee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.


 


“Restricted
Definitive Note” means a Definitive Note bearing the Private Placement Legend.


 


“Restricted
Global Note” means a Global Note bearing the Private Placement Legend.


 


“Rule 144”
means Rule 144 promulgated under the Securities Act.


 


“Rule 144A”
means Rule 144A promulgated under the Securities Act.


 


“Rule 903”
means Rule 903 promulgated under the Securities Act.


 


“Rule 904”
means Rule 904
promulgated under the Securities Act.


 


“Section 9.2.2
Notice” shall have the meaning set forth in Section 4.12(b).


 


“Securities Act” means the
Securities Act of 1933, as amended, or any successor statute.


 


“Security
Agreement” means the security agreement, dated as of the Issue Date, among the
Company, the other parties thereto from time to time, and the Collateral Agent,
substantially in the form of Exhibit G, as such agreement may be amended,
supplemented, restated, amended and restated, or otherwise modified from time
to time.


 


“Senior Debt”
shall mean the principal of, premium, if any, interest (including interest, to
the extent allowable, accruing subsequent to the filing of a petition
initiating any proceeding under any state, federal or foreign bankruptcy law,
whether or not a claim for post-petition interest is allowable as a claim in
any such proceeding) and rent payable on or termination payments with respect
to or in connection with, and all fees, costs, expenses and other amounts
accrued or due on or in connection with, Indebtedness of the Company or any of
its Subsidiaries, whether outstanding on the date of this Indenture or
thereafter created, incurred, assumed, guaranteed or in effect guaranteed by
the Company or any of its Subsidiaries (including all deferrals, renewals,
extensions or refundings of, or amendments, modifications or supplements to,
the foregoing), except for: (i) the Existing Notes; (ii) Indebtedness
that by its terms expressly provides that it shall not be senior in right of
payment to the Notes or the Existing Notes or expressly provides that such
Indebtedness is equal in right of payment with or junior in right of payment to
the Notes or Existing Notes; and (iii) Indebtedness between or among the
Company and any of its Subsidiaries.


 


12














 


Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


“Significant Subsidiary”
means any Subsidiary that would constitute a “significant subsidiary” within
the meaning of Article 1 of Regulation S-X of the Securities Act, as in
effect on the Issue Date.


 


“Stated Maturity” means,
with respect to any installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or principal was
scheduled to be paid in the original documentation governing such Indebtedness,
and shall not include any contingent obligations to repay, redeem or repurchase
any such interest or principal prior to the date originally scheduled for the payment
thereof.


 


“Subsidiary” or “Subsidiaries”
shall mean with respect to any Person (i) any corporation of which the
outstanding Capital Stock having at least a majority of votes entitled to be
cast in the election of directors (or, if there are no such voting interests,
50% or more of the equity interests) under ordinary circumstances is at the
time be owned, directly or indirectly, by such Person or by another subsidiary
of such Person or (ii) any other Person of which at least a majority
voting interest (or, if there are no such voting interests, 50% or more of the
equity interests) under ordinary circumstances is at the time owned, directly
or indirectly, by such Person or by another subsidiary of such Person.


 


“Surviving
Entity” has the meaning set forth in Section 5.01 hereof.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C.ss.ss.77aaa-77bbbb) as in
effect on the date of this Indenture.


 


“Transfer Restricted
Securities” means securities that bear or are required to bear the legend set
forth in Section 2.06(g)(iii) hereof.


 


“Trustee” means the party
named as such above until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.


 


“UCC” shall mean the Uniform
Commercial Code as in effect from time to time in the State of New York.


 


“Unrestricted Definitive
Note” means one or more Definitive Notes that do not bear and are not required
to bear the Private Placement Legend.


 


“Unrestricted Global Note”
means a permanent Global Note substantially in the form of Exhibit A
attached hereto that bears the Global Note Legend and that has the “Schedule of
Increases and Decreases of Interests in the Global Note” attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Notes that do not bear the Private
Placement Legend.


 


13

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


“Voting Stock” of a Person
means all classes of Capital Stock or other interests (including partnership
interests) of such Person then outstanding and normally entitled (without regard
to the occurrence of any contingency within the control of such person to
satisfy) to vote in the election of directors, managers or trustees thereof.


 


Section 1.02.          Incorporation by Reference of Trust Indenture Act.


 


Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture.


 


The following TIA terms used
in this Indenture have the following meanings:


 


“indenture securities” means
the Notes and the Note Guarantees;


 


“indenture security Holder”
means a Holder of a Note;


 


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


 


“obligor” on the Notes means
the Company and any successor obligor upon the Notes or any Guarantor.


 


All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by Commission rule under the TIA have the meanings so
assigned to them.


 


Section 1.03.          Rules of Construction.


 


Unless the context otherwise
requires:


 


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


 


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


 


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


 


(d)           references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the Commission from time to time;


 


(e)           references to “property and assets” or “property” or “assets”
means any right or interest in or to property or assets of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, including
Capital Stock; and


 


14





















 


Information
redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


(f)            unless otherwise specifically provided by the terms of
this Indenture, references to approvals, consents, or directions of the Holders
of the Notes shall be deemed to refer to approvals, consent or directions of
the Holders of a majority in principal amount at maturity of the Notes
outstanding on the applicable date.


 


ARTICLE II.



THE NOTES


 


Section 2.01.          Form and Dating.


 


(a)         General.  The Notes and the certificate of authentication
of the Trustee thereon shall be substantially in the form included in Exhibit A
hereto, which is incorporated in and expressly made a part of this
Indenture.  The notations of the Note
Guarantees shall be substantially in the form of Exhibit E hereto, the
terms of which are incorporated in and made part of this Indenture.  However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling. 
The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage.  Each
Note shall be dated the date of its authentication.  The Notes shall be in minimum denominations
of $50,000 of principal amount at maturity and integral multiples of $1,000 in
excess thereof.


 


The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part
of this Indenture and the Company, the Guarantors and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.


 


The aggregate principal
amount of the Notes that may be authenticated and delivered under this
Indenture is $155,000,000 in principal amount at maturity of Notes, except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to the terms of this
Indenture.


 


(b)        Global Notes.  Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the text
referred to in footnotes 1, 2 and 4 thereto). 
Notes issued in certificated form shall be substantially in the form of Exhibit A
attached hereto (but without including the text referred to in footnotes 1, 2
and 4 thereto).  Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate amount of outstanding Notes
from time to time endorsed thereon and that the aggregate amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes represented
thereby shall be made by the Trustee or the Note Custodian, at the 


 


15





















 


Information
redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


direction
of the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.


 


(c)         Euroclear and
Clearstream Procedures Applicable. 
The provisions of Euroclear and Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.


 


Section 2.02.          Execution and Authentication.


 


Two Officers shall sign the
Notes for the Company by manual or facsimile signature.  If an Officer whose signature is on a Note no
longer holds that office at the time a Note is authenticated, the Note shall
nevertheless be valid.


 


A Note shall not be valid
until authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.


 


The Trustee shall, upon a
written order of the Company signed by two Officers (“Authentication Order”),
authenticate the Notes in an aggregate principal amount at maturity of
$155,000,000.  The aggregate principal
amount of Notes outstanding at any time may not exceed such amount except as
provided in Sections 2.07 and 9.05 hereof. 
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes.  An
authenticating agent may authenticate Notes whenever the Trustee may do
so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights
as an Agent to deal with the Company or an Affiliate of the Company.


 


Section 2.03.          Registrar and Paying Agent.


 


The Company shall maintain
an office or agency where Notes may be presented for registration of transfer
or for exchange (“Registrar”).  The
Company appoints the Trustee to, and the Trustee agrees to, maintain an office
or agency where Notes may be presented for payment (“Paying Agent”).  The Registrar shall keep a register of the
Notes and of their transfer and exchange. 
The Company may appoint one or more co-registrars.  The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying
agent.  The Company may change any
Registrar without notice to any Holder but may only change the Paying Agent or
appoint additional Paying Agents with the prior written consent of the Holders
of a majority in aggregate principal amount at maturity of Notes
outstanding.  The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture.  If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such.  The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.


 


16

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


The Company initially
appoints the Trustee to act as Depositary with respect to the Global Notes; provided, that upon the request of Holders of at least 25%
in aggregate principal amount at maturity of the then outstanding Notes, the
Company shall appoint The Depository Trust Company (“DTC”) to act as Depositary
with respect to the Global Notes and shall take all actions required by DTC in
connection therewith.


 


The Company initially
appoints the Trustee to act as the Registrar and Paying Agent and to act as
Note Custodian with respect to the Global Notes.


 


Section 2.04.          Paying Agent to Hold Money in Trust.


 


The Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of Accreted Value, Liquidated Damages,
if any, or interest on the Notes, and will notify the Trustee of any default by
the Company or any Guarantor in making any such payment.  While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the Trustee.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money received from the Company or a Subsidiary.  If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization
proceedings relating to the Company or a Guarantor, the Trustee shall serve as
Paying Agent for the Notes.


 


Section 2.05.          Holder Lists.


 


The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of all Holders and shall otherwise
comply with TIA §312(a).  If the Trustee
is not the Registrar, the Company shall, or shall cause the Registrar to,
furnish to the Trustee at least seven Business Days before each interest
payment date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Holders of Notes and the Company and the
Guarantors shall otherwise comply with TIA §312(a).


 


Section 2.06.          Transfer and Exchange.


 


(a)           Transfer and Exchange of Global Notes.  A Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.  Global Notes
will not be exchanged by the Company for Definitive Notes unless (i) the
Depositary (A) notifies the Company that it is unwilling or 


 


17





















 


Information
redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


unable to continue as depositary for the
Global Notes and the Company fails to appoint a successor depositary within
ninety (90) days of delivery of such notice or (B) has ceased to be a
clearing agency registered under the Exchange Act, and the Company fails to
appoint a successor depositary within ninety (90) days of delivery of such
notice or (ii) there shall have occurred and be continuing a Default or
Event of Default with respect to the Notes. 
Beneficial interests in a Global Note may also be exchanged for
Certificated Notes upon prior written notice given to the Trustee by or on
behalf of the Depositary in accordance with this Indenture.  In all cases, Certificated Notes delivered in
exchange for any Global Note or beneficial interests in Global Notes will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the Depositary (in accordance with its customary
procedures).  Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof.  Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note.  A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a);
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b), (c) or (f) hereof.


 


(b)           Transfer and Exchange of Beneficial Interests in the
Global Notes.  The transfer and
exchange of beneficial interests in the Global Notes shall be effected through
the Depositary, in accordance with the provisions of this Indenture and the
Applicable Procedures.  Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act.  Transfers of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more
of the other following subparagraphs, as applicable:


 


(i)            Transfer of
Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend.  Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note.  No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in
this Section 2.06(b)(i).


 


(ii)           All Other
Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar either
(A) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in 


 


18





















 


Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


accordance
with the Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above.    Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant
to Section 2.06(h) hereof.


 


(iii)          Transfer of
Beneficial Interests to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:


 


(A)          if the transferee
will take delivery in the form of a beneficial interest in the 144A Global
Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;


 


(B)           if the transferee
will take delivery in the form of a beneficial interest in the Regulation S
Global Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof , and if the
Registrar or the Company so requests or if the Applicable Procedures so
require, an opinion of counsel in form reasonably acceptable to the Registrar
and the Company to the effect that such exchange or transfer is in compliance
with the Securities Act; and


 


(C)           if the transferee
will take delivery in the form of a beneficial interest in the IAI Global Note,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the 


 


19





















 


Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


certifications
and certificates and opinion of counsel required by item (3) thereof, if
applicable.


 


(iv)          Transfer and
Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in the Unrestricted Global Note. 
A beneficial interest in any Restricted Global Note may be exchanged by
any holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.06(b)(ii) above and the Registrar
receives the following:


 


(1)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or


 


(2)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;


 


and, in each such case set forth in this subparagraph (iv), if the
Registrar or the Company so requests or if the Applicable Procedures so
require, an opinion of counsel in form reasonably acceptable to the Registrar
and the Company to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


(v)           Euroclear or Clearstream. 
Through and including the 40th day after the Issue Date, beneficial
interests in the Regulation S Global Note may be held only through Euroclear or
Clearstream, unless transferred to a person that takes delivery through a Rule 144A
Global Note.


 


If any such transfer is
effected at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount at maturity of beneficial interests transferred.


 


20

















 


Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


Beneficial interests in an
Unrestricted Global Note cannot be exchanged for, or transferred to Persons who
take delivery thereof in the form of, a beneficial interest in a Restricted
Global Note.


 


(c)           Transfer or Exchange of Beneficial Interests for
Definitive Notes.


 


(i)            Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes.  If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:


 


(A)          if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in
item (2)(a) thereof, and if the Registrar or the Company so requests or if
the Applicable Procedures so require, an opinion of counsel in form reasonably
acceptable to the Registrar and the Company to the effect that such exchange or
transfer is in compliance with the Securities Act;


 


(B)           if such beneficial
interest is being transferred to a QIB in accordance with Rule 144A under
the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;


 


(C)           if such beneficial
interest is being transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof, and if the Registrar or the Company so
requests or if the Applicable Procedures so require, an opinion of counsel in
form reasonably acceptable to the Registrar and the Company to the effect that
such exchange or transfer is in compliance with the Securities Act;


 


(D)          if such beneficial
interest is being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof, and if the Registrar
or the Company so requests or if the Applicable Procedures so require, an 


 


21





















 


Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


opinion
of counsel in form reasonably acceptable to the Registrar and the Company to
the effect that such exchange or transfer is in compliance with the Securities
Act;


 


(E)           if such beneficial
interest is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and opinion of counsel required by item (3) thereof,
if applicable;


 


(F)           if such beneficial
interest is being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or


 


(G)           if such beneficial
interest is being transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,


 


the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Note in the appropriate
principal amount.


 


Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant.  The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.


 


(ii)           Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes.  A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery


 


22


















 


Information
redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


thereof in the form of an Unrestricted Definitive Note only if the
Registrar receives the following:


 


(1)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or


 


(2)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of an Unrestricted Definitive Note, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (ii), if the Registrar or the Company so requests or if the
Applicable Procedures so require, an opinion of counsel in form reasonably
acceptable to the Registrar and the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


(iii)          Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions an Unrestricted Definitive Note in
the appropriate principal amount.  Any
Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant.  The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so 


 


23





















 


Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


registered.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall not
bear the Private Placement Legend.


 


(d)           Transfer and Exchange of Definitive Notes for
Beneficial Interests.


 


(i)            Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes.  If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:


 


(A)          if the Holder of such
Restricted Definitive Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof, and if the
Registrar or the Company so requests or if the Applicable Procedures so
require, an opinion of counsel in form reasonably acceptable to the Registrar
and the Company to the effect that such exchange or transfer is in compliance
with the Securities Act;


 


(B)           if such Restricted
Definitive Note is being transferred to a QIB in accordance with Rule 144A
under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;


 


(C)           if such Restricted
Definitive Note is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof, and if the Registrar or
the Company so requests or if the Applicable Procedures so require, an opinion
of counsel in form reasonably acceptable to the Registrar and the Company to
the effect that such exchange or transfer is in compliance with the Securities
Act;


 


(D)          if such Restricted
Definitive Note is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof, and if the
Registrar or the Company so requests or if the Applicable Procedures so
require, an 


 


24





















 


Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


opinion
of counsel in form reasonably acceptable to the Registrar and the Company to
the effect that such exchange or transfer is in compliance with the Securities
Act;


 


(E)           if such Restricted
Definitive Note is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the certifications,
certificates and opinion of counsel required by item (3) thereof, if
applicable;


 


(F)           if such Restricted
Definitive Note is being transferred to the Company or any of its Subsidiaries,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof;


 


(G)           if such Restricted
Definitive Note is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof;


 


the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above,
the 144A Global Note, in the case of clause (C) above, the Regulation S
Global Note, and in all other cases, the IAI Global Note.


 


(ii)           Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if the
Registrar receives the following:


 


(1)           if
the Holder of such Definitive Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or


 


(2)           if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person
who shall take delivery 


 


25

















 


Information
redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (ii), if the Registrar or the Company so requests or if the
Applicable Procedures so require, an opinion of counsel in form reasonably
acceptable to the Registrar and the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


Upon satisfaction of the
conditions of any of the subparagraphs in this Section 2.06(d)(ii), the
Trustee shall cancel the Definitive Notes and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Note.


