Exhibit 4.1


 


NETWORK ENGINES, INC.


 


 


and


 


 






 


 


Trustee


 


 


INDENTURE


 


Dated as of ___________


 


SENIOR DEBT SECURITIES


 

















 


CROSS-REFERENCE TABLE(1)


 


	
  Section of 

  Trust Indenture Act 

  of 1939, as amended

  	
   

  	
   

  	
  Section of 

  Indenture

  
	
  310(a)

  	
   

  	
  6.09

  
	
  310(b)

  	
   

  	
  6.08

  
	
   

  	
   

  	
  6.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  6.13

  
	
  311(b)

  	
   

  	
  6.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  4.01

  4.04

  
	
  312(b)

  	
   

  	
  4.04(c)

  
	
  312(c)

  	
   

  	
  4.04(c)

  
	
  313(a)

  	
   

  	
  4.03

  
	
  313(b)

  	
   

  	
  4.03

  
	
  313(c)

  	
   

  	
  4.03

  
	
  313(d)

  	
   

  	
  4.03

  
	
  314(a)

  	
   

  	
  4.02

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  2.04

  8.04

  9.01(c)

  10.01(b)

  11.05

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  11.05

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  6.01

  6.02

  
	
  315(b)

  	
   

  	
  5.11

  
	
  315(c)

  	
   

  	
  6.01

  
	
  315(d)

  	
   

  	
  6.01

  
	
   

  	
   

  	
  6.02

  
	
  315(e)

  	
   

  	
  5.12

  
	
  316(a)

  	
   

  	
  5.09

  5.10

  
	
   

  	
   

  	
  7.04

  
	
  316(b)

  	
   

  	
  5.06

  5.10

  
	
  316(c)

  	
   

  	
  7.02

  
	
  317(a)

  	
   

  	
  5.04

  
	
  317(b)

  	
   

  	
  3.04

  
	
  318(a)

  	
   

  	
  11.07

  



 






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


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1

  	
  DEFINITIONS

  	
  1

  
	
  Section 1.01

  	
  Certain Terms Defined

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
  SECURITIES

  	
  5

  
	
  Section 2.01

  	
  Forms Generally

  	
  5

  
	
  Section 2.02

  	
  Form of Trustee’s Certificate of Authentication

  	
  6

  
	
  Section 2.03

  	
  Amount Unlimited; Issuable in Series

  	
  6

  
	
  Section 2.04

  	
  Authentication and Delivery of Securities

  	
  8

  
	
  Section 2.05

  	
  Execution of Securities

  	
  10

  
	
  Section 2.06

  	
  Certificate of Authentication

  	
  10

  
	
  Section 2.07

  	
  Denomination and Date of Securities; Payments of Interest

  	
  10

  
	
  Section 2.08

  	
  Registration, Transfer and Exchange

  	
  11

  
	
  Section 2.09

  	
  Mutilated, Defaced, Destroyed, Lost and Stolen Securities

  	
  13

  
	
  Section 2.10

  	
  Cancellation of Securities; Destruction Thereof

  	
  14

  
	
  Section 2.11

  	
  Temporary Securities

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
  COVENANTS OF THE ISSUER

  	
  14

  
	
  Section 3.01

  	
  Payment of Principal and Interest

  	
  14

  
	
  Section 3.02

  	
  Offices for Payments, Etc

  	
  15

  
	
  Section 3.03

  	
  Appointment to Fill a Vacancy in Office of Trustee

  	
  15

  
	
  Section 3.04

  	
  Paying Agents

  	
  15

  
	
  Section 3.05

  	
  Written Statement to Trustee

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
  SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE

  	
  16

  
	
  Section 4.01

  	
  Issuer to Furnish Trustee Information as to Names and Addresses of
  Securityholders

  	
  16

  
	
  Section 4.02

  	
  Reports by the Issuer

  	
  17

  
	
  Section 4.03

  	
  Reports by the Trustee

  	
  17

  
	
  Section 4.04

  	
  Preservation of Information; Communication with Securityholders

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
  REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

  	
  17

  
	
  Section 5.01

  	
  Event of Default Defined; Acceleration of Maturity; Waiver of Default

  	
  17

  
	
  Section 5.02

  	
  Collection of Debt by Trustee; Trustee May Prove Debt

  	
  20

  
	
  Section 5.03

  	
  Application of Proceeds

  	
  22

  
	
  Section 5.04

  	
  Suits for Enforcement

  	
  22

  
	
  Section 5.05

  	
  Restoration of Rights on Abandonment of Proceedings

  	
  23

  
	
  Section 5.06

  	
  Limitations on Suits by Securityholders

  	
  23

  
	
  Section 5.07

  	
  Unconditional Right of Securityholders to Institute Certain Suits

  	
  23

  
					



 


i

















 


	
  Section 5.08

  	
  Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default

  	
  23

  
	
  Section 5.09

  	
  Control by Holders of Securities

  	
  24

  
	
  Section 5.10

  	
  Waiver of Past Defaults

  	
  24

  
	
  Section 5.11

  	
  Trustee to Give Notice of Default

  	
  25

  
	
  Section 5.12

  	
  Right of Court to Require Filing of Undertaking to Pay Costs

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
  CONCERNING THE TRUSTEE

  	
  25

  
	
  Section 6.01

  	
  Duties and Responsibilities of the Trustee; During Default; Prior to
  Default

  	
  25

  
	
  Section 6.02

  	
  Certain Rights of the Trustee

  	
  26

  
	
  Section 6.03

  	
  Trustee Not Responsible for Recitals, Disposition of Securities or
  Application of Proceeds Thereof

  	
  27

  
	
  Section 6.04

  	
  Trustee and Agents May Hold Securities; Collections, Etc

  	
  27

  
	
  Section 6.05

  	
  Moneys Held by Trustee

  	
  27

  
	
  Section 6.06

  	
  Compensation and Indemnification of Trustee and Its Prior Claim

  	
  28

  
	
  Section 6.07

  	
  Right of Trustee to Rely on Officer’s Certificate, Etc

  	
  28

  
	
  Section 6.08

  	
  Disqualification; Conflicting Interests

  	
  28

  
	
  Section 6.09

  	
  Persons Eligible for Appointment as Trustee

  	
  28

  
	
  Section 6.10

  	
  Resignation and Removal; Appointment of Successor Trustee

  	
  29

  
	
  Section 6.11

  	
  Acceptance of Appointment by Successor Trustee

  	
  30

  
	
  Section 6.12

  	
  Merger, Conversion, Consolidation or Succession to Business of Trustee

  	
  31

  
	
  Section 6.13

  	
  Preferential Collection of Claims Against the Issuer

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
  CONCERNING THE SECURITYHOLDERS

  	
  31

  
	
  Section 7.01

  	
  Evidence of Action Taken by Securityholders

  	
  31

  
	
  Section 7.02

  	
  Proof of Execution of Instruments and of Holding of Securities

  	
  32

  
	
  Section 7.03

  	
  Holders to Be Treated as Owners

  	
  32

  
	
  Section 7.04

  	
  Securities Owned by Issuer Deemed Not Outstanding

  	
  32

  
	
  Section 7.05

  	
  Right of Revocation of Action Taken

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  	
  SUPPLEMENTAL INDENTURES

  	
  33

  
	
  Section 8.01

  	
  Supplemental Indentures Without Consent of Securityholders

  	
  33

  
	
  Section 8.02

  	
  Supplemental Indentures With Consent of Securityholders

  	
  34

  
	
  Section 8.03

  	
  Effect of Supplemental Indenture

  	
  36

  
	
  Section 8.04

  	
  Documents to Be Given to Trustee

  	
  36

  
	
  Section 8.05

  	
  Notation on Securities in Respect of Supplemental Indentures

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9

  	
  CONSOLIDATION, MERGER, SALE OR CONVEYANCE

  	
  36

  
	
  Section 9.01

  	
  Issuer May Consolidate, Etc., on Certain Terms

  	
  36

  
	
  Section 9.02

  	
  Successor Issuer Substituted

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  	
  SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS

  	
  38

  
	
  Section 10.01

  	
  Satisfaction and Discharge of Indenture; Defeasance

  	
  38

  
					



 


ii

















 


	
  Section 10.02

  	
  Application by Trustee of Funds Deposited for Payment of Securities

  	
  41

  
	
  Section 10.03

  	
  Repayment of Moneys Held by Paying Agent

  	
  41

  
	
  Section 10.04

  	
  Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
  Years

  	
  42

  
	
  Section 10.05

  	
  Indemnity for U.S. Government Obligations

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11

  	
  MISCELLANEOUS PROVISIONS

  	
  42

  
	
  Section 11.01

  	
  No Recourse

  	
  42

  
	
  Section 11.02

  	
  Provisions of Indenture for the Sole Benefit of Parties and Holders of
  Securities

  	
  42

  
	
  Section 11.03

  	
  Successors and Assigns of Issuer Bound by Indenture

  	
  43

  
	
  Section 11.04

  	
  Notices and Demands on Issuer, Trustee and Holders of Securities

  	
  43

  
	
  Section 11.05

  	
  Officer’s Certificates and Opinions of Counsel; Statements to Be
  Contained Therein

  	
  43

  
	
  Section 11.06

  	
  Payments Due on Saturdays, Sundays and Holidays

  	
  44

  
	
  Section 11.07

  	
  Conflict of Any Provision of Indenture With Trust Indenture Act of 1939

  	
  44

  
	
  Section 11.08

  	
  New York Law to Govern

  	
  45

  
	
  Section 11.09

  	
  Counterparts

  	
  45

  
	
  Section 11.10

  	
  Effect of Headings

  	
  45

  
	
  Section 11.11

  	
  Actions by Successor

  	
  45

  
	
  Section 11.12

  	
  Severability

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  	
  REDEMPTION OF SECURITIES AND SINKING FUNDS

  	
  45

  
	
  Section 12.01

  	
  Applicability of Article

  	
  45

  
	
  Section 12.02

  	
  Notice of Redemption; Partial Redemptions

  	
  45

  
	
  Section 12.03

  	
  Payment of Securities Called for Redemption

  	
  47

  
	
  Section 12.04

  	
  Exclusion of Certain Securities from Eligibility for Selection for
  Redemption

  	
  47

  
	
  Section 12.05

  	
  Mandatory
  and Optional Sinking Funds

  	
  47

  
				



 


iii

















 


THIS INDENTURE, dated as of                   
between Network Engines, Inc., a Delaware corporation (the “Issuer”), and                 ,
a               
(the “Trustee”),


 


W I T
N E S S E T H :


 


WHEREAS, the Issuer may from time to time duly
authorize the issue of its unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture;


 


WHEREAS, the Issuer has duly authorized the execution
and delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and


 


WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been done;


 


NOW, THEREFORE:


 


In consideration of the premises and the purchases of
the Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities as follows:


 


ARTICLE 1

DEFINITIONS


 


Section 1.01           Certain Terms
Defined.  The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section.  All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939 or the definitions of which in
the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939,
including terms defined therein by reference to the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise
clearly requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture.  All accounting terms used
herein and not expressly defined shall have the meanings assigned to such terms
in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles”
means such accounting principles as are generally accepted in the United States
at the time of any computation.  The
words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.  The terms defined in
this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.


