Exhibit 4.8

     

    FORM
OF INDENTURE TO BE ENTERED INTO BETWEEN THE COMPANY AND

    A
TRUSTEE TO BE NAMED

     

    ZIOPHARM
ONCOLOGY, INC.

     

    INDENTURE

     

    DEBT
SECURITIES

     

    DATED AS OF                     
, 20___

     

    [Name
of Trustee]

     

    TRUSTEE



    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    ZIOPHARM
ONCOLOGY, INC.

     

    Reconciliation
and tie between Trust Indenture Act of 1939 and Indenture, dated as
of               ,
20

    


    
      	
              Section
      310(a) (1)

            	
              7.10
      

            
	
              (a)
      (2)

            	
              7.10
      

            
	
              (a)
      (3)

            	
              Not
      Applicable

            
	
              (a)
      (4)

            	
              Not
      Applicable

            
	
              (a)
      (5)

            	
              7.10
      

            
	
              (b)

            	
              7.10
      

            
	
              Section
      311(a)

            	
              7.11
      

            
	
              (b)

            	
              7.11
      

            
	
              (c)

            	
              Not
      Applicable

            
	
              Section
      312(a)

            	
              2.6
      

            
	
              (b)

            	
              10.3
      

            
	
              (c)

            	
              10.3
      

            
	
              Section
      313(a)

            	
              7.6
      

            
	
              (b)
      (1)

            	
              7.6
      

            
	
              (b)
      (2)

            	
              7.6
      

            
	
              (c)
      (1)

            	
              7.6
      

            
	
              (d)

            	
              7.6
      

            
	
              Section
      314(a)

            	
              4.2,
      10.5 

            
	
              (b)

            	
              Not
      Applicable

            
	
              (c)
      (1)

            	
              10.4
      

            
	
              (c)
      (2)

            	
              10.4
      

            
	
              (c)
      (3)

            	
              Not
      Applicable

            
	
              (d)

            	
              Not
      Applicable

            
	
              (e)

            	
              10.5
      

            
	
              (f)

            	
              Not
      Applicable

            
	
              Section
      315(a)

            	
              7.1
      

            
	
              (b)

            	
              7.5
      

            
	
              (c)

            	
              7.1
      

            
	
              (d)

            	
              7.1
      

            
	
              (e)

            	
              6.14
      

            
	
              Section
      316(a)

            	
              2.10
      

            
	
              (a)
      (1)(a)

            	
              6.12
      

            
	
              (a)
      (1)(b)

            	
              6.13
      

            
	
              (b)

            	
              6.8
      

            
	
              Section
      317(a)(1)

            	
              6.3
      

            
	
              (a)(2)

            	
              6.4
      

            
	
              (b)

            	
              2.5
      

            
	
              Section
      318(a)

            	
              10.1
      

            


    

     

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


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

              Indenture
dated as of                     
, 20__ between ZIOPHARM Oncology, Inc.., a Delaware corporation (“Company”), and
[Name of Trustee], a                     
(“Trustee”).

     

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

     

    ARTICLE
I.

    DEFINITIONS
AND INCORPORATION BY REFERENCE

     

    Section 1.1
Definitions
”Affiliate” of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
“control” (including, with correlative meanings, the terms “controlled by” and
“under common control with”), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

              “Corporate
Trust Office” means the office of the Trustee at which at any particular time
its corporate trust business shall be principally administered.

     

              “Debt”
of any person as of any date means, without duplication, all indebtedness of
such person in respect of borrowed money, including all interest, fees and
expenses owed in respect thereto (whether or not the recourse of the lender is
to the whole of the assets of such person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments.

     

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

     

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


    
      
         


      

      
        1

        
          

        

      

      
         


      

    

     

    [INCLUDE
THIS LANGUAGE FOR SUBORDINATED SECURITIES:

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

    [INCLUDE
THIS LANGUAGE FOR SUBORDINATED SECURITIES:

     

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


    
      
         


      

      
        2

        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

              “principal”
of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.