 


(iii)          Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate principal
amount of one of the Unrestricted Global Notes.


 


If any such exchange or
transfer from a Definitive Note to a beneficial interest is effected pursuant
to subparagraphs (ii) or (iii) above at a time when an Unrestricted
Global Note has not yet been issued, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount at maturity equal to the principal amount of Definitive Notes
so transferred.


 


(e)           Transfer and Exchange of Definitive Notes for
Definitive Notes.  Upon request by a
Holder of Definitive Notes and such Holder’s compliance with the provisions of
this Section 2.06(e), the Registrar shall register the transfer or
exchange of Definitive Notes.  Prior to
such registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Definitive Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing.  In addition, the 


 


26





















 


Information
redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


requesting Holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.06(e).


 


(i)            Restricted
Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Registrar receives the
following:


 


(A)          if the transfer will
be made pursuant to Rule 144A under the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;


 


(B)           if the transfer will
be made pursuant to Rule 903 or Rule 904, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof, and if the Registrar or the Company so
requests or if the Applicable Procedures so require, an opinion of counsel in
form reasonably acceptable to the Registrar and the Company to the effect that
such exchange or transfer is in compliance with the Securities Act; and


 


(C)           if the transfer will
be made pursuant to any other exemption from the registration requirements of
the Securities Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates and
opinion of counsel required by item (3) thereof, if applicable.


 


(ii)           Restricted
Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if the Registrar receives the following:


 


(1)           if
the Holder of such Restricted Definitive Notes proposes to exchange such Notes
for an Unrestricted Definitive Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (1)(d) thereof;
or


 


(2)           if
the Holder of such Restricted Definitive Notes proposes to transfer such Notes
to a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;


 


27

















 


Information
redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


and, in each such case set forth in this
subparagraph (ii), if the Registrar or the Company so requests, an opinion of
counsel in form reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the Securities Act.


 


(iii)          Unrestricted
Definitive Notes to Unrestricted Definitive Notes.  A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note.  Upon receipt
of a request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.


 


(f)            [Reserved]


 


(g)           Legends.  The
following legends shall appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.


 


(i)            [Reserved]


 


(ii)           Tax Legend.


 


Each Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:


 


THIS NOTE WAS ISSUED
WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF
THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED.  THE ISSUE PRICE OF THIS NOTE WAS 78.8494% OF
ITS PRINCIPAL AMOUNT; THE TOTAL AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $211.51  PER NOTE WITH A PRINCIPAL AMOUNT OF $1,000; THE ISSUE DATE IS SEPTEMBER
30, 2009; AND THE YIELD TO MATURITY IS
8.00% PER YEAR.


 


(iii)          Private
Placement Legend.


 


(A)          Except as permitted
by subparagraph (B) below, each Global Note and each Definitive Note (and
all Notes issued in 


 


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Information redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


exchange
therefor or substitution thereof) shall bear the legend in substantially the
following form:


 


“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED
HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5
OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.  EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.  THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF VERTEX PHARMACEUTICALS INCORPORATED (THE “COMPANY”)
THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS), (c) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF APPLICABLE) (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY IF THE COMPANY SO REQUESTS) OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE 


 


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redacted pursuant to a confidential treatment request.  An unredacted version

of this exhibit has been filed separately with the Commission.


 


REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE.  NO REPRESENTATION CAN BE MADE AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY
EVIDENCED HEREBY.”


 


(B)           Notwithstanding the
foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), or (e)(iii) to
this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.


 


(iv)          Global Note
Legend.  Each Global Note shall bear a
legend in substantially the following form:


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”


 


Furthermore, if DTC is the Depository of the
Global Notes, each Global Note shall bear a legend in
substantially the following form:


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF 


 


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THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.  UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


(h)           Cancellation and/or Adjustment of Global Notes.  At such time as all beneficial interests in a
particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in
part, each such Global Note shall be returned to or retained and canceled by
the Trustee in accordance with Section 2.11 hereof.  At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount at maturity
of Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.


 


(i)            General Provisions Relating to Transfers and Exchanges.


 


(i)            To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s
order or at the Registrar’s request.


 


(ii)           No service charge
shall be made to a holder of a beneficial interest in a Global Note or to a
Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge 


 


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payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.07, 3.08, 4.08 and 9.05 hereof).


 


(iii)          The Registrar shall
not be required to register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.


 


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


 


(v)           The Company shall
not be required (A) to issue, to register the transfer of or to exchange
any Notes during a period beginning at the opening of business 15 days before
the day of any selection of Notes for redemption under Section 3.02 hereof
and ending at the close of business on the day of selection, or (B) to
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.


 


(vi)          Prior to due
presentment for the registration of a transfer of any Note, the Trustee, any
Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment
of principal of and interest on such Notes and for all other purposes, and none
of the Trustee, any Agent or the Company shall be affected by notice to the
contrary.


 


(vii)         The Trustee shall
authenticate Global Notes and Definitive Notes in accordance with the
provisions of Section 2.02 hereof.


 


(viii)        All certifications,
certificates and opinions of counsel required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.


 


(ix)           The Trustee shall
have no obligation or duty to monitor, determine of inquire as to compliance
with any restrictions on transfer that may be imposed under this Indenture with
respect to the Notes or under applicable law, other than to require delivery of
such certificates, documentation or other evidence as are expressly required
by, and to do so if and when expressly required by, this Indenture.  The Trustee shall have no responsibility for
any actions taken or not taken by the Depositary.


 


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redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


Section 2.07.          Replacement Notes.


 


If any mutilated Note is
surrendered to the Trustee, or the Company and the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon the written order of the Company signed by
two Officers of the Company, shall authenticate a replacement Note if the
Trustee’s requirements are met.  If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced.  The Company and the Trustee each may charge
for their respective expenses in replacing a Note.


 


Every replacement Note is an
additional obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.


 


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


 


Section 2.08.          Outstanding Notes.


 


The Notes outstanding at any
time are all the Notes authenticated by the Trustee except for those cancelled
by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions
hereof, and those described in this Section as not outstanding.  Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.


 


If a Note is replaced
pursuant to Section 2.07 hereof, such Note ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser.


 


If the principal amount of
any Note is considered paid under Section 4.01 hereof, the Note ceases to
be outstanding, its Accreted Value will cease to accrete and interest on it
ceases to accrue.


 


If the Paying Agent (other
than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a
redemption date or maturity date, money sufficient to pay Notes payable on that
date, then on and after that date such Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.


 


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Section 2.09.          Treasury Notes.


 


In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company, any Guarantor or by
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company, shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Trustee knows are so owned shall be so disregarded.


 


Section 2.10.          Temporary Notes.


 


Until definitive Notes are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Notes upon a written order of the Company signed by two Officers of
the Company.  Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee.  Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes.


 


Holders of temporary Notes
shall be entitled to all of the benefits of this Indenture.


 


Section 2.11.          Cancellation.


 


The Company at any time may
deliver Notes to the Trustee for cancellation. 
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment.  The Trustee (and no one else) shall cancel
all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy cancelled Notes (subject to the
record retention requirement of the Exchange Act).  Certification of the destruction of all
cancelled Notes shall be delivered to the Company.  The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.


 


Section 2.12.          Defaulted Interest.


 


If the Company defaults in a
payment of Accreted Value, Liquidated Damages, if any, or any other Note
Obligation, the Company shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each case at
the rate provided in the Notes and in Section 4.01 hereof.  The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. 
The Company shall fix or cause to be fixed 


 


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each such special record
date and payment date; provided,
that no such special record date shall be less than 10 days prior to the
related payment date for such defaulted interest.  At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.


 


ARTICLE
III.


 


REDEMPTION
AND PREPAYMENT


 


Section 3.01.          Notices to Trustee.


 


If the Company elects to
redeem Notes pursuant to the optional redemption provisions of Section 3.07
hereof, the Company shall furnish to the Trustee, at least 5 Business Days (or
such shorter period as shall be acceptable to the Trustee) before the
applicable redemption date, an Officers’ Certificate setting forth (i) the
clause of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount at maturity of Notes to be
redeemed and (iv) the redemption price, including the Accreted Value and
Liquidated Damages components of the redemption price.  If the Company is required to redeem Notes
pursuant to the mandatory redemption provisions of Section 3.08(b) hereof,
the Company shall furnish to the Trustee, at least 2 Business Days before the
applicable redemption date (or such shorter period as shall be acceptable to
the Trustee), an Officers’ Certificate setting forth (i) the redemption
date, (ii) the principal amount at maturity of Notes to be redeemed and (iii) the
redemption price, including the Accreted Value and Liquidated Damages
components of the redemption price.


 


Section 3.02.          Selection of Notes to Be Redeemed.


 


If less than all of the
Notes are to be redeemed at any time, the Trustee shall select the Notes for
redemption as follows:


 


(1)           in compliance with the
requirements of the principal national securities exchange or the Nasdaq Stock
Market, as the case may be, on which the Notes are listed; or


 


(2)           if the Notes are not so
listed, on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate.


 


The Trustee shall promptly
notify the Company in writing of the Notes selected for redemption.  No Notes of $50,000 or less shall be redeemed
in part.  Notices of redemption shall be
electronically delivered or mailed by first class mail at least 2 but 


 


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not more than 5 Business
Days before the redemption date to each Holder to be redeemed at its registered
address. Notices of redemption may not be conditional.


 


If any Note is to be
redeemed in part only, the notice of redemption that relates to that Note shall
state the portion of the principal amount at maturity thereof to be redeemed. A
new Note in principal amount at maturity equal to the unredeemed portion of the
original Note will be issued in the name of the Holder thereof upon
cancellation of the original Note. Notes called for redemption will become due
on the date fixed for redemption. On and after the redemption price is paid to
the Holder thereof, Accreted Value will cease to accrete and interest will
cease to accrue on such Notes or portions of them called for redemption.


 


Section 3.03.          Notice of Redemption.


 


At least 2 Business Days but
not more than 5 Business Days before a redemption date (which redemption date
must be on or before the Maturity Date), the Company shall electronically
deliver or cause to be electronically delivered or mail or cause to be mailed,
by first class mail, a notice of redemption to each Holder whose Notes are to
be redeemed at its registered address.


 


The notice shall identify
the Notes to be redeemed and shall state:


 


(a)           the redemption date;


 


(b)           the redemption price;


 


(c)           if any Note is being
redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion shall be
issued upon cancellation of the original Note;


 


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


 


(e)           that Notes called for
redemption must be surrendered to the Paying Agent to collect the redemption
price;


 


(f)            that, unless the Company
defaults in making such redemption payment, Accreted Value on Notes called for
redemption ceases to accrete and interest on Notes called for redemption ceases
to accrue, in each case, on and after the redemption date and Liquidated
Damages shall be calculated as of the redemption date;


 


(g)           the paragraph of the Notes
and/or Section of this Indenture pursuant to which the Notes called for
redemption are being redeemed; and


 


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(h)           that no representation is
made as to the correctness or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Notes.


 


At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at
its expense; provided, however, that the Company shall have
delivered to the Trustee, at least 5 Business Days prior to the redemption date
(unless a shorter period shall be satisfactory to the Trustee), an Officers’
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.


 


Section 3.04.          Effect of Notice of Redemption.


 


Once notice of redemption is
mailed in accordance with Section 3.03 hereof, Notes called for redemption
become irrevocably due and payable on the redemption date at the redemption
price.  A notice of redemption may not be
conditional.


 


Section 3.05.          Deposit of Redemption Price.


 


On or prior to the
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of (including any Liquidated
Damages) and accrued interest on all Notes to be redeemed on that date.  If the Company or a Subsidiary is the Paying
Agent, any deposit with the Paying Agent shall not be deemed to be made unless the
Company deposits the applicable amount in the separate trust fund established
pursuant to Section 2.04. The Trustee or the Paying Agent shall promptly
return to the Company any money deposited with the Trustee or the Paying Agent
by the Company in excess of the amounts necessary to pay the redemption price
of, and accrued interest, if any, on, all Notes to be redeemed.


 


If the Company complies with
the provisions of the preceding paragraph, on and after the redemption date,
Accreted Value shall cease to accrete, Liquidated Damages shall be calculated
as of the redemption date, and interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. 
If any Note called for redemption shall not be so paid upon surrender
for redemption because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid Accreted Value and
Liquidated Damages, if any, from the redemption date until such Accreted Value
and Liquidated Damages, if any, is paid, and to the extent lawful on any
interest not paid on such unpaid Accreted Value and Liquidated Damages, if any,
in each case at the rate provided in the Notes and in Section 4.01 hereof.


 


Payments made hereunder shall be made to the Trustee
or Paying Agent no later than 11 a.m. on the applicable redemption date.


 


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Section 3.06.          Notes Redeemed in Part.


 


Upon surrender of a Note
that is redeemed in part, the Company shall issue and, upon the Company’s
written request, the Trustee shall authenticate for the Holder at the expense
of the Company a new Note equal in principal amount to the unredeemed portion
of the Note surrendered.


 


Section 3.07.          Optional Redemption.


 


The Company may redeem the
Notes at its option, in whole at any time or in part from time to time, upon
not less than 2 nor more than 5 Business Days’ prior notice electronically
delivered or mailed by first-class mail to each Holder’s registered address, at
a redemption price equal to 100% of the Accreted Value of the Notes redeemed
plus Liquidated Damages, if any, and accrued and unpaid interest, if any, as of
the applicable redemption date.


 


Any redemption pursuant to
this Section 3.07 shall be made in accordance with the provisions of
Sections 3.01 through 3.06.


 


Section 3.08.          Mandatory Redemption.


 


(a)           Except as set forth in
subsection (b) below and except with respect to Change of Control Offers,
the Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.


 


(b)           Upon the occurrence of a
Milestone Event as defined in the Janssen Agreement as in effect on the date of
this Indenture (whether or not the Janssen Agreement is still in effect or has
been terminated or amended after the Issue Date and regardless of whether the
Milestone Event is achieved by Janssen, the Company or a licensee or successor
of the Company or an acquirer of assets from the Company) , the Company shall
redeem for cash, no later than the earlier of (i) five (5) Business
Days after the Company’s receipt of the applicable Milestone Payment or (ii) 45
days after the occurrence of the applicable Milestone Event, the maximum
principal amount at maturity of Notes that may be redeemed with the amount of
the applicable Milestone Payment achieved, under the Janssen Agreement as in
effect on the date of this Indenture, upon the occurrence of the applicable
Milestone Event, at a redemption price in cash in an amount equal to 100% of
the Accreted Value thereof, plus Liquidated Damages, if any to the date fixed
for the closing of such redemption in accordance with the procedures set forth
in this Indenture.  In the event the
Company redeems Notes pursuant to clause (ii) on a date before Janssen
delivers the applicable Milestone Payment to the Company (or to the Trustee or
Collateral Agent pursuant to the terms of the Collateral Documents) that
otherwise would have been used to redeem such Notes, the Company shall be
entitled to any amounts subsequently paid by Janssen to the Company (or to the
Trustee or Collateral Agent pursuant to the terms of the Collateral Documents)
with respect to such 


 


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Milestone Payment and, (i) the Trustee
and the Collateral Agent shall assign their respective rights to receive such
Milestone Payment from Janssen to the Company and shall instruct Janssen in
writing to pay such Milestone Payment directly to the Company, (ii) such
amount owed or paid by Janssen shall not be used to redeem any portion of the
Notes under this Section 3.08 nor shall such amount be considered
Collateral under this Indenture or the Collateral Documents and (iii) if
Janssen pays any such amounts with respect to such Milestone Payment to the
Trustee or the Collateral Agent under the Collateral Documents, the Trustee or
Collateral Agent shall promptly turn over such amount to the Company by wire
transfer of immediately available funds to an account designated by the
Company.


 


Any redemption pursuant to
this Section 3.08 shall be made pursuant to the provisions of Sections
3.01 through 3.06 hereof.


 


ARTICLE
IV.



COVENANTS


 


Section 4.01.          Payment of Notes.


 


The Company shall pay or
cause to be paid the Accreted Value of, Liquidated Damages, if any, and
interest on the Notes, if any, on the dates and in the manner provided in the
Notes.  Accreted Value, Liquidated
Damages, if any, and interest, if any, shall be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary thereof, holds
as of 11:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all Accreted Value, Liquidated Damages, if any, and interest then due.