 


“Board of Directors”
means either the Board of Directors of the Issuer or any committee of such
Board duly authorized to act on its behalf.


 

















 


“Board Resolution”
means a copy of one or more resolutions, certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted by the Board of
Directors and to be in full force and effect, and delivered to the Trustee.


 


“Business Day”
means, with respect to any Security, a day that in the city (or in any of the
cities, if more than one) in which amounts are payable, as specified in the
form of such Security, is not a day on which banking institutions are
authorized or required by law or regulation to close.


 


“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if at any time after the
execution and delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act of 1939,
then the body performing such duties on such date.


 


“Common Stock”
means shares of common stock, par value $0.01 per share, of the Issuer as the
same exists at the date of execution and delivery of this Indenture or as such
stock may be reconstituted from time to time.


 


“Corporate Trust
Office” means the office of the Trustee at which the corporate trust
business of the Trustee shall, at any particular time, be principally
administered, which office is, at the date as of which this Indenture is dated,
located at                     .


 


“Covenant Defeasance”
shall have the meaning set forth in Section 10.1(c).


 


“Debt” of
any Person means any debt for money borrowed which is created, assumed,
incurred or guaranteed in any manner by such Person or for which such Person is
otherwise responsible or liable, and shall expressly include any such guaranty
thereof by such Person.  For the purpose
of computing the amount of the Debt of any Person there shall be excluded all
Debt of such Person for the payment or redemption or satisfaction of which
money or securities (or evidences of such Debt, if permitted under the terms of
the instrument creating such Debt) in the necessary amount shall have been
deposited in trust with the proper depositary, whether upon or prior to the
maturity or the date fixed for redemption of such Debt; and, in any instance
where Debt is so excluded, for the purpose of computing the assets of such
Person there shall be excluded the money, securities or evidences of Debt
deposited by such Person in trust for the purpose of paying or satisfying such
Debt.


 


“Depositary”
means, with respect to the Securities of any series issuable or issued in the
form of one or more Global Securities, the Person designated as Depositary by
the Issuer pursuant to Section 2.04 until a successor Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter “Depositary” shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, “Depositary”
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Global Securities of that series.


 


“Dollar”
means the currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.


 


2

















 


“Event of Default”
means any event or condition specified as such in Section 5.01.


 


“Foreign Currency”
means a currency issued by the government of a country other than the United
States.


 


“Global Security”,
means a Security evidencing all or a part of a series of Securities, issued to
the Depositary for such series in accordance with Section 2.04, and
bearing the legend prescribed in Section 2.04.


 


“Holder,”  “holder,” “holder of
Securities,” “Securityholder” or other similar terms mean
the Person in whose name such Security is registered in the Security register
kept by the Issuer for that purpose in accordance with the terms hereof.


 


“Indenture”
means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, and
shall include the forms and terms of particular series of Securities
established as contemplated hereunder.


 


“interest,” unless the context otherwise
requires, refers to interest, and when used with respect to non-interest
bearing Securities, refers to interest payable after maturity, if any.


 


“Issuer”
means Network Engines, Inc., a Delaware corporation, and, subject to Article 9,
its successors and assigns.


 


“Issuer Order”
means a written statement, request or order of the Issuer signed in its name by
the chairman of the Board of Directors, the president or any vice president of
the Issuer.


 


“Legal Defeasance”
shall have the meaning set forth in Section 10.1(b).


 


“Notice of Default”
shall have the meaning set forth in Section 5.01(c).


 


“Officer’s
Certificate” means a certificate signed by the chairman of the Board
of Directors, the president, any vice president, the treasurer, the secretary
or any assistant secretary of the Issuer and delivered to the Trustee.  Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and, except to the extent provided herein,
shall include the statements provided for in Section 11.05.


 


“Opinion of Counsel”
means an opinion in writing signed by the general corporate counsel or such
other legal counsel who may be an employee of or counsel to the Issuer and who
shall be satisfactory to the Trustee. 
Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and shall include the statements provided for in Section 11.05,
if and to the extent required hereby.


 


“original issue date”
of any Security (or portion thereof) means the earlier of (a) the date of
such Security or (b) the date of any Security (or portion thereof) for
which such Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.


 


3

















 


“Original Issue Discount
Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.01.


 


“Outstanding,” when used with reference to Securities,
shall, subject to the provisions of Section 7.04, mean, as of any
particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except


 


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


 


(b)           Securities, or
portions thereof, for the payment or redemption of which moneys or U.S.
Government Obligations (as provided for in Section 10.01) in the necessary
amount shall have been deposited in trust with the Trustee or with any paying
agent (other than the Issuer) or shall have been set aside, segregated and held
in trust by the Issuer for the Holders of such Securities (if the Issuer shall
act as its own paying agent); provided,
that if such Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and


 


(c)           Securities in
substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of Section 2.09
(except with respect to any such Security as to which proof satisfactory to the
Trustee is presented that such Security is held by a Person in whose hands such
Security is a legal, valid and binding obligation of the Issuer), Securities
converted into Common Stock pursuant hereto and Securities not deemed
outstanding pursuant to Section 12.02.


 


In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.01.


 


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


 


“principal”
whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any”.


 


“record date”
shall have the meaning set forth in Section 2.07.


 


“Responsible Officer,” when used with respect to the
Trustee, means the chairman of the board of directors, any vice chairman of the
board of directors, the chairman of the trust committee, the chairman of the
executive committee, any vice chairman of the executive committee, the
president, any vice president, the cashier, the secretary, the treasurer, any
trust 


 


4

















 


officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.


 


“Security”
or “Securities” has the meaning
stated in the first recital of this Indenture, or, as the case may be,
Securities that have been authenticated and delivered under this Indenture.


 


“Security Registrar”
shall have the meaning set forth in Section 4.01(b).


 


“Subsidiary”
means a corporation of which stock having a majority of the voting power under
ordinary circumstances is owned, directly or indirectly, by the Issuer or by
one or more subsidiaries of the Issuer, or by the Issuer and one or more
subsidiaries of the Issuer.


 


“Trust Indenture Act
of 1939” (except as otherwise provided in Sections 8.01 and 8.02)
means the Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was originally executed.


 


“Trustee”
means the Person identified as “Trustee”
in the first paragraph hereof and, subject to the provisions of Article 6,
shall also include any successor trustee. 
“Trustee” shall also mean
or include each Person who is then a trustee hereunder and if at any time there
is more than one such Person, “Trustee”
as used with respect to the Securities of any series shall mean the trustee
with respect to the Securities of such series.


 


“U.S. Government
Obligations” shall have the meaning set forth in Section 10.01(a).


 


“vice president”,
when used with respect to the Issuer or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after
the title of “vice president”.


 


“Yield to Maturity”
means the yield to maturity on a series of securities, calculated at the time
of issuance of such series, or, if applicable, at the most recent
redetermination of interest on such series, and calculated in accordance with
accepted financial practice.


 


ARTICLE 2

SECURITIES


 


Section 2.01           Forms Generally.  The Securities of each series
shall be substantially in such form (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions (as set
forth in a Board Resolution or, to the extent established pursuant to (rather
than set forth in) a Board Resolution, an Officer’s Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture and may have imprinted or
otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with
any 


 


5

















 


rules of any securities exchange or to conform
to general usage, all as may be determined by the officers executing such Securities
as evidenced by their execution of such Securities.


 


The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities as
evidenced by their execution of such Securities.


 


Section 2.02           Form of Trustee’s
Certificate of Authentication.  The
Trustee’s certificate of authentication on all Securities shall be in
substantially the following form:


 


This is one of the Securities of the series designated
herein and referred to in the within-mentioned Indenture.


 


 


	
   

  	
   

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  



 


Section 2.03           Amount Unlimited;
Issuable in Series.  The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited.


 


The Securities may be issued in one or more
series.  The terms of a series of
Securities shall be established prior to the initial issuance thereof in or
pursuant to one or more Board Resolutions, or, to the extent established
pursuant to (rather than set forth in) a Board Resolution, in an Officer’s
Certificate detailing such establishment and/or established in one or more
indentures supplemental hereto.  The
terms of such series reflected in such Board Resolution, Officer’s Certificate,
or supplemental indenture may include the following or any additional or
different terms:


 


(a)           the designation of
the Securities of the series (which may be part of a series of Securities
previously issued);


 


(b)           the terms and
conditions, if applicable, upon which conversion or exchange of the Securities
into Common Stock will be effected, including the initial conversion or
exchange price or rate and any adjustments thereto, the conversion or exchange
period and other provisions in addition to or in lieu of those described
herein;


 


(c)           any limit upon the
aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 2.08,
2.09, 2.11, 8.05 or 12.03);


 


(d)           if other than
Dollars, the Foreign Currency in which the Securities of that series are
denominated;


 


6

















 


(e)           any date on which
the principal of the Securities of the series is payable;


 


(f)            the rate or rates
at which the Securities of the series shall bear interest, if any, the record
date or dates for the determination of holders to whom interest is payable, the
date or dates from which such interest shall accrue and on which such interest
shall be payable and/or the method by which such rate or rates or date or dates
shall be determined;


 


(g)           the place or places
where the principal of and any interest on Securities of the series shall be
payable (if other than as provided in Section 3.02);


 


(h)           the price or prices
at which, the period or periods within which and the terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at the
option of the Issuer, pursuant to any sinking fund or otherwise;


 