     

    [INCLUDE
THIS LANGUAGE FOR SUBORDINATED SECURITIES:

     

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

     

              “Responsible
Officer” means any officer of the Trustee in its Corporate Trust Office and also
means, with respect to a particular corporate trust matter, any other officer to
whom any corporate trust matter is referred because of his or her knowledge of
and familiarity with a particular subject.

     

              “SEC”
means the Securities and Exchange Commission.

     

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


    
      
         


      

      
        3

        
          

        

      

      
         


      

    

     

    [INCLUDE
THIS LANGUAGE FOR SUBORDINATED SECURITIES:

     

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

     

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

     

              “Significant
Subsidiary” means (i) any direct or indirect Subsidiary of the Company that
would be a “significant subsidiary” as defined in Article 1, Rule 1-02
of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as
amended, as such regulation is in effect on the date hereof, or (ii) any
group of direct or indirect Subsidiaries of the Company that, taken together as
a group, would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act of 1933, as amended, as such regulation is in effect on the date
hereof.

     

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

     

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

     

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

     

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

     

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


    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    Section 1.2
Other
Definitions.

    


    
      
        	 
      	 
      	
                DEFINED IN

              
	
                TERM

              	 
      	
                SECTION

              
	
                “Bankruptcy
      Law”

              	 
      	
                6.1

              
	
                “Custodian”

              	 
      	
                6.1

              
	
                “Event
      of Default”

              	 
      	
                6.1

              
	
                “Journal”

              	 
      	
                10.15

              
	
                “Judgment
      Currency”

              	 
      	
                10.16

              
	
                “Legal
      Holiday”

              	 
      	
                10.7

              
	
                “mandatory
      sinking fund payment”

              	 
      	
                11.1

              
	
                “Market
      Exchange Rate”

              	 
      	
                10.15

              
	
                “New
      York Banking Day”

              	 
      	
                10.16

              
	
                “optional
      sinking fund payment”

              	 
      	
                11.1

              
	
                “Paying
      Agent”

              	 
      	
                2.4

              
	
                [INCLUDE
      THIS LANGUAGE FOR SUBORDINATED SECURITIES:

              	 
      	 
      
	
                “Payment
      Blockage Notice”

              	 
      	
                12.2] 

              
	
                “Registrar”

              	 
      	
                2.4

              
	
                “Required
      Currency”

              	 
      	
                10.16

              
	
                “Service
      Agent”

              	 
      	
                2.4

              
	
                “successor
      person”

              	 
      	
                5.1

              


      

    

     

    Section 1.3
Incorporation by
Reference of Trust Indenture Act.

     

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

     

              “Commission”
means the SEC.

     

              “indenture
securities” means the Securities. “indenture security holder” means a
Securityholder. “indenture to be qualified” means this Indenture.

     

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

     

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

     

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

     

    Section 1.4
Rules of
Construction.

     

              Unless
the context otherwise requires:

    


    
      
        	
              	
                   (a)

              	
                a term has the meaning assigned
      to it;

              


      

    

    


    
      	
            	
                 (b)

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

            


    

    


    
      	
            	
                 (c)

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

            


    

    


    
      	
            	
                 (d)

            	
              “or” is not
      exclusive;

            


    

    


    
      	
            	
                 (e)

            	
              words in the singular include the
      plural, and in the plural include the singular;
  and

            


    

    


    
      	
            	
                 (f)

            	
              provisions apply to successive
      events and transactions.

            


    


    
      
         


      

      
        5

        
          

        

      

      
         


      

    

     

    ARTICLE
II.

    THE
SECURITIES

     

    Section 2.1
Issuable in
Series.

     

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

     

    Section 2.2
Establishment of Terms
of Series of Securities.

     

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

     

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

     

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

     

              2.2.3.
any limit upon the aggregate principal amount of the Securities of the Series
which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the Series pursuant to
Section 2.7, 2.8, 2.11, 3.6 or 9.6);

     

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

     

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

     

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

     

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

     

              2.2.8.
the obligation, if any, of the Company to redeem or purchase the Securities of
the Series pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the Series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;

     

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

     

              2.2.10.
if other than denominations of $2,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be
issuable;

     

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


    
      
         


      

      
        6

        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

    Section 2.3
Execution and
Authentication.