 


The Company shall pay
interest (and any Guarantor shall be obligated for the payment of any interest
which accrues after the commencement of any proceeding under any Debtor Relief
Law with respect to the Company, whether or not allowed or allowable as a claim
against the Company in such proceeding) on overdue Accreted Value and
Liquidated Damages, if any, at the rate equal to 12% per annum to the extent
lawful.  The Company shall pay interest (and
any Guarantor shall be obligated for the payment of any such interest which accrues
after the commencement of any proceeding under any Debtor Relief Law with
respect to the Company, whether or not allowed or allowable as a claim against
the Company in such proceeding) on overdue installments of interest, if any,
(without regard to any applicable grace period) at the same rate to the extent
lawful.


 


All payments under this
Indenture and the Notes shall be made in the City and State of New York except
as otherwise provided in the Notes or as otherwise agreed by the Company and
the recipient of such payment.


 


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Section 4.02.          Maintenance of Office or Agency.


 


The Company shall maintain
in the Borough of Manhattan, The City of New York, an office or agency (which
may be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or
for exchange and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. 
The Company shall give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.


 


The Company also from time
to time may designate one or more other offices or agencies where the Notes may
be presented or surrendered for any or all such purposes and from time to time
may rescind such designations; provided,
however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of New York
for such purposes.  The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.


 


The Company hereby
designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03.


 


Section 4.03.          Compliance Certificate.


 


(a)           The Company shall deliver to
the Trustee, within 120 days after the end of each fiscal year, a certificate
signed by the Company’s principal executive officer, principal financial officer
or principal accounting officer stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing officer with a view to determining whether
the Company has kept, observed, performed and fulfilled its obligations under
this Indenture and further stating, as to the officer signing such certificate,
that to the best of his or her knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.


 


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Information
redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


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


 


Section 4.04.          [Reserved.]


 


Section 4.05.          Stay, Extension and Usury Laws.


 


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


 


Section 4.06.          Collateral.


 


Except as permitted by Section 4.12(d) hereof,
the Company shall not, directly or indirectly, sell, transfer, assign, lease,
license, sublicense, convey or otherwise directly or indirectly dispose of any
of the Collateral or any interest therein, or create, incur, assume or
otherwise cause or suffer to exist or become effective any Lien of any kind on
or with respect to any of the Collateral or any interest therein, or enter into
any agreement to do any of the foregoing ,  provided,
however,
that in no event shall the termination of the Janssen Agreement for any reason
be a violation or breach of this Section 4.06 or any other term of
this Indenture, the Note Purchase Agreement or the Collateral Documents or
constitute an Event of Default under this Indenture.


 


Section 4.07.          Corporate Existence.


 


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


 


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redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


Section 4.08.          Offer to Repurchase upon Change of Control.


 


(a)           If a Change of Control
occurs, each Holder shall have the right to require the Company to repurchase
all or any part (equal to $50,000 or an integral multiple of $1,000 in excess
thereof) of such Holder’s Notes pursuant to an offer (a “Change of Control
Offer”) on the terms set forth in this Indenture. In the Change of Control
Offer, the Company shall offer payment (a “Change of Control Payment”) in cash
equal to 100% of the aggregate Accreted Value of Notes repurchased plus accrued
and unpaid interest and Liquidated Damages, if any, thereon, to the date of
repurchase (the “Change of Control Payment Date,” which date shall be no
earlier than the date of such Change of Control). No later than 30 days
following any Change of Control, the Company shall mail a notice to each Holder
stating that a Change of Control has occurred and offering to repurchase Notes
on the Change of Control Payment Date specified in such notice, which date
shall be no earlier than 30 days and no later than 60 days from the date such
notice is mailed, pursuant to the procedures required by this Section 4.08
and described in such notice.


 


The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Change of Control Offer and shall state:


 


(i)            that the Change of Control
Offer is being made pursuant to this Section 4.08;


 


(ii)           the amount of the Change of
Control Payment and the Change of Control Payment Date;


 


(iii)          that any Note not tendered
or accepted for payment shall continue to accrue interest;


 


(iv)          that, unless the Company
defaults in making such payment, any Note accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;


 


(v)           that Holders electing to
have a Note purchased pursuant to any Change of Control Offer shall be required
to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, or transfer by book-entry
transfer, to the Company, a Depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice at least three days before
the Change of Control Payment Date;


 


(vi)          that Holders shall be
entitled to withdraw their election if the Company, the Depositary or the
Paying Agent, as the case may be, receives, not later than the Change of
Control Payment Date, a telegram, telex, facsimile transmission or


 


42


















 


Information
redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


letter setting forth the name of the Holder,
the Accreted Value of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased; and


 


(vii)         that Holders whose Notes
were purchased only in part shall be issued new Notes equal in principal amount
at maturity to the unpurchased portion of the Notes surrendered (or transferred
by book-entry transfer); provided that
each such new Note shall be in a principal amount at maturity of $50,000 or an
integral multiple of $1,000 in excess thereof.


 


(b)           On the Change of Control
Payment Date, the Company shall, to the extent lawful:


 


(1)           accept for payment all Notes
or portions thereof properly tendered pursuant to the Change of Control Offer;


 


(2)           deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered; and


 


(3)           deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Company.


 


The Paying Agent shall
promptly (but in any case not later than five days after the Change of Control
Payment Date) mail or wire transfer to each Holder so tendered the Change of
Control Payment for such Notes, and the Trustee shall promptly authenticate and
mail (or cause to be transferred by book entry) to each Holder a new Note equal
in principal amount to any unpurchased portion of the Notes surrendered, if
any; provided that each such new Note shall
be in a principal amount at maturity of $50,000 or an integral multiple of
$1,000 in excess thereof.  If the Change
of Control Payment Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid interest shall be
paid to the Person in whose name a Note is registered at the close of business
on such record date, and Accreted Value will cease to accrete and no additional
interest shall be payable to Holders who tender Notes pursuant to the Change of
Control Offer.  The Company shall, if
required under applicable securities laws, publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.  The provisions
described herein that require the Company to make a Change of Control Offer
following a Change of Control shall be applicable regardless of whether any
other provisions of this Indenture are applicable.


 


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redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


Section 4.09.          Guarantees.


 


(a)           The Company shall
provide to the Trustee, within 30 days following the date that any Person
becomes a Subsidiary that Guarantees (or grants Liens to secure) the Existing
Notes, a supplemental indenture to this Indenture substantially in the form set
forth in Exhibit F hereto and a joinder or accession agreement or
agreements related to (and if specified in a Collateral Document, in the form
required by) the Collateral Documents, accompanied by an Opinion of Counsel,
executed by such new Subsidiary, providing for a full and unconditional
guarantee by such new Subsidiary of the Company’s obligations under the Notes
and this Indenture.


 


(b)           The Company shall not permit
any of its Subsidiaries, directly or indirectly, to Guarantee (or grant any
Liens to secure) the Existing Notes unless contemporaneously such Subsidiary
executes and delivers to the Trustee a supplemental indenture to this Indenture
substantially in the form set forth in Exhibit F hereto, accompanied by an
Opinion of Counsel, providing for the full and unconditional Guarantee of the
payment of the Notes by such Subsidiary.


 


(c)           A Note Guarantee provided
pursuant to Section 4.10(a) or (b) shall be subject to release
in accordance with the provisions of Section 10.04 of this Indenture.


 


(d)           A Guarantor may not sell or
otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person), another Person, other than the Company or another Guarantor, except in
accordance with the provisions of Section 10.03 of this Indenture.


 


Section 4.10.          Reports.


 


(a)           The Company and the
Guarantors have agreed that, for so long as any Notes remain outstanding, they
will furnish to the Holders and to prospective investors, upon their request,
the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act during any period that the Company and/or any Guarantor is
an issuer from which such information is required to be available under Rule 144A(d)(4),
provided, however,
that the obligations of the Company and the Guarantors under this Section 4.10
shall terminate upon the occurrence of a Change of Control.


 


(b)           The Company shall comply
with is obligations, if any, under TIA §314(a).


 


Section 4.11.          Creation and Perfection of Liens Securing
Collateral; Further Assurances.


 


The Company shall comply
with the requirements of Section 4.02 of the Security Agreement.


 


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Information
redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


Section 4.12.          Janssen Agreement.


 


(a)           The Company shall not,
without the prior written consent of the Holders of a majority in principal
amount at maturity of the Notes then outstanding effectuate a Prohibited
Amendment.


 


(b)           Subject to Section 4.12(e),
the Company will, within five calendar days following the receipt by the
Company from Janssen of notice received under Section 9.2.2 of the Janssen
Agreement of the occurrence (or deemed occurrence) of a Milestone Event (a “Section 9.2.2
Notice”), (a) deliver to the Trustee and the Collateral Agent a copy of
such Section 9.2.2 Notice and (b) invoice Janssen for the full amount
of the Milestone Payment resulting therefrom.


 


(c)           Subject to Section 4.12(e),
if the Company receives notice from Janssen or any other Person, terminating
the Janssen Agreement, in whole or in part, then the Company shall no later
than ten Business Days following receipt of such notice give a written notice
to the Trustee and the Collateral Agent including a copy of any written notice
received from Janssen or the other relevant Person.


 


(d)           Without the prior written
consent of the Holders of a majority in principal amount at maturity of the
Notes then outstanding, the Company shall not, directly or indirectly, sell,
assign, hypothecate or otherwise transfer the Janssen Agreement or any of its
rights or obligations thereunder to any third party, including by operation of
law or otherwise; provided, however,
that the Company may, without the consent of the Holders of a majority in
principal amount at maturity of the Notes then outstanding, directly or
indirectly assign the Janssen Agreement or any of its rights or obligations
thereunder to any third party with which it may merge or consolidate or to
which it may sell all or substantially all of its assets.


 


(e)           Notwithstanding anything to
the contrary in this Indenture and the Collateral Documents, the Company shall
have no obligation under this Indenture or the Collateral Documents to provide
the Trustee or the Collateral Agent with any information (whether part of a
report, notice or otherwise) if disclosure by the Company to the Trustee or the
Collateral Agent of such information would constitute a breach by the Company
of any confidentiality obligation to Janssen or any other Person pursuant to
the Janssen Agreement, as in effect on the date hereof.


 


Section 4.13.          Indemnification.


 


The Company and each
Guarantor shall pay and hereby indemnifies the Trustee, each Holder, the
Collateral Agent and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”) against, and shall hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the fees, charges and disbursements of any counsel
for any 


 


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Information
redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


Indemnitee if the Company
does not assume the defense of the applicable claim), incurred by any Indemnitee
or asserted against any Indemnitee by any third party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Indenture, the Notes, any Purchase Document, any Collateral Document, any
amendments, supplements, amendment and restatements, modifications or waivers
of the provisions hereof or thereof, or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii)  the use or proposed use
of the proceeds of the Notes, (iii) any actual or alleged presence or
release of hazardous materials on or from any property owned or operated by the
Company, any Guarantor or any of their respective Affiliates, or any
environmental liability related in any way to the Company, any Guarantor or any
of their respective Affiliates, or (iv) any actual or prospective claim,
litigation, investigation (by any Governmental Authority or otherwise) or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, brought by a third party, in all cases, whether or not caused
by or arising, in whole or in part, out of the comparative, contributory or sole
negligence of the Indemnitee; provided that (i) such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee if
the Company or such Note Guarantor has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction and (ii) such indemnity shall not be available to any Holder
or Related Party thereof or former Holder or Related Party thereof with respect
to (a) any tax, including any interest and penalties thereon, (1) required
by law, or alleged to be required by law, to be paid by a Holder or former
Holder or (2) withheld in accordance with Section 4.14 from any
payment to a Holder or former Holder, (b) any failure by the Holder or any
Related Party thereof or of a former Holder or any Related Party thereof to
comply with applicable law or (c) any claim, litigation, investigation or
proceeding relating to the foregoing. 
The Company shall pay any amount due under this Section 4.13 upon
demand by the Trustee or any Holder, provided that
such amounts may be escrowed by the Company with a third-party escrow agent if
the Company has asserted that such losses, claims, damages, liabilities or
related expenses have resulted from the gross negligence or willful misconduct
of such Indemnitee and a final and nonaapealable judgment on such claim has not
yet been obtained.


 


The Company and each
Guarantor shall pay or reimburse, within ten (10) days of demand, all
reasonable out-of-pocket expenses incurred by the Trustee and the Collateral
Agent (including the reasonable fees, charges and disbursements of any such
Person’s counsel), in connection with the enforcement or protection of its
rights following an Event of Default (A) in connection with this
Indenture, the Notes and the Collateral Documents (whether in any action, suit
or litigation, or any bankruptcy, insolvency or other similar proceedings
affecting creditors’ rights generally) or (B) in 


 


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Information
redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


connection with the Note
Obligations, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of the Note Obligations.


 


Section 4.14.          Tax Matters.


 


(a)          The following terms shall
have the meaning ascribed to them in this Section 4.14(a) for
purposes of this Section 4.14:


 


(i)            “Aggregate Issue Price”
means $122,216,581.


 


(ii)           “Annual Equivalent Accretion
Rate” means 8%. (i.e., the implied interest rate on the Notes, on an annualized
basis).


 


(iii)          “Day Basis” means 365.


 


(iv)          “e” means Euler’s number,
i.e., the base of the natural logarithm (approximated at 2.7182818).


 


(v)           “Imputed Principal” means (a) if
at any Payment Date, the Payment Amount minus the Regular Interest is less than
or equal to zero, then zero; or (b) if at any Payment Date, the Payment
Amount minus the Regular Interest is greater than zero, then the ratio of (1) the
difference between the Payment Amount as of such Payment Date and the Regular
Interest as of such Payment Date over (2) the Imputed Principal Factor as
of such Payment Date.


 


(vi)          “Imputed Principal Factor”
as of any Payment Date, means 1 plus the ratio of (a) the Remaining Face
Value as of such Payment Date minus the Total Accreted Value as of such Payment
Date over (b) the Remaining Aggregate Issue Price as of such Payment Date.
For the avoidance of doubt, on the first Payment Date (a) the Remaining
Face Value referred to in the immediately preceding sentence shall be the
Initial Face Value and (b) the Remaining Aggregate Issue Price referred to
in the immediately preceding sentence shall be the Aggregate Issue Price.


 


(vii)         “Initial Face Value” means
the face value of the Notes where the Aggregate Issue Price is accreted at the
Annual Equivalent Accretion Rate from the Issue Date to the Maturity Date
computed on the basis of a 365-day year. 
The formula shall be: Pert where P is
the Aggregate Issue Price.


 


(viii)        “Interest Factor” means ert.


 


(ix)           “Issue Date” means September 30,
2009.


 


(x)            “Maturity Date” means October 31,
2012.


 


(xi)           “Payment” means any payment
on the Notes.


 


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redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


(xii)          “Payment Amount” means any
amount paid on the Notes.


 


(xiii)         “Payment Date” means the
date of any Payment.


 


(xiv)        “Pre-payment Interest” means
on any Payment Date, (a) the Payment Amount as of such Payment Date minus (b) the
sum of the Regular Interest as of such Payment Date and the Imputed Principal
as of such Payment Date.


 


(xv)         “r” means ln(1+Annual
Equivalent Accretion Rate).


 


(xvi)        “Regular Interest” as of any
Payment Date, means the lesser of (a) the Payment Amount and (b) the
Total Accreted Value as of such Payment Date minus the Remaining Aggregate
Issue Price as of such Payment Date.  For
the avoidance of doubt, on the first Payment Date the Remaining Aggregate Issue
Price referred to in the immediately preceding sentence shall be the Aggregate
Issue Price.


 


(xvii)       “Remaining Aggregate Issue
Price” means (a) immediately after the first Payment Date, the Aggregate
Issue Price minus the Imputed Principal calculated as of such first Payment
Date; (b) immediately after any subsequent Payment Date, the immediately
preceding Remaining Aggregate Issue Price minus the Imputed Principal
calculated as of such subsequent Payment Date. 
For the avoidance of doubt, prior to and including the first Payment
Date, the Remaining Aggregate Issue Price shall be equal to the Aggregate Issue
Price.


