Exhibit 4.2


 


NETWORK
ENGINES, INC.


 


and


 






 


Trustee


 


INDENTURE


 


Dated as of _________________


 


 


SUBORDINATED 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

  	
  6

  
	
  Section 2.01

  	
  Forms
  Generally

  	
  6

  
	
  Section 2.02

  	
  Form
  of Trustee’s Certificate of Authentication

  	
  6

  
	
  Section 2.03

  	
  Amount
  Unlimited; Issuable in Series

  	
  7

  
	
  Section 2.04

  	
  Authentication
  and Delivery of Securities

  	
  9

  
	
  Section 2.05

  	
  Execution
  of Securities

  	
  10

  
	
  Section 2.06

  	
  Certificate
  of Authentication

  	
  11

  
	
  Section 2.07

  	
  Denomination
  and Date of Securities; Payments of Interest

  	
  11

  
	
  Section 2.08

  	
  Registration,
  Transfer and Exchange

  	
  11

  
	
  Section 2.09

  	
  Mutilated,
  Defaced, Destroyed, Lost and Stolen Securities

  	
  14

  
	
  Section 2.10

  	
  Cancellation
  of Securities; Destruction Thereof

  	
  14

  
	
  Section 2.11

  	
  Temporary
  Securities

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  COVENANTS
  OF THE ISSUER

  	
  15

  
	
  Section 3.01

  	
  Payment
  of Principal and Interest

  	
  15

  
	
  Section 3.02

  	
  Offices
  for Payments, Etc

  	
  15

  
	
  Section 3.03

  	
  Appointment
  to Fill a Vacancy in Office of Trustee

  	
  16

  
	
  Section 3.04

  	
  Paying
  Agents

  	
  16

  
	
  Section 3.05

  	
  Written
  Statement to Trustee

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  SECURITYHOLDERS
  LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE

  	
  17

  
	
  Section 4.01

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

  	
  17

  
	
  Section 4.02

  	
  Reports
  by the Issuer

  	
  17

  
	
  Section 4.03

  	
  Reports
  by the Trustee

  	
  18

  
	
  Section 4.04

  	
  Preservation
  of Information; Communication with Securityholders

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  REMEDIES
  OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

  	
  18

  
	
  Section 5.01

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

  	
  18

  
	
  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

  	
  23

  
	
  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

  	
  24

  
	
  Section 5.08

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

  	
  24

  
	
  Section 5.09

  	
  Control
  by Holders of Securities

  	
  24

  
					



 


-i-

















 


	
  Section 5.10

  	
  Waiver
  of Past Defaults

  	
  25

  
	
  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

  	
  26

  
	
  Section 6.01

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

  	
  26

  
	
  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

  	
  28

  
	
  Section 6.04

  	
  Trustee
  and Agents May Hold Securities; Collections, Etc

  	
  28

  
	
  Section 6.05

  	
  Moneys
  Held by Trustee

  	
  28

  
	
  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

  	
  29

  
	
  Section 6.08

  	
  Disqualification;
  Conflicting Interests

  	
  29

  
	
  Section 6.09

  	
  Persons
  Eligible for Appointment as Trustee

  	
  29

  
	
  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

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  CONCERNING
  THE SECURITYHOLDERS

  	
  32

  
	
  Section 7.01

  	
  Evidence
  of Action Taken by Securityholders

  	
  32

  
	
  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

  	
  33

  
	
  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

  	
  35

  
	
  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

  	
  37

  
	
  Section 9.01

  	
  Issuer
  May Consolidate, Etc., on Certain Terms

  	
  37

  
	
  Section 9.02

  	
  Successor
  Issuer Substituted

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  SATISFACTION
  AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS

  	
  38

  
	
  Section 10.01

  	
  Satisfaction
  and Discharge of Indenture; Defeasance

  	
  38

  
	
  Section 10.02

  	
  Application
  by Trustee of Funds Deposited for Payment of Securities

  	
  42

  
	
  Section 10.03

  	
  Repayment
  of Moneys Held by Paying Agent

  	
  42

  
	
  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

  	
  43

  
	
  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

  	
  44

  
	
  Section 11.06

  	
  Payments
  Due on Saturdays, Sundays and Holidays

  	
  45

  
	