(i)            the obligation, if
any, of the Issuer to redeem, purchase or repay Securities of the series
pursuant to any mandatory redemption, sinking fund or analogous provisions or
at the option of a Holder thereof and the price or prices at which and the
period or periods within which and any terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;


 


(j)            if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which Securities of the series shall be issuable;


 


(k)           if other than the
principal amount thereof, the portion of the principal amount of Securities of
the series which shall be payable upon declaration of acceleration of the
maturity thereof;


 


(l)            if other than the
currency in which the Securities of that series are denominated, the currency
in which payment of the principal of or interest on the Securities of such
series shall be payable;


 


(m)          if the principal of
or interest on the Securities of the series is to be payable, at the election
of the Issuer or a Holder thereof, in a currency other than that in which the
Securities are denominated, the period or periods within which, and the terms
and conditions upon which, such election may be made;


 


(n)           if the amount of
payments of principal of and interest on the Securities of the series may be
determined with reference to an index based on a currency other than that in
which the Securities of the series are denominated, the manner in which such
amounts shall be determined;


 


(o)           whether and upon
what terms the Securities may be defeased;


 


(p)           whether and under what
circumstances the Issuer will pay additional amounts on the Securities of any
series in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;


 


7














 


(q)           if the Securities of
such series are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;


 


(r)            any trustees,
authenticating or paying agents, transfer agents or registrars or any other
agents with respect to the Securities of such series;


 


(s)           any other events of
default or covenants with respect to the Securities of such series in addition
to or in lieu of those contained in this Indenture;


 


(t)            if the Securities
of the series may be issued in exchange for surrendered Securities of another
series, or for other securities of the Issuer, pursuant to the terms of such
Securities or securities or of any agreement entered into by the Issuer, the
ratio of the principal amount of the Securities of the series to be issued to
the principal amount of the Securities or securities to be surrendered in
exchange, and any other material terms of the exchange; and


 


(u)           any other terms of
the series.


 


The Issuer may from time to time, without notice to or
the consent of the holders of any series of Securities, create and issue
further Securities of any such series ranking equally with the Securities of
such series in all respects (or in all respects other than (1) the payment
of interest accruing prior to the issue date of such further Securities or (2) the
first payment of interest following the issue date of such further
Securities).  Such further Securities may
be consolidated and form a single series with the Securities of such series and
have the same terms as to status, redemption or otherwise as the Securities of
such series.


 


Section 2.04           Authentication and
Delivery of Securities.  The
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and deliver
such Securities to or upon the order of the Issuer (contained in the Issuer
Order referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order.  The maturity
date, original issue date, interest rate and any other terms of the Securities
of such series shall be determined by or pursuant to such Issuer Order and
procedures.  If provided for in such
procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral instructions from the Issuer or its duly authorized agent,
which instructions shall be promptly confirmed in writing.  In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01)
shall be fully protected in relying upon:


 


(a)           an Issuer Order
requesting such authentication and setting forth delivery instructions if the
Securities are not to be delivered to the Issuer;


 


(b)           any Board
Resolution, Officer’s Certificate and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and
terms of the Securities were established;


 


8

















 


(c)           an Officer’s
Certificate setting forth the form or forms and terms of the Securities stating
that the form or forms and terms of the Securities have been established
pursuant to Sections 2.01 and 2.03 and comply with this Indenture, and covering
such other matters as the Trustee may reasonably request; and


 


(d)           an Opinion of
Counsel to the effect that:


 


(i)            the form or forms
and terms of such Securities have been established pursuant to Sections 2.01
and 2.03 and comply with this Indenture,


 


(ii)           the authentication
and delivery of such Securities by the Trustee are authorized under the
provisions of this Indenture,


 


(iii)          such Securities
when authenticated and delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Issuer, and


 


(iv)          all laws and
requirements in respect of the execution and delivery by the Issuer of the
Securities have been complied with,


 


and
covering such other matters as the Trustee may reasonably request.


 


The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
by the Issuer or if the Trustee in good faith by its board of directors or
board of trustees, executive committee, or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would expose
the Trustee to personal liability to existing Holders or would affect the
Trustee’s own rights, duties or immunities under the Securities, this Indenture
or otherwise.


 


The Issuer shall execute and the Trustee shall, in
accordance with this Section with respect to the Securities of a series,
authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued and not yet
cancelled, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary, (iii) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary’s
instructions and (iv) shall bear a legend substantially to the following
effect: “Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.”


 


Each Depositary designated pursuant to this Section must,
at the time of its designation and at all times while it serves as Depositary,
be a clearing agency registered under the Securities Exchange Act of 1934 and
any other applicable statute or regulation.


 


9

















 


Section 2.05           Execution of Securities.  The Securities shall be signed on behalf of
the Issuer by the chairman of its Board of Directors, any vice chairman of its
Board of Directors, its chief executive officer, its principal financial
officer, its president, any vice president or its treasurer.  Such signatures may be the manual or
facsimile signatures of the present or any future such officers.  Typographical and other minor errors or
defects in any such reproduction of any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.


 


In case any officer of the Issuer who shall have
signed any of the Securities shall cease to be such officer before the Security
so signed shall be authenticated and delivered by the Trustee or disposed of by
the Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Issuer; and any Security may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Issuer, although at the date of
the execution and delivery of this Indenture any such person was not such an
officer.


 


Section 2.06           Certificate of
Authentication.  Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose.  The execution of such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.


 


Section 2.07           Denomination and Date
of Securities; Payments of Interest. 
The Securities of each series shall be issuable in denominations
established as contemplated by Section 2.03 or, if not so established, in
denominations of $1,000 and any integral multiple thereof.  The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine
with the approval of the Trustee, as evidenced by the execution and
authentication thereof.  Unless otherwise
indicated in a Board Resolution, Officer’s Certificate or supplemental
indenture for a particular series, interest will be calculated on the basis of
a 360-day year of twelve 30-day months.


 


Each Security shall be dated the date of its
authentication.  The Securities of each
series shall bear interest, if any, from the date, and such interest shall be
payable on the dates, established as contemplated by Section 2.03.


 


The Person in whose name any Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer, exchange or conversion of such Security
subsequent to the record date and prior to such interest payment date, except
if and to the extent the Issuer shall default in the payment of the interest
due on such interest payment date for such series, in which case such defaulted
interest shall be paid to the Persons in whose names Outstanding Securities for
such series are registered at the close of business on a subsequent record date
(which shall be not less


 


10

















 


than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on behalf
of the Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date.  The term “record date” as used with respect to any interest payment
date (except a date for payment of defaulted interest) for the Securities of
any series shall mean the date specified as such in the terms of the Securities
of such series established as contemplated by Section 2.03, or, if no such
date is so established, if such interest payment date is the first day of a
calendar month, the 15th day of the next preceding calendar month or, if such
interest payment date is the 15th day of a calendar month, the first day of
such calendar month, whether or not such record date is a Business Day.


 


Section 2.08           Registration, Transfer
and Exchange.  The Issuer will
keep at each office or agency to be maintained for the purpose as provided in Section 3.02
for each series of Securities a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will provide for the
registration of Securities of such series and the registration of transfer of
Securities of such series.  Such register
shall be in written form in the English language or in any other form capable
of being converted into such form within a reasonable time.  At all reasonable times such register or
registers shall be open for inspection by the Trustee.


 


Upon due presentation for registration of transfer of
any Security of any series at any such office or agency to be maintained for
the purpose as provided in Section 3.02, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series, maturity date,
interest rate and original issue date in authorized denominations for a like
aggregate principal amount.


 


At the option of the Holder thereof, Securities of any
series (except a Global Security) may be exchanged for a Security or Securities
of such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.02
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided.  Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.  All Securities
surrendered upon any exchange or transfer provided for in this Indenture shall
be promptly cancelled and disposed of by the Trustee and the Trustee will
deliver a certificate of disposition thereof to the Issuer.


 


All Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his or her attorney duly authorized in writing.


 


The Issuer may require payment of a sum sufficient to
cover any stamp or other tax or other governmental charge that may be imposed
in connection with any exchange or registration of transfer of Securities.  No service charge shall be made for any such
transaction.


 


The Issuer shall not be required to exchange or
register a transfer of (a) any Securities of any series for a period of 15
days next preceding the first mailing of notice of redemption of


 


11

















 


Securities of such series to be redeemed or (b) any
Securities selected, called or being called for redemption, in whole or in
part, except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed.


 


Notwithstanding any other provision of this Section 2.08,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.


 


If at any time the Depositary for the Securities of a
series notifies the Issuer that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the Depositary
for the Securities of a series shall no longer be eligible under Section 2.04,
the Issuer shall appoint a successor Depositary with respect to the Securities
of such series.  If a successor
Depositary for the Securities of such series is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer’s determination pursuant to Section 2.03 that
the Securities of such series be represented by a Global Security shall no
longer be effective and the Issuer will execute, and the Trustee, upon receipt
of an Officer’s Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing the Securities of such series, in exchange for such
Global Security or Securities.


 


The Issuer may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by a Global Security or
Securities.  In such event the Issuer
will execute, and the Trustee, upon receipt of an Officer’s Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form, in any authorized denominations, in an aggregate principal amount equal
to the principal amount of the Global Security or Securities representing such
series, in exchange for such Global Security or Securities.


 


The Depositary for such Global Security may surrender
such Global Security in exchange in whole or in part for Securities of the same
series in definitive registered form in accordance with the two preceding
paragraphs or on such other terms as are acceptable to the Issuer and such
Depositary.  Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,


 


(i)            to the Person
specified by such Depositary a new Security or Securities of the same series,
of any authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and


 


(ii)           to such Depositary
a new Global Security in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global


 


12

















 


Security
and the aggregate principal amount of Securities authenticated and delivered
pursuant to clause (i) above.


 


Upon the exchange of a Global Security for Securities
in definitive registered form, in authorized denominations, such Global
Security shall be cancelled by the Trustee. 
Securities in definitive registered form issued in exchange for a Global
Security pursuant to this Section 2.08 shall be registered in such names
and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. 
The Trustee shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.


 


All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.


 


Section 2.09           Mutilated, Defaced,
Destroyed, Lost and Stolen Securities.  In
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall
authenticate and deliver a new Security of the same series, maturity date,
interest rate and original issue date, bearing a number or other distinguishing
symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and substitution for the Security
so destroyed, lost or stolen.  In every
case the applicant for a substitute Security shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each
of them harmless and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof and in the case of mutilation or defacement shall
surrender the Security to the Trustee.