 


(xviii)      “Remaining Face Value” as of
any Payment Date, means (a) immediately after the first Payment Date, the
Initial Face Value minus the Payment Amount as of such first Payment Date, and (b) immediately
after any subsequent Payment Date, the immediately preceding Remaining Face
Value minus the Payment Amount as of such subsequent Payment Date.  For the avoidance of doubt, prior to and
including the first Payment Date, the Remaining Face Value shall be equal to
the Initial Face Value.


 


(xix)         “t” means the number of days
that have elapsed from the Issue Date to the relevant Payment Date divided by
the Day Basis.


 


(xx)          “Total Accreted Value” as of
any date, means the value of the Remaining Aggregate Issue Price at such date
accreted at the Annual Equivalent Accretion Rate from the Issue Date to such
date computed on the basis of a 365-day year. 
The formula shall be: Pnert  where Pn means the Remaining Aggregate Issue
Price.  For the avoidance of doubt, prior
to and on the first Payment Date, the Remaining Aggregate Issue Price in the
first two sentences of this clause 4.14(a)(xx) shall be equal to the Aggregate
Issue Price.


 


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redacted pursuant to a confidential treatment request. An unredacted version

of this exhibit has been filed separately with the Commission.


 


(b)          Unless there is a change in
applicable law or pursuant to an agreement described in sections 7(c) or 7(e) of
the Note Purchase Agreement, for all U.S. federal, state and local tax
purposes, all parties will treat (i) the Notes as debt of the Company for
all tax purposes, (ii) any Imputed Principal as a repayment of principal
and (iii) any Regular Interest as “portfolio interest” within the meaning
of Section 871(h) of the Code.


 


(c)           Unless there is a change in
applicable law or pursuant to an agreement described in sections 7(c) or 7(e) of
the Note Purchase Agreement, the Company, the Paying Agent and each Guarantor
will pay all Imputed Principal and Regular Interest Payments on the Notes
(including any such Payment made under a Note Guarantee) free of any
withholding taxes, provided that,
with respect to U.S. federal withholding taxes, each Holder provides to the
Company (i) a properly executed IRS Form W-9 or applicable IRS Form W-8,
as the case may be, and (ii) to the extent applicable, a certificate
claiming the exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code.


 


(d)           Unless there is a change in
applicable law or pursuant to an agreement described in sections 7(c) or 7(e) of
the Note Purchase Agreement, with respect to payments of amounts that are
Pre-Payment Interest:


 


(i)            to a U.S. Holder that
submits a properly executed IRS Form W-9 or a non-U.S. Holder that submits
a properly executed IRS Form W-8ECI (in either case, either directly or
accompanying a properly executed W-8IMY), the Company, the Paying Agent and
each Guarantor (including any such amounts paid under a Note Guarantee) will
pay such amounts free of any withholding taxes; and


 


(ii)           to any other non-U.S.
Holder, the Company, the Paying Agent and each Guarantor (including any such
amounts paid under a Note Guarantee) may withhold from such amounts any amounts
required to be withheld for U.S. federal income tax purposes (taking into
account any lower withholding rates available under a treaty if a properly
executed IRS Form W-8BEN claiming treaty benefits is provided).


 


(e)           Unless there is a change in
applicable law or pursuant to an agreement described in sections 7(c) or 7(e) of
the Note Purchase Agreement, the Company and each Guarantor agree to report
consistently with this Section 4.14 for U.S. federal, state and local tax
purposes.


 


(f)            Amounts withheld from a
payment on a Note by the Company, the Paying Agent or any Guarantor pursuant to
this Section shall not affect the treatment of the applicable payment as
paid in full for purposes of the applicable Note and this Indenture.


 


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Information redacted pursuant to a confidential treatment request. An
unredacted version

of this exhibit has been filed separately with the Commission.


 


(g)           For purposes of this
Section, a “change in applicable law” includes a change in regulations, a
change in judicial interpretation or a change in other controlling legal
authority.


 


ARTICLE
V.



SUCCESSORS


 


Section 5.01.          Merger, Consolidation or Sale of Assets.


 


The Company shall not: (i) consolidate
or merge with or into another Person (whether or not the Company is the
surviving corporation) or (2) sell, assign, transfer, convey, lease or
otherwise dispose of all or substantially all of the properties and assets of
the Company, in one or more related transactions, to another Person, unless at
the time and after giving effect thereto:


 


(1)           either: (a) the Company
is the surviving corporation; or (b) the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition will have been made (the “Surviving
Entity”) assumes all the obligations of the Company under the Notes, this
Indenture and the Collateral Documents;


 


(2)           immediately after giving
effect to such transaction on a pro forma
basis, no Default or Event of Default exists;


 


(3)           each Guarantor, unless such
Guarantor is the Person with which the Company has entered into a transaction
under this Section 5.01, will have by amendment to its Note Guarantee
confirmed that its Note Guarantee will apply to the obligations of the Company
or the Surviving Entity in accordance with the Notes and this Indenture;


 


(5)           the Company delivers to the
Trustee an Officers’ Certificate stating that such transaction and such
agreement comply with this Section 5.01 and that all conditions precedent
provided for herein relating to such transaction have been complied with;


 


(6)           immediately following such
transaction, the Collateral will continue to be subject to the Lien in favor of
the Collateral Agent for the benefit of the Trustee and the Holders of the
Notes and not be subject to any other Liens.


 


Clauses (2) and (4) of
this Section 5.01 will not apply to any merger, consolidation or sale,
assignment, transfer, conveyance or other disposition of assets between or
among the Company and any of its wholly-owned Subsidiaries.


 


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redacted pursuant to a confidential treatment request. An unredacted version

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Section 5.02.          Successor Corporation Substituted.


 


Upon any consolidation or
merger, or any sale, assignment, transfer, conveyance or other disposition of
all or substantially all of the assets of the Company or the Company and its
Subsidiaries taken as a whole, in accordance with Section 5.01 hereof, the
Surviving Entity will succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, assignment, transfer,
conveyance or other disposition, the provisions of this Indenture referring to
the “Company” shall refer instead to the Surviving Entity and not to the
Company), and may exercise every right and power of, the Company under this
Indenture with the same effect as if such Surviving Entity had been named as
the Company herein. In any such event (other than any transfer by way of
lease), the predecessor Company shall be released and discharged from all
liabilities and obligations in respect of the Notes and this Indenture and the
predecessor Company may be dissolved, wound up or liquidated at any time
thereafter.


 


ARTICLE
VI.



DEFAULTS AND REMEDIES


 


Section 6.01.          Events of Default.


 


Each
of the following shall constitute an “Event of Default”:


 


(a)           default for 30 days in the
payment when due of interest on the Notes or any other Note Obligation (other than the
Note Obligations specified in Section 6.01(b) below), in each case
whether or not prohibited by the subordination provisions of this Indenture;


 


(b)           default in payment when due
(whether at maturity, upon acceleration, redemption or otherwise) of the
principal or Accreted Value of, or Liquidated Damages, if any, on the Notes,
whether or not prohibited by the subordination provisions of this Indenture;


 


(c)           failure by the Company or
any of its Subsidiaries to comply with any of the provisions described under
Sections 4.07, 4.08, 4.12(a) or Article V;


 


(d)           the Company:


 


(i)            commences a
voluntary case under any Bankruptcy Law,


 


(ii)           consents to the
entry of an order for relief against it in an involuntary case under any
Bankruptcy Law,


 


(iii)          consents to the
appointment of a Custodian of it or for all or substantially all of its
property,


 


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of this exhibit has been filed separately with the Commission.


 


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


 


(v)           generally is
not paying its debts as they become due;


 


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


 


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


 


(ii)           appoints a
Custodian of the Company or for all or substantially all of the property of the
Company; or


 


(iii)          orders the
liquidation of the Company;


 


and the order or decree remains unstayed and
in effect for 60 consecutive days.


 


Section 6.02.          Acceleration.


 


If any Event of Default
(other than an Event of Default specified in clause (d) or (e) of Section 6.01
hereof with respect to the Company occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount at maturity of the then
outstanding Notes may declare all the Notes to be due and payable immediately
by notice in writing to the Company specifying the Event of Default(s).  Upon any such declaration, the Notes shall
become due and payable immediately. 
Notwithstanding the foregoing, if an Event of Default specified in
clause (d) or (e) of Section 6.01 hereof occurs with respect to
the Company, all outstanding Notes shall become due and payable immediately
without further action, notice or declaration on the part of the Trustee or any
Holder.


 


After a declaration of
acceleration, but before any exercise of remedies by the Trustee, the Holders
of a majority in aggregate principal amount at maturity of Notes outstanding,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if (a)  the Company has paid or deposited
with the Trustee a sum sufficient to pay (1) all sums paid or advanced by
the Trustee under this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (2) all
overdue interest on all Notes then outstanding, (3) the Accreted Value of,
and Liquidated Damages, if any, on any Notes then outstanding which have become
due otherwise than by such declaration of acceleration and interest thereon at
the rate borne by the Notes and (4) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate borne by the
Notes, (b)  the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction and (c)  all Events of Default, other
than the non-payment of Accreted Value of, Liquidated Damages, if any, and
interest on the Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in this Indenture.  No


 


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of this exhibit has been filed separately with the Commission.


 


such
rescission shall affect any subsequent default or impair any right consequent
thereon.


 


Upon any Note becoming due
and payable under this Section 6.02, whether automatically or by
declaration, such Note will forthwith mature and the entire unpaid Accreted
Value of such Note, plus (1) all accrued and unpaid interest thereon and (2) Liquidated
Damages, if any, determined in respect of such Accreted Value, shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived.  The Company acknowledges, and the parties
hereto agree, that each Holder has the right to maintain its investment in the
Notes free from repayment by the Company prior to the Maturity Date, which
would deprive each Holder of its full bargained for investment, and that each
Holder’s investment decision was based upon its reasonable expectation of
maintaining its investment in the Notes without any redemption or other
principal payment prior to the Maturity Date. 
In order to accommodate the request of the Company to allow for optional
redemptions prior to the Maturity Date and in order to mitigate risks
associated with allowing the Company to receive and retain Milestone Payments
prior to the Maturity Date, the Holders have agreed to permit certain optional
redemptions and mandatory redemptions under this Indenture.  However, in order to compensate the Holders
for damages associated with any such redemption prior to the Maturity Date,
whether by optional redemption or by mandatory redemption, the Holders have
required, as a material and integral part of their investment decision, and the
Company has agreed, that the Company must pay Liquidated Damages with respect
to the redeemed Notes as well as the Accreted Value of the redeemed Notes.  In addition, in order to mitigate risks
associated with the occurrence of Events of Default and Changes of Control, the
Holders have provided for acceleration of the Note Obligations in connection
with Events of Default and mandatory offers to repurchase the Notes following a
Change of Control.  However, in order to
compensate the Holders for damages associated with any payment of principal
prior to the Maturity Date arising out of any such acceleration of the Note
Obligations or repurchase prior to the Maturity Date, whether by optional
acceleration or by mandatory acceleration, the Holders have required, as a
material and integral part of their investment decision, and the Company has
agreed, that the Company must pay Liquidated Damages as well as the Accreted
Value of the Notes.  Any such
acceleration (whether automatically or by declaration) or acceptance of a
Change of Control Offer is necessary to protect the Holders’ investment in the
Notes and does not constitute an election of remedies or a waiver of the right
to receive Liquidated Damages.  In each
such case described in this paragraph, the Liquidated Damages are intended to
provide compensation to the Holders for the damages associated with a
redemption, repurchase or other payment of principal prior to the Maturity Date
and the deprivation of the right to maintain the investment in the Notes free
from repayment prior to the Maturity Date. 
The Company and the Holders agree that the actual amount of damages may
be difficult to determine, and that the Liquidated Damages constitute a
reasonable determination of such damages. 
Upon acceleration of the Notes, Accreted Value shall cease to accrete
and 


 


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Liquidated Damages will be
calculated as of the date of such acceleration, but interest will accrue on the
Accreted Value and the Liquidated Damages at the rate provided for overdue
Accreted Value and Liquidated Damages on the Notes in Section 1 of the
Notes and Section 4.01 hereof until such Accreted Value and Liquidated
Damages are paid.


 


Section 6.03.          Other Remedies.


 


If an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal or Accreted Value, Liquidated Damages, if
any, and interest on the Notes or to enforce the performance of any provision
of the Notes, this Indenture or any Collateral Document.


 


The Trustee
may maintain a proceeding even if it does not possess any of the Notes or does
not produce any of them in the proceeding. 
A delay or omission by the Trustee, the Collateral Agent or any Holder
of a Note in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default.  All remedies
are cumulative to the extent permitted by law.


 


Section 6.04.          Waiver of Past Defaults.


 


Subject to Section 6.07
and 9.02 hereof, the Holders of a majority in aggregate principal amount at
maturity of the Notes then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under this Indenture or the Collateral Documents
except a continuing Default or Event of Default in the payment of Accreted
Value, Liquidated Damages or any interest on, the Notes (including in
connection with an offer to purchase); provided,
however, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration. 
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.


 


Section 6.05.          Control by Majority.


 


Holders of a
majority in aggregate principal amount at maturity of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it; provided, however, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders of Notes not joining in the
giving of such direction and may take any other action 


 


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it deems
proper that is not inconsistent with any such direction received from Holders
of Notes.


 


Section 6.06.          Limitation on Suits.


 


Holders of the
Notes may not enforce this Indenture or the Notes except as provided herein.  A Holder of a Note may not pursue any remedy
with respect to this Indenture or the Notes unless:


 


(a)           the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;


 


(b)           the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee to pursue
the remedy;


 


(c)           such Holder of a Note or Holders of Notes offer the
Trustee indemnity satisfactory to the Trustee against any costs, liability or
expense;


 


(d)           the Trustee does not comply with the request within 60
days after receipt of the request and the offer of a reasonable indemnity; and


 


(e)           during such 60-day period, the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.


 


A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.


 


Section 6.07.          Rights of Holders of Notes to Receive Payment.


 


Notwithstanding
any other provision of this Indenture (including Section 6.06) or any
Collateral Document, the right of any Holder of a Note to receive payment of
Accreted Value of, Liquidated Damages, if any, or interest on, such Note or to
bring suit for the enforcement of any such payment, on or after the respective
due dates expressed in the Note (including in connection with an offer to
purchase), shall be absolute and unconditional and shall not be impaired or
affected without the consent of such Holder, except to the extent that the
institution or prosecution thereof or the entry of judgment thereon would,
under applicable law, result in the surrender, impairment, waiver or loss of
any Lien of a Collateral Document upon any property subject to such Lien.


 


Section 6.08.          Collection Suit by Trustee.


 


If an Event of
Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee 


 


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of an express
trust against the Company or any Guarantor for the whole amount of Accreted
Value of, Liquidated Damages, if any, and interest remaining unpaid on the
Notes and interest on overdue Accreted Value, Liquidated Damages, if any and,
to the extent lawful, interest and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


Section 6.09.          Trustee May File Proofs of Claim.


 


The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders of the Notes allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07
hereof.  To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.  Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.


 


Section 6.10.          Priorities.


 


If the Trustee
collects any money pursuant to this Article VI, it shall pay out the money
in the following order:


 


FIRST:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all
compensation, expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;


 


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SECOND:  to Holders of Notes for amounts due and
unpaid on the Notes for the Accrued Value of, Liquidated Damages, if any, and
interest on the Notes, and all other Note Obligations, ratably, without
preference or priority of any kind, according to the aggregate of such amounts
due and payable; and


 


THIRD:  to the Company or to such party as a court of
competent jurisdiction shall direct.


 


The Trustee
may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.


 


Section 6.11.          Undertaking for Costs.


 


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 a Trustee, a court
in its discretion may require the filing by any party litigant in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant.  This Section does not apply to a suit by
the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof,
or a suit by Holders of more than 10% in aggregate principal amount of the then
outstanding Notes.


 


Section 6.12.          Restoration of Rights and Remedies.


 


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


 


Section 6.13.          Rights and Remedies Cumulative; Limitation on Damages.