     

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

     

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

     

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


    
      
         


      

      
        7

        
          

        

      

      
         


      

    

     

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

     

              The
aggregate principal amount of Securities of any Series outstanding at any time
may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers’
Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.

     

              Prior
to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying
on:

    


    
      	
            	
                 (a)

            	
              the Board Resolution,
      supplemental indenture hereto or Officers’ Certificate establishing the
      form of the Securities of that Series or of Securities within that Series
      and the terms of the Securities of that Series or of Securities within
      that Series,

            


    

    


    
      	
            	
                 (b)

            	
              an Officers’ Certificate
      complying with Section 10.4,
and

            


    

    


    
      	
            	
                 (c)

            	
              an Opinion of Counsel complying
      with Section 10.4.

            


    

     

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

     

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

     

    Section 2.4
Registrar and Paying
Agent.

     

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

     

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


    
      
         


      

      
        8

        
          

        

      

      
         


      

    

     

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

     

    Section 2.5
Paying Agent to Hold
Money in Trust.

     

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

     

    Section 2.6
Securityholder
Lists.

     

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

     

    Section 2.7
Transfer and
Exchange.

     

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

     

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

     

    Section 2.8
Mutilated, Destroyed,
Lost and Stolen Securities.

     

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

     

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


    
      
         


      

      
        9

        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

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

     

    Section 2.9
Outstanding
Securities.

     

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

     

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

     

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

     

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

     

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

     

    Section 2.10
Treasury
Securities.

     

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

     

    Section 2.11
Temporary
Securities.

     

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


    
      
         


      

      
        10

        
          

        

      

      
         


      

    

     

    Section 2.12
Cancellation.

     

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

     

    Section 2.13
Defaulted
Interest.

     

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

     

    Section 2.14
Global
Securities.

     

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

     

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

     

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

     

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

     

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

     

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

     

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


    
      
         


      

      
        11

        
          

        

      

      
         


      

    

     

              2.14.6.
Consents, Declaration
and Directions. Except as provided in Section 2.14.5, the Company,
the Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such Series represented by a Global Security
as shall be specified in a written statement of the Depositary with respect to
such Global Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant to this
Indenture.

     

    Section 2.15
CUSIP
Numbers.

     

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

     

    ARTICLE
III.

    REDEMPTION

     

    Section 3.1
Notice to
Trustee.

     

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

     

    Section 3.2
Selection of
Securities to be Redeemed.

     

              Unless
otherwise indicated for a particular Series by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, if less than all the
Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed in any manner that the Trustee deems
fair and appropriate. The Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities of the Series that
have denominations larger than $2,000. Securities of the Series and portions of
them it selects shall be in amounts of $2,000 or whole multiples of $2,000 or,
with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.2.10, the minimum principal denomination for each
Series and integral multiples thereof. Provisions of this Indenture that apply
to Securities of a Series called for redemption also apply to portions of
Securities of that Series called for redemption.

     

    Section 3.3
Notice of
Redemption.

     

              Unless
otherwise indicated for a particular Series by Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, at least 30 days but not more
than 60 days before a redemption date, the Company shall mail a notice of
redemption by first-class mail to each Holder whose Securities are to be
redeemed.

     

              The
notice shall identify the Securities of the Series to be redeemed and shall
state:

    


    
      	
            	
                 (a)

            	
              the redemption
      date;

            


    

    


    
      	
            	
                 (b)

            	
              the redemption
      price;

            


    

    


    
      	
            	
                 (c)

            	
              the name and address of the
      Paying Agent;

            


    

    


    
      	
            	
                 (d)

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

            


    


    
      
         


      

      
        12

        
          

        

      

      
         


      

    

    


    
      	
            	
                 (e)

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

            


    

    


    
      	
            	
                 (f)

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

            


    

     

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

     

    Section 3.4
Effect of Notice of
Redemption.

     

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

     

    Section 3.5
Deposit of Redemption
Price.

     

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

     

    Section 3.6
Securities Redeemed in
Part.

     

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

     

    ARTICLE
IV.

    COVENANTS

     

    Section 4.1
Payment of Principal
and Interest.

     

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

     

    Section 4.2
SEC
Reports.