 


Upon the issuance of any substitute Security, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.  In case any Security which has matured or is
about to mature or has been called for redemption in full, or is being
surrendered for conversion in full, shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Security
(with the Holder’s consent, in the case of convertible Securities), pay or
authorize the payment of the same or convert, or authorize conversion of the
same (without surrender thereof except in the case of a mutilated or defaced
Security), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.


 


Every substitute Security of any series issued
pursuant to the provisions of this Section by virtue of the fact that any
such Security is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security shall be


 


13

















 


at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the limitations of
rights set forth in) this Indenture equally and proportionately with any and
all other Securities of such series duly authenticated and delivered
hereunder.  All Securities shall be held
and owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment
or conversion of mutilated, defaced or destroyed, lost or stolen Securities and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.


 


Section 2.10           Cancellation of
Securities; Destruction Thereof.  All
Securities surrendered for exchange for Securities of the same series or for
payment, redemption, registration of transfer, conversion or for credit against
any payment in respect of a sinking or analogous fund, if surrendered to the
Issuer or any agent of the Issuer or the Trustee, shall be delivered to the
Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture.  The Trustee shall dispose of cancelled
Securities held by it and deliver a certificate of disposition to the
Issuer.  If the Issuer shall acquire any
of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the Debt represented by such Securities unless and until the
same are delivered to the Trustee for cancellation.


 


Section 2.11           Temporary
Securities.  Pending the
preparation of definitive Securities for any series, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case in
form satisfactory to the Trustee). 
Temporary Securities of any series shall be issuable in any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof.  Temporary
Securities may contain such reference to any provisions of this Indenture as
may be appropriate.  Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. 
Without unreasonable delay the Issuer shall execute and shall furnish
definitive Securities of such series and thereupon temporary Securities of such
series may be surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to Section 3.02
and the Trustee shall authenticate and deliver in exchange for such temporary
Securities of such series an equal aggregate principal amount of definitive
Securities of the same series having authorized denominations.  Until so exchanged, the temporary Securities
of any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless the benefits of the temporary Securities
are limited pursuant to Section 2.03.


 


ARTICLE 3

COVENANTS OF THE ISSUER


 


Section 3.01           Payment of Principal
and Interest.  The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional


 


14

















 


amounts payable pursuant to the terms of such
Securities) at the place or places, at the respective times and in the manner
provided in such Securities and in this Indenture.  The interest on Securities (together with any
additional amounts payable pursuant to the terms of such Securities) shall be
payable only to or upon the written order of the Holders thereof and at the
option of the Issuer may be paid by mailing checks for such interest payable to
or upon the written order of such Holders at their last addresses as they
appear on the Security register of the Issuer.


 


Section 3.02           Offices for Payments,
Etc.  The Issuer will maintain
(i) in               ,
an agency where the Securities of each series may be presented for payment, an
agency where the Securities of each series may be presented for exchange and
conversion, if applicable, as provided in this Indenture and an agency where
the Securities of each series may be presented for registration of transfer as
in this Indenture provided and (ii) such further agencies in such places
as may be determined for the Securities of such series pursuant to Section 2.03.


 


The Issuer will maintain in                     ,
an agency where notices and demands to or upon the Issuer in respect of the
Securities of any series or this Indenture may be served.


 


The Issuer will give to the Trustee written notice of
the location of each such agency and of any change of location thereof.  In case the Issuer shall fail to maintain any
agency required by this Section to be located in                     ,
or shall fail to give such notice of the location or of any change in the
location of any of the above agencies, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the Trustee.


 


The Issuer may from time to time designate one or more
additional agencies where the Securities of a series may be presented for payment,
where the Securities of that series may be presented for exchange or
conversion, if applicable, as provided in this Indenture and pursuant to Section 2.03
and where the Securities of that series may be presented for registration of
transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Issuer
of its obligation to maintain the agencies provided for in this Section.  The Issuer will give to the Trustee prompt
written notice of any such designation or rescission thereof.


 


Section 3.03           Appointment to Fill a
Vacancy in Office of Trustee.  The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that
there shall at all times be a Trustee with respect to each series of Securities
hereunder.


 


Section 3.04           Paying Agents.  Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,


 


(a)           that it will hold
all sums received by it as such agent for the payment of the principal of or
interest on the Securities of such series (whether such sums have been


 


15

















 


paid
to it by the Issuer or by any other obligor on the Securities of such series)
in trust for the benefit of the Holders of the Securities of such series or of
the Trustee,


 


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


 


(c)           that at any time
during the continuance of any such failure, upon the written request of the
Trustee, it will forthwith pay to the Trustee all sums so held in trust by such
paying agent.


 


The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series, deposit with the
paying agent a sum sufficient to pay such principal or interest so becoming
due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.


 


If the Issuer shall act as its own paying agent with
respect to the Securities of any series, it will, on or before each due date of
the principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series a sum sufficient to pay such principal or interest so becoming
due.  The Issuer will promptly notify the
Trustee of any failure to take such action.


 


Anything in this Section to the contrary
notwithstanding, but subject to Section 10.01, the Issuer may at any time,
for the purpose of obtaining a satisfaction and discharge with respect to one
or more or all series of Securities hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for any such series by
the Issuer or any paying agent hereunder, as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained.


 


Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Sections 10.03 and 10.04.


 


Section 3.05           Written Statement to
Trustee.  So long as any
Securities are Outstanding hereunder, the Issuer will deliver to the Trustee,
within 120 days after the end of each fiscal year of the Issuer ending after
the date hereof, a written statement covering the previous fiscal year, signed
by two of its officers (which need not comply with Section 11.05), stating
that in the course of the performance of their duties as officers of the Issuer
they would normally have knowledge of any default by the Issuer in the
performance or fulfillment of any covenant, agreement or condition contained in
this Indenture, stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers have knowledge
and the nature thereof.


 


ARTICLE 4

SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE


 


Section 4.01           Issuer to Furnish
Trustee Information as to Names and  Addresses
of Securityholders.  The
Issuer covenants and agrees that it will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses


 


16

















 


of the Holders of the Securities of each series
pursuant to Section 312 of the Trust Indenture Act of 1939:


 


(a)           semiannually and not
more than 15 days after each record date for the payment of interest on such
Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.03 for non-interest bearing Securities in
each year, and


 


(b)           at such other times
as the Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request as of a date not more than 15 days prior to the time
such information is furnished, provided,
that, if and so long as the Trustee shall be the Security registrar (the “Security Registrar”) for such series, such list shall not be
required to be furnished.


 


Section 4.02           Reports by the
Issuer.  The Issuer covenants
to comply with Section 314(a) of the Trust Indenture Act insofar as
it relates to information, documentations, and other reports which the Issuer
may be required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934.


 


Section 4.03           Reports by the
Trustee.  Any Trustee’s report
required under Section 313(a) of the Trust Indenture Act of 1939
shall be transmitted on or before             
in each year following the date hereof, so long as any Securities are Outstanding
hereunder, and shall be dated as of a date convenient to the Trustee but no
more than 60 nor less than 45 days prior thereto.  The Trustee shall comply with Sections
313(b), 313(c) and 313(d) of the Trust Indenture Act.


 


Section 4.04           Preservation of Information;
Communication with Securityholders.  (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities
contained in the most recent list furnished to it as provided in Section 4.01
and as to the names and addresses of holders of Securities received by the
Trustee in its capacity as Security Registrar (if acting in such capacity).


 


(b)           The
Trustee may destroy any list furnished to it as provided in Section 4.01
upon receipt of a new list so furnished.


 


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


 


ARTICLE 5

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT


 


Section 5.01           Event of Default
Defined; Acceleration of Maturity; Waiver  of Default.  “Event of Default,” with respect to Securities of any series wherever used herein,
means each one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by


 


17

















 


operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(a)           default in the
payment of any installment of interest upon any of the Securities of such
series as and when the same shall become due and payable, and continuance of
such default for a period of 30 days (or such other period as may be established
for the Securities of such series as contemplated by Section 2.03); or


 


(b)           default in the
payment of all or any part of the principal on any of the Securities of such
series as and when the same shall become due and payable either at maturity,
upon redemption, by declaration or otherwise, and the continuance of such
default (or such other period as may be established for the Securities of such
series as contemplated by Section 2.03); or


 


(c)           default in the
performance, or breach, of any covenant or warranty of the Issuer in respect of
the Securities of such series (other than a covenant or warranty in respect of
the Securities of such series a default in the performance or breach of which
is elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the Issuer and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default”
hereunder; or


 


(d)           a court having
jurisdiction in the premises shall enter a decree or order for relief in
respect of the Issuer in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of the Issuer or for all or substantially all of its property and assets or
ordering the winding up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or


 


(e)           the Issuer shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Issuer or for any substantial part
of its property and assets, or make any general assignment for the benefit of
creditors; or


 


(f)            any other Event of
Default provided for in such series of Securities.


 


If an Event of Default described in clauses (a), (b), (c) or
(f) occurs and is continuing, then, and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding
hereunder (each such series voting as a separate class) by notice in writing to
the Issuer (and also to the Trustee if given by Securityholders), may declare
the entire principal (or, if the Securities of such


 


18

















 


series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series) of all Securities of such series and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable. 
If an Event of Default described in clauses (d) or (e) occurs
and is continuing, then and in each and every such case, the entire principal
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as may be specified in the terms thereof) of all the Securities
then Outstanding and interest accrued thereon, if any, shall become immediately
due and payable.


 


The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of such series (or
of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series, (or at the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of negligence or bad faith, and if any and all
Events of Default under the Indenture, other than the non-payment of the
principal of Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein--then and in every
such case the Holders of a majority in aggregate principal amount of all the
Securities of such series, each series voting as a separate class, (or of all
the Securities, as the case may be, voting as a single class) then Outstanding,
by written notice to the Issuer and to the Trustee, may waive all defaults with
respect to such series (or with respect to all the Securities, as the case may
be) and rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.


 


For all purposes under this Indenture, if a portion of
the principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such acceleration,
and payment of such portion of the principal thereof as shall be due and
payable as a result of such acceleration, together with interest, if any,
thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities.