 


Except as
otherwise provided in Section 2.07 hereof, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Notwithstanding anything to the contrary in this Indenture, the Note Purchase
Agreement or the Collateral Documents, the Company shall not be liable for any
indirect, special, 


 


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incidental or
consequential damages (included but not limited to lost profits) whatsoever
under this Indenture, the Note Purchase Agreement or the Collateral Documents,
even if it has been informed of the likelihood thereof and regardless of the
form of action; provided, however, that this Section 6.13 shall not apply
to or in any way prevent a claim for, or payment of, any Liquidated Damages due
hereunder.


 


Section 6.14.          Delay or Omission Not Waiver.


 


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


 


ARTICLE VII.



TRUSTEE


 


Section 7.01.          Duties of Trustee.


 


(a)           If an Event of Default has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
its exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.


 


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


 


(i)            the duties of the
Trustee shall be determined solely by the express provisions of this Indenture
and the Trustee need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and


 


(ii)           in the absence of
bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture.


 


However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.


 


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


 


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


 


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


 


(iii)          the Trustee shall
not be liable with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant to Section 6.05
hereof.


 


(d)           Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), and (c) of this Section.  No provision of this Indenture shall require
the Trustee to expend or risk its own funds or incur any liability.  The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request of
any Holder, unless such Holder shall have offered to the Trustee security and
indemnity reasonably satisfactory to it against any loss, liability or expense.


 


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


 


(f)            The Trustee shall not be deemed to
have knowledge of any Default or Event of Default unless (i) the Trustee
or a Responsible Officer shall have actual knowledge of a Default or an Event
of Default, (ii) the Trustee or a Responsible Officer shall have received
notice of a Default or an Event of Default in accordance with the provisions of
this Indenture or (iii) a Default or an Event of Default occurred or is
occurring pursuant to Section 4.01 hereof.


 


Section 7.02.          Rights of Trustee.


 


(a)           The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person.  Except as provided in Section 7.01(b),
the Trustee need not investigate any fact or matter stated in the document.


 


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


 


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(c)           The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.  The Trustee
shall not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it
by this Indenture; provided, that
the Trustee’s conduct does not constitute willful misconduct or negligence.


 


(d)           Unless otherwise specifically
provided in this Indenture, any demand, request, direction or notice from the
Company or Guarantor shall be sufficient if signed by an Officer of the Company
or such Guarantor.


 


(e)           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,
demand or direction of any of the Holders unless such Holders shall have
offered to the Trustee reasonable security or reasonable indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request, order, demand or direction.


 


(f)            Except with respect to Section 4.01,
the Trustee shall have no duty to inquire as to the performance of the Company
with respect to the covenants contained in Article IV.  In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event
of Default occurring pursuant to Sections 4.01, 6.01(a) or 6.01(b) or
(ii) any Default or Event of Default of which the Trustee shall have
received written notification or obtained actual knowledge.


 


(g)           Delivery of reports, information and
documents to the Trustee under Section 4.11 is for informational purposes
only 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 hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).


 


Section 7.03.          Individual Rights of Trustee.


 


The Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with
the same rights it would have if it were not Trustee; provided, however,
in the event that the Trustee acquires any conflicting interest, the Trustee
must (a) eliminate such conflict within 90 days, (b) if a
registration statement with respect to the Notes is effective, apply to the
Commission for permission to continue as Trustee or (c) resign as
Trustee.  Any Agent may do the same with
like rights and duties.  The Trustee is
also subject to Sections 7.10 and 7.11 hereof.


 


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Section 7.04.          Trustee’s Disclaimer.


 


The Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Company’s use of the proceeds from the Notes or any money paid to the Company
or upon the Company’s direction under any provision of this Indenture, it shall
not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.


 


Section 7.05.          Notice of Defaults.


 


If a Default
or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to Holders of Notes a notice of the Default or Event of
Default within 5 days after it occurs. 
Except in the case of a Default or Event of Default in payment of
Accreted Value of, Liquidated Damages, if any, or interest on any Note, the
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.


 


Section 7.06.          Reports by Trustee to Holders of the Notes.


 


Within 60 days
after May 15 of each year commencing with the year 2010, and for so long
as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes
a brief report dated as of such reporting date that complies with TIA §313(a) (but
if no event described in TIA §313(a) has occurred within the 12 months preceding
the reporting date, no report need be transmitted).  The Trustee also shall comply with TIA
§313(b)(2).  The Trustee shall also
transmit by mail all reports as required by TIA §313(c).


 


A copy of each
report at the time of its mailing to the Holders of Notes shall be mailed to
the Company and filed with the Commission and each stock exchange on which the
Notes are listed in accordance with TIA §313(d).  The Company shall promptly notify the Trustee
when the Notes are listed on any stock exchange.


 


Section 7.07.          Compensation and Indemnity.


 


The Company
shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the 


 


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compensation
for its services.  Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee’s
agents and counsel.


 


The Company
shall indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this Section 7.07)
and defending itself against any claim (other than claims asserted by the
Company or any Holder) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith.  The Trustee shall notify the
Company promptly of any claim for which it may seek reasonable indemnity.  Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder (except to
the extent such failure prejudices the Company).  The Company shall defend the claim and the
Trustee shall cooperate in the defense. 
The Trustee may have separate counsel, and the Company shall pay the
reasonable fees and expenses of one such counsel.  The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.


 


The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.


 


To secure the
Company’s payment obligations in this Section, the Trustee shall have a
Lien  prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. 
Such Lien shall survive the satisfaction and discharge of this
Indenture.


 


When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(h) or (i) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.


 


The Trustee
shall comply with the provisions of TIA §313(b)(2) to the extent
applicable.


 


Section 7.08.          Replacement of Trustee.


 


A resignation
or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as
provided in this Section 7.08.


 


The Trustee
may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company.  The
Holders of Notes of a majority in aggregate principal amount of the then
outstanding Notes may remove the Trustee by so


 


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notifying the
Trustee and the Company in writing.  The
Company may remove the Trustee if:


 


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


 


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


 


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


 


(d)           the Trustee becomes incapable of acting.


 


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


 


If a successor
Trustee does not take office within 90 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of Notes of at
least 10% in aggregate principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.


 


If the
Trustee, after written request by any Holder of a Note who has been a Holder of
a Note for at least six months, fails to comply with Section 7.10, such
Holder of a Note may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


A successor
Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company.  Thereupon,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture.  The
successor Trustee shall mail a notice of its succession to Holders of the Notes.  The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee; provided, all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof.  Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company’s obligations under
Section 7.07 hereof shall continue for the benefit of the retiring
Trustee.


 


Section 7.09.          Successor Trustee by Merger, Etc.


 


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


 


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corporation
shall be otherwise qualified and eligible under this Article VII and under
the TIA, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.  In
case any Notes 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 Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.  In the event
that any Notes shall not have been authenticated by such predecessor Trustee,
any such successor Trustee may authenticate and deliver such Notes, in either
its own name or that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of authentication of the
Trustee.


 


Section 7.10.          Eligibility; Disqualification.


 


There shall at
all times be a Trustee and a Collateral Agent hereunder that, in each case, is
a corporation organized and doing business under the laws of the United States
of America or of any state thereof that is authorized under such laws to
exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus
(with its affiliates) of at least $100.0 million as set forth in its most
recent published annual report of condition.


 


If such 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 7.10, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.  None of the Company or any of its Affiliates
shall serve as Trustee or Collateral Agent. 
If at any time the Trustee shall cease to be eligible to serve as
Trustee hereunder pursuant to the provisions of this Section 7.10, it
shall resign immediately in the manner and with the effect specified in this Article VII.  If at any time the Collateral Agent shall cease
to be eligible to serve as Collateral Agent hereunder pursuant to the
provisions of this Section 7.10, it shall resign by providing (30) days
prior written notice to the Trustee and the Company, such resignation to be
effective upon the acceptance of a successor agent to its appointment as
Collateral Agent.


 


This Indenture
shall always have a Trustee who satisfies the requirements of TIA §310(a)(1), (2) and
(5).  The Trustee is subject to TIA
§310(b).


 


Section 7.11.          Preferential Collection of Claims Against Company.


 


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


 


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ARTICLE VIII.



LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01.          Option to Effect Legal Defeasance or Covenant
Defeasance.


 


The Company
may, at the option of its Board of Directors evidenced by a resolution set
forth in an Officers’ Certificate, at any time, elect to have either Section 8.02
or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article VIII.


 


Section 8.02.          Legal Defeasance and Discharge.


 


Upon the
Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.02, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes (and the
Guarantors shall be deemed to have been discharged from their Note Guarantees)
on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”).  For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be “outstanding” only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (b) below,
and to have satisfied all its other obligations under such Notes and this Indenture,
and all Obligations of the Guarantors with respect to their Note Guarantees
shall be discharged (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder:  (a) the
rights of Holders of outstanding Notes to receive from the trust fund described
in Section 8.04 hereof, and as more fully set forth in such Section,
payments in respect of the Accreted Value of or interest or Liquidated Damages,
if any, on such Notes when such payments are due; (b) the Company’s
obligations with respect to such Notes under Article II and Section 4.02
hereof; (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and the Company’s and the Guarantors’ obligations in
connection therewith; and (d) this Article VIII (and applicable
provisions of Article III insofar as the Notes are to be defeased through
a redemption date).  Subject to compliance
with this Article VIII, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03
hereof.


 


Section 8.03.          Covenant Defeasance.


 


Upon the
Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, the Company and the Guarantors shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be
released from their 


 


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obligations
under the covenants contained in Sections 4.06, 4.08, 4.09, 4.11 and 4.12
hereof with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”),
and the Notes shall thereafter be deemed not “outstanding” for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes).  For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.  In addition, upon
the Company’s exercise under Section 8.01 hereof of the option applicable
to this Section 8.03 hereof, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Section 6.01(c) hereof shall
not constitute an Event of Default. 
Notwithstanding any Covenant Defeasance hereunder, however, the rights,
powers, trusts, duties and immunities of the Trustee, and the Company’s and the
Guarantors’ obligations in connection therewith, shall survive until otherwise
terminated or discharged hereunder.


 


Section 8.04.          Conditions to Legal or Covenant Defeasance.


 


The following
shall be the conditions to the application of either Section 8.02 or 8.03
hereof to the outstanding Notes:


 


(a)           the Company must irrevocably deposit or cause to be
deposited with the Trustee, in trust, for the benefit of the Holders, cash in
United States dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the maximum Accreted
Value of, Liquidated Damages, if any, and interest, if any, on the outstanding
Notes on the Stated Maturity or any prior redemption date selected by the
Company, and on any potentially applicable prior redemption date pursuant to Section 3.08(b),
and the Company must specify whether the Notes are being defeased to maturity
or to a particular redemption date;


 


(b)           in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (ii) since the
Issue Date, there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders and beneficial owners of the 


 


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outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;


 


(c)           in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that the Holders and the beneficial owners of the outstanding
Notes will not recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;


 


(d)           no Default or Event of Default shall have occurred and be
continuing either (i) on the date of such deposit or (ii) insofar as
Sections 6.01(h) or 6.01(i) hereof are concerned, at any time in the
period ending on the 91st day after the date of deposit;


 


(e)           such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;


 


(f)            the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (i) assuming no intervening
bankruptcy of the Company or any Guarantor between the date of deposit and the
91st day following the deposit and assuming that no Holder is an “insider” of
the Company under applicable bankruptcy law, after the 91st day following the
deposit, the trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally, including Section 547 of the United States Bankruptcy Code and Section 15
of the New York Debtor and Creditor Law, and (ii) the creation of the
defeasance trust does not violate the Investment Company Act of 1940;


 


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


 


(h)           if the Notes are to be redeemed prior to their Stated
Maturity, the Company shall deliver to the Trustee irrevocable instructions to
redeem all of the Notes on the specified redemption date; and


 


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


 


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Section 8.05.          Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions.


 


Subject to Section 8.06
hereof, all money and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the “Trustee”) pursuant to
Section 8.04 hereof in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of Accreted Value, Liquidated Damages, if any, and interest,
but such money need not be segregated from other funds except to the extent
required by law.


 


The Company
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Government Securities
deposited pursuant to Section 8.04 hereof or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.


 


Anything in this
Article VIII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon the request of the Company any money
or noncallable Government Securities held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.06.          Repayment to Company.


 


Any money
deposited with the Trustee, the Collateral Agent or any Paying Agent, or then
held by the Company, in trust for the payment of the principal or Accreted
Value of, Liquidated Damages, if any, or interest on any Note and remaining
unclaimed for two years after such principal, and Liquidated Damages, if any,
or interest has become due and payable shall be paid to the Company on its
request (unless any abandoned property law designates that such amounts be paid
to another Person) or, if then held by the Company, shall be discharged from
such trust; and the Holder of such Note shall thereafter, as a secured
creditor, look only to the Company for payments thereof (unless any abandoned
property law designates another Person), and all liability of the Trustee, the
Collateral Agent or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee, the Collateral Agent or such Paying Agent, before being
required to make any such repayment to the Company, may at the expense of the 


 


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Company cause
to be published once, in The New York Times and
The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.


 


Section 8.07.          Reinstatement.


 


If the Trustee
or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as
the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02
or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.02 or 8.03 hereof, as
the case may be; provided, however, that, if the Company makes any
payment of Accreted Vaue of, Liquidated Damages, if any, or interest on any
Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.


 


ARTICLE IX.



AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.          Without Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 of this Indenture, the Company, the Guarantors and the
Trustee may amend or supplement this Indenture, the Notes, the Note Guarantees
or any of the Collateral Documents without the consent of any Holder of a Note:


 


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


 


(b)           to provide for uncertificated Notes in addition to or in
place of certificated Notes;


 


(c)           to provide for the assumption of the Company’s or any
Guarantor’s obligations to Holders of Notes in the case of a merger or
consolidation or sale of all or substantially all of the Company’s or such
Guarantor’s assets;


 


(d)           to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under this Indenture or any Collateral
Document of any such Holder;


 


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(e)           to comply with the provisions of Section 4.09;


 


(f)            to comply with the rules of any applicable
securities depositary;


 


(g)           to evidence and provide for the acceptance of appointment
by a successor Trustee;


 


(h)           to mortgage, pledge, hypothecate or grant a security
interest in favor of the Collateral Agent for the benefit of the Trustee and
the Holders of the Notes as additional security for the payment and performance
of the Company’s and any Guarantor’s obligations under this Indenture, in any
property, or assets, including any of which are required to be mortgaged,
pledged or hypothecated, or in which a security interest is required to be
granted to the Trustee or the Collateral Agent pursuant to this Indenture or
otherwise;


 


(i)            to provide for the release or addition of Collateral or
Guarantees in accordance with the terms of this Indenture and the Collateral
Documents; or


 


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


 


Upon the
request of the Company and the Guarantors accompanied by a resolution of their
respective Boards of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company
and the Guarantors in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this 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 such amended or supplemental
Indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.


 


Section 9.02.          With Consent of Holders of Notes.


 


Except as
provided below in this Section 9.02, this Indenture, any of the Collateral
Documents, the Notes and the Note Guarantees may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal
amount at maturity of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the Accreted Value of, Liquidated Damages, if any,
or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes
(including, without 


 


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limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, the Notes).


 


Upon the
request of the Company and the Guarantors accompanied by a resolution of their
respective Boards of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company and the Guarantors in the
execution of such amended or supplemental Indenture unless such amended or
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 amended or
supplemental Indenture.  It shall not be
necessary for the consent of the Holders of Notes under this Section 9.02
to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof.


 


After an
amendment, supplement or waiver under this Section becomes effective, the
Company shall mail to the Trustee and the Holders of Notes affected thereby a notice
briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such
notice or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental Indenture or waiver.


 


However,
without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder):


 


(a)           reduce the percentage of principal amount at maturity of
Notes whose Holders must consent to an amendment, supplement or waiver of this
Indenture or the Collateral Documents; reduce the principal of, Accreted Value
of or Liquidated Damages of  or change
the fixed maturity of any Note or alter the provisions, or waive any payment,
with respect to the redemption of the Notes;


 


(b)           reduce the rate of or change the time for payment of
interest on any Note;


 


(c)           waive a Default or Event of Default in the payment of
Accreted Value of, or interest, or Liquidated Damages, if any, on, the Notes
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes at maturity and a waiver of
the payment Default that resulted from such acceleration);


 


(d)           make any Note payable in money other than U.S. dollars;


 


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(e)           make any change in the provisions of this Indenture or the
Collateral Documents relating to waivers of past Defaults or the rights of
Holders of Notes to receive payments of Accreted Value of, or interest or
Liquidated Damages, if any, on, the Notes;


 


(f)            release all or substantially all of
the value of the Note Guarantees of the Guarantors from any of their
obligations under their Note Guarantees or this Indenture, except in accordance
with the terms of this Indenture;


 


(g)           impair the right to institute suit
for the enforcement of any payment on or with respect to the Notes or the Note
Guarantees;


 


(h)           except as explicitly set forth in Section 14.01,
subordinate, in right of payment, the Notes, any Note Guarantee or any Note
Obligation to any other Indebtedness of the Company or any Guarantor, or
subordinate in priority any Lien or other right granted by this Indenture or
any Collateral Document;


 


(i)            make any change in this Section 9.02,
except to increase any such percentage required for such actions or to provide
that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Note affected thereby; or


 


(j)            make any change in any provision of Section 11.03
which change permits a release of Collateral, or, except to the extent
permitted under Section 11.03, release any Collateral.


 


Collateral may
be released only in accordance with this Indenture (including without
limitation Section 11.03). 
Notwithstanding anything to the contrary in this Article IX, any
Guarantor that is a Significant Subsidiary may not be released from any of its
obligations under its Note Guarantee or this Indenture (except in accordance
with the terms of this Indenture) without the consent of Holders of the Notes
representing at least 75% of the aggregate principal amount of the outstanding
Notes.


 


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


 


Section 9.03.          Compliance with Trust Indenture Act.


 


Every
amendment or supplement to this Indenture, the Note Guarantees or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.


 


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Section 9.04.          Revocation
and Effect of Consents.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note
is a continuing consent by the Holder of a Note and every subsequent Holder of
a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. 
An amendment, supplement or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.


 


Section 9.05.          Notation
on or Exchange of Notes.


 


The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated.  The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.


 


Failure to make the
appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.


 


Section 9.06.          Trustee
to Sign Amendments, Etc.


 


The Trustee shall sign any
amended or supplemental indenture authorized pursuant to this Article IX
if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
The Company and each Guarantor may not sign an amendment or supplemental
Indenture until each of their respective Boards of Directors approves it.  In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section 7.01)
shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.


 


ARTICLE X.


 


NOTE GUARANTEES


 


Section 10.01.        Note
Guarantees.


 


Any Guarantor, by executing
a Note Guarantee, jointly and severally, fully and unconditionally, guarantees
to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that: (a) the Accreted Value of, Liquidated Damages,
if any and 


 


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interest (including without
limitation any interest which accrues under any Debtor Relief Law with respect
to the Company or any Guarantor, whether or not allowed or allowable as a claim
in any such proceeding) on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal of and interest (including without limitation any
interest which accrues under any Debtor Relief Law with respect to the Company
or any Guarantor, whether or not allowed or allowable as a claim in any such
proceeding) on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.  Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantors
will be jointly and severally obligated to pay the same immediately.  The Guarantors hereby agree that their
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.  Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever and covenant that this Note Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and this
Indenture and as otherwise provided in this Indenture.  If any Holder or the Trustee is required by
any court or otherwise to return to the Company or Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting in relation to
either the Company or Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect. 
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.  Each Guarantor further agrees that, as
between the Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article VI for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as provided in
Article VI, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this Note
Guarantee.  The Guarantors shall have the
right to seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the
Guarantee.


 


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Section 10.02.        Execution
and Delivery of Note Guarantee.


 


To evidence its Note
Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a
notation of such Note Guarantee substantially in the form included in Exhibit E
hereto shall be endorsed by an officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by its President or one of its Vice
Presidents.


 


Each Guarantor hereby agrees
that its Note Guarantee set forth in Section 10.01, shall remain in full
force and effect notwithstanding any failure to endorse on each Note a notation
of such Note Guarantee.


 


If an officer or Officer
whose signature is on this Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a Note
Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless.


 


The delivery of any Note by
the Trustee, after the authentication thereof hereunder, shall constitute due
delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.


 


Section 10.03.        Guarantors
May Consolidate or Merge on Certain Terms.


 


(a)           A Guarantor may not sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person, other
than the Company or another Guarantor, unless:


 


(1)           immediately after giving effect to that transaction, no
Event of Default exists; and


 


(2)           the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such consolidation or
merger (if other than the Guarantor) assumes all the obligations of that
Guarantor under this Indenture and its Note Guarantee pursuant to a
supplemental indenture satisfactory to the Trustee and under the Collateral
Documents pursuant to a joinder or accession agreement or agreements
satisfactory to the Collateral Agent.


 


(b)           Nothing contained in this Indenture or in any of the Notes
shall prevent any consolidation or merger of a Guarantor with or into the
Company or shall prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety, to the Company.


 


(c)           Except as set forth in Section 10.04, in the case of
any consolidation, merger, sale or conveyance of a Guarantor pursuant to Section 10.03(a)(2),
upon the 


 


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assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the
due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Guarantor, such successor Person shall succeed
to and be substituted for the Guarantor with the same effect as if it had been
named herein as a Guarantor.  Such
successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee.  All the Note Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.


 


Section 10.04.        Releases
of Note Guarantees.


 


(a)           The Note Guarantee of a Guarantor will be released
automatically in connection with any sale or other disposition of all of the
Capital Stock, or all or substantially all of the assets, of such Guarantor to
a Person that is not (either before or after giving effect to such transaction)
a Subsidiary of the Company, if the sale of all such Capital Stock, or all or
substantially all of the assets, of that Guarantor complies with this Indenture
and the Collateral Documents.


 


(b)           If all or substantially all of the assets of any Guarantor
or all of the capital stock of any Guarantor are sold or disposed of in
compliance with Section 10.04(a), then such Guarantor (in the event of a
sale or other disposition of all of the capital stock of such Guarantor) or the
corporation acquiring the property (in the event of a sale or other disposition
of all or substantially all of the assets of a Guarantor) shall be released and
relieved of its obligations under its Note Guarantee.  Upon delivery by the Company to the Trustee
of an Officers’ Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in accordance with the
provisions of this Indenture and the Collateral Documents, the Trustee shall
execute any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Note Guarantee.


 


(c)           Any Guarantor not released from its obligations under its
Note Guarantee pursuant to this Section 10.04 shall remain liable for the
full amount of principal of and interest on the Notes and for the other
obligations of any Guarantor under this Indenture as provided in this Article X.


 


Section 10.05.        Trustee
to Include Paying Agent.


 


In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term “Trustee” as used in this Article X,
shall in such case (unless the context shall otherwise require) be construed 


 


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as extending to and
including such Paying Agent within its meaning as fully and for all intents and
purposes as if such Paying Agent were named, in this Article X, in place of
the Trustee.


 


Section 10.06.        Limits
on Note Guarantees.


 


Notwithstanding anything to
the contrary in this Article X, the aggregate amount of the Obligations
guaranteed under this Indenture by any Guarantor shall be reduced to the extent
necessary to prevent the Note Guarantee of such Guarantor from violating or
becoming voidable under any law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors.


 


Section 10.07.        Article XIV Not To Prevent Events of Default or Limit
Right To Demand Payment.


 


The failure of a Guarantor
to make a payment pursuant its Note Guarantee by reason of any provision in Article XIV
hereof shall not be construed as preventing the occurrence of a default by such
Guarantor under its Note Guarantee. Nothing in Article XIV hereof shall
have any effect on the right of the Holders or the Trustee to make a demand for
payment on a Note Guarantee pursuant to this Article X.


 


Section 10.08.        Trustee
Not Fiduciary for Holders of Senior Indebtedness of Note Guarantors.


 


The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt of a Guarantor
and shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Holders or such Guarantor or any other Person, money or assets to
which any holders of Senior Debt of such Guarantor shall be entitled by virtue
of Article XIV hereof or otherwise.


 


ARTICLE XI.


 


COLLATERAL AND SECURITY


 


Section 11.01.        Collateral
Documents.


 


The due and punctual payment
of the Accreted Value of, Liquidated Damages, if any, on and interest, if any,
on, the Notes (including, without limitation, any interest which accrues after
the commencement of any proceedings under any Debtor Relief Laws with respect
to any of the Company or any Guarantor, whether or not allowed or allowable as
a claim in any such proceeding) when and as the same shall be due and payable,
whether on an interest payment date, at maturity, by acceleration, repurchase,
redemption or otherwise, and interest (including, without limitation, any
interest which accrues after the commencement of any proceedings under any
Debtor 


 


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Relief Laws with respect to
any of the Company or any Guarantor, whether or not allowed or allowable as a
claim in any such proceeding) on the overdue Accreted Value of, Liquidated
Damages, if any, and interest, on the Notes and any other Note Obligations and
performance of all other Obligations of the Company and the Guarantors to the
Holders of Notes, the Trustee or the Collateral Agent under this Indenture, the
Notes (including, without limitation, the Note Guarantees) or the Collateral
Documents according to the terms hereunder or thereunder, are secured as
provided in the Security Agreement, which the Company has entered into
simultaneously with the execution of this Indenture, and the other Collateral
Documents in effect from time to time. 
Each Holder, by its acceptance thereof, consents and agrees to the terms
of the Collateral Documents (including, without limitation, the provisions
providing for foreclosure and release of Collateral) as the same may be in
effect or may be amended, supplemented or otherwise modified from time to time
in accordance with their terms and authorizes and directs the Collateral Agent
and/or the Trustee (as the case may be) to enter into the Collateral Documents
and to perform their obligations and exercise their rights thereunder in
accordance therewith.  The Company and
the Guarantors will deliver to the Trustee copies of all documents delivered to
the Collateral Agent pursuant to the Collateral Documents, and will do or cause
to be done all such acts and things as may be necessary or proper, or as may be
required by the provisions of the Collateral Documents, to assure and confirm
to the Trustee and the Collateral Agent the security interest or other Lien in the
Collateral contemplated hereby or by the Collateral Documents, as from time to
time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein expressed. 
The Company and the Guarantors shall comply with the terms and
provisions of the Collateral Documents and shall take, upon request of the
Trustee or the Collateral Agent, any and all actions reasonably required to
cause the Collateral Documents to create and maintain, as security for the Note
Obligations of the Company and the Guarantors hereunder, a valid and
enforceable perfected Lien in and on all the Collateral, in favor of the
Collateral Agent for the benefit of the Trustee and the Holders of Notes,
superior to and prior to the rights of all third Persons and subject to no
other Liens. The provisions of this Section and Article shall apply
only to the security interests and other Liens on the Collateral in favor of
the Collateral Agent, and shall not impose or be interpreted as imposing any
duty on the Company or any Guarantor to act in a manner that preserves the
Collateral (including without limitation Janssen’s obligation to make the
Milestone Payments or the amount of any Milestone Payment or the date on which
a Milestone Payment is due) or to refrain from acting in a manner that
adversely impacts the Collateral (including without limitation Janssen’s
obligation to make the Milestone Payments or the amount of any Milestone
Payment or the date on which a Milestone Payment is due); provided
that the foregoing provisions of this sentence shall not limit the Company’s
obligations under Section 4.15 of this Indenture.


 


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Section 11.02.        Recording
and Opinions.


 


The Company shall comply
with the provisions of TIA §314(b) (including, without limitation, the
provision of an initial and annual Opinion of Counsel under TIA §314(b)); provided that the Company shall not be
required to comply with TIA §314(b)(1) until this Indenture is qualified
pursuant to the TIA.  Following such
qualification, to the extent the Company is required to furnish to the Trustee
an Opinion of Counsel pursuant to TIA §314(b)(2), the Company shall furnish
such opinion within three months following each anniversary date of such
qualification.


 


Section 11.03.        Release
of Collateral.


 


(a)           The Collateral Agent’s Liens upon the Collateral will no
longer secure the Notes and Note Guarantees outstanding under this Indenture or
any other Obligations under this Indenture, and the right of the Holders of the
Notes and such Obligations to the benefits and proceeds of the Collateral Agent’s
Liens on the Collateral will terminate and be discharged:


 


(1)           in whole, as to all property subject to such Liens, upon:


 


(A)          payment in full of
the Accreted Value of, accrued and unpaid interest and Liquidated Damages, if
any, on the Notes; or


 


(B)           satisfaction and
discharge of this Indenture as set forth in Article XII hereof; or


 


(C)           Legal Defeasance or
Covenant Defeasance of this Indenture as set forth in Article VIII hereof;
or


 


(2)           in whole or in part, in accordance with the applicable
provisions of the Collateral Documents.


 


Upon receipt of an Officers’
Certificate and an Opinion of Counsel certifying that all conditions precedent
under this Indenture and the Collateral Documents, if any, to such release have
been met and any necessary or proper instruments of termination, satisfaction
or release prepared by the Company, the Trustee shall, or shall cause the
Collateral Agent to, execute, deliver or acknowledge (at the Company’s expense)
such instruments or releases to evidence the release of any Collateral
permitted to be released pursuant to this Indenture or the Collateral
Documents.  Neither the Trustee nor the
Collateral Agent shall be liable for any such release undertaken in good faith
in reliance upon any such Officers’ Certificate or Opinion of Counsel, and
notwithstanding any term hereof or in any Collateral Document to the contrary,
the Trustee and Collateral Agent shall not be under any obligation to release
any such Lien and security interest, or execute and deliver any such instrument
of 


 


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release, satisfaction or
termination, unless and until it receives such Officers’ Certificate and
Opinion of Counsel.


 


(b)           To the extent applicable, the Company shall cause TIA
§313(b), relating to reports, and TIA §314(d), relating to the release of property
or securities or relating to the substitution therefore of any property or
securities to be subjected to the Lien created by the Collateral Documents, to
be complied with.  Any certificate or
opinion required by TIA §314(d) may be made by an Officer of the Company
except in cases where TIA §314(d) requires that such certificate or
opinion be made by an independent Person, which Person shall be an independent
engineer, appraiser or other expert reasonably satisfactory to the
Trustee.  Notwithstanding anything to the
contrary in this Section 11.03, the Company shall not be required to
comply with all or any portion of TIA §314(d) if it determines, in good
faith based on advice of counsel, that under the terms of TIA §314(d) and/or
any interpretation or guidance as to the meaning thereof of the Commission and
its staff, including “no action” letters or exemptive orders, all or any
portion of TIA §314(d) is inapplicable to released Collateral.


 


(c)           To the extent applicable, the Company shall furnish to the
Trustee and the Collateral Agent, prior to each proposed release of Collateral
pursuant to the Collateral Documents:


 


(i)                                     all documents
required by TIA §314(d); and


 


(ii)                                  an Opinion of
Counsel to the effect that such accompanying documents constitute all documents
required by TIA §314(d).


 


(d)           The release of any Collateral from the terms of the
Collateral Documents, or the release, in whole or in part, of the Liens created
by the Collateral Documents, will not be deemed to impair the security under
this Indenture in contravention of the provisions hereof and of the Collateral
Documents if and to the extent that the Collateral is released pursuant to this
Indenture and the Collateral Documents. 
In connection with the release of Collateral, the Trustee shall
determine whether it has received all documentation required by TIA §314(d) to
permit such release.


 


Section 11.04.        Authorization of Actions to Be Taken
by the Trustee and the Collateral Agent Under the Collateral Documents.


 


(a)           Subject to the provisions of the Collateral Documents, the
Trustee may (but without any obligation to do so), in its sole discretion and
without the consent of the Holders of Notes, direct, on behalf of the Holders
of Notes, the Collateral Agent to, take all actions it deems necessary or
appropriate in order to:


 


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(1)           enforce any of the terms of the
Security Agreement and any other Collateral Document; and


 


(2)           collect and receive any and all
amounts payable in respect of the Note Obligations of the Company and the
Guarantors hereunder.


 


(b)           Subject to the provisions of the Collateral Documents, the
Trustee will have power (but without any obligation) to institute and maintain,
or to direct, on behalf of the Holders of the Notes, the Collateral Agent to
institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Lien on the Collateral by any acts that may be
unlawful or in violation of this Indenture or any of the Collateral Documents,
and such suits and proceedings as the Trustee may deem expedient to preserve or
protect its interests and the interests of the Holders of Notes in the Lien on
the Collateral (including power to institute and maintain suits or proceedings
to restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment, rule or
order would impair the security interest hereunder or be prejudicial to the
interests of the Holders of Notes or of the Trustee).