     

              The
Company shall deliver to the Trustee within 15 days after it files them
with the SEC copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of TIA
Section 314(a).

     

    Section 4.3
Compliance
Certificate.

     

              The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company, an Officers’ Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge the Company has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge).


    
      
         


      

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

     

    Section 4.4
Stay, Extension and
Usury Laws.

     

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

     

    Section 4.5
Corporate
Existence.

     

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

     

    Section 4.6
Taxes.

     

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

     

    ARTICLE
V.

    SUCCESSORS

     

    Section 5.1
When Company May
Merge, Etc.

     

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

    


    
      	
            	
                 (a)

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

            


    

    


    
      	
            	
                 (b)

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

            


    

     

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

     

    Section 5.2
Successor Corporation
Substituted.

     

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


    
      
         


      

      
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    ARTICLE
VI.

    DEFAULTS
AND REMEDIES

     

    Section 6.1
Events of
Default.

     

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

    


    
      	
            	
                 (a)

            	
              default in the payment of any
      interest on any Security of that Series when it becomes due and payable,
      and continuance of such default for a period of 30 days (unless the
      entire amount of such payment is deposited by the Company with the Trustee
      or with a Paying Agent prior to the expiration of such period of
      30 days); or

            


    

    


    
      	
            	
                 (b)

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

            


    

    


    
      	
            	
                 (c)

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

            


    

    


    
      	
            	
                 (d)

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

            


    

    


    
      	
            	
                 (e)

            	
              the Company or any of its
      Significant Subsidiaries pursuant to or within the meaning of any
      Bankruptcy Law:

            


    

    


    
      	
               
      

            	
              (i)

            	
              commences a voluntary
      case,

            


    

    


    
      	
            	
              (ii)

            	
              consents to the entry of an order
      for relief against it in an involuntary
  case,

            


    

    


    
      	
            	
              (iii)

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

            


    

    


    
      	
            	
              (iv)

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

            


    

    


    
      	
            	
              (v)

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

            


    

    


    
      	
            	
                 (f)

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

            


    

    


    
      	
               
      

            	
              (i)

            	
              is for relief against the Company
      or any of its Significant Subsidiaries in an involuntary
      case,

            


    

    


    
      	
            	
              (ii)

            	
              appoints a Custodian of the
      Company or any of its Significant Subsidiaries or for all or substantially
      all of its property, or

            


    

    


    
      	
            	
              (iii)

            	
              orders the liquidation of the
      Company or any of its Significant Subsidiaries, and the order or decree
      remains unstayed and in effect for 60 days;
  or

            


    


    
      
         


      

      
        15

        
          

        

      

      
         


      

    

    


    
      	
            	
                 (g)

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

            


    

     

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

     

    Section 6.2
Acceleration of
Maturity; Rescission and Annulment.

     

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

     

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

    


    
      	
            	
                 (a)

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

            


    

    


    
      	
               
      

            	
              (i)

            	
              all overdue interest, if any, on
      all Securities of that
Series,

            


    

    


    
      	
            	
              (ii)

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

            


    

    


    
      	
            	
              (iii)

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

            


    

    


    
      	
            	
              (iv)

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

            


    

    


    
      	
            	
                 (b)

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

            


    

     

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

     

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

     

              The
Company covenants that if

    


    
      	
            	
                
      (a)

            	
              default is made in the payment of
      any interest on any Security when such interest becomes due and payable
      and such default continues for a period of 30 days,
      or

            


    

    


    
      	
            	
                
      (b)

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

            


    

     

    
      
         


      

      
        16

        
          

        

      

      
         


      

    


    
      
        	
              	
                   (c)

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

              


      

    

     

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

     

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

     

    Section 6.4
Trustee May File
Proofs of Claim.

     

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

    


    
      	
            	
               
       (a)

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

            


    

    


    
      	
            	
               
       (b)

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

            


    

     

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

     

    Section 6.5
Trustee May Enforce
Claims Without Possession of Securities.

     

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


    
      
         


      

      
        17

        
          

        

      

      
         


      

    

     

    Section 6.6
Application of Money
Collected.