 


19














 


Section 5.02           Collection of Debt by
Trustee; Trustee May Prove Debt.  The
Issuer covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity
of the Securities of such series or upon any redemption or by declaration or
otherwise--then, upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole
amount that then shall have become due and payable on all Securities of such
series for principal or interest, as the case may be (with interest to the date
of such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor trustee except as a
result of its negligence or bad faith.


 


In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer or
other obligor upon such Securities and collect in the manner provided by law
out of the property of the Issuer or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.


 


In case there shall be pending proceedings relative to
the Issuer or any other obligor upon the Securities under Title 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor or its property, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer or such
other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:


 


(i)            to file and prove a
claim or claims for the whole amount of principal and interest (or, if the
Securities of any series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) owing
and unpaid in respect of the Securities of any series, and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation to the
Trustee and each predecessor trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses


 


20

















 


and
liabilities incurred, and all advances made, by the Trustee and each
predecessor trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the Issuer or
other obligor upon the Securities of any series, or to the creditors or
property of the Issuer or such other obligor,


 


(ii)           unless prohibited
by applicable law and regulations, to vote on behalf of the Holders of the
Securities of any series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable proceedings,
and


 


(iii)          to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to distribute all amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any trustee, receiver
or liquidator, custodian or other similar official is hereby authorized by each
of the Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor trustee except as a result of negligence or bad faith and all other
amounts due to the Trustee or any predecessor trustee pursuant to Section 6.06.


 


Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.


 


All rights of action and of asserting claims under
this Indenture, or under any of the Securities of any series, may be enforced
by the Trustee without the possession of any of the Securities of such series
or the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of the
Trustee, each predecessor trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities in respect of
which such action was taken.


 


In any proceedings brought by the Trustee (and also
any proceedings involving the interpretation of any provision of this Indenture
to which the Trustee shall be a party), the Trustee shall be held to represent
all the Holders of the Securities in respect to which such action was taken,
and it shall not be necessary to make any Holders of such Securities parties to
any such proceedings.


 


21

















 


Section 5.03           Application of
Proceeds.  Any moneys
collected by the Trustee pursuant to this Article in respect of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities in respect of which
monies have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only partially paid, or
upon surrender thereof if fully paid:


 


FIRST:  To the payment of all amounts due to the
Trustee or any predecessor trustee pursuant to Section 6.06;


 


SECOND:  In case the principal of the Securities of
such series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the Securities
of such series in default in the order of the maturity of the installments of
such interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, such payments to be
made ratably to the Persons entitled thereto, without discrimination or
preference;


 


THIRD:  In case the principal of the Securities of
such series in respect of which moneys have been collected shall have become
and shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to the
payment of such principal and interest or Yield to Maturity, without preference
or priority of principal over interest or Yield to Maturity, or of interest or
Yield to Maturity over principal, or of any installment of interest over any
other installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and


 


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


 


Section 5.04           Suits for Enforcement.  In case an Event of Default has occurred, has
not been waived and is continuing, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.


 


22

















 


Section 5.05           Restoration of Rights
on Abandonment of Proceedings. 
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and in
every such case (subject to any determination in such proceeding) the Issuer
and the Trustee shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such proceedings
had been taken.


 


Section 5.06           Limitations on Suits by
Securityholders.  No Holder of
any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of such
series then Outstanding shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and
no direction inconsistent with such written request shall have been given to
the Trustee pursuant to Section 5.09; it being understood and intended,
and being expressly covenanted by the Holder of every Security with every other
Holder and the Trustee, that no one or more Holders of Securities of any series
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other such Holder of Securities, or to obtain or seek to obtain priority over
or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series.  For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.


 


Section 5.07           Unconditional Right of
Securityholders to Institute Certain  Suits. 
Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security on or after the respective due
dates expressed in such Security in accordance with the terms hereof and
thereof, or to institute suit for the enforcement of any such payment on or
after such respective dates, or for the enforcement of such conversion right,
shall not be impaired or affected without the consent of such Holder.


 


Section 5.08           Powers and Remedies
Cumulative; Delay or Omission Not  Waiver
of Default.  Except as
provided in Section 5.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities 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


 


23

















 


otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.


 


No delay or omission of the Trustee or of any Holder
of Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.06, every power and remedy
given by this Indenture or by law to the Trustee or to the Holders of
Securities may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities.


 


Section 5.09           Control by Holders of
Securities.  The Holders of a
majority in aggregate principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time Outstanding
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series by
this Indenture; provided, that
such direction shall not be otherwise than in accordance with law and the
provisions of this Indenture and provided, further, that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible Officers of the
Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 6.01) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.


 


Nothing in this Indenture shall impair the right of
the Trustee in its discretion to take any action deemed proper by the Trustee
and which is not inconsistent with such direction or directions by
Securityholders.


 


Section 5.10           Waiver of Past Defaults.  Prior to the declaration of the acceleration
of the maturity of the Securities of any series as provided in Section 5.01,
the Holders of a majority in aggregate principal amount of the Securities of
such series at the time Outstanding may on behalf of the Holders of all the
Securities of such series waive any past default in the performance of any of
the covenants contained herein or established pursuant to Section 2.03
with respect to such series and its consequences, except a default in the
payment of the principal of (or premium, if any), or interest on, any of the
Securities of that series as and when the same shall become due by the terms of
such Securities.  In the case of any such
waiver, the Issuer, the Trustee and the Holders of the Securities of such
series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.


 


Upon any such waiver, such default shall cease to
exist and be deemed to have been cured and not to have occurred, and any Event
of Default arising therefrom shall be deemed to have been cured, and not to
have occurred for every purpose of this Indenture; but no such


 


24

















 


waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon.


 


Section 5.11           Trustee to Give Notice
of Default.  The Trustee
shall, within 90 days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with respect to that
series known to the Trustee to all Holders of Securities of such series in the
manner and to the extent provided in Section 4.03, unless in each case
such defaults shall have been cured before the mailing or publication of such
notice (the term “defaults” for
the purpose of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided, that,
except in the case of default in the payment of the principal of or interest on
any of the Securities of such series, or in the payment of any sinking fund
installment on such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.


 


Section 5.12           Right of Court to
Require Filing of Undertaking to Pay  Costs.  All parties to
this Indenture agree, and each Holder of any Security by his or her acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security of such series,
on or after the respective due dates expressed in such Security or established
pursuant to this Indenture.


 


ARTICLE 6

CONCERNING THE TRUSTEE


 


Section 6.01           Duties and
Responsibilities of the Trustee; During Default;  Prior to Default.  With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. 
In case an Event of Default with respect to the Securities of a series
has occurred (which has not been cured or waived), 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 their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.


 


25

















 


No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct.


 


Section 6.02           Certain Rights of the
Trustee.  In furtherance of
and subject to the Trust Indenture Act of 1939 and subject to Section 6.01:


 


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


 


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


 


(c)           the Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders pursuant to Section 5.09
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture;


 


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


 


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


 


(f)            any request,
direction, order or demand of the Issuer mentioned herein shall be sufficiently
evidenced by an Officer’s Certificate (unless other evidence in respect thereof
be herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;


 


(g)           the Trustee may
consult with counsel and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;


 


26

















 


(h)           the Trustee shall be
under no obligation to exercise any of the trusts or powers vested in it by
this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or thereby;


 


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


 


(j)            prior to the
occurrence of an Event of Default hereunder and after the curing or waiving of
all Events of Default, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a majority in
aggregate principal amount of the Securities of all series affected then
Outstanding; provided, that, if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid
by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be
repaid by the Issuer upon demand; and


 


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


 


Section 6.03           Trustee Not Responsible
for Recitals, Disposition of  Securities
or Application of Proceeds Thereof.  The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Issuer,
and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities.  The Trustee shall not be accountable for the
use or application by the Issuer of any of the Securities or of the proceeds
thereof.


 


Section 6.04           Trustee and Agents May Hold
Securities; Collections, Etc.  The
Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.


 


Section 6.05           Moneys Held by
Trustee.  Subject to the
provisions of Section 10.04 hereof, all moneys received by the Trustee
shall, until used or applied as herein provided, be held


 


27

















 


in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. 
Neither the Trustee nor any agent of the Issuer or the Trustee shall be
under any liability for interest on any moneys received by it hereunder.


 


Section 6.06           Compensation and
Indemnification of Trustee and Its Prior  Claim.  The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust) as the Issuer and the Trustee may from time to time agree in
writing and, except as otherwise expressly provided herein, the Issuer
covenants and agrees to pay or reimburse the Trustee and each predecessor
trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. 
The Issuer also covenants to indemnify the Trustee and each predecessor
trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises.  The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and each
predecessor trustee and to pay or reimburse the Trustee and each predecessor
trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture.  Such additional indebtedness
shall be a senior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities, and the Securities are hereby
subordinated to such senior claim.


 


Section 6.07           Right of Trustee to
Rely on Officer’s Certificate, Etc.  Subject
to Sections 6.01 and 6.02, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer’s Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.


 


Section 6.08           Disqualification;
Conflicting Interests.  If the
Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee and the Issuer shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture
Act.


 


Section 6.09           Persons Eligible for
Appointment as Trustee.  The
Trustee for each series of Securities hereunder shall at all times be a
corporation having a combined capital and surplus of at least $50,000,000 and
shall be eligible in accordance with the provisions of Section 310(a) of
the Trust Indenture Act of 1939.  If such
corporation publishes reports of condition at least


 


28

















 


annually, pursuant to law or to the requirements of
a Federal, State or District of Columbia supervising or examining authority,
then, for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.


 


Section 6.10           Resignation and
Removal; Appointment of Successor  Trustee.  (a) 
The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer and by mailing notice of such
resignation to the Holders of then Outstanding Securities of each series
affected at their addresses as they shall appear on the Security register.  Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee or
trustees.  If no successor trustee shall
have been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may, on
behalf of himself or herself and all others similarly situated, petition any
such court for the appointment of a successor trustee.  Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.


 


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


 


(i)            the Trustee shall
fail to comply with the provisions of Section 310(b) of the Trust
Indenture Act of 1939 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a bona
fide Holder of a Security or Securities of such series for at least six months;
or


 


(ii)           the Trustee shall
cease to be eligible in accordance with the provisions of Section 310(a) of
the Trust Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or


 


(iii)          the Trustee shall
become incapable of acting with respect to any series of Securities, or shall
be adjudged bankrupt or insolvent, or a receiver or liquidator of the Trustee
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;


 


then, in any such case, (A) the
Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or, (B) subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may
on behalf of himself or herself and all others similarly


 


29

















 


situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.