 


(c)           Unless otherwise provided herein, all instructions to the
Trustee are to be made pursuant to the vote of the Holders of a majority in
aggregate principal amount of Notes.


 


Section 11.05.        Authorization
of Receipt of Funds by the Trustee or the Collateral Agent under the Security
Agreement.


 


Each of the Trustee and the
Collateral Agent is authorized to receive any funds for the benefit of the
Holders of Notes distributed under any of the Collateral Documents, and the
Collateral Agent, in accordance with the terms of the Security Agreement, is
and the Trustee is authorized to make further distributions of such funds to
the Holders of Notes according to the provisions of this Indenture.


 


Section 11.06.        Limitation
on Duty of Trustee and Collateral Agent in Respect of Collateral.


 


(a)           Beyond the exercise of reasonable care in the custody
thereof, the Trustee and the Collateral Agent shall have no duty as to any
Collateral in their possession or control or in the possession or control of
any agent or bailee or any income thereon or as to preservation of rights
against prior parties or any other rights pertaining thereto and the Trustee
and the Collateral Agent shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public
office at any time or times or otherwise perfecting or maintaining the
perfection of any security interest in the Collateral.  The Trustee and the Collateral Agent shall be



 


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deemed to have exercised
reasonable care in the custody of the Collateral in their possession if the
Collateral is accorded treatment substantially equal to that which it accords
its own property and shall not be liable or responsible for any loss or
diminution in the value of any of the Collateral, by reason of the act or
omission of any agent or bailee selected by the Trustee or the Collateral Agent
in good faith.


 


(b)           The Trustee and the Collateral Agent shall not be
responsible for the existence, genuineness or value of any of the Collateral or
for the validity, perfection, priority or enforceability of the Liens in any of
the Collateral, whether impaired by operation of law or by reason of any action
or omission to act on its part hereunder, except to the extent such action or
omission constitutes gross negligence, bad faith or willful misconduct on the
part of the Trustee or the Collateral Agent, for the validity or sufficiency of
the Collateral or any agreement or assignment contained therein, for the
validity of the title of the Company or any Guarantor to the Collateral, for
insuring the Collateral or for the payment of taxes, charges, assessments or
Liens upon the Collateral or otherwise as to the maintenance of the
Collateral.  The Trustee and the
Collateral Agent shall have no duty to ascertain or inquire as to the performance
or observance of any of the terms of this Indenture or the Collateral Documents
by the Company, the Guarantors or the Collateral Agent (if the Trustee is not
the Collateral Agent).


 


Section 11.07.        Powers
Exercisable by Receiver or Trustee.


 


In case the Collateral shall
be in the possession of a receiver or trustee, lawfully appointed, the powers
conferred in this Article XI upon the Company or a Guarantor with respect
to the release, sale or other disposition of such property may be exercised by
such receiver or trustee, and an instrument signed by such receiver or trustee
shall be deemed the equivalent of any similar instrument of the Company or a
Guarantor or of any officer or officers thereof required by the provisions of
this Article XI; and if the Trustee shall be in the possession of the
Collateral under any provision of this Indenture, then such powers may be
exercised by the Trustee.


 


Section 11.08.        Collateral
Agent.


 


(a)           The Trustee and each of the Holders by acceptance of the
Notes hereby designates and appoints the Collateral Agent as its agent under
this Indenture and the Collateral Documents and the Trustee and each of the
Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral
Agent to take such action on its behalf under the provisions of this Indenture
and the Collateral Documents and to exercise such powers and perform such
duties as are expressly delegated to the Collateral Agent by the terms of this
Indenture and the Collateral Documents, together with such powers as are
reasonably incidental thereto.  The
Collateral Agent agrees to act as such on the express conditions contained in
this Section 11.08 and Section 7.10. 
The provisions of this Section 11.08 are solely for the benefit of
the Collateral Agent and none of the Trustee, any of the Holders nor any of the
Grantors shall have any rights as a third party


 


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beneficiary of any of the
provisions contained herein other than as expressly provided in this Section 11.08.  Notwithstanding any provision to the contrary
contained elsewhere in this Indenture and the Collateral Documents, the
Collateral Agent shall not have any duties or responsibilities, except those
expressly set forth herein and in Section 7.10, nor shall the Collateral
Agent have or be deemed to have any fiduciary relationship with the Trustee,
any Holder, the Company or any Guarantor, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Indenture
and the Collateral Documents or otherwise exist against the Collateral
Agent.  Without limiting the generality
of the foregoing sentence, the use of the term “agent” in this Indenture with
reference to the Collateral Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any
applicable law.  Instead, such term is
used merely as a matter of market custom, and is intended to create or reflect
only an administrative relationship between independent contracting
parties.  Except as expressly otherwise
provided in this Indenture, the Collateral Agent shall have and may use its
sole discretion with respect to exercising or refraining from exercising any
discretionary rights or taking or refraining from taking any actions which the
Collateral Agent is expressly entitled to take or assert under this Indenture
and the Collateral Documents, including the exercise of remedies pursuant to Article VI,
and any action so taken or not taken shall be deemed consented to by the
Trustee and the Holders.


 


(b)           The Collateral Agent may execute any of its duties under
this Indenture or the Collateral Documents by or through agents, employees,
attorneys-in-fact or through its Affiliates and shall be entitled to an
Officers’ Certificate or an Opinion of Counsel or both concerning all matters
pertaining to such duties.  The
Collateral Agent shall not be responsible for the negligence or misconduct of
any agent, employee, attorney-in-fact or Affiliate that it selects as long as
such selection was made without negligence or willful misconduct.


 


(c)           None of the Collateral Agent or any of its Affiliates
shall (i) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Indenture or the transactions
contemplated hereby (except for its own negligence or willful misconduct) or
under or in connection with the Collateral Documents or the transactions
contemplated thereby (except for its own negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Trustee or any Holder for any recital,
statement, representation, warranty, covenant or agreement made by the Company
or Guarantor, or any officer thereof, contained in this Indenture, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Collateral Agent under or in connection with, this
Indenture or the Collateral Documents, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Indenture or the Collateral
Documents, or for any failure of the Company any Guarantor or any other party
to this Indenture or the Collateral Documents to perform its obligations
hereunder or thereunder.  None of the
Collateral Agent or any of its Affiliates shall be under any 


 


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obligation to the Trustee or
any Holder to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Indenture or the
Collateral Documents or to inspect the properties, books, or records of the
Company, any Guarantor or their respective Affiliates.


 


(d)           The Collateral Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex, or other document
believed by it to be genuine and correct and to have been signed, sent, or made
by the proper Person or Persons, and upon advice and statements of legal
counsel (including, without limitation, counsel to the Company), independent
accountants and other experts and advisors selected by the Collateral
Agent.  The Collateral Agent shall be
fully justified in failing or refusing to take any action under this Indenture
or the Collateral Documents unless it shall first receive such advice or
concurrence of the Trustee as it deems appropriate and, if it so requests, it
shall first be indemnified to its reasonable satisfaction by the Holders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.  The Collateral Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Indenture
or the Collateral Documents in accordance with a request or consent of the
Trustee and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Holders.


 


(e)           The Collateral Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, unless the
Collateral Agent shall have received written notice from the Trustee, Holders
of Notes, the Company or a Guarantor referring to this Indenture, describing
such Default or Event of Default and stating that such notice is a “notice of
default.”  The Collateral Agent shall
take such action with respect to such Default or Event of Default as may be
requested by the Trustee in accordance with Article VI (subject to this Section 11.08);
provided, however, that unless and until the
Collateral Agent has received any such request, the Collateral Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable.


 


(f)            U.S. Bank National Association and its respective
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting, or other business
with the Company, any Guarantor or their respective Affiliates as though it was
not the Collateral Agent hereunder and without notice to or consent of the
Trustee.  The Trustee and the Holders
acknowledge that, pursuant to such activities, U.S. Bank National Association
or its respective Affiliates may receive information regarding the Company or
any Guarantor or any of their Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or any Guarantor
or any of their Affiliates) and acknowledge that the Collateral Agent shall 


 


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not be under any obligation
to provide such information to the Trustee or the Holders.  Nothing herein shall impose or imply any
obligation on the part of U.S. Bank National Association to advance funds.


 


(g)           The Collateral Agent may resign at any time upon thirty
(30) days prior written notice to the Trustee and the Company, such resignation
to be effective upon the acceptance of a successor agent to its appointment as
Collateral Agent.  If the Collateral
Agent resigns under this Indenture, the Trustee, subject to the consent of the
Company (which shall not be unreasonably withheld and which shall not be
required during a continuing Default or Event of Default), shall appoint a
successor collateral agent.  If no
successor collateral agent is appointed prior to the intended effective date of
the resignation of the Collateral Agent (as stated in the notice of
resignation), the Collateral Agent may appoint, after consulting with the
Trustee, subject to the consent of the Company (which shall not be unreasonably
withheld and which shall not be required during a continuing Default or Event
of Default), a successor collateral agent. 
If no successor collateral agent is appointed and consented to by the
Company pursuant to the preceding sentence within thirty (30) days after the
intended effective date of resignation (as stated in the notice of resignation)
the Collateral Agent shall be entitled to petition a court of competent
jurisdiction to appoint a successor. 
Upon the acceptance of its appointment as successor collateral agent
hereunder, such successor collateral agent shall succeed to all the rights,
powers and duties of the retiring Collateral Agent, and the term “Collateral
Agent” shall mean such successor collateral agent, and the retiring Collateral
Agent’s appointment, powers and duties as the Collateral Agent shall be
terminated.  After the retiring
Collateral Agent’s resignation hereunder, the provisions of this Section 11.08
(and Section 7.07) shall continue to inure to its benefit and the retiring
Collateral Agent shall not by reason of such resignation be deemed to be
released from liability as to any actions taken or omitted to be taken by it
while it was the Collateral Agent under this Indenture.


 


(h)           The Trustee shall initially act as Collateral Agent and
shall be authorized to appoint co-Collateral Agents as necessary in its sole
discretion.  Except as otherwise
explicitly provided herein or in the Collateral Documents, neither the
Collateral Agent nor any of its respective officers, directors, employees or
agents or other Affiliates shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any other Person or to take any other action whatsoever with regard
to the Collateral or any part thereof. 
The Collateral Agent shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers, and neither the
Collateral Agent nor any of its officers, directors, employees or agents shall
be responsible for any act or failure to act hereunder, except for its own
willful misconduct, gross negligence or bad faith.


 


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of this exhibit has been filed separately with the Commission.


 


(i)            The Trustee, as such and as Collateral Agent, is
authorized and directed to (i) enter into the Collateral Documents, (ii) bind
the Holders on the terms as set forth in the Collateral Documents and (iii) perform
and observe its obligations under the Collateral Documents.


 


(j)            The Trustee agrees that it shall not (and shall not be
obliged to), and shall not instruct the Collateral Agent to, unless
specifically requested to do so by a majority of the Holders, take or cause to
be taken any action to enforce its rights under this Indenture or against the
Company or the Guarantors, including the commencement of any legal or equitable
proceedings, to foreclose any Lien on, or otherwise enforce any security
interest in, any of the Collateral.


 


If at any time or times the
Trustee shall receive (i) by payment, foreclosure, set-off or otherwise,
any proceeds of Collateral or any payments with respect to the obligations arising
under, or relating to, this Indenture, except for any such proceeds or payments
received by the Trustee from the Collateral Agent pursuant to the terms of this
Indenture, or (ii) payments from the Collateral Agent in excess of the
amount required to be paid to the Trustee pursuant to Article VII, the
Trustee shall promptly turn the same over to the Collateral Agent, in kind, and
with such endorsements as may be required to negotiate the same to the
Collateral Agent.


 


(k)           The Trustee is each Holder’s agent and the Collateral
Agent is the Trustee’s agent for the purpose of perfecting the Holders’
security interest in assets which, in accordance with Article 9 of the
Uniform Commercial Code can be perfected only by possession or control.  Should the Trustee obtain possession of any
such Collateral, upon request from the Company, the Trustee shall notify the
Collateral Agent thereof, and, promptly upon the Collateral Agent’s request
therefor shall deliver such Collateral to the Collateral Agent or otherwise
deal with such Collateral in accordance with the Collateral Agent’s
instructions.


 


(l)            The Collateral Agent shall have no obligation whatsoever
to the Trustee or any of the Holders to assure that the Collateral exists or is
owned by any Grantor or is cared for, protected, or insured or has been
encumbered, or that the Collateral Agent’s Liens have been properly or
sufficiently or lawfully created, perfected, protected, maintained or enforced
or are entitled to any particular priority, or to determine whether all or any
part of the Grantor’s property constituting collateral intended to be subject
to the Lien and security interest of the Collateral Documents has been properly
and completely listed or delivered, as the case may be, or the genuineness,
validity, marketability or sufficiency thereof or title thereto, or to exercise
at all or in any particular manner or under any duty of care, disclosure, or
fidelity, or to continue exercising, any of the rights, authorities, and powers
granted or available to the Collateral Agent pursuant to this Indenture or any
Collateral Document, it being understood and agreed that in respect of the
Collateral, or any act, omission, or event related thereto, the 


 


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Collateral Agent may act in
any manner it may deem appropriate, in its sole discretion given the Collateral
Agent’s own interest in the Collateral and that the Collateral Agent shall have
no other duty or liability whatsoever to the Trustee or any Holder as to any of
the foregoing.


 


(m)          No provision of this Indenture or any Collateral Document
shall require the Collateral Agent (or the Trustee) to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder or thereunder or to take or omit to take any action
hereunder or thereunder or take any action at the request or direction of
Holders (or the Trustee in the case of the Collateral Agent) if it shall have
reasonable grounds for believing that repayment of such funds is not assured to
it.


 


(n)           The Collateral Agent (i) shall not be liable for any
action it takes or omits to take in good faith which it reasonably believes to
be authorized or within its rights or powers, or for any error of judgment made
in good faith by a an officer thereof, unless it is proved that the Collateral
Agent was negligent in ascertaining the pertinent facts, (ii) shall not be
liable for interest on any money received by it except as the Collateral Agent
may agree in writing with the Company or any Guarantor (and money held in trust
by the Collateral Agent need not be segregated from other funds except to the
extent required by law) and (iii) may consult with counsel of its
selection and the advice or opinion of such counsel as to matters of law shall
be full and complete authorization and protection from liability in respect of
any action taken, omitted or suffered by it in good faith and in accordance
with the advice or opinion of such counsel. 
The grant of permissive rights or powers to the Collateral Agent shall
not be construed to impose duties to act. 
The Collateral Agent shall be indemnified by the Company and the
Guarantors to the same extent as the indemnification of the Trustee herein.


 


(o)           Neither the Collateral Agent nor the Trustee shall be
liable for delays or failures in performance resulting from acts beyond its
control.  Such acts shall include but not
be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, fire, communication line
failures, computer viruses, power failures, earthquakes or other
disasters.  Neither the Collateral Agent
nor the Trustee shall be liable for any indirect, special, incidental or
consequential damages (included but not limited to lost profits) whatsoever,
even if it has been informed of the likelihood thereof and regardless of the
form of action.


 


(p)           The Collateral Agent shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request of
any Holder, unless such Holder shall have offered to the Collateral Agent
security and indemnity satisfactory to it against any loss, liability or
expense.


 


(q)           Notwithstanding anything herein to the contrary, in acting
as Collateral Agent, the Collateral Agent may rely upon and enforce each and
all of the 


 


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rights, powers, immunities,
indemnities and benefits of the Trustee under Article VII hereof.


 


ARTICLE XII.


 


SATISFACTION AND
DISCHARGE


 


Section 12.01.        Satisfaction
And Discharge Of Indenture.


 


This Indenture will be
discharged and will cease to be of further effect as to all outstanding Notes
hereunder, and the Trustee, upon receipt from the Company of an Officers’
Certificate and an Opinion of Counsel stating that all conditions precedent to
satisfaction and discharge have been satisfied, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
either


 


(1)           all Notes that have
been authenticated (except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have been delivered to
the Trustee for cancellation; or


 


(2)           (A) all Notes
that have not been delivered to the Trustee for cancellation have become due
and payable by reason of the mailing of a notice of redemption or otherwise or
will become due and payable within one year and the Company or any Guarantor
has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as will be sufficient without consideration of any reinvestment of interest, to
pay and discharge the entire indebtedness on the Notes not delivered to the
Trustee for cancellation for Accreted Value, Liquidated Damages if any, and
accrued interest to the date of maturity or redemption;


 


(B)           no Default or Event
of Default shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;


 


(C)           the Company or any
Guarantor has paid or caused to be paid all sums payable by it under this
Indenture and not provided for by the deposit required by clause (A) above;
and


 


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(D)          the Company has
delivered irrevocable instructions to the Trustee under this Indenture to apply
the deposited money toward the payment of the Notes at maturity or the
redemption date, as the case may be.


 


Notwithstanding the
satisfaction and discharge hereof, the rights, powers, trusts, duties and
immunities of the Trustee, and the Company’s and the Guarantors’ obligations in
connection therewith, the obligations of the Company to the Trustee under Section 7.07
and, if United States dollars shall have been deposited with the Trustee
pursuant to subclause (2) of subsection (a) of this Section 12.01,
the obligations of the Trustee under Section 12.02 and Section 8.06,
shall survive.


 


Section 12.02.        Application
of Trust Money.


 


Subject to the provisions of
Section 8.06, all United States dollars deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the Accreted Value of, Liquidated Damages, if any, and interest on,
the Notes for whose payment such United States dollars have been deposited with
the Trustee.


 


ARTICLE XIII.


 


MISCELLANEOUS


 


Section 13.01.        Trust
Indenture Act Controls.


 


If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by TIA
§318(c), the imposed duties shall control. 
If any provision of this Indenture modifies or excludes any provision of
the TIA that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.


 


Section 13.02.        Notices.


 


Any notice or communication
by the Company, a Guarantor or the Trustee to the others is duly given if in
writing and delivered in person or mailed by first class mail (registered or
certified, return receipt requested), telex, telecopier or overnight air
courier guaranteeing next day delivery, to the others’ address:


 


If to the Company or a
Guarantor:


 


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of this exhibit has been filed separately with the Commission.


 


Vertex Pharmaceuticals Incorporated

130 Waverly Street

Cambridge, MA 02139

Attention:      Philippe Tinmouth
   Head, Business Development &
Licensing

Facsimile: 617-444-6632

Email: phil_tinmouth@vrtx.com


 


with a copy (which shall not
constitute notice) to:


 


Vertex Pharmaceuticals Incorporated

130 Waverly Street

Cambridge, MA 02139

Attention:      Kenneth S. Boger, Esq.
   Senior Vice President and General
Counsel

Facsimile: 617-444-7117

Email: ken_boger@vrtx.com


 


If to the Trustee:


 


U.S. Bank National Association


c/o U.S. Bank Corporate Trust Services


100 Wall Street


Suite 1600


New York, NY 10005


Facsimile: 617-603-6667


Attention:  Karen R. Beard


Email: karen.beard@usbank.com


 


The Company, a Guarantor or
the Trustee, by notice to the others may designate additional or different
addresses for subsequent notices or communications.


 


All notices and
communications (other than those sent to Holders) shall be deemed to have been
duly given:  at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.


 


Any notice or communication
to a Holder shall be mailed by first class mail, certified or registered,
return receipt requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the Registrar.  


 


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Any notice or communication
shall also be so mailed to any Person described in TIA §313(c), to the extent
required by the TIA.  Failure to mail a
notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.


 


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


 


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


 


Section 13.03.        Communication
by Holders of Notes with Other Holders of Notes.


 


Holders may communicate
pursuant to TIA §312(b) with other Holders with respect to their rights
under this Indenture or the Notes.  The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA §312(c).


 


Section 13.04.        Certificate
and Opinion As to Conditions Precedent.


 


Upon any request or
application by the Company and/or any Guarantor to the Trustee to take any
action or refrain from taking any action under this Indenture, the Company
and/or such Guarantor, as the case may be, shall furnish to the Trustee:


 


(a)           an Officers’ Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and


 


(b)           an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.


 


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


 


Any certificate or opinion
of an Officer of the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such Officer knows, or in the exercise of reasonable care should know, 


 


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that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous.  Any
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers of the Company stating the information on which counsel is
relying unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.


 


Section 13.05.        Statements
Required in Certificate or Opinion.


 


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


 


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


 


(b)           a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;


 


(c)           a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and


 


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


 


Section 13.06.        Rules by
Trustee and Agents.


 


The Trustee may make
reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions; provided, that no such rule shall
conflict with the terms of this Indenture or the TIA.


 


Section 13.07.        No Personal Liability of Directors, Officers, Employees
and Stockholders.


 


No director, officer,
employee, incorporator, stockholder, member, manager or partner of the Company
or any Guarantor, as such, shall have any liability for any obligations of the
Company or the Guarantors under the Notes, this Indenture, the Note Guarantees
or for any claim based on, in respect of, or by reason of, such obligations or
their creation.  Each Holder by accepting
a Note waives and releases all such liability. 
The waiver and release are part of the consideration for the issuance of
the Notes.


 


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Section 13.08.        Governing
Law.


 


THE INDENTURE, THE NOTES,
ANY NOTE GUARANTEES AND THE COLLATERAL DOCUMENTS WILL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.


 


Section 13.09.        No
Adverse Interpretation of Other Agreements.


 


This Indenture may not be
used to interpret any other indenture, loan or debt agreement of the Company or
its Subsidiaries or of any other Person. 
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture, the Notes or the Note Guarantees.


 


Section 13.10.        Successors.


 


All agreements of the
Company and the Guarantors in this Indenture, the Note Guarantees and the Notes
shall bind its successors.  All
agreements of the Trustee in this Indenture shall bind its successors.


 


Section 13.11.        Severability.


 


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


 


Section 13.12.        Counterpart
Originals.


 


The parties may sign any
number of copies of this Indenture.  Each
signed copy shall be an original, but all of them together represent the same
agreement.


 


Section 13.13.        Table
of Contents, Headings, Etc.


 


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


 


Section 13.14.        Further Instruments and Acts.


 


Upon request of the Trustee,
the Company and the Guarantors will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purposes of this Indenture.


 


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Section 13.15.        Limitation
on Agreements.


 


It is the intention of the
Company and each Holder that each Holder shall conform strictly to applicable
usury laws.  Accordingly, if the transactions contemplated hereby or by
the Notes, any Collateral Document or any other agreement, instrument or
document evidencing, securing or otherwise pertaining to the Note Obligations
(collectively, the “Documents”) would be usurious as to any Holder under any
applicable law (including any law mandatorily applicable to such Person
notwithstanding the other provisions of this Indenture), then, in that event,
notwithstanding anything to the contrary in this Indenture or any other
Document, it is agreed that (i) the aggregate of all consideration which
constitutes interest under applicable law that is contracted for, taken,
reserved, charged or received by any Holder under the Documents shall under no
circumstances exceed the maximum nonusurious amount allowed by applicable law
and (ii) any sums determined to constitute interest in excess of such legal
limit shall, without penalty, be promptly applied to reduce the then
outstanding principal of the Note Obligations or, at the recipient’s option,
promptly returned to the Company.  In determining whether or not interest
exceeds the maximum permitted amount, the Company and any such Holder agree, to
the extent necessary, (a) to recharacterize any non-principal payment as
principal, fee, expense, premium or other amount rather than as interest, and (b) to
amortize, prorate, allocate and spread the total amount of interest throughout
the entire contemplated term of the Note Obligations so that the rate or amount
of interest does not exceed the legal limit.  If at any time the amount of
interest is limited by the foregoing, then the amount of interest payable at
all times thereafter shall continue to be computed at the maximum nonusurious
rate allowed by applicable law until the total amount of interest payable shall
equal the total amount of interest that would have been payable under the
Documents without such limitation (assuming such interest had been permitted by
applicable law).  Notwithstanding
anything to the contrary contained in this Indenture or the Collateral
Documents, the Trustee and the Paying Agent shall have no obligations or
liabilities under this Section 13.15.


 


ARTICLE XIV.


 


SUBORDINATION


 


Section 14.01.                       Subordination.


 


(a)                                  The Company
agrees, and each Holder by accepting a Note agrees, that the Notes rank pari passu in right of payment with the Existing Notes.  The Company agrees, and each Holder by
accepting a Note agrees, that the Notes and the Note Obligations are hereby
expressly subordinated, to the extent and in the manner set forth in this Section 14.01
and  except as otherwise provided in Section 14.02,
in right of payment to the prior payment in full of all Senior Debt.


 


(b)                                 In the event of
any payment or distribution of assets of the Company upon any dissolution,
winding-up, liquidation or reorganization of the Company, whether 


 


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in bankruptcy, insolvency, reorganization or
receivership proceedings or upon an assignment for the benefit of creditors or
any other marshalling of the assets and liabilities of the Company or
otherwise, the Holders shall be entitled to receive and indefeasibly retain all
Payments from Collateral.  The holders of
all Senior Debt shall be entitled to receive payment of the full amount due
thereon in respect of all such Senior Debt and all other amounts due or
provision shall be made for such amount in cash, or other payments satisfactory
to the holders of Senior Debt, and such payment or provision shall be made to
or for the holders of Senior Debt before the Holders are entitled to receive
any payment or distribution of any character, whether in cash, securities or
other property, on account of the Deficiency Claim.


 


(c)           In the event of any acceleration of the Notes because of
an Event of Default, unless the full amount due in respect of all Senior Debt
is paid in cash or other form of payment satisfactory to the holders of Senior
Debt, no payment, other than Payments from Collateral, shall be made by the Company
with respect to the Accreted Value of, Liquidated Damages, if any, or interest,
if any, on the Notes or to acquire any of the Notes (including any redemption
or Change of Control Payment) or with respect to any Note Obligations, and the
Company shall give prompt written notice of such acceleration to such holders
of Senior Debt.


 


(d)           In the event of and during the continuance of any default
in payment of the principal of or premium, if any, or interest on, rent or
other payment obligations in respect of, any Senior Debt, unless all such
payments due in respect of such Senior Debt have been paid in full in cash or
other payments satisfactory to the holders of Senior Debt, Payments from
Collateral may be made to Holders but no other payment shall be made by the
Company with respect to the Notes or the Note Obligations.  In the event of any default under any Senior
Debt or under any agreement pursuant to which Senior Debt may have been issued,
the Company promptly (and in any event no later than five Business Days
following such default) shall provide written notice to the Trustee of such
default; provided, however,
that the failure to give such notice shall not in any way limit the effect of
this Section 14.01.


 


(e)           In the event that, notwithstanding the foregoing
provisions of Section 14.01(b), (c) or (d), any payment on account of
the Notes, other than Payments from Collateral, shall be made by or on behalf
of the Company and received by the Trustee or any Holder:


 


(i)            after the
occurrence of an event specified in Section 14.01(b) or (c), then,
unless all Senior Debt is paid in full in cash, or provision shall be made
therefor; or 


 


(ii)           after the happening
of an event of default of the type specified in Section 14.01(d) above;


 


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then, unless the amount of such Senior Debt
then due shall have been paid in full, or provision made therefor or such event
of default shall have been cured or waived, such payment shall be held in trust
for the benefit of, and shall be immediately paid over to, the holders of
Senior Debt or their representative or representatives or the trustee or
trustees under any indenture under which any instruments evidencing any of the
Senior Debt may have been issued, as their interests may appear.


 


(f)            Each Guarantor’s Note Guarantee of the Deficiency Claim
is hereby expressly subordinated in right of payment to all Senior Debt to the
same extent as set forth above with respect to the Company’s obligations in
respect of the Deficiency Claim.


 


Section 14.02.        Absolute
and Unconditional Obligation; Realizations from Collateral Not Subordinated.


 


(a)           Nothing contained in Section 14.01 or elsewhere in
this Indenture or the Notes is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Debt, and the Holders,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders the Note Obligations as and when the same shall become due and
payable in accordance with this Indenture, the Notes and the Collateral
Documents, or is intended to or shall affect the relative rights of the Holders
and creditors of the Company other than the holders of Senior Debt, nor shall
anything contained herein prevent the Collateral Agent, the Trustee or the
Holders from exercising all rights and remedies otherwise permitted by
applicable law, including all rights and remedies specified in Section 14.02(b) below.


 


(b)           Nothing in this Article XIV or elsewhere in this
Indenture, the Notes or any Collateral Document is intended to or shall
directly or indirectly impair, impede, bar, limit, or hinder any of the following,
each of which is absolute and unconditional:


 


(i)            all rights,
remedies, powers and privileges that the Collateral Agent, the Trustee or any
Holder has or may have against the Collateral or the direct and indirect
proceeds thereof under this Indenture, the Collateral Documents, at law, equity
or otherwise;


 


(ii)           the rights of the
Collateral Agent and the Trustee to receive the Collateral and all proceeds and
other funds attributable to the Collateral and the direct and indirect proceeds
thereof and of the exercise of any such rights, remedies, powers and privileges
(collectively, including the Collateral, “Payments from Collateral”, provided that payments made by the Company upon the
occurrence of any Milestone Event from sources other than Milestone Payments
shall not constitute “Payments from Collateral”);


 


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of this exhibit has been filed separately with the Commission.


 


(iii)          the rights of the
Collateral Agent and the Trustee to distribute Payments from Collateral to the
Holders in full or partial satisfaction of the Note Obligations; and


 


(iv)          the rights of the
Holders to receive and indefeasibly retain Payments from Collateral, free and
clear of the trust and turnover obligation described in Section 14.01(e),
and free and clear of all rights and claims of the holders of Senior Debt and
their representative or representatives or the trustee or trustees under any
indenture under which any instruments evidencing any Senior Debt may have been
issued.


 


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Information
redacted pursuant to a confidential treatment request.  An unredacted version 

of this exhibit has been filed separately with the Commission.


 


Section 14.03.                                               Article XIV
Not To Prevent Events of Default or Limit Right To Accelerate.  The failure to make a
payment pursuant to the Notes by reason of any provision in this Article XIV
shall not be construed as preventing the occurrence of a Default. Nothing in
this Article XIV shall have any effect on the right of the Holders or the
Trustee to accelerate the maturity of the Notes.


 


Section 14.04.                                               Trustee Not
Fiduciary for Holders of Senior Debt of the Issuer.The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and
shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Holders or the Company or any other Person, money or assets to
which any holders of Senior Debt shall be entitled by virtue of this Article XIV
or otherwise.


 


Section 14.05.                                               Rights of
Holders of Senior Debt Not Impaired.     No right of any present or future holder of any Senior Debt to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions and covenants of the
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.


 


Section 14.06.                                               Modification of
Terms of Senior Debt.     Any
renewal or extension of the time of payment of any Senior Debt or the exercise
by the holders of Senior Debt of any of their rights under any instrument
creating or evidencing Senior Debt, including, without limitation, the waiver
of default thereunder, may be made or done all without notice to or assent from
the Holders or the Trustee. No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other action in
respect of, any liability or obligation under or in respect of, or of any of
the terms, covenants or conditions of any indenture or other instrument under
which any Senior Debt is outstanding or of such Senior Debt, whether or not
such compromise, alteration, amendment, modification, extension, renewal or
other change of, or waiver, consent or other action is in accordance with the
provisions or any applicable document, shall in any way alter or affect any of the
provisions of this Article or of the Notes relating to the subordination
thereof.


 


[Signatures on following pages]


 


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of this exhibit has been filed separately with the Commission.


 


IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  VERTEX PHARMACEUTICALS 

  INCORPORATED, a Massachusetts corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Matthew Emmens

  
	
   

  	
   

  	
  Name: Matthew Emmens

  
	
   

  	
   

  	
  Title: Chief Executive Officer

  



 

















 


Information redacted pursuant to
a confidential treatment request.  An
unredacted version 

of this exhibit has been filed separately with the Commission.


 


	
   

  	
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen Beard

  
	
   

  	
   

  	
  Name:     Karen Beard

  
	
   

  	
   

  	
  Title:       Authorized
  Signatory

  



 

















 


Information redacted pursuant to
a confidential treatment request.  An
unredacted version 

of this exhibit has been filed separately with the Commission.


 


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