     

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

     

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

     

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

     

              Third:
To the Company.

     

    Section 6.7
Limitation on
Suits.

     

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

    


    
      	
            	
                 (a)

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

            


    

    


    
      	
            	
               
       (b)

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

            


    

    


    
      	
            	
                
      (c)

            	
              such Holder or Holders have
      offered to the Trustee reasonable indemnity against the costs, expenses
      and liabilities to be incurred in compliance with such
      request;

            


    

    


    
      	
            	
                
      (d)

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

            


    

    


    
      	
            	
                
      (e)

            	
              no direction inconsistent with
      such written request has been given to the Trustee during such 90-day
      period by the Holders of a majority in principal amount of the outstanding
      Securities of that Series; it being understood and intended that no one or
      more of such Holders shall have any right in any manner whatever by virtue
      of, or by availing of, any provision of this Indenture to affect, disturb
      or prejudice the rights of any other of such Holders, or to obtain or to
      seek to obtain priority or preference over any other of such Holders or to
      enforce any right under this Indenture, except in the manner herein
      provided and for the equal and ratable benefit of all such
      Holders.

            


    

     

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

     

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

     

    Section 6.9
Restoration of Rights
and Remedies.

     

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


    
      
         


      

      
        18

        
          

        

      

      
         


      

    

     

    Section 6.10
Rights and Remedies
Cumulative.

     

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

     

    Section 6.11
Delay or Omission Not
Waiver.

     

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

     

    Section 6.12
Control by
Holders.

     

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

    


    
      	
              
              

            	
               
       (a)

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

            


    

    


    
      	
            	
               
       (b)

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

            


    

    


    
      	
            	
                
      (c)

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

            


    

     

    Section 6.13
Waiver of Past
Defaults.

     

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

     

    Section 6.14
Undertaking for
Costs.

     

              All
parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest on
any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption
date).

    


    
      
        
           


        

        
          19

          
            

          

        

        
           


        

      

    

     

    ARTICLE
VII.

    TRUSTEE

     

    Section 7.1
Duties of
Trustee.

    


    
      	
               
      

            	
                
      (a)

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

            


    

    


    
      	
               
      

            	
                
      (b)

            	
              Except during the continuance of
      an Event of Default:

            


    

    


    
      
        	
              	
                (i)

              	
                The Trustee need perform only
      those duties that are specifically set forth in this Indenture and no
      others.

              


      

    

    


    
      
        	
                
                

              	
                (ii)

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

              


      

    

    


    
      	
            	
                
      (c)

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

            


    

    


    
      	
            	
              (i)

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

            


    

    


    
      	
            	
              (ii)

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

            


    

    


    
      	
            	
              (iii)

            	
               The Trustee shall not be liable
      with respect to any action taken, suffered or omitted to be taken by it
      with respect to Securities of any Series in good faith in accordance with
      the direction of the Holders of a majority in principal amount of the
      outstanding Securities of such Series relating to the time, method and
      place of conducting any proceeding for any remedy available to the
      Trustee, or exercising any trust or power conferred upon the Trustee,
      under this Indenture with respect to the Securities of such
      Series.

            


    

    


    
      	
            	
              (d)

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

            


    

    


    
      	
            	
              (e)

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

            


    

    


    
      	
            	
              (f)

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

            


    

    


    
      	
            	
              (g)

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

            


    

    


    
      
        
           


        

        
          20

          
            

          

        

        
           


        

      

    

    


    
      	
            	
              (h)

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

            


    

     

    Section 7.2
Rights of
Trustee.

    


    
      	
               
      

            	
                 
      (a)

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

            


    

    


    
      	
               
      

            	
                 
      (b)

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

            


    

    


    
      	
               
      

            	
                 
      (c)

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

            


    

    


    
      	
               
      

            	
                 
      (d)

            	
              The Trustee shall not be liable
      for any action it takes or omits to take in good faith which it believes
      to be authorized or within its rights or
  powers.

            


    

    


    
      	
               
      

            	
                 
      (e)

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

            


    

    


    
      	
               
      

            	
                 
      (f)

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

            


    

     

    Section 7.3
Individual Rights of
Trustee.