 


(c)           The Holders of a
majority in aggregate principal amount of the Securities of each series at the
time Outstanding may at any time remove the Trustee with respect to Securities
of such series and, with the consent of the Issuer, appoint a successor trustee
with respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.01 of the action in that regard taken by the
Securityholders.


 


(d)           Any resignation or
removal of the Trustee with respect to any series and any appointment of a
successor trustee with respect to such series pursuant to any of the provisions
of this Section 6.10 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 6.11.


 


Section 6.11           Acceptance of
Appointment by Successor Trustee.  Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section 10.04,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations.  Upon request of any such successor trustee,
the Issuer shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers.  Any trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.06.


 


If a successor trustee is appointed with respect to
the Securities of one or more (but not all) series, the Issuer, the predecessor
trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
trustee with respect to the Securities of any series as to which the
predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts under separate indentures.


 


30














 


No successor trustee with respect to any series of
Securities shall accept appointment as provided in this Section 6.11
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 310(b) of the Trust Indenture Act of
1939 and eligible under the provisions of Section 310(a) of the Trust
Indenture Act of 1939.


 


Upon acceptance of appointment by any successor
trustee as provided in this Section 6.11, the Issuer shall mail notice
thereof to the Holders of Securities of each series affected, by mailing such
notice to such Holders at their addresses as they shall appear on the Security
register.  If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10.  If the
Issuer fails to mail such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.


 


Section 6.12           Merger, Conversion,
Consolidation or Succession to  Business
of Trustee.  Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder; provided,
that such corporation shall be qualified under the provisions of Section 310(b) of
the Trust Indenture Act of 1939 and eligible under the provisions of Section 310(a) of
the Trust Indenture Act of 1939, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.


 


In case, at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture, any of the Securities of
any series shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been authenticated, any successor
to the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided,
that the right to adopt the certificate of authentication of any predecessor
trustee or to authenticate Securities of any series in the name of any
predecessor trustee shall apply only to its successor or successors by merger,
conversion or consolidation.


 


Section 6.13           Preferential Collection of
Claims Against the Issuer. 
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act.  A Trustee who
has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent included therein.


 


ARTICLE 7

CONCERNING THE SECURITYHOLDERS


 


Section 7.01           Evidence of Action
Taken by Securityholders.  Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be


 


31

















 


given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee.  Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.01 and 6.02)
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Article.


 


Section 7.02           Proof of Execution of
Instruments and of Holding of  Securities.  Subject to Sections 6.01 and 6.02,
the execution of any instrument by a Holder or his agent or proxy may be proved
in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.  The holding of Securities shall
be proved by the Security register or by a certificate of the registrar
thereof.  The Issuer may set a record
date for purposes of determining the identity of Holders of any series entitled
to vote or consent to any action referred to in Section 7.01, which record
date may be set at any time or from time to time by notice to the Trustee, for
any date or dates (in the case of any adjournment or reconsideration) not more
than 60 days nor less than five days prior to the proposed date of such vote or
consent, and thereafter, notwithstanding any other provisions hereof, only
Holders of such series of record on such record date shall be entitled to so
vote or give such consent or revoke such vote or consent.  Notice of such record date may be given
before or after any request for any action referred to in Section 7.01 is
made by the Issuer.


 


Section 7.03           Holders to Be Treated
as Owners.  The Issuer, the
Trustee and any agent of the Issuer or of the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of, and, subject to the provisions of this Indenture, interest
on, such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.  All such
payments so made to any such Person, or upon his or her order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable.


 


Section 7.04           Securities Owned by
Issuer Deemed Not Outstanding.  In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities which the Trustee knows are so owned shall
be so disregarded.  Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Securities and that the pledgee is not the Issuer
or any other obligor upon the Securities


 


32

















 


or any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer or any
other obligor on the Securities.  In case
of a dispute as to such right, the advice of counsel shall be full protection
in respect of any decision made by the Trustee in accordance with such advice.


 


Section 7.05           Right of Revocation of
Action Taken.  At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section 7.01,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security.  Except as
aforesaid, any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor or on registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security.  Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Issuer, the Trustee and the
Holders of all the Securities affected by such action.


 


ARTICLE 8

SUPPLEMENTAL INDENTURES


 


Section 8.01           Supplemental Indentures
Without Consent of  Securityholders.  The Issuer, when authorized by a
resolution of its Board of Directors, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto in form
satisfactory to the Trustee for one or more of the following purposes:


 


(a)           to convey, transfer,
assign, mortgage or pledge to the Trustee as security for the Securities of one
or more series any property or assets;


 


(b)           to evidence the
succession of another corporation to the Issuer, or successive successions, and
the assumption by the successor corporation of the covenants, agreements and
obligations of the Issuer pursuant to Article 9;


 


(c)           to add to the
covenants of the Issuer such further covenants, restrictions, conditions or
provisions as its Board of Directors and the Trustee shall consider to be for
the protection of the Holders of Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided, that
in respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an
Event of Default or may limit the right of the Holders of a majority


 


33

















 


in
aggregate principal amount of the Securities of such series to waive such an
Event of Default;


 


(d)           to cure any
ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture, or to conform this
Indenture or any supplemental indenture to the description of the Securities
set forth in any prospectus or prospectus supplement related to such series of
Securities;


 


(e)           to provide for or
add guarantors for the Securities of one or more series;


 


(f)            to establish the
form or terms of Securities of any series as permitted by Sections 2.01 and
2.03;


 


(g)           to evidence and
provide for the acceptance of appointment hereunder by a successor trustee with
respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11;


 


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


 


(i)            to make any change
to the Securities of any series so long as no Securities of such series are
Outstanding; and


 


(j)            to make any other
change that does not adversely affect the interests of the Holders of the
Securities in any material respect.


 


The Trustee is hereby authorized to join with the
Issuer in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.


 


Any supplemental indenture authorized by the
provisions of this Section may be executed without the consent of the
Holders of any of the Securities at the time Outstanding, notwithstanding any
of the provisions of Section 8.02.


 


Section 8.02           Supplemental Indentures
With Consent of Securityholders.  With
the consent (evidenced as provided in Article 7) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the
time Outstanding of all series affected by such supplemental indenture (voting
as one class), the Issuer, when authorized by a resolution of the Board of
Directors, and the Trustee may, from time to time and at any time, enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any


 


34

















 


supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series; provided, that no such supplemental
indenture shall, without the consent of the Holder of each Security so
affected, (a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or make
the principal thereof (including any amount in respect of original issue
discount) or interest thereon payable in any currency other than that provided
in the Securities or in accordance with the terms thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 5.01
or the amount thereof provable in bankruptcy pursuant to Section 5.02, or
waive a default in the payment of principal of any Security or interest thereon
or change a provision related to the waiver of past defaults or changes or
impair the right of any Securityholder to institute suit for the payment or
conversion thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, or (b) modify any of the
provisions of this section except to increase any required percentage or to
provide that certain other provisions cannot be modified or waived without the
consent of the Holder of each Security so affected, or (c) reduce the
aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture or the consent of Holders
of which is required for any modification, amendment or waiver of compliance
with certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture.


 


A supplemental indenture which changes or eliminates
any covenant, Event of Default or other provision of this Indenture (1) that
has been expressly included solely for the benefit of one or more particular
series of Securities, if any, or (2) which modifies the rights of Holders
of Securities of one or more series with respect to any covenant, Event of
Default or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series with respect to
which such covenant, Event of Default or other provision has not been modified.


 


Upon the request of the Issuer, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 7.01, the
Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.


 


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


 


Promptly after the execution by the Issuer and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give a notice thereof to the Holders of then
Outstanding Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security register, and in each case such notice shall set forth
in general terms the substance of such supplemental


 


35

















 


indenture.  Any
failure of the Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.


 


Section 8.03           Effect of Supplemental
Indenture.  Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.


 


Section 8.04           Documents to Be Given
to Trustee.  The Trustee,
subject to the provisions of Sections 6.01 and 6.02, may receive an Officer’s
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article 8 complies with
the applicable provisions of this Indenture.


 


Section 8.05           Notation on Securities
in Respect of Supplemental  Indentures.  Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken by Securityholders.  If the Issuer or the Trustee shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.


 


ARTICLE 9

CONSOLIDATION, MERGER, SALE OR CONVEYANCE


 


Section 9.01           Issuer May Consolidate,
Etc., on Certain Terms.  The
Issuer shall not consolidate with or merge into any other Person (in a transaction
in which the Issuer is not the surviving corporation) or convey, transfer or
lease its properties and assets substantially as an entirety to any Person,
unless (a) the Person formed by such consolidation or into which the
Issuer is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Issuer substantially as an
entirety (i) shall be a corporation, limited liability company,
partnership or trust, (ii) shall be organized and validly existing under
the laws of the United States of America, any State thereof or the District of
Columbia and (iii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Issuer to be performed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the Person formed by such consolidation or into
which the Issuer shall have been merged or by the Person which shall have
acquired the Issuer’s assets; (b) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Issuer or any Subsidiary as a result of such transaction as having been
incurred by the Issuer or such Subsidiary at the time of such


 


36

















 


transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and (c) the Issuer has delivered to
the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.


 


The conditions of (a)(ii) above shall not apply
in the case of a corporation or entity not organized under the laws of the
United States of America, any State thereof or the District of Columbia which
shall agree, in form satisfactory to the Trustee, (i) to subject itself to
the jurisdiction of the United States district court for the Southern District
of New York and (ii) to indemnify and hold harmless the holders of all
Securities against (A) any tax, assessment or governmental charge imposed
on such holders by a jurisdiction other than the United States or any political
subdivision or taxing authority thereof or therein with respect to, and
withheld on the making of, any payment of principal or interest on such
Securities and which would not have been so imposed and withheld had such
consolidation, merger, sale or conveyance not been made and (B) any tax,
assessment or governmental charge imposed on or relating to, and any costs or
expenses involved in, such consolidation, merger, sale or conveyance.