  Section 11.07

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

  	
  45

  
	
  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

  	
  46

  
	
  Section 12.01

  	
  Applicability
  of Article

  	
  46

  
	
  Section 12.02

  	
  Notice
  of Redemption; Partial Redemptions

  	
  46

  
	
  Section 12.03

  	
  Payment
  of Securities Called for Redemption

  	
  47

  
	
  Section 12.04

  	
  Exclusion
  of Certain Securities from Eligibility for Selection for Redemption

  	
  48

  
	
  Section 12.05

  	
  Mandatory
  and Optional Sinking Funds

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  SUBORDINATION
  OF SECURITIES

  	
  50

  
	
  Section 13.01

  	
  Agreement
  of Subordination

  	
  50

  
	
  Section 13.02

  	
  Payments
  to Securityholders

  	
  50

  
	
  Section 13.03

  	
  Subrogation
  of Securities

  	
  52

  
	
  Section 13.04

  	
  Authorization
  by Securityholders

  	
  53

  
	
  Section 13.05

  	
  Notice
  to Trustee

  	
  53

  
	
  Section 13.06

  	
  Trustee’s
  Relation to Senior Indebtedness

  	
  54

  
	
  Section 13.07

  	
  No
  Impairment of Subordination

  	
  54

  
	
  Section 13.08

  	
  Rights
  of Trustee

  	
  54

  
				



 

















 


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 subordinated 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 officer, any assistant trust officer, any
assistant vice president, any assistant cashier, any assistant 


 


-4-

















 


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).


 


“Senior Indebtedness” of a Person means the principal of,
premium, if any, interest on, and any other payment due pursuant to any of the
following, whether outstanding at the date hereof or hereafter incurred or
created:


 


(a)           all of the indebtedness of that Person for money borrowed;


 


(b)           all of the indebtedness of that Person evidenced by notes,
debentures, bonds or other securities sold by that Person for money;


 


(c)           all of the lease obligations which are capitalized on the
books of that Person in accordance with generally accepted accounting
principles;


 


(d)           all indebtedness of others of the kinds described in either
of the preceding clauses (a) or (b) above and all lease obligations
of others of the kind described in the preceding clause (c) above that the
Person, in any manner, assumes or guarantees or that the Person in effect
guarantees through an agreement to purchase, whether that agreement is
contingent or otherwise; and


 


(e)           all renewals, extensions or refundings of indebtedness of
the kinds described in any of the preceding clauses (a), (b) and (d) and
all renewals or extensions of leases of the kinds described in either of the
preceding clauses (c) or  (d) above;


 


unless, in the case
of any particular indebtedness, lease, renewal, extension or refunding, the
instrument or lease creating or evidencing it or the assumption or guarantee
relating to it expressly provides that such indebtedness, lease, renewal,
extension or refunding is not superior in right of payment to the Securities.


 


“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 


 


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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 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

  



 


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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;


 


(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;


 


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(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;


 


(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;


 


(u)           the extent to which payments on the Securities will be
subordinated to the payment of Senior Indebtedness of the Issuer; and


 


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(v)           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;


 


(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


 


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(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.


 


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.


 


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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 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 


 


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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 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 


 


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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 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.


 


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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 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; 


 


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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 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.


 


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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 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.


 


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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 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


 


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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 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


 


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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 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


 


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(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.


 


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.


 


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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 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


 


-21-

















 


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.


 


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;


 


-22-

















 


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.


 


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,


 


-23-

















 


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 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


 


-24-

















 


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 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,


 


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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.


 


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


 


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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;


 


(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


 


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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 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.


 


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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 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


 


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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 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


 


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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.


 


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


 


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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 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


 


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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 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:


 


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(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 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.


 


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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 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.


 


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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 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.


 


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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 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.


 


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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.


 


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


 


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(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, 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


 


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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 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


 


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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;


 


(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


 


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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.


 


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,


 


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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.


 


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


 


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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
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


 


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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
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.


 


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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.


 


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


 


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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 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.


 


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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 “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


 


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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 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.


 


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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.


 


ARTICLE 13

SUBORDINATION OF SECURITIES


 


Section 13.01         Agreement of Subordination.  The Issuer covenants and agrees,
and each holder of Securities issued hereunder by its acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 13; and each Securityholder, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.


 


The payment of the principal
of, premium, if any, and interest on all Securities issued hereunder shall, to
the extent and in the manner hereinafter set forth, be subordinated and subject
in right of payment to the prior payment in full of all Senior Indebtedness of
the Issuer, whether outstanding at the date of this Indenture or thereafter
incurred.


 


The provisions of this Article 13
define the subordination of the Securities, as obligations of the Issuer, with
respect to Senior Indebtedness of the Issuer.


 


No provision of this Article 13
shall prevent the occurrence of any default or Event of Default hereunder.


 


Section 13.02         Payments to Securityholders.  In the event and during the continuation
of any default in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness of the Issuer continuing beyond the
period of grace, if any, specified in the instrument or lease evidencing such
Senior Indebtedness of the Issuer, then, unless and until such default shall
have been cured or waived or shall have ceased to exist, no payment shall be
made by the Issuer with respect to the principal of, or premium, if any, or
interest on the Securities, except sinking fund obligations satisfied by credit
of acquired Securities under Section 12.05


 


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prior to the happening of such default and payments made pursuant to Article 10
hereof from monies deposited with the Trustee pursuant thereto prior to the
happening of such default.


 


Upon any payment by the
Issuer, or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Issuer, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due or to become due upon all Senior Indebtedness of the Issuer
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made on account of the
principal (and premium, if any) or interest on the Securities (except payments
made pursuant to Article 10 hereof from monies deposited with the Trustee
pursuant thereto prior to the happening of such dissolution, winding-up,
liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Issuer, or distribution of
assets of the Issuer of any kind or character, whether in cash, property or
securities, to which the holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article 13, shall (except as
aforesaid) be paid by the Issuer or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Issuer (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness of the Issuer held by such holders, as calculated by the
Issuer) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness of the Issuer may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness of
the Issuer in full, in money or money’s worth, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness
of the Issuer, before any payment or distribution is made to the holders of the
Securities or to the Trustee.


 


In the event that,
notwithstanding the foregoing, any payment or distribution of assets of the
Issuer of any kind or character, whether in cash, property or securities,
prohibited by the foregoing, shall be received by the Trustee or the holders of
the Securities before all Senior Indebtedness of the Issuer is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of Senior Indebtedness of the Issuer or
their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any Senior
Indebtedness of the Issuer may have been issued, as their respective interests
may appear, as calculated by the Issuer, for application to the payment of all
Senior Indebtedness of the Issuer remaining unpaid to the extent necessary to
pay all Senior Indebtedness of the Issuer in full in money in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Indebtedness.


 


For purposes of this Article 13,
the words, “cash, property or securities” shall not be deemed to include shares
of stock of the Issuer as reorganized or readjusted, or securities of the
Issuer or any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the extent
provided in this Article 13 with respect to the Securities to the payment
of all Senior Indebtedness of the Issuer which may at the time be outstanding;
provided that (i) the Senior Indebtedness of the Issuer is assumed by the
new


 


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corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the
rights of the holders of the Senior Indebtedness of the Issuer (other than
leases) and of leases which are assumed are not, without the consent of such
holders, altered by such reorganization or readjustment.


 


The consolidation of the
Issuer with, or the merger of the Issuer into, another corporation or the
liquidation or dissolution of the Issuer following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article 9 hereof
shall not be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 13.02 if such other corporation shall, as
a part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article 9 hereof. 
Nothing in this Section 13.02 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.06.


 


Section 13.03         Subrogation of Securities.  Subject to the payment in full of
all Senior Indebtedness of the Issuer, the rights of the holders of the
Securities shall be subrogated to the rights of the holders of Senior
Indebtedness of the Issuer to receive payments or distributions of cash,
property or securities of the Issuer applicable to the Senior Indebtedness of
the Issuer until the principal of (and premium, if any) and interest on the
Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of the
Issuer of any cash, property or securities to which the holders of the
Securities or the Trustee would be entitled except for the provisions of this Article 13
to or for the benefit of the holders of Senior Indebtedness of the Issuer by
holders of the Securities or the Trustee, shall, as between the Issuer, its
creditors other than holders of Senior Indebtedness of the Issuer, and the
holders of the Securities, be deemed to be a payment by the Issuer to or on
account of the Senior Indebtedness of the Issuer.  It is understood that the provisions of this Article 13
are and are intended solely for the purpose of defining the relative rights of
the holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness of the Issuer, on the other hand.


 


Nothing contained in this Article 13
or elsewhere in this Indenture or in the Securities is intended to or shall
impair, as between the Issuer, its creditors other than the holders of its
Senior Indebtedness, and the holders of the Securities, the obligation of the
Issuer, which is absolute and unconditional, to pay to the holders of the
Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
holders of the Securities and creditors of the Issuer other than the holders of
its Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 13 of the holders of Senior
Indebtedness of the Issuer in respect of cash, property or securities of the
Issuer received upon the exercise of any such remedy.


 


Upon any payment or
distribution of assets of the Issuer referred to in this Article 13, the
Trustee, subject to the provisions of Section 6.01, and the holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making


 


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such payment or distribution,
delivered to the Trustee or to the holders of the Securities, for the purpose
of ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Issuer, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 13.


 


Section 13.04         Authorization by Securityholders.  Each holder of a Security by its
acceptance thereof authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article 13 appoints the Trustee its attorney-in-fact for
any and all such purposes.


 


Section 13.05         Notice to Trustee. 
The Issuer shall give promptly written notice to a
Responsible Officer of the Trustee of any fact known to the Issuer which would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article 13.  Notwithstanding the provisions of this Article 13
or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of monies to or by the Trustee in respect of the Securities pursuant to
the provisions of this Article 13, unless and until a Responsible Officer
of the Trustee shall have received written notice thereof at the Corporate
Trust Office of the Trustee from the Issuer or a holder or holders of Senior
Indebtedness of the Issuer or from any trustee therefor; and before the receipt
of any such written notice, the Trustee, subject to the provisions of Section 6.01,
shall be entitled in all respects to assume that no such facts exist; provided that if on a date not fewer than
three Business Days prior to the date upon which by the terms hereof any such
monies may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Security)
the Trustee shall not have received, with respect to such monies, the notice
provided for in this Section 13.05, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date. 
Notwithstanding anything to the contrary hereinbefore set forth, nothing
shall prevent any payment by the Issuer or the Trustee to the Securityholders
of monies in connection with a redemption of Securities if (i) notice of
such redemption has been given pursuant to Article 12 or Section 10.01
hereof prior to the receipt by the Trustee of written notice as aforesaid, and (ii) such
notice of redemption is given not earlier than 60 days before the redemption
date.


 


The Trustee conclusively
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness of the Issuer (or a
trustee on behalf of such holder) to establish that such notice has been given
by a holder of Senior Indebtedness of the Issuer or a trustee on behalf of any
such holder or holders.  In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Indebtedness of
the Issuer to participate in any payment or distribution pursuant to this Article 13,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of the
Issuer held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article 13, and if


 


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such evidence is not
furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.


 


Section 13.06         Trustee’s Relation to Senior Indebtedness.  The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article 13 in
respect of any Senior Indebtedness of the Issuer at any time held by it, to the
same extent as any other holder of Senior Indebtedness of the Issuer and
nothing elsewhere in this Indenture shall deprive the Trustee of any of its
rights as such holder.


 


With respect to the holders
of Senior Indebtedness of the Issuer, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth
in this Article 13, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness of the Issuer shall be read into this
Indenture against the Trustee.  The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Issuer and the Trustee shall not be liable to any holder of
Senior Indebtedness of the Issuer if it shall pay over or deliver to holders of
Securities, the Issuer or any other Person money or assets to which any holder
of Senior Indebtedness of the Issuer shall be entitled by virtue of this Article 13
or otherwise.


 


Section 13.07         No Impairment of Subordination.  No right of any present or future
holder of any Senior Indebtedness of the Issuer to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Issuer
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.


 


Section 13.08         Rights of Trustee. 
Nothing in this Article 13 shall apply to claims of or
payments to, the Trustee pursuant to Section 6.06.


 


 


 


[Signature pages follow]


 


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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:

  
				



 


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