     

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

     

    Section 7.4
Trustee’s
Disclaimer.

     

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

     

    Section 7.5
Notice of
Defaults.

     

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

    


    
      
        
           


        

        
          21

          
            

          

        

        
           


        

      

    

     

    Section 7.6
Reports by Trustee to
Holders.

     

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

     

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

     

    Section 7.7
Compensation and
Indemnity.

     

              The
Company shall pay to the Trustee from time to time reasonable compensation for
its services. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and expenses of the
Trustee’s agents and counsel.

     

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

     

              The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad
faith.

     

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

     

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

     

    Section 7.8
Replacement of
Trustee.

     

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

     

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

    


    
      	
            	
                (a)

            	
              the Trustee fails to comply with
      Section 7.10;

            


    

    


    
      	
            	
                (b)

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

            


    

    


    
      	
            	
                (c)

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

            


    

    


    
      	
            	
                (d)

            	
              the Trustee becomes incapable of
      acting.

            


    

     

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

    


    
      
        
           


        

        
          22

          
            

          

        

        
           


        

      

    

     

              If
a successor Trustee with respect to the Securities of any one or more Series
does not take office within 60 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor
Trustee.

     

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

     

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

     

    Section 7.9
Successor Trustee by
Merger, etc.

     

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

     

    Section 7.10
Eligibility;
Disqualification.

     

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

     

    Section 7.11
Preferential
Collection of Claims Against Company.

     

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

     

    ARTICLE
VIII.

    SATISFACTION
AND DISCHARGE; DEFEASANCE

     

    Section 8.1
Satisfaction and
Discharge of Indenture.

     

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

    


    
      
        	
              	
                  (a)

              	
                either

              


      

    

    


    
      
        	
              	
                (i)

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

              


      

    

    


    
      
        
          	
                	
                  (ii)

                	
                  all such Securities not
      theretofore delivered to the Trustee for
    cancellation

                


        

      

    

    


    
      	
               
      

            	
              (1)

            	
                 have become due and
      payable, or

            


    

    


    
      
        
           


        

        
          23

          
            

          

        

        
           


        

      

    

    


    
      
        	
              	
                (2)

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

              


      

    

    


    
      
        	
              	
                (3)

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

              


      

    

    


    
      
        
          	
                	
                  (4)

                	
                  are deemed paid and discharged
      pursuant to Section 8.3, as applicable; and the Company, in the case
      of (1), (2) or (3) above, has deposited or caused to be
      deposited with the Trustee as trust funds in trust an amount sufficient
      for the purpose of paying and discharging the entire indebtedness on such
      Securities not theretofore delivered to the Trustee for cancellation, for
      principal and interest to the date of such deposit (in the case of
      Securities which have become due and payable on or prior to the date of
      such deposit) or to the Stated Maturity or redemption date, as the case
      may be;

                


        

      

    

    


    
      	
            	
                (b)

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

            


    

    


    
      	
            	
                (c)

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

            


    

     

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

     

    Section 8.2
Application of Trust
Funds; Indemnification .

    


    
      
        	
                
                

              	
                  (a)

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

              


      

    

    


    
      
        	
              	
                  (b)

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

              


      

    

    


    
      
        	
              	
                  (c)

              	
                The Trustee shall deliver or pay
      to the Company from time to time upon Company Request any U.S. Government
      Obligations or Foreign Government Obligations or money held by it as
      provided in Sections 8.3 or 8.4 which, in the opinion of a nationally
      recognized firm of independent certified public accountants expressed in a
      written certification thereof delivered to the Trustee, are then in excess
      of the amount thereof which then would have been required to be deposited
      for the purpose for which such U.S. Government Obligations or Foreign
      Government Obligations or money were deposited or received. This provision
      shall not authorize the sale by the Trustee of any U.S. Government
      Obligations or Foreign Government Obligations held under this
      Indenture.

              


      

    

    


    
      
        
           


        

        
          24

          
            

          

        

        
           


        

      

    

     

    Section 8.3
Legal Defeasance of
Securities of any Series.

     

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

    


    
      	
            	
                (a)

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

            


    

    


    
      	
            	
                (b)

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

            


    

    


    
      	
            	
                (c)

            	
              the rights, powers, trust and
      immunities of the Trustee hereunder; provided that, the following
      conditions shall have been
satisfied:

            


    

    


    
      	
               
      

            	
                (i)

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

            


    

    


    
      	
            	
               
(ii)

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

            


    

    


    
      	
            	
               
    (iii)

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

            


    

    


    
      	
            	
               
(iv)

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

            


    

    
       


      
        	
              	
                  (v)

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

              


      

       

    

    
      
        
           


        

        
          25

          
            

          

        

        
           


        

      

    

     

    
      	
            	
               
(vi)

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

            


    

    


    
      	
            	
               
(vi)

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

            


    

     

    Section 8.4
Covenant
Defeasance.

     

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

    


    
      	
            	
                (a)

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

            


    

    


    
      	
            	
                (b)

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

            


    

    


    
      	
            	
                (c)

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

            


    

    


    
      	
            	
                (d)

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

            


    

    


    
      	
            	
                (e)

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

            


    

    


    
      
        
           


        

        
          26

          
            

          

        

        
           


        

      

    

    


    
      	
            	
                (f)

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

            


    

     

    Section 8.5
Repayment to
Company.

     

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

     

    Section 8.6
Reinstatement.

     

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

     

    ARTICLE
IX.

    AMENDMENTS
AND WAIVERS

     

    Section 9.1
Without Consent of
Holders.

     

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

    


    
      	
            	
                (a)

            	
              to cure any ambiguity, defect or
      inconsistency;

            


    

    


    
      	
            	
                (b)

            	
              to comply with
      Article V;

            


    

    


    
      	
            	
                (c)

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

            


    

    


    
      	
            	
                (d)

            	
              to make any change that does not
      adversely affect the rights of any
  Securityholder;

            


    

    


    
      	
            	
                (e)

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

            


    

    


    
      
        	
                
                

              	
                  (f)

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

              


      

    

    


    
      
        	
              	
                  (g)

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

              


      

    

    


    
      
        
           


        

        
          27

          
            

          

        

        
           


        

      

    

     

    Section 9.2
With Consent of
Holders.


     

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

     

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

     

    Section 9.3
Limitations.

     

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

    


    
      	
            	
                (a)

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

            


    

    


    
      	
            	
                (b)

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

            


    

    


    
      	
            	
                (c)

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

            


    

    


    
      	
            	
                (d)

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

            


    

    


    
      	
            	
                (e)

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

            


    

    


    
      	
            	
                (f)

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

            


    

    


    
      	
            	
                (g)

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

            


    

    


    
      	
            	
                (h)

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

            


    

     

    Section 9.4
Compliance with Trust
Indenture Act.

     

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

     

    Section 9.5
Revocation and Effect
of Consents.

     

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

    


    
      
        
           


        

        
          28

          
            

          

        

        
           


        

      

    

     

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

     

    Section 9.6
Notation on or
Exchange of Securities.

     

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

     

    Section 9.7
Trustee
Protected.

     

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

     

    ARTICLE
X.

    MISCELLANEOUS

     

    Section 10.1
Trust Indenture Act
Controls.

     

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

     

    Section 10.2
Notices.

     

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

     

              if
to the Company:

    ZIOPHARM
Oncology, Inc.

    1180
Avenue of the Americas, 19th
Floor

    New York,
NY  10036

    Attention:
Chief Executive Officer

     

              if
to the Trustee:

    [Name of
Trustee]

    [Address]

    Attention:

     

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

     

              Any
notice or communication to a Securityholder shall be mailed by first-class mail
to his address shown on the register kept by the Registrar. Failure to mail a
notice or communication to a Securityholder of any Series or any defect in it
shall not affect its sufficiency with respect to other Securityholders of that
or any other Series.

     

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

    


    
      
        
           


        

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

     

    Section 10.3
Communication by
Holders with Other Holders.

     

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

     

    Section 10.4
Certificate and
Opinion as to Conditions Precedent.

     

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

    


    
      	
            	
                (a)

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

            


    

    


    
      	
            	
               
      (b)

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

            


    

     

    Section 10.5
Statements Required in
Certificate or Opinion.