 


The restrictions in this Section 9.01 shall not
apply to (i) the merger or consolidation of the Issuer with one of its
affiliates, if the Board of Directors determines in good faith that the purpose
of such transaction is principally to change the Issuer’s State of
incorporation or convert the Issuer’s form of organization to another form, or (ii) the
merger of the Issuer with or into a single direct or indirect wholly owned
Subsidiary pursuant to Section 251(g) (or any successor provision) of
the General Corporation Law of the State of Delaware.


 


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


 


Section 9.02           Successor Issuer
Substituted.  Upon any
consolidation of the Issuer with, or merger of the Issuer into, any other
Person or any conveyance, transfer or lease of the properties and assets of the
Issuer substantially as an entirety in accordance with Section 9.01, the
successor Person formed by such consolidation or into which the Issuer is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Issuer
under this Indenture with the same effect as if such successor Person had been
named as the Issuer herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


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


 


37

















 


ARTICLE 10

SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS


 


Section 10.01         Satisfaction and
Discharge of Indenture; Defeasance. 
(a)  If at any time


 


(i)            the Issuer shall
have paid or caused to be paid the principal of and interest on all the
Securities of any series Outstanding hereunder (other than Securities of such
series which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 2.09) as and when the same shall have
become due and payable, or


 


(ii)           the Issuer shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.09) or


 


(iii)          in the case of any
series of Securities the exact amount (including the currency of payment) of
principal of and interest due on which on the dates referred to in clause (B) below
can be determined at the time of making the deposit referred to in such clause,


 


(A)          all the Securities of
such series not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and


 


(B)           the Issuer shall
have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 10.04) or, in the
case of any series of Securities the payments on which may only be made in
Dollars, direct obligations of the United States of America, backed by its full
faith and credit (“U.S. Government
Obligations”), maturing as to principal and interest in such amounts
and at such times as will insure the availability of cash sufficient to pay on
any subsequent interest payment date all interest due on such interest payment
date on the Securities of such series and to pay at maturity or upon redemption
all Securities of such series (in each case other than any Securities of such
series which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.09) not theretofore
delivered to the Trustee for cancellation, including principal and interest due
or to become due to such date of maturity, as the case may be,


 


and if, in any such case
(i), (ii) or (iii), the Issuer shall also pay or cause to be paid all
other sums payable hereunder by the Issuer, including amounts due the Trustee
pursuant to Section 6.06,


 


38

















 


with respect to
Securities of such series, then this Indenture shall cease to be of further
effect with respect to Securities of such series (except as to (1) rights
of registration of transfer, conversion and exchange of Securities of such
series and the Issuer’s right of optional redemption, (2) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of
Holders of Securities to receive, solely from the trust fund described in Section 10.01(d)(i),
payments of principal thereof and interest thereon, upon the original stated
due dates therefor (but not upon acceleration) and remaining rights of the
Holders to receive, solely from the trust fund described in Section 10.01(d)(i),
sinking fund payments, if any, (4) the rights (including the Trustee’s
rights under Section 10.05) and immunities of the Trustee hereunder and
the Trustee’s obligations under Sections 10.02 and 10.04 and (5) the
obligations of the Issuer under Section 3.02), and the Trustee, on demand
of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel
which complies with Section 11.05 and at the cost and expense of the
Issuer, shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such series.  The Issuer agrees to reimburse the Trustee
for any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of
such series.


 


(b)           The
following subsection shall apply to the Securities of each series unless
specifically otherwise provided in a Board Resolution, Officer’s Certificate or
indenture supplemental hereto provided pursuant to Section 2.03.  In addition to discharge of the Indenture
pursuant to subsection (a) above, the Issuer, at its option and at any
time, by written notice by an officer delivered to the Trustee, may elect to
have all of its obligations discharged with all Outstanding Securities of a
series (“Legal Defeasance”), such discharge to
be effective on the date that the conditions set forth in clauses (i) through
(iii), (iv) and (vi) of Section 10.01(d) are satisfied, and
thereafter the Issuer shall be deemed to have paid and discharged the entire
Debt on all the Securities of such a series, and satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned and this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (1) rights of registration
of transfer, conversion and exchange of Securities of such series, (2) substitution
of apparently mutilated, defaced, destroyed, lost or stolen Securities, (3) rights
of Holders of Securities to receive, solely from the trust fund described in Section 10.01(d)(i),
payments of principal thereof and interest thereon, upon the original stated
due dates therefor (but not upon acceleration) and remaining rights of the
Holders to receive, solely from the trust fund described in Section 10.01(d)(i),
sinking fund payments, if any, (4) the rights (including the Trustee’s
rights under Section 10.05) and immunities of the Trustee hereunder and
the Trustee’s obligations with respect to the Securities of such series under
Sections 10.02 and 10.04 and (5) the obligations of the Issuer under Section 3.02).


 


(c)           The
following subsection shall apply to the Securities of each series unless
specifically otherwise provided in a Board Resolution, Officer’s Certificate or
indenture supplemental hereto provided pursuant to Section 2.03.  In addition to discharge of the Indenture
pursuant to subsection (a) and Legal Defeasance pursuant to subsection
(b), above, the Issuer, at its option and at
any time, by written notice executed by an officer delivered to the Trustee,
may elect to have its obligations under any covenant contained in the Board
Resolution or supplemental indenture relating to such series pursuant to Section 2.03
discharged with respect to all Outstanding Securities of a series, this
Indenture and any indentures supplemental to this


 


39

















 


Indenture insofar as such
Securities are concerned (“Covenant Defeasance”),
such discharge to be effective on the date the conditions set forth in clauses (i) through
(iii) and (v) through (vi) of Section 10.01(d) are
satisfied, and such Securities shall thereafter be deemed to be not
“Outstanding” for the purposes of any direction, waiver, consent or declaration
of Securityholders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be “Outstanding” for all other purposes
under this Indenture.  For this purpose,
such covenant defeasance means that, with respect to the Outstanding Securities
of a series, the Issuer 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 reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute an Event of Default under Section 5.01(c) or otherwise, but except
as specified in this Section 10.01(c), the remainder of the Issuer’s
obligations under the Securities of such series, this Indenture, and any
indentures supplemental to this Indenture with respect to such series shall be
unaffected thereby.


 


(d)           The following shall be the conditions to the application
of Legal Defeasance under subsection (b) or Covenant Defeasance under
subsection (c) to the Securities of the applicable series:


 


(i)            the
Issuer irrevocably deposits in trust with the Trustee or, at the option of the
Trustee, with a trustee satisfactory to the Trustee and the Company under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee, cash or U.S. Government Obligations that will generate cash sufficient to pay principal of, premium, if any,
and interest on the Outstanding Securities of such series to maturity or
redemption, as the case may be, and to pay all other amounts payable by it
hereunder, provided that (A) the trustee of the irrevocable trust, if any,
shall have been irrevocably instructed to pay such funds or the proceeds of
such U.S. Government Obligations to the
Trustee and (B) the Trustee shall have been irrevocably instructed to
apply such funds or the proceeds of such U.S. Government Obligations to (x) the
principal and interest on all Securities of such series on the date that such
principal or interest is due and payable and (y) any mandatory sinking
fund payments on the day on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series,
and the Issuer shall also pay or cause to be paid all other amounts payable
hereunder with respect to such series;


 


(ii)           the
Issuer delivers to the Trustee an Officer’s Certificate stating that all
conditions precedent specified herein relating to Legal Defeasance or Covenant
Defeasance, as the case may be, have been complied with, and an Opinion of
Counsel to the same effect;


 


(iii)          no
Event of Default under subsection (a), (b), (d) or (e) of Section 5.01
shall have occurred and be continuing, and no event which with notice or lapse
of time or both would become such an Event of Default shall have occurred and
be continuing, on the date of such deposit;


 


40

















 


(iv)          in the event of an election for Legal
Defeasance under subsection (b), the Issuer shall have delivered to the Trustee
an Opinion of Counsel stating that (A) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or (B) since
the date of this instrument, there has been a change in the applicable Federal
income tax law, in either case (A) or (B) to the effect that, and
based thereon such opinion shall confirm that, the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a result of
the deposit, defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would be the case if such deposit,
defeasance and discharge were not to occur;


 


(v)           in the event of an election for Covenant
Defeasance under subsection (c), the Issuer shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur; and


 


(vi)          notwithstanding
any other provisions of this subsection (d), such defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Issuer pursuant
to Section 2.03.


 


After such irrevocable deposit
made pursuant to this Section 10.01 and satisfaction of the other
conditions set forth in this subsection (d), the Trustee upon request shall execute proper instruments acknowledging the discharge of the Issuer’s obligations pursuant to this Section 10.01.


 


Section 10.02         Application by Trustee of
Funds Deposited for Payment of  Securities.  Subject to Section 10.04, all
moneys deposited with the Trustee (or other trustee) pursuant to Section 10.01
shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including the Issuer acting as its own paying agent),
to the Holders of the particular Securities of such series for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.


 


Section 10.03         Repayment of Moneys Held
by Paying Agent.  In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.


 


41














 


Section 10.04         Return of Moneys Held by
Trustee and Paying Agent  Unclaimed
for Two Years.  Any moneys
deposited with or paid to the Trustee or any paying agent for the payment of
the principal of or interest on any Security of any series and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall be repaid to the Issuer by
the Trustee for such series or such paying agent, and the Holder of the
Securities of such series shall thereafter look only to the Issuer for any
payment which such Holder may be entitled to collect, and all liability of the
Trustee or any paying agent with respect to such moneys shall thereupon cease.


 


Section 10.05         Indemnity for U.S.
Government Obligations.  The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.01 or the principal or interest received in respect
of such obligations.


 


ARTICLE 11

MISCELLANEOUS PROVISIONS


 


Section 11.01         No Recourse.  No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Security, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, past, present or future as
such, of the Issuer or of any predecessor or successor corporation, either
directly or through the Issuer or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Issuer or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Securities.


 


Section 11.02         Provisions of Indenture
for the Sole Benefit of Parties and  Holders
of Securities.  Nothing in
this Indenture or in the Securities, expressed or implied, shall give or be
construed to give to any person, firm or corporation, other than the parties
hereto and their successors and the Holders of the Securities any legal or
equitable right, remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and of the Holders of
the Securities.


 


42

















 


Section 11.03         Successors and Assigns of
Issuer Bound by Indenture.  All
the covenants, stipulations, promises and agreements contained in this
Indenture by or on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.