     

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

    


    
      	
            	
                (a)

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

            


    

    


    
      	
            	
                (b)

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

            


    

    


    
      	
            	
                (c)

            	
              a statement that, in the opinion
      of such person, he has made such examination or investigation as is
      necessary to enable him to express an informed opinion as to whether or
      not such covenant or condition has been complied with;
      and

            


    

    


    
      	
            	
                (d)

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

            


    

     

    Section 10.6
Rules by Trustee and
Agents.

     

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

     

    Section 10.7
Legal
Holidays.

     

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

     

    Section 10.8
No Recourse Against
Others.

     

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

    


    
      
        
           


        

        
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    Section 10.9
Counterparts.

     

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

     

    Section 10.10
Governing
Laws.

     

              THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.

     

    Section 10.11
No Adverse
Interpretation of Other Agreements.

     

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

     

    Section 10.12
Successors.

     

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

     

    Section 10.13
Severability.

     

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

     

    Section 10.14
Table of Contents,
Headings, Etc.

     

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

     

    Section 10.15
Securities in a
Foreign Currency or in ECU.

     

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

    


    
      
        
           


        

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

     

    Section 10.16
Judgment
Currency.

     

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

     

    ARTICLE
XI.

    SINKING
FUNDS

     

    Section 11.1
Applicability of
Article.

     

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

     

              The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any Series is herein referred to as a “mandatory sinking fund
payment” and any other amount provided for by the terms of Securities of such
Series is herein referred to as an “optional sinking fund payment.” If provided
for by the terms of Securities of any Series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 11.2. Each
sinking fund payment shall be applied to the redemption of Securities of any
Series as provided for by the terms of the Securities of such
Series.

     


    
      
        
           


        

        
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      Section 11.2
Satisfaction of
Sinking Fund Payments with Securities.

    

     

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

     

    Section 11.3
Redemption of
Securities for Sinking Fund.

     

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

     

    [INCLUDE
ARTICLE XII FOR SUBORDINATED SECURITIES:

     

    ARTICLE
XII.

    SUBORDINATION
OF SECURITIES

     

    Section 12.1
Agreement of
Subordination.

     

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

     

              The
payment of the principal of, premium, if any, and interest on all Securities
(including, but not limited to, the redemption price with respect to the
Securities called for redemption in accordance with Article 3 as provided
in the Indenture) issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.

     

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

     

    Section 12.2
Payments to
Holders.

     

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

    


    
      
        
           


        

        
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              (i)

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

            


    

    


    
      	
            	
              (ii)

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

            


    

     

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

     

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

    


    
      
        
           


        

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

     

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

     

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

     

    Section 12.3
Subrogation of
Securities.

     

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

     

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

    


    
      
        
           


        

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

     

    Section 12.4
Authorization to
Effect Subordination.

     

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

     

    Section 12.5
Notice to
Trustee.

     

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

     

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

     

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

    


    
      
        
           


        

        
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    Section 12.6
Trustee’s Relation to
Senior Indebtedness.

     

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

     

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

     

    Section 12.7
No Impairment of
Subordination.

     

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

     

    Section 12.8
Article Applicable to
Paying Agents.

     

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

     

    Section 12.9
Senior Indebtedness
Entitled to Rely.

     

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

    END
ARTICLE XII, INCLUDED FOR SUBORDINATED SECURITIES.]

     

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

    
      
        
          
            
              	
                         

                    	 
      	 
      
	
                         

                    	
                      ZIOPHARM ONCOLOGY, INC.
       

                    
	
                         

                    	 
      	 
      
	
                          

                    	
                      By:

                    	  
      
	
                         

                    	
                      Name:

                    	 
      
	
                         

                    	
                      Its:

                    	 
      
	
                         

                    	 
      	 
      
	
                         

                    	
                      [Name of Trustee]  

                    
	
                         

                    	 
      	 
      
	
                          

                    	
                      By:

                    	  
      
	
                         

                    	
                      Name:

                    	 
      
	
                         

                    	
                      Its:

                    	 
      


            

          

        

      

    

     

    
      
        
           


        

        
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