 


Section 11.04         Notices and Demands on
Issuer, Trustee and Holders of  Securities.  Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Securities to or on the Issuer may be given or served by
being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Network Engines, Inc., 25 Dan
Road, Canton, Massachusetts 02021, Attn: Chief Financial Officer.  Any notice, direction, request or demand by
the Issuer or any Holder of Securities to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made at               ,
                ,
Attn:               .


 


Where this Indenture provides for notice to Holders of
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his or her last address as it appears in the
Security register.  In any case where
notice to such Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.


 


In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable to mail
notice to the Issuer when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.


 


In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable to mail
notice of any event to Holders of Securities when said notice is required to be
given pursuant to any provision of this Indenture or of the Securities, then
any manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice.  Neither the failure to give notice, nor any
defect in any notice so given, to any particular Holder of a Security shall
affect the sufficiency of such notice with respect to other Holders of
Securities given as provided above.


 


Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice either before or after the event, and such waiver shall be the
equivalent of such notice.  Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.


 


Section 11.05         Officer’s Certificates
and Opinions of Counsel; Statements  to
Be Contained Therein.  Upon
any application or demand by the Issuer to the Trustee to take any action under
any of the provisions of this Indenture, the Issuer shall furnish to the
Trustee an Officer’s Certificate stating that all conditions precedent provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is


 


43

















 


specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.


 


Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture 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 or her to express an informed opinion as to whether
or not such covenant or condition has been complied with and (d) a
statement as to whether or not, in the opinion of such person, such condition
or covenant has been complied with.


 


Any certificate, statement or opinion of an officer of
the Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.  Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual
matters, information with respect to which is in the possession of the Issuer,
upon the certificate, statement or opinion of or representations by an officer
or officers of the Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his or her certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.


 


Any certificate, statement or opinion of an officer of
the Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.


 


Any certificate or opinion of any independent firm of
public accountants filed with and directed to the Trustee shall contain a
statement that such firm is independent.


 


Section 11.06         Payments Due on
Saturdays, Sundays and Holidays.  If
the date of maturity of interest on or principal of the Securities of any
series or the date fixed for redemption or repayment of any such Security, or
the last day on which a Holder has the right to convert any Security, shall not
be a Business Day, then payment of interest or principal, or any conversion,
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption or on such last day for conversion, and no interest
shall accrue for the period after such date.


 


Section 11.07         Conflict of Any Provision
of Indenture With Trust  Indenture
Act of 1939.  If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
another


 


44

















 


provision included in this Indenture by operation of
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such
incorporated provision shall control.


 


Section 11.08         New York Law to
Govern.  This Indenture and
each Security shall be deemed to be a contract under the laws of the State of
New York, and for all purposes shall be governed by and construed in accordance
with the laws of such State without regard to any principle of conflict of laws
that would require or permit the application of the laws of any other
jurisdiction, except as may otherwise be required by mandatory provisions of
law.


 


Section 11.09         Counterparts.  This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.


 


Section 11.10         Effect of Headings.  The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


Section 11.11         Actions
by Successor.  Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board of directors or its equivalent, committee or officer
of the Issuer shall and may be done and performed with like force and effect by
the corresponding board, committee or officer of any corporation that shall at
the time be the lawful successor of the Issuer.


 


Section 11.12         Severability.  In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.


 


ARTICLE 12

REDEMPTION OF SECURITIES AND SINKING FUNDS


 


Section 12.01         Applicability of
Article.  The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series, except as otherwise specified, as contemplated by Section 2.03
for Securities of such series.


 


Section 12.02         Notice of Redemption;
Partial Redemptions.  Notice
of redemption to the Holders of Securities of any series to be redeemed as a
whole or in part at the option of the Issuer shall be given by mailing notice
of such redemption by first class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
Security register.  Any notice which is
given in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice.  Failure to give notice or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.


 


45

















 


The notice of redemption to each such Holder shall
specify the principal amount of each Security of such series held by such
Holder to be redeemed, the date fixed for redemption, the redemption price, the
place or places of payment, that payment will be made upon presentation and
surrender of such Securities, that such redemption is pursuant to the mandatory
or optional sinking fund, or both, if such be the case, that interest accrued
to the date fixed for redemption will be paid as specified in such notice and
that on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue and shall also specify, if applicable, the
conversion price then in effect and the date on which the right to convert such
Securities or the portions thereof to be redeemed will expire.  In case any Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.


 


The notice of redemption of Securities of any series
to be redeemed at the option of the Issuer shall be given by the Issuer or, at
the Issuer’s request, by the Trustee in the name and at the expense of the
Issuer.


 


On or before the redemption date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04)
an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption (other than those
theretofore surrendered for conversion into Common Stock) at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption.  If any Security called for
redemption is converted pursuant hereto, any money deposited with the Trustee
or any paying agent or so segregated and held in trust for the redemption of
such Security shall be paid to the Issuer upon the Issuer’s request, or, if
then held by the Issuer, shall be discharged from such trust.  The Issuer will deliver to the Trustee at
least 10 days prior to the date the notice required to be delivered to the Holders
is to be sent (unless a shorter time period shall be acceptable to the Trustee)
an Officer’s Certificate (which need not comply with Section 11.05)
stating the aggregate principal amount of Securities to be redeemed.  In case of a redemption at the election of
the Issuer prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officer’s Certificate
stating that such restriction has been complied with.


 


If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part.  Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities of such
series or any multiple thereof.  The
Trustee shall promptly notify the Issuer in writing of the Securities of such
series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed.  For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.  If any Security selected for partial
redemption is


 


46

















 


surrendered for conversion after such selection, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption.


 


Section 12.03         Payment of Securities
Called for Redemption.  If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and, except as provided in Sections 6.05 and
10.04 or in the paragraph below, such Securities shall cease from and after the
date fixed for redemption to be convertible into Common Stock, if applicable,
and cease to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest to the
date fixed for redemption.  On
presentation and surrender of such Securities at a place of payment specified
in said notice, said Securities or the specified portions thereof shall be paid
and redeemed by the Issuer at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided, that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.03 and 2.07 hereof.


 


If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall, until paid or
duly provided for, bear interest from the date fixed for redemption at the rate
of interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security and, if applicable, such Security shall remain
convertible into Common Stock until the principal of such Security shall have
been paid or duly provided for.


 


Upon presentation of any Security redeemed in part
only, the Issuer shall execute and the Trustee shall authenticate and deliver
to or on the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.


 


Section 12.04         Exclusion of Certain
Securities from Eligibility for  Selection
for Redemption.  Securities
shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in an Officer’s Certificate
delivered to the Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Issuer or (b) an
entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.


 


Section 12.05         Mandatory and Optional
Sinking Funds.  The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a “mandatory
sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of
the Securities of any series is herein referred to as an


 


47

















 


“optional sinking
fund  payment.” 
The date on which a sinking fund payment is to be made is herein
referred to as the “sinking fund payment date.”


 


In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in cash, the
Issuer may at its option (a) deliver to the Trustee Securities of such
series theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or receive credit for
Securities of such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Issuer and delivered to the
Trustee for cancellation pursuant to Section 2.10 and, if applicable,
receive credit for Securities (not previously so credited) converted into
Common Stock and so delivered to the Trustee for cancellation, (b) receive
credit for optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Securities of such
series (not previously so credited) redeemed by the Issuer through any optional
redemption provision contained in the terms of such series.  Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.


 


On or before the 60th day next preceding each sinking
fund payment date for any series, the Issuer will deliver to the Trustee an
Officer’s Certificate (which need not contain the statements required by Section 11.05)
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that
none of the Securities of such series for which credit will be taken has
theretofore been so credited, (c) stating that no defaults in the payment
of interest or Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date.  Any Securities of such series to be credited
and required to be delivered to the Trustee in order for the Issuer to be
entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10
to the Trustee with such Officer’s Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). 
Such Officer’s Certificate shall be irrevocable and upon its receipt by
the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. 
Failure of the Issuer, on or before any such 60th day, to deliver such
Officer’s Certificate and Securities specified in this paragraph, if any, shall
not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer that the mandatory sinking fund payment for
such series due on the next succeeding sinking fund payment date shall be paid
entirely in cash without the option to deliver or credit Securities of such
series in respect thereof.


 


If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding sinking fund
payment date plus any unused balance of any preceding sinking fund payments
made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign
Currency or a lesser sum in Dollars or in any Foreign Currency if the Issuer
shall so request) with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the


 


48

















 


sinking fund redemption price together with accrued
interest to the date fixed for redemption. 
If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency) or less and the Issuer makes no such request then it shall be
carried over until a sum in excess of $50,000 (or the equivalent thereof in any
Foreign Currency) is available, which delay in accordance with this paragraph
shall not be a default or breach of the obligation to make such payment.  The Trustee shall select, in the manner
provided in Section 12.02, for redemption on such sinking fund payment
date a sufficient principal amount of Securities of such series to absorb said
cash, as nearly as may be, and shall (if requested in writing by the Issuer)
inform the Issuer of the serial numbers of the Securities of such series (or
portions thereof) so selected.  The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing), shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 12.02 (and with the effect provided in Section 12.03) for
the redemption of Securities of such series in part at the option of the
Issuer.  The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section.  Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series,
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity.  The Issuer’s
obligation to make a mandatory or optional sinking fund payment shall
automatically be reduced by an amount equal to the sinking fund redemption
price allocable to any Securities or portions thereof called for redemption
pursuant to the preceding paragraph on any sinking fund payment date and
converted into Common Stock; provided
that, if the Trustee is not the
conversion agent for the Securities, the Issuer or such conversion agent shall
give the Trustee written notice prior to the date fixed for redemption of the
principal amount of Securities or portions thereof so converted.


 


On or before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.


 


The Trustee shall not redeem or cause to be redeemed
any Securities of a series with sinking fund moneys or give any notice of redemption
of Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Issuer a sum sufficient for such redemption. 
Except as aforesaid, any moneys in the sinking fund for such series at the
time when any such default or Event of Default shall occur, and any moneys
thereafter paid into the sinking fund, shall, during the continuance of such
default or Event of Default, be deemed to have been collected under Article 5
and held for the payment of all such Securities.  In case such Event of Default shall have been
waived as provided in Section 5.10, or the default cured on or before the
60th day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.


 


49

















 


[Signature
pages follow]


 


50

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of                           .


 


 


	
   

  	
  NETWORK ENGINES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attest:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  , Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: