Exhibit 4.1


 




 


 





Dyax Corp.


 


and


 


 


                                                    ,
as Trustee


 






 


INDENTURE


 


 


Dated as
of                             ,


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1

  	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.2

  	
  Other Definitions

  	
  5

  
	
   

  	
   

  	
   

  
	
  1.3

  	
  Incorporation by
  Reference of Trust Indenture Act

  	
  5

  
	
   

  	
   

  	
   

  
	
  1.4

  	
  Rules of
  Construction

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
  THE
  SECURITIES

  	
  6

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Issuable in Series

  	
  6

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Establishment of Terms
  of Series of Securities

  	
  7

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Execution and
  Authentication

  	
  9

  
	
   

  	
   

  	
   

  
	
  2.4

  	
  Registrar and Paying Agent

  	
  10

  
	
   

  	
   

  	
   

  
	
  2.5

  	
  Paying Agent To Hold
  Assets in Trust

  	
  11

  
	
   

  	
   

  	
   

  
	
  2.6

  	
  Securityholder Lists

  	
  11

  
	
   

  	
   

  	
   

  
	
  2.7

  	
  Transfer and Exchange

  	
  11

  
	
   

  	
   

  	
   

  
	
  2.8

  	
  Replacement Securities

  	
  13

  
	
   

  	
   

  	
   

  
	
  2.9

  	
  Outstanding Securities

  	
  13

  
	
   

  	
   

  	
   

  
	
  2.10

  	
  Treasury Securities

  	
  13

  
	
   

  	
   

  	
   

  
	
  2.11

  	
  Temporary Securities

  	
  14

  
	
   

  	
   

  	
   

  
	
  2.12

  	
  Cancellation

  	
  14

  
	
   

  	
   

  	
   

  
	
  2.13

  	
  Payment of Interest;
  Defaulted Interest; Computation of Interest

  	
  14

  
	
   

  	
   

  	
   

  
	
  2.14

  	
  CUSIP Number

  	
  15

  
	
   

  	
   

  	
   

  
	
  2.15

  	
  Provisions for Global
  Securities

  	
  15

  
	
   

  	
   

  	
   

  
	
  2.16

  	
  Persons Deemed Owners

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
  REDEMPTION

  	
  16

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Notices of Trustee

  	
  16

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Selection by Trustee of
  Securities to Be Redeemed

  	
  17

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Notice of Redemption

  	
  17

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  Effect of Notice of
  Redemption

  	
  18

  
	
   

  	
   

  	
   

  
	
  3.5

  	
  Deposit of Redemption
  Price

  	
  18

  
	
   

  	
   

  	
   

  
	
  3.6

  	
  Securities Redeemed in
  Part

  	
  19

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
  COVENANTS

  	
  19

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Payment of Securities

  	
  19

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  SEC Reports

  	
  19

  
	
   

  	
   

  	
   

  
	
  4.3

  	
  Waiver of Stay,
  Extension or Usury Laws

  	
  19

  
	
   

  	
   

  	
   

  
	
  4.4

  	
  Compliance Certificate

  	
  20

  
	
   

  	
   

  	
   

  
	
  4.5

  	
  Payment of Taxes and
  Other Claims

  	
  20

  
	
   

  	
   

  	
   

  
	
  4.6

  	
  Corporate Existence

  	
  20

  
	
   

  	
   

  	
   

  
	
  4.7

  	
  Maintenance of
  Properties

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
  SUCCESSOR
  CORPORATION

  	
  21

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Limitation on
  Consolidation, Merger and Sale of Assets

  	
  21

  
	
   

  	
   

  	
   

  
	
  5.2

  	
  Successor Person
  Substituted

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
  DEFAULTS
  AND REMEDIES

  	
  22

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Events of Default

  	
  22

  
	
   

  	
   

  	
   

  
	
  6.2

  	
  Acceleration

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.3

  	
  Other Remedies

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.4

  	
  Waiver of Past Defaults
  and Events of Default

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.5

  	
  Control by Majority

  	
  25

  
	
   

  	
   

  	
   

  
	
  6.6

  	
  Limitation on Suits

  	
  25

  
	
   

  	
   

  	
   

  
	
  6.7

  	
  Rights of Holders To
  Receive Payment

  	
  25

  
	
   

  	
   

  	
   

  
	
  6.8

  	
  Collection Suit by
  Trustee

  	
  26

  
	
   

  	
   

  	
   

  
	
  6.9

  	
  Trustee May File
  Proofs of Claim

  	
  26

  
	
   

  	
   

  	
   

  
	
  6.10

  	
  Priorities

  	
  26

  
	
   

  	
   

  	
   

  
	
  6.11

  	
  Undertaking for Costs

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
  TRUSTEE

  	
  27

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Duties of Trustee

  	
  27

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Rights of Trustee

  	
  28

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Individual Rights of
  Trustee

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.4

  	
  Trustee’s Disclaimer

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.5

  	
  Notice of Default

  	
  29

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  7.6

  	
  Reports by Trustee to
  Holders

  	
  30

  
	
   

  	
   

  	
   

  
	
  7.7

  	
  Compensation and
  Indemnity

  	
  30

  
	
   

  	
   

  	
   

  
	
  7.8

  	
  Replacement of Trustee

  	
  30

  
	
   

  	
   

  	
   

  
	
  7.9

  	
  Successor Trustee by
  Consolidation, Merger or Conversion

  	
  31

  
	
   

  	
   

  	
   

  
	
  7.10

  	
  Eligibility;
  Disqualification

  	
  32

  
	
   

  	
   

  	
   

  
	
  7.11

  	
  Preferential Collection
  of Claims Against Company

  	
  32

  
	
   

  	
   

  	
   

  
	
  7.12

  	
  Paying Agents

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  	
  AMENDMENTS,
  SUPPLEMENTS AND WAIVERS

  	
  32

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Without Consent of
  Holders

  	
  32

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  With Consent of Holders

  	
  33

  
	
   

  	
   

  	
   

  
	
  8.3

  	
  Compliance with Trust
  Indenture Act

  	
  34

  
	
   

  	
   

  	
   

  
	
  8.4

  	
  Revocation and Effect
  of Consents

  	
  34

  
	
   

  	
   

  	
   

  
	
  8.5

  	
  Notation on or Exchange
  of Securities

  	
  35

  
	
   

  	
   

  	
   

  
	
  8.6

  	
  Trustee to Sign
  Amendments, Etc

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9

  	
  DISCHARGE
  OF INDENTURE; DEFEASANCE

  	
  35

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Discharge of Indenture

  	
  35

  
	
   

  	
   

  	
   

  
	
  9.2

  	
  Legal Defeasance

  	
  36

  
	
   

  	
   

  	
   

  
	
  9.3

  	
  Covenant Defeasance

  	
  36

  
	
   

  	
   

  	
   

  
	
  9.4

  	
  Conditions to Legal
  Defeasance or Covenant Defeasance

  	
  37

  
	
   

  	
   

  	
   

  
	
  9.5

  	
  Deposited Money and
  U.S. and Foreign Government Obligations to be Held in Trust; Other
  Miscellaneous Provisions

  	
  38

  
	
   

  	
   

  	
   

  
	
  9.6

  	
  Reinstatement

  	
  39

  
	
   

  	
   

  	
   

  
	
  9.7

  	
  Moneys Held by Paying
  Agent

  	
  39

  
	
   

  	
   

  	
   

  
	
  9.8

  	
  Moneys Held by Trustee

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  	
  MISCELLANEOUS

  	
  40

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Trust Indenture Act
  Controls

  	
  40

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Notices

  	
  40

  
	
   

  	
   

  	
   

  
	
  10.3

  	
  Communications by
  Holders with Other Holders

  	
  41

  
	
   

  	
   

  	
   

  
	
  10.4

  	
  Certificate and Opinion
  as to Conditions Precedent

  	
  41

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  10.5

  	
  Statement Required in
  Certificate and Opinion

  	
  42

  
	
   

  	
   

  	
   

  
	
  10.6

  	
  Rules by Trustee
  and Agents

  	
  42

  
	
   

  	
   

  	
   

  
	
  10.7

  	
  Business Days; Legal
  Holidays

  	
  42

  
	
   

  	
   

  	
   

  
	
  10.8

  	
  Governing Law

  	
  42

  
	
   

  	
   

  	
   

  
	
  10.9

  	
  No Adverse
  Interpretation of Other Agreements

  	
  43

  
	
   

  	
   

  	
   

  
	
  10.10

  	
  No Recourse Against
  Others

  	
  43

  
	
   

  	
   

  	
   

  
	
  10.11

  	
  Successors and Assigns

  	
  43

  
	
   

  	
   

  	
   

  
	
  10.12

  	
  Multiple Counterparts

  	
  43

  
	
   

  	
   

  	
   

  
	
  10.13

  	
  Table of Contents,
  Headings, Etc

  	
  43

  
	
   

  	
   

  	
   

  
	
  10.14

  	
  Separabilty

  	
  43

  
	
   

  	
   

  	
   

  
	
  10.15

  	
  Securities in a Foreign
  Currency or in ECU

  	
  43

  
	
   

  	
   

  	
   

  
	
  10.16

  	
  Judgment Currency

  	
  44

  
	
   

  	
   

  	
   

  



 


iv

















 


	
  CROSS-REFERENCE TABLE

  	
   

  	
   

  



 


	
  TIA SECTION

  	
   

  	
  INDENTURE SECTION

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N/A

  
	
  (a)(4)

  	
   

  	
  N/A

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.8; 7.10; 10.2

  
	
  (b)(1)

  	
   

  	
  7.10

  
	
  (b)(9)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N/A

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N/A

  
	
  312(a)

  	
   

  	
  2.6

  
	
  (b)

  	
   

  	
  10.3

  
	
  (c)

  	
   

  	
  10.3

  
	
  313(a)

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
  7.6

  
	
  (b)(2)

  	
   

  	
  7.6

  
	
  (c)

  	
   

  	
  7.6; 10.2

  
	
  (d)

  	
   

  	
  7.6

  
	
  314(a)

  	
   

  	
  4.2; 4.4; 10.2

  
	
  (b)

  	
   

  	
  N/A

  
	
  (c)(1)

  	
   

  	
  10.4; 10.5

  
	
  (c)(2)

  	
   

  	
  10.4; 10.5

  
	
  (c)(3)

  	
   

  	
  N/A

  
	
  (d)

  	
   

  	
  N/A

  
	
  (e)

  	
   

  	
  10.5

  
	
  (f)

  	
   

  	
  N/A

  
	
  315(a)

  	
   

  	
  7.1, 7.2

  
	
  (b)

  	
   

  	
  7.5; 10.2

  
	
  (c)

  	
   

  	
  7.1

  
	
  (d)

  	
   

  	
  6.5; 7.1; 7.2

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a)(last sentence)

  	
   

  	
  2.10

  
	
  (a)(1)(A)

  	
   

  	
  6.5

  
	
  (a)(1)(B)

  	
   

  	
  6.4

  
	
  (a)(2)

  	
   

  	
  8.2

  



 


v

















 


	
  (b)

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
  8.4

  
	
  317(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
  2.5; 7.12

  
	
  318(a)

  	
   

  	
  10.1

  



 






N/A means not applicable


 


Note:                   This
Cross-Reference Table shall not, for any purpose, be deemed to be a part of the
Indenture.


 


vi

















 


INDENTURE, dated as of                 ,
          , by and between Dyax
Corp., a Massachusetts corporation, as Issuer (the “Company”),
and                                                 ,
a                           
organized under the laws of                                       ,
as Trustee (the “Trustee”).


 


RECITALS OF THE
COMPANY


 


The Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its debentures, notes or other evidences of
indebtedness to be issued in one or more series (the “Securities”),
as herein provided, up to such principal amount as may from time to time be
authorized in or pursuant to one or more resolutions of the Board of Directors
or by supplemental indenture.


 


All things necessary to
make this Indenture a valid agreement of the Company in accordance with its
terms have been done, and the execution and delivery thereof have been in all
respects duly authorized by the parties hereto.


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


1.1                               Definitions.


 


“Affiliate”
of any specified Person means any other Person which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, such specified Person. 
For the purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling,” “controlled by,” and “under
common control with”), as used with respect to any Person, means 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, by agreement or otherwise.


 


“Agent”
means any Registrar, Paying Agent, co-registrar or agent for service of notices
and demands.


 


“Board of
Directors” means the Board of Directors of the Company or any
committee authorized to act therefor.


 


“Board
Resolution” means a copy of a resolution certified pursuant to an
Officers’ Certificate to have been duly adopted by the Board of Directors of
the Company and to be in full force and effect on the date of such certification,
and delivered to the Trustee.


 


“Capital
Stock” means, with respect to any Person, any and all shares or
other equivalents (however designated) of capital stock, partnership interests
or any other participation, right or other interest in the nature of an equity
interest in such Person or any option, warrant or other security convertible
into any of the foregoing.


 

















 


“Company”
means the party named as such in the first paragraph of this Indenture until a
successor replaces such party pursuant to Article 5 of this Indenture, and
thereafter means the successor and any other primary obligor on the Securities.


 


“Company
Order” means a written order signed in the name of the Company by
two Officers, one of whom must be its Chief Executive Officer or its Chief
Financial Officer.


 


“Company
Request” means any written request signed in the name of the Company
by its Chief Executive Officer, its President, any Vice President, its Chief
Financial Officer or its Treasurer and attested to by the Secretary or any Assistant
Secretary of the Company.


 


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


 


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


 


“Depositary”
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 Depositary for such Series by the Company, which Depositary
shall be a clearing agency registered under the Exchange Act, until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Depositary”
shall mean each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, such Persons.


 


“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.


 


“GAAP”
means generally accepted accounting principles consistently applied as in
effect in the United States from time to time.


 


2

















 


“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 Depositary for such Series or its nominee,
registered in the name of such Depositary or nominee, and bearing the legend
set forth in Section 2.15(c) (or such legend as may be specified as
contemplated by Section 2.2 for such Securities).


 


“Holder”
or “Securityholder” means the Person in whose
name a Security is registered on the Registrar’s books.


 


“Indebtedness”
means (without duplication), with respect to any Person, any indebtedness at
any time outstanding, secured or unsecured, contingent or otherwise, which is
for borrowed money (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 or representing the balance
deferred and unpaid of the purchase price of any property (excluding any
balances that constitute accounts payable or trade payables, and other accrued
liabilities arising in the ordinary course of business) if and to the extent
any of the foregoing indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP.


 


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


 


“Interest
Payment Date” means the Stated Maturity of an installment of
interest on Securities of any Series.


 


“Lien”
means, with respect to any property or assets of any Person, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement, encumbrance, preference, priority, or other
security agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including, without limitation,
any capitalized lease obligation, conditional sales, or other title retention
agreement having substantially the same economic effect as any of the
foregoing).


 


“Maturity
Date” 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 payment or otherwise.


 


“Officer”
means the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer or the Secretary of the Company or any other
officer designated by the Board of Directors, as the case may be.


 


“Officers’
Certificate” means, with respect to any Person, a certificate signed
by the Chief Executive Officer, the President or any Vice President, and the
Chief Financial Officer or any Treasurer of such Person that shall comply with
applicable provisions of this Indenture.


 


“Opinion of
Counsel” means a written opinion from legal counsel which counsel is
reasonably acceptable to the Trustee.


 


3

















 


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


 


“Redemption
Date” when used with respect to any Security of a Series to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.


 


“Responsible
Officer” when used with respect to the Trustee, means any officer or
officers within the corporate trust department of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and who are responsible for compliance with the obligations of the
Trustee as set forth in this Indenture and also means, with respect to a
particular corporate trust matter or obligation required of the Trustee as set
forth in this Indenture, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.


 


“SEC”
means the United States Securities and Exchange Commission as constituted from
time to time or any successor performing substantially the same functions.


 


“Securities”
means the securities that are issued under this Indenture, as amended or
supplemented from time to time pursuant to this Indenture.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Series”
or “Series of Securities” means each
series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 or 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, 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, as such regulation
is in effect on the date hereof.


 


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


 


“Subsidiary”
of any specified Person means any corporation, partnership, joint venture,
association or other business entity, whether now existing or hereafter
organized or acquired, (i) in the case of a corporation, of which more
than 50% of the total voting power of the Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors thereof is held, directly or indirectly by such Person or any of its
Subsidiaries; or (ii) in the case of a partnership, joint venture,
association or other business entity, with respect to which 


 


4

















 


such Person or any of its Subsidiaries has the power to direct or cause
the direction of the management and policies of such entity by contract or
otherwise or if in accordance with GAAP such entity is consolidated with such
Person for financial statement purposes.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb)  as in effect on the date of this Indenture (except as
provided in Section 8.3 hereof).


 


“Trustee”
means the party named as such in this Indenture until a successor replaces it
pursuant to this Indenture and thereafter means the successor.


 


“U.S.
Government Obligations” means direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.


 


1.2                               Other
Definitions.


 


The definitions of the
following terms may be found in the sections indicated as follows:


 


	
  Term

  	
   

  	
  Defined

  in Section

  
	
   

  	
   

  	
   

  
	
  “Bankruptcy Law”

  	
   

  	
  6.1

  
	
  “Business Day”

  	
   

  	
  10.8

  
	
  “Covenant Defeasance”

  	
   

  	
  9.3

  
	
  “Custodian”

  	
   

  	
  6.1

  
	
  “Event of Default”

  	
   

  	
  6.1

  
	
  “Journal”

  	
   

  	
  10.16

  
	
  “Judgment Currency”

  	
   

  	
  10.17

  
	
  “Legal Defeasance”

  	
   

  	
  9.2

  
	
  “Legal Holiday”

  	
   

  	
  10.8

  
	
  “Market Exchange Rate”

  	
   

  	
  10.16

  
	
  “New York Banking Day”

  	
   

  	
  10.17

  
	
  “Paying Agent”

  	
   

  	
  2.4

  
	
  “Registrar”

  	
   

  	
  2.4

  
	
  “Required Currency”

  	
   

  	
  10.17

  
	
  “Service Agent”

  	
   

  	
  2.4

  



 


1.3                               Incorporation
by Reference of Trust Indenture Act.


 


Whenever this Indenture
refers to a provision of the TIA, the portion of such provision required to be
incorporated herein in order for this Indenture to be qualified under the TIA
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.


 


5

















 


“indenture
securityholder” 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 or any other obligor on
the Securities.


 


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


 


1.4                               Rules of
Construction.


 


Unless the context
otherwise requires:


 


(1)                                  a
term has the meaning assigned to it herein, whether defined expressly or by
reference;


 


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


 


(3)                                  “or” is not exclusive;


 


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


 


(5)                                  words
used herein implying any gender shall apply to each gender; and


 


(6)                                  the
words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other sub-division.


 


ARTICLE 2

THE SECURITIES


 


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, Stated Maturity, 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.


 


6

















 


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(25) by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, in each case, pursuant to
authority granted under a Board Resolution:


 


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


 


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


 


(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 8.5);


 


(4)                                  the
date or dates on which the principal of the Securities of the Series is
payable;


 


(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;


 


(6)                                  the
place or places where the principal of and interest and premium, 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;


 


(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;


 


(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;


 


(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;


 


7

















 


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


 


(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);


 


(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;


 


(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;


 


(14)                            the
designation of the currency, currencies or currency units in which payment of
the principal of and interest and premium, if any, on the Securities of the Series will
be made;


 


(15)                            if
payments of principal of, interest or premium, 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;


 


(16)                            the
manner in which the amounts of payment of principal of and interest and
premium, 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;


 


(17)                            the
provisions, if any, relating to any security provided for the Securities of the
Series;


 


(18)                            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;


 


(19)                            any
addition to or change in the covenants set forth in Articles 4 or 5 which
applies to Securities of the Series;


 


(20)                            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 8.1,
but which may modify or delete any provision of this Indenture insofar as it
applies to such Series).


 


8

















 


(21)                            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;


 


(22)                            the
terms and conditions, if any, upon which the Securities and any guarantees
thereof shall be subordinated in right of payment to other indebtedness of the
Company or any guarantor;


 


(23)                            the
form and terms of any guarantee of the Securities;


 


(24)                            if
applicable, that the Securities of the Series, in whole or any specified part,
shall be defeasible pursuant to Article 9; and


 


(25)                            if
applicable, that the Securities of the Series, in whole or any specified part,
shall be convertible into equity securities of the Company


 


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.


 


2.3                               Execution
and Authentication.


 


The Securities shall be
executed on behalf of the Company by two Officers of the Company or an Officer
and an Assistant Secretary of the Company. 
Each such signature may be either manual or facsimile.  The Company’s seal may be impressed, affixed,
imprinted or reproduced on the Securities and may be in facsimile form.


 


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.


 


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 


 


9

















 


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 in writing by outside 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 reasonably determine that such action would expose
the Trustee to personal liability, or cause it to have a conflict of interest
with respect to Holders of any then outstanding Series of Securities.


 


The Trustee may appoint
an authenticating agent reasonably acceptable to the Company to authenticate
Securities.  An authenticating agent may
authenticate Securities whenever the Trustee may do so.  Any appointment shall be evidenced by
instrument signed by an authorized officer of the Trustee, a copy of which
shall be furnished to the Company.  Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent.  An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate of the Company.


 


2.4                               Registrar
and Paying Agent.


 


The Company shall
maintain an office or agency where Securities of any Series may be
presented for registration of transfer or for exchange (“Registrar”),
an office or agency located in the Borough of Manhattan, City of New York,
State of New York where Securities may be presented for payment (“Paying Agent”), and an office or agency where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served (“Service Agent”).  The Registrar shall keep a register of the
Securities and of their transfer and exchange. 
The Company may have one or more co-registrars and one or more
additional paying agents.  The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. 
If at any time the Company shall fail to maintain any such required
office or to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee as set forth in Section 10.2. 
Neither the Company nor any Affiliate of the Company may act as Paying
Agent.  The Company may change any Paying
Agent, Registrar or co-registrar without notice to any Securityholder.


 


The Company may also from
time to time designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations. 
The Company shall give prompt written notice to the 


 


10

















 


Trustee of such
designation or rescission and of any change in the location of any such other
office or agency.


 


The Company shall enter
into an appropriate agency agreement with any Registrar or Paying Agent not a
party to this Indenture.  The agreement
shall implement the provisions of this Indenture that relate to such
Agent.  The Company shall notify the
Trustee of the name and address of any such Agent.  If the Company fails to maintain a Registrar
or Paying Agent, or agent for service of notices and demands, or fails to give
the foregoing notice, the Trustee shall act as such.  The Company hereby appoints the Trustee as
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.  The Company hereby initially
designates the Corporate Trust Office of the Trustee as such office of the
Company.


 


2.5                               Paying
Agent To Hold Assets in Trust.


 


The Trustee as Paying
Agent shall, and the Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of the Holders of any Series of Securities or the Trustee all
assets held by the Paying Agent for the payment of principal of, or interest or
premium (if any) on, such Series of Securities (whether such assets have
been distributed to it by the Company or any other obligor on such Series of
Securities), and the Company and the Paying Agent shall notify the Trustee in
writing of any Default by the Company (or any other obligor on such Series of
Securities) in making any such payment.  The Company at any time may require a Paying
Agent to distribute all assets held by it to the Trustee and account for any
assets disbursed and the Trustee may at any time during the continuance of any
payment default with respect to any Series of Securities, upon written
request to a Paying Agent, require such Paying Agent to distribute all assets
held by it to the Trustee and to account for any assets distributed.  Upon distribution to the Trustee of all
assets that shall have been delivered by the Company to the Paying Agent, the
Paying Agent shall have no further liability for such assets.


 


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.  If the Trustee is not the
Registrar, the Company shall furnish to the Trustee as of each regular record
date for the payment of interest on the Securities of a Series and before
each related 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.


 


2.7                               Transfer
and Exchange.


 


When Securities of a Series are
presented to the Registrar with a request to register the transfer thereof, the
Registrar shall register the transfer as requested, and when such Securities of
a Series are presented to the Registrar with a request to exchange them
for an equal principal amount of other authorized denominations of Securities
of the same Series, the Registrar shall 


 


11

















 


make the exchange as
requested.  To permit transfers and
exchanges, upon surrender of any Security for registration of transfer at the
office or agency maintained pursuant to Section 2.4 hereof, the Company
shall execute and the Trustee shall authenticate Securities at the Registrar’s
request.


 


Notwithstanding any other
provision of this Section 2.7, unless and until it is exchanged in whole
or in part for definitive Securities, a Global Security may not be transferred
except as a whole by the Depositary to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.


 


If (i) the
Depositary is at any time unwilling, unable or ineligible to continue as
Depositary and a successor Depositary is not appointed by the Company within 90
days after the date the Company is so informed in writing or becomes aware of
the same, or (ii) a Default or an Event of Default has occurred and is
continuing, the Company promptly will execute and deliver to the Trustee
definitive Securities, and the Trustee, upon receipt of a Company Request for
the authentication and delivery of such definitive Securities (which the
Company will promptly execute and deliver to the Trustee), will authenticate
and deliver definitive Securities, without charge, in an aggregate principal
amount equal to the principal amount of the outstanding Global Securities, in
exchange for and upon surrender of all such Global Securities.


 


In any exchange provided
for in the preceding paragraph, the Company will execute and the Trustee will
authenticate and deliver definitive Securities in the authorized denominations
provided by Section 2.3.


 


Upon the exchange of a
Global Security for definitive Securities, such Global Security shall be
canceled by the Trustee.  Definitive
Securities issued in exchange for Global Securities pursuant to this Section 2.7
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee.


 


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


 


Every Security presented
or surrendered for registration of transfer or for exchange shall (if so
required by the Company or the Registrar or a co-Registrar) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Registrar or a co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.


 


Any exchange or transfer
shall be without charge, except that the Company may require payment by the
Holder of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation to a transfer or exchange, but this provision shall
not apply to any exchange pursuant to Section 2.11, 3.6 or 8.5
hereof.  The Trustee shall not be
required to register transfers of Securities of any Series or to exchange
Securities of any Series for a period of 15 days before selection for
redemption of such Securities.  The
Trustee shall not be required 


 


12

















 


to exchange or register
transfers of Securities of any Series called or being called for
redemption in whole or in part, except the unredeemed portion of such Security
being redeemed in part.


 


2.8                               Replacement
Securities.


 


If a mutilated Security
is surrendered to the Trustee or if the Holder of a Security presents evidence
to the satisfaction of the Company and the Trustee that the Security has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security of the same Series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.  An indemnity bond may be
required by the Company or the Trustee that is sufficient in the reasonable
judgment of the Company or the Trustee, as the case may be, to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced.  The Company may
charge such Holder for its reasonable, out-of-pocket expenses in replacing a
Security, including the fees and expenses of counsel.  Every replacement Security shall constitute
an additional 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 proportionally with
any and all other Securities of that Series duly issued hereunder.


 


2.9                               Outstanding
Securities.


 


Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation, and those described in
this Section 2.9 as not outstanding.


 


If a Security is replaced
pursuant to Section 2.8 (other than a mutilated Security surrendered for
replacement), it ceases to be outstanding until the Company and the Trustee
receive proof satisfactory to each of them that the replaced Security is held
by a bona fide purchaser.  A mutilated
Security ceases to be outstanding upon surrender of such Security and
replacement thereof pursuant to Section 2.8.


 


If a Paying Agent holds
on a Redemption Date or Maturity Date of a Series of Securities money
sufficient to pay the principal of, premium, if any, and accrued interest on
Securities payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Securities cease to be outstanding and interest on them ceases to
accrue.


 


Subject to Section 2.10,
a Security does not cease to be outstanding solely because the Company or an
Affiliate holds the Security.


 


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 


 


13

















 


request, demand,
authorization, direction, notice, consent or waiver only Securities of a Series that
the Trustee knows are so owned shall be so disregarded.


 


2.11                        Temporary
Securities.


 


Until definitive
Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities. 
Temporary Securities shall be substantially in the form, and shall carry
all rights, 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
shall authenticate definitive Securities in exchange for temporary Securities
presented to it.


 


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 transfer, exchange or payment.  At
the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and at the written request of the Company, shall dispose of
all Securities surrendered for transfer, exchange, payment or
cancellation.  If the Company shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.12.


 


2.13                        Payment of
Interest; Defaulted Interest; Computation of Interest.


 


Except as otherwise
provided as contemplated by Section 2.2 with respect to any Series of
Securities, interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security is registered at the close of business on the
regular record date for such interest, as provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate establishing the terms
of such Series.


 


With respect to any
Holder with an aggregate principal amount of Securities of any Series in
an amount in excess of $2,000,000, upon receipt by the Trustee of a written
request from such Holder, payments of interest with respect to such Securities
shall be made to such Holder by wire transfer of immediately available
funds.  Each other Holder shall receive
payments of interest by check or by transfer to an account maintained by such
Holder in the United States.


 


If the Company defaults
in a payment of interest on the Securities, it shall pay the defaulted amounts,
plus any interest payable on defaulted amounts pursuant to Section 4.1
hereof, to the persons who are Securityholders on a subsequent special record
date, which date shall be the fifteenth day next preceding the date fixed by
the Company for the payment of defaulted interest or the next succeeding
Business Day if such date is not a Business Day.  At least 15 days before the special record
date, the Company shall mail or cause to be mailed to each Securityholder, with
a copy to the Trustee, a notice that states the special record date, the
payment date, and the amount of defaulted interest, and interest payable on
such defaulted interest, if any, to be paid.


 


14

















 


Except as otherwise
specified as contemplated by Section 2.2 for Securities of any Series,
interest on the Securities of each Series shall be computed on the basis
of a 360-day year of twelve 30-day months.


 


2.14                        CUSIP
Number.


 


The Company in issuing
the Securities may use one or more “CUSIP” numbers, and if so, the Trustee
shall use the CUSIP number(s) in notices of redemption or exchange as a
convenience to Holders, provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number(s) printed
in the notice or on the Securities, and that reliance may be placed only on the
other identification numbers printed on the Securities.


 


2.15                        Provisions
for Global Securities.


 


(a)                                  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
Depositary for such Global Securities or Securities.


 


(b)                                 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 Depositary for such Security or its nominee only if (i) such
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time such Depositary ceases to
be a clearing agency registered under the Exchange Act, and, in either case,
the Company fails to appoint a successor Depositary within 90 days after 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) a Default or an Event of Default with respect to the Securities
represented by such Global Security shall have occurred 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 Depositary 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 2.15(b), a
Global Security may not be transferred except as a whole by the Depositary with
respect to such Global Security to a nominee of such Depositary, by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or
by the Depositary or any such nominee to a successor Depositary or a nominee of
such a successor Depositary.


 


(c)                                  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
Depositary or a nominee of the 


 


15

















 


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


 


(d)                                 The
Depositary, 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.


 


(e)                                  Notwithstanding
the other provisions of this Indenture, unless otherwise specified as
contemplated by Section 2.2, payment of the principal of and interest and
premium, if any, on any Global Security shall be made to the Depositary or its
nominee in its capacity as the Holder thereof.


 


(f)                                    Except
as provided in Section 2.15(e), the Company, the Trustee and any Agent
shall treat a person as the Holder of such principal amount of outstanding
Securities of any Series represented by a Global Security as shall be
specified in a written statement of the Depositary (which may be in the form of
a participants’ list for such Series) 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.


 


2.16                        Persons
Deemed Owners.


 


Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee, the
Registrar and any agent of the Company, the Registrar or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 2.13) any interest on such Security and for all
other purposes whatsoever, and neither the Company, the Trustee, the Registrar
nor any agent of the Company, the Registrar or the Trustee shall be affected by
notice to the contrary.


 


ARTICLE 3

REDEMPTION


 


3.1                               Notices
of 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 or the related Board
Resolution, supplemental indenture or Officers’ Certificate.  If a Series of Securities is redeemable
and the Company elects to redeem such Securities of a Series, it shall notify
the Trustee of the Redemption Date and the principal amount of Securities to be
redeemed at least 35 days (unless a shorter notice shall be satisfactory to the
Trustee) but not more than 60 days before the Redemption Date.  Any such notice may be 


 


16

















 


canceled at any time
prior to notice of such redemption being mailed to any Holder and shall thereby
be void and of no effect.


 


3.2                               Selection
by Trustee of Securities to Be Redeemed.


 


Unless otherwise
indicated for a particular Series of Securities by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, if fewer than all of the
Securities of a Series are to be redeemed, the Trustee shall select the
Securities of a Series to be redeemed pro rata, by lot or by any other
method that the Trustee considers fair and appropriate and, if such Securities
are listed on any securities exchange, by a method that complies with the
requirements of such exchange.


 


The Trustee shall make
the selection from Securities of a Series outstanding and not previously
called for redemption and shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed.  Securities of a Series in denominations
of $1,000 may be redeemed only in whole. 
The Trustee may select for redemption portions of the principal of
Securities of a Series that have denominations larger than $1,000.  Securities of a Series and portions of
them it selects shall be in amounts of $1,000 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 called for redemption also apply to portions of
Securities called for redemption.


 


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, and no more
than 60 days, before a Redemption Date, the Company shall mail, or cause to be
mailed, a notice of redemption by first-class mail to each Holder of Securities
to be redeemed at his or her last address as the same appears on the registry
books maintained by the Registrar.


 


The notice shall identify
the Securities to be redeemed (including the CUSIP number(s) thereof, if
any) and shall state:


 


(1)                                  the
Redemption Date;


 


(2)                                  the
redemption price;


 


(3)                                  if
any Security of a Series is being redeemed in part, the portion of the
principal amount of such Security of a Series to be redeemed and that,
after the Redemption Date and upon surrender of such Security of a Series, a
new Security or Securities in principal amount equal to the unredeemed portion
will be issued;


 


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


 


17

















 


(5)                                  that
Securities of a Series called for redemption must be surrendered to the
Paying Agent to collect the redemption price, and the place or places where
each such Security is to be surrendered for such payment;


 


(6)                                  that,
unless the Company defaults in making the redemption payment, interest on the
Securities of a Series called for redemption ceases to accrue on or after
the Redemption Date, and the only remaining right of the Holders of such
Securities is to receive payment of the redemption price upon surrender to the
Paying Agent of the Securities redeemed; and


 


(7)                                  if
fewer than all the Securities of a Series are to be redeemed, the
identification of the particular Securities of a Series (or portion
thereof) to be redeemed, as well as the aggregate principal amount of
Securities of a Series to be redeemed and the aggregate principal amount
of Securities of a Series to be outstanding after such partial redemption.


 


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


 


3.4                               Effect
of Notice of Redemption.


 


Once the notice of
redemption described in Section 3.3 is mailed, Securities of a Series called
for redemption become due and payable on the Redemption Date and at the
redemption price, plus interest, if any, accrued to (but not including) the
Redemption Date.  Upon surrender to the
Trustee or Paying Agent, such Securities of a Series shall be paid at the
redemption price, plus accrued interest, if any, to (but not including) the
Redemption Date, provided that if the Redemption Date is after a regular
interest payment record date and on or prior to the next Interest Payment Date,
the accrued interest shall be payable to the Holder of the redeemed Securities
registered on the relevant record date, as specified by the Company in the
notice to the Trustee pursuant to Section 3.1 hereof.


 


3.5                               Deposit
of Redemption Price.


 


On or prior to 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 other than Securities or portions thereof called
for redemption on that date which have been delivered by the Company to the
Trustee for cancellation.


 


On and after any
Redemption Date, if money sufficient to pay the redemption price of and accrued
interest on Securities called for redemption shall have been made available in
accordance with the preceding paragraph and the Company and the Paying Agent
are not prohibited from paying such moneys to Holders, the Securities called
for redemption will cease to accrue interest and the only right of the Holders
of such Securities will be to receive payment of the redemption price of and,
subject to the proviso in Section 3.4, accrued and unpaid interest on such
Securities to the Redemption Date.  If
any Security called for redemption shall not be so paid, interest will be paid,
from the Redemption Date until such redemption payment is made, on 


 


18

















 


the unpaid principal of
the Security and any interest or premium (if any) not paid on such unpaid
principal, in each case, at the rate and in the manner provided in the
Securities.


 


3.6                               Securities
Redeemed in Part.


 


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


 


ARTICLE 4

COVENANTS


 


4.1                               Payment
of Securities.


 


The Company shall pay the
principal of and interest and premium, if any, on each Series of
Securities on the dates and in the manner provided in such Securities and this
Indenture.


 


An installment of
principal or interest shall be considered paid on the date it is due if the
Trustee or Paying Agent holds on that date money designated for and sufficient
to pay such installment and is not prohibited from paying such money to the
Holders pursuant to the terms of this Indenture or otherwise.


 


The Company shall pay
interest on overdue principal, and overdue interest, to the extent lawful, at
the rate specified in the Series of Securities.


 


4.2                               SEC
Reports.


 


The Company will deliver
to the Trustee and the Holders of Securities within 15 days after the filing of
the same with the SEC, copies of the quarterly and annual report and of the
information documents and other reports, if any, which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act.  Notwithstanding that the Company
may not be subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Company will file with the SEC, to the extent permitted,
and provide the Trustee, Holders of each Series of Securities and prospective
holders of each Series of Securities with such quarterly and annual
reports and such information, documents and other reports specified in Section 13
and 15(d) of the Exchange Act.  The
Company will also comply with the other provisions of TIA Section 314(a).


 


4.3                               Waiver
of Stay, Extension or Usury Laws.


 


The Company covenants (to
the extent that it may lawfully do so) that they will not at any time insist
upon, or plead (as a defense or otherwise) or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension law, usury law or other
law which would prohibit or forgive the Company from paying all or any portion
of the principal of, premium, if any, and/or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that they may lawfully do so) the Company hereby expressly waives
all benefit 


 


19

















 


or advantage of any such
law, and covenants that it will not 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 had been enacted.


 


4.4                               Compliance
Certificate.


 


(a)                                  The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company, an Officers’ Certificate which complies with TIA Section 314(a)(4) stating
that a review of the activities of the Company and its Subsidiaries during such
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether each 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 or her knowledge each
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 or she may have knowledge and what action each is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest or premium, if any, on the
Securities is prohibited or if such event has occurred, a description of the
event and what action each is taking or proposes to take with respect thereto.


 


(b)                                 (i) If
any Default or Event of Default has occurred and is continuing or (ii) if
any Holder seeks to exercise any remedy hereunder with respect to a claimed
Default under this Indenture or the Securities, the Company shall deliver to
the Trustee an Officers’ Certificate specifying such event, notice or other
action within five Business Days of its becoming aware of such occurrence and
what action the Company is taking or proposes to take with respect thereto.


 


4.5                               Payment
of Taxes and Other Claims.


 


The Company shall pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon it or any of its Significant Subsidiaries or properties of it or
any of its Significant Subsidiaries and (ii) all lawful claims for labor,
materials and supplies that, if unpaid, might by law become a Lien upon the
property of it or any of its Significant Subsidiaries; provided, however,
that neither the Company nor any of its Significant Subsidiaries shall be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim if the amount, applicability or validity thereof is
being contested in good faith by appropriate proceedings and an adequate
reserve has been established therefor to the extent required by GAAP.


 


4.6                               Corporate
Existence.


 


Subject to Article 5
hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, and the
corporate, 


 


20

















 


partnership or other
existence of each Significant Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company and 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 of its Significant Subsidiaries, 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 Significant Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders.


 


4.7                               Maintenance
of Properties.


 


The Company will cause
all properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 4.7
shall prevent the Company from discontinuing the operation or maintenance of
any of such properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.


 


ARTICLE 5

SUCCESSOR CORPORATION


 


5.1                               Limitation
on Consolidation, Merger and Sale of Assets.


 


(a)                                  The
Company will not, in any transaction or series of transactions, merge or
consolidate with or into, or sell, assign, convey, transfer, lease or otherwise
dispose of all or substantially all of its properties and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions), to any Person or Persons, and the Company will not
permit any of its Significant Subsidiaries to enter into any such transaction
or series of transactions if such transaction or series of transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of the properties and assets of
the Company or the Company and its Significant Subsidiaries, taken as a whole,
to any other Person or Persons, unless at the time of and after giving effect
thereto (i) either (A) if the transaction or series of transactions
is a merger or consolidation, the Company shall be the surviving Person of such
merger or consolidation, or (B) the Person formed by such consolidation or
into which the Company or such Significant Subsidiary is merged or to which the
properties and assets of the Company or such Significant Subsidiary, as the
case may be, are transferred (any such surviving person or transferee Person
being the “Surviving Entity”) shall be a
corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall expressly
assume by a supplemental indenture executed and delivered to the Trustee, in 


 


21

















 


form reasonably
satisfactory to the Trustee, all the obligations of the Company (including,
without limitation, the obligation to pay the principal of, and premium and
interest, if any, on the Securities and the performance of the other covenants)
under the Securities of each Series and this Indenture, and in each case,
this Indenture shall remain in full force and effect; and (ii) immediately
before and immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), no Default or Event of
Default shall have occurred and be continuing.


 


(b)                                 In
connection with any consolidation, merger or transfer of assets contemplated by
this Section 5.1, the Company shall deliver, or cause to be delivered, to
the Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this Section 5.1 and that all conditions precedent
herein provided for relating to such transaction or transactions have been
complied with.


 


5.2                               Successor
Person Substituted.


 


Upon any consolidation or
merger, or any transfer of all or substantially all of the assets of the
Company or any Significant Subsidiary in accordance with Section 5.1
above, the successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer 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 corporation had been
named as the Company herein, and thereafter (except with respect to any such
transfer which is a lease) the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


6.1                               Events
of Default.


 


“Events 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:


 


(1)                                  there
is a default in the payment of any principal of, or premium, if any, on the
Securities when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;


 


(2)                                  there
is a default in the payment of any interest on any Security of a Series when
the same becomes due and payable and the Default continues for a period of 30
days;


 


22














 


(3)                                  the
Company defaults in the observance or performance of any other covenant in the
Securities of a Series or this Indenture for 45 days after written notice
from the Trustee or the Holders of not less than 25% in the aggregate principal
amount of the Securities of such Series then outstanding;


 


(4)                                  there
is a default or are defaults under one or more agreements, instruments,
mortgages, bonds, debentures or other evidences of Indebtedness under which the
Company or any Significant Subsidiary of the Company then has outstanding
Indebtedness in excess of $[10] million, individually or in the aggregate, and
either (a) such Indebtedness is already due and payable in full or (b) such
default or defaults have resulted in the acceleration of the maturity of such
Indebtedness;


 


(5)                                  a
court of competent jurisdiction enters a final judgment or judgments which can
no longer be appealed for the payment of money in excess of $[10] million (not
covered by insurance) against the Company or any Significant Subsidiary and
such judgment remains undischarged for a period of 60 consecutive days during
which a stay of enforcement of such judgment shall not be in effect;


 


(6)                                  the
Company or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:


 


(A)                              commences
a voluntary case,


 


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


 


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


 


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


 


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


 


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


 


(A)                              is
for relief against the Company or any Significant Subsidiary in an involuntary
case;


 


(B)                                appoints
a Custodian of the Company or any Significant Subsidiary or for all or
substantially all of the property of the Company or any Significant Subsidiary;
or


 


(C)                                orders
the liquidation of the Company or any Significant Subsidiary, and the order or
decree remains unstayed and in effect for 60 days; or


 


23

















 


(8)                                  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(18).


 


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.


 


The Trustee may withhold
notice of any Default (except in payment of principal or premium, if any, or
interest on the Securities) to the Holders of the Securities of any Series in
accordance with Section 7.5.


 


6.2                               Acceleration.


 


If an Event of Default
with respect to Securities of any Series at the time outstanding (other
than an Event of Default arising under Section 6.1(6) or (7)) occurs
and is continuing, the Trustee by written notice to the Company, or the Holders
of not less than 25% in aggregate principal amount of the Securities of that Series then
outstanding may by written notice to the Company and the Trustee declare that
the entire principal amount of all the Securities of that Series then
outstanding plus accrued and unpaid interest to the date of acceleration are
immediately due and payable, in which case such amounts shall become
immediately due and payable; provided, however, that after such
acceleration but before a judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the outstanding Securities of that Series may rescind and annul
such acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of accelerated principal, premium, if any,
or interest that has become due solely because of the acceleration, have been
cured or waived, (ii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid and (iii) if the rescission would not conflict with any judgment
or decree.  No such rescission shall
affect any subsequent Default or impair any right consequent thereto.  In case an Event of Default specified in Section 6.1(6) or
(7) with respect to the Company occurs, such principal, premium, if any,
and interest amount with respect to all of the Securities of that Series shall
be due and payable immediately without any declaration or other act on the part
of the Trustee or the Holders of the Securities of that Series.


 


6.3                               Other
Remedies.


 


If an Event of Default
with respect to Securities of any Series at the time outstanding occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of principal of, or premium, if any,
and interest on the Securities of that Series or to enforce the
performance of any provision of the Securities of that Series or this
Indenture.


 


The Trustee may maintain
a proceeding even if it does not possess any of the Securities of that Series or
does not produce any of them in the proceeding. 
A delay or omission by the Trustee or any Securityholder in exercising
any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the 


 


24

















 


Event of Default.  No remedy is
exclusive of any other remedy.  All
available remedies are cumulative to the extent permitted by law.


 


6.4                               Waiver
of Past Defaults and Events of Default.


 


Subject to Sections 6.2,
6.7 and 8.2 hereof, the Holders of a majority in principal amount of the
Securities of any Series then outstanding have the right to waive any
existing Default or Event of Default with respect to such Series or
compliance with any provision of this Indenture (with respect to such Series)
or the Securities of such Series.  Upon
any such waiver, such Default with respect to such Series shall cease to
exist, and any Event of Default with respect to such Series arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereto.


 


6.5                               Control
by Majority.


 


The Holders of a majority
in principal amount of the Securities of any Series then outstanding may
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 by this Indenture with respect to such Series.  The Trustee, however, may refuse to follow
any direction that conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder or
that may involve the Trustee in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.


 


6.6                               Limitation
on Suits.


 


Subject to Section 6.7
below, a Securityholder may not institute any proceeding or pursue any remedy
with respect to this Indenture or the Securities of a Series unless:


 


(1)                                  the
Holder gives to the Trustee written notice of a continuing Event of Default
with respect to the Securities of that Series;


 


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


 


(3)                                  such
Holder or Holders offer to the Trustee indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense to be incurred in compliance
with such request;


 


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


 


(5)                                  no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate principal amount
of the Securities of such Series then outstanding.


 


25

















 


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


 


6.7                               Rights
of Holders To Receive Payment.


 


Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security of a Series to
receive payment of principal of, or premium, if any, and interest of the
Security of such Series on or after the respective due dates expressed in
the Security of such Series, or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and unconditional and
shall not be impaired or affected without the consent of the Holder.


 


6.8                               Collection
Suit by Trustee.


 


If an Event of Default in
payment of principal, premium or interest specified in Section 6.1(1) or
(2) hereof with respect to Securities of any Series at the time
outstanding occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company (or any other
obligor on the Securities of that Series) for the whole amount of unpaid
principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate then
borne by the Securities of that Series, and such further amounts 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.


 


6.9                               Trustee
May File Proofs of Claim.


 


The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Securities),
any of their respective creditors or any of their respective property and shall
be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each
Securityholder 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
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7
hereof.


 


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


 


26

















 


6.10                        Priorities.


 


If the Trustee collects
any money pursuant to this Article 6, it shall pay out the money in the
following order:


 


FIRST:  to the Trustee for amounts due under Section 7.7
hereof;


 


SECOND:  to Securityholders for amounts then due and
unpaid for principal, premium, if any, 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 any premium and interest,
respectively; and


 


THIRD:  to the Company.


 


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


 


6.11                        Undertaking
for Costs.


 


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant.  This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.7 hereof or
a suit by Holders of more than 10% in principal amount of the Securities of a Series then
outstanding.


 


ARTICLE 7

TRUSTEE


 


7.1                               Duties
of Trustee.


 


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


 


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


 


(1)                                  The
Trustee need perform only those duties that are specifically set forth in this
Indenture and no covenants or obligations shall be implied in this Indenture
against the Trustee.


 


(2)                                  In
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee 


 


27

















 


and conforming to
the requirements of this Indenture but, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.


 


(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:


 


(1)                                  This
paragraph does not limit the effect of paragraph (b) of this Section 7.1.


 


(2)                                  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.


 


(3)                                  The
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Sections 6.2 and 6.5 hereof.


 


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


 


(e)                                  Whether
or not therein expressly so provided, paragraphs (a), (b), (c) and (d) of
this Section 7.1 shall govern every provision of this Indenture that in
any way relates to the Trustee.


 


(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 the law.


 


(g)                                 The
Paying Agent, the Registrar and any authenticating agent shall be entitled to
the protections, immunities and standard of care set forth in paragraphs (a),
(b), (c), and (d) of this Section 7.1 and in Section 7.2 with
respect to the Trustee.


 


7.2                               Rights
of Trustee.


 


(a)                                  Subject
to Section 7.1 hereof:


 


(1)                                  The
Trustee may rely on and shall be protected in acting or refraining from acting
upon any document reasonably 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.


 


28

















 


(2)                                  Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, or both, which shall conform to the
provisions of Section 10.5 hereof. 
The Trustee shall be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion.


 


(3)                                  The
Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed by it with due care.


 


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


 


(5)                                  The
Trustee may consult with counsel of its selection, and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of such
counsel.


 


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


 


(7)                                  The
Trustee shall not be deemed to have knowledge of any fact or matter unless such
fact or matter is known to a Responsible Officer of the Trustee.


 


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 make loans to, accept deposits from, perform services for or otherwise
deal with the Company, or any Affiliate thereof, with the same rights it would
have if it were not Trustee.  Any Agent
may do the same with like rights.  The
Trustee, however, shall be subject to Sections 7.10 and 7.11 hereof.


 


7.4                               Trustee’s
Disclaimer.


 


The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities (except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture and authenticate the Securities and perform
its obligations hereunder), it shall not be accountable for the Company’s use
of the proceeds from the sale of Securities or any money paid to the Company
pursuant to the terms of this Indenture and it shall not be responsible for any
statement in the Securities other than its certificates of authentication.


 


29

















 


7.5                               Notice
of Default.


 


If a Default or an Event
of Default occurs and is continuing with respect to the Securities of any Series and
if it is known to the Trustee, the Trustee shall mail to each Securityholder of
the Securities of that Series notice of the Default or the Event of
Default, as the case may be, within 30 days after it occurs.  Except in the case of a Default or an Event
of Default in payment of the principal of, or premium, if any, or interest on
any Security of any Series, the Trustee may withhold the notice if and so long
as the Board of Directors of the Trustee, the executive committee or any trust
committee of such board and/or its Responsible Officers in good faith determine(s) that
withholding the notice is in the interests of the Securityholders of that
Series.


 


7.6                               Reports
by Trustee to Holders.


 


If and to the extent
required by the TIA, within 60 days after May 15 of each year, commencing
the May 15 following the date of this Indenture, the Trustee shall mail to
each Securityholder a brief report dated as of such May 15 that complies
with TIA Section 313(a).  The
Trustee also shall comply with TIA Sections 313(b) and 313(c).


 


A copy of each report at
the time of its mailing to Securityholders shall be filed with the SEC and any
stock exchange on which the Securities of that Series are listed.  The Company shall promptly notify the Trustee
when the Securities of any Series are listed on any stock exchange, and
the Trustee shall comply with TIA Section 313(d).


 


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 provision of law on compensation of a trustee of an express
trust.  The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it in connection with its duties under this Indenture, including
the reasonable compensation, disbursements and expenses of the Trustee’s agents
and counsel.


 


The Company shall
indemnify the Trustee for, and hold it harmless against, any and all loss or
liability incurred by it in connection with the acceptance or performance of
its duties under this Indenture including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.  The Trustee shall notify the Company promptly
of any claim asserted against the Trustee for which it may seek indemnity.  However, the failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations.  Notwithstanding the foregoing, the Company
need not reimburse the Trustee for any expense or indemnify it against any loss
or liability incurred by the Trustee through its negligence or bad faith.


 


To secure the payment
obligations of the Company in this Section 7.7, 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 such money or property held in trust to pay
principal of and interest and premium (if any) on particular Securities of that
Series.


 


30

















 


When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 6.1(6) or
(7) hereof occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.


 


For purposes of this Section 7.7,
the term “Trustee” shall include any trustee
appointed pursuant to Article 9.


 


7.8                               Replacement
of Trustee.


 


The Trustee may resign
with respect to the Securities of one or more Series by so notifying the
Company in writing at least 90 days in advance of such resignation.


 


The Holders of a majority
in principal amount of the outstanding Securities of any Series may remove
the Trustee with respect to that Series by notifying the removed Trustee
in writing and may appoint a successor Trustee with respect to that Series with
the written consent of the Company, which consent shall not be unreasonably
withheld.  The Company may remove the
Trustee with respect to that Series at its election if:


 


(1)                                  the
Trustee fails to comply with, or ceases to be eligible under, Section 7.10
hereof;


 


(2)                                  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;


 


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


 


(4)                                  the
Trustee otherwise becomes incapable of acting.


 


If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee with respect to any Series of
Securities for any reason, the Company shall promptly notify each Holder of
such event and shall promptly appoint a successor Trustee.


 


If a successor Trustee
with respect to the Securities of 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
outstanding 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 one or more Series fails to comply with Section 7.10
hereof, 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 following such
delivery (i) the retiring Trustee with respect to one or more Series shall,
subject to its rights under Section 7.7 hereof, transfer all property held
by it as Trustee with respect to such Series to the successor Trustee, (ii) the



 


31

















 


resignation or removal of
the retiring Trustee shall become effective, and (iii) the successor
Trustee with respect to such Series shall have all the rights, powers and
duties of the Trustee under this Indenture. 
A successor Trustee with respect to the Securities of one or more Series shall
mail notice of its succession to each Securityholder of such Series.


 


7.9                               Successor
Trustee by Consolidation, Merger or Conversion.


 


If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another corporation, subject to Section 7.10
hereof, the successor corporation without any further act shall be the
successor Trustee.


 


7.10                        Eligibility;
Disqualification.


 


This Indenture shall
always have a Trustee who satisfies the requirements of TIA Sections 310(a)(1),
(2) and (5) in every respect. 
The Trustee shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b), including the
provision in Section 310(b)(1).  If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.10, it shall resign immediately in the manner
and with the effect specified in this Article 7.


 


7.11                        Preferential
Collection of Claims Against Company.


 


The Trustee shall comply
with 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 therein.


 


7.12                        Paying
Agents.


 


The Company shall cause
each Paying Agent other than the Trustee to execute and deliver to it and the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 7.12:


 


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


 


(2)                                  that
it will at any time during the continuance of any Event of Default, upon
written request from the Trustee, deliver to the Trustee all sums so held in
trust by it together with a full accounting thereof; and


 


(3)                                  that
it will give the Trustee written notice within three (3) Business Days of
any failure of the Company (or by any obligor on the Securities) in the payment
of any installment of the principal of, premium, if any, or interest on, the
Securities when the same shall be due and payable.


 


32

















ARTICLE 8

AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


8.1                               Without
Consent of Holders.


 


The Company, when
authorized by a Board Resolution, and the Trustee may amend or supplement this
Indenture or the Securities of one or more Series without notice to or
consent of any Securityholder:


 


(1)                                  to
comply with Section 5.1 hereof;


 


(2)                                  to
provide for uncertificated Securities in addition to certificated Securities;


 


(3)                                  to
comply with any requirements of the SEC under the TIA;


 


(4)                                  to
cure any ambiguity, defect or inconsistency, or to make any other change that
does not adversely affect the rights of any Securityholder;


 


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


 


(6)                                  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.


 


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


 


8.2                               With
Consent of Holders.


 


(a)                                  The
Company, when authorized by a Board Resolution, and the Trustee may amend or
supplement this Indenture or the Securities of one or more Series with the
written consent of the Holders of not less than a majority in aggregate
principal amount of the outstanding Securities of such Series affected by
such amendment or supplement without notice to any Securityholder.  The Holders of not less than a majority in
aggregate principal amount of the outstanding Securities of each such Series affected
by such amendment or supplement may waive compliance in a particular instance
by the Company with any provision of this Indenture or the Securities of such Series without
notice to any Securityholder.  Subject to
Section 8.4, without the consent of each Securityholder affected, however,
an amendment, supplement or waiver, including a waiver pursuant to Section 6.4,
may not:


 


33

















 


(1)                                  reduce
the amount of Securities whose Holders must consent to an amendment, supplement
or waiver to this Indenture or the Securities;


 


(2)                                  reduce
the rate of or change the time for payment of interest on any Security;


 


(3)                                  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;


 


(4)                                  make
any Security payable in money other than that stated in the Security;


 


(5)                                  change
the amount or time of any payment required by the Securities or reduce the
premium payable upon any redemption of the Securities, or change the time
before which no such redemption may be made;


 


(6)                                  waive
a Default or Event of Default in the payment of the principal of or interest or
premium, 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);


 


(7)                                  waive
a redemption payment with respect to any Security or change any of the
provisions with respect to the redemption of any Securities;


 


(8)                                  make
any changes in Sections 6.4 or 6.7 hereof or this Section 8.2, except to
increase any percentage of Securities the Holders of which must consent to any
matter; or; or


 


(9)                                  take
any other action otherwise prohibited by this Indenture to be taken without the
consent of each holder affected thereby.


 


(b)                                 Upon
the request of the Company, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the receipt by the
Trustee of evidence reasonably satisfactory to the Trustee of the consent of
the Securityholders as aforesaid and upon receipt by the Trustee of the
documents described in Section 8.6 hereof, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.


 


(c)                                  It
shall not be necessary for the consent of the Holders under this section to
approve the particular form of any proposed amendment, supplement or waiver,
but it shall be sufficient if such consent approves the substance thereof.


 


34

















 


8.3                               Compliance
with Trust Indenture Act.


 


Every amendment to or supplement
of this Indenture or the Securities shall comply with the TIA as then in
effect.


 


8.4                               Revocation
and Effect of Consents.


 


Until an amendment,
supplement, waiver or other action becomes effective, a consent to it by a
Holder of a Security is a continuing consent conclusive and binding upon such
Holder and every subsequent Holder of the same Security or portion thereof, and
of any Security issued upon the transfer thereof or in exchange therefor or in
place thereof, even if notation of the consent is not made on any such
Security.  Any such Holder or subsequent
Holder, however, 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, supplement, waiver or other action becomes effective.


 


The Company may, but
shall not be obligated to, fix a record date for the purpose of determining the
Holders entitled to consent to any amendment, supplement, or waiver which
record date shall be at least 30 days prior to the first solicitation of such
consent.  If a record date is fixed,
then, notwithstanding the preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent to such amendment, supplement, or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date.  No such
consent shall be valid or effective for more than 90 days after such record
date without the applicable amendment, supplement or waiver becoming effective.


 


After an amendment,
supplement, waiver or other action becomes effective, it shall bind every
Securityholder, unless it makes a change described in any of clauses (1) through
(9) of Section 8.2 hereof.  In
that case the amendment, supplement, waiver or other action 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; provided that any such waiver shall not
impair or affect the right of any Holder to receive payment of principal of and
interest and premium (if any) on a Security, on or after the respective due
dates expressed in such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates without the consent of such
Holder.


 


8.5                               Notation
on or Exchange of Securities.


 


If an amendment,
supplement, or waiver changes the terms of a Security of any Series, the
Trustee may request the Holder of such Security to deliver it to the
Trustee.  In such case, the Trustee shall
place an appropriate notation on such Security about the changed terms and
return it to the Holder.  Alternatively,
if the Company or the Trustee so determines, the Company in exchange for such
Security shall issue and the Trustee shall authenticate a new security that
reflects the changed terms.  Failure to
make the appropriate notation or issue a new Security shall not affect the
validity and effect of such amendment, supplement or waiver.


 


35

















 


8.6                               Trustee
to Sign Amendments, Etc.


 


The Trustee shall sign
any amendment, supplement or waiver authorized pursuant to this Article 8
if the amendment, supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee.  If it does, the Trustee may, but need not,
sign it.  In signing or refusing to sign
such amendment, supplement or waiver the Trustee shall be entitled to receive and,
subject to Section 7.1 hereof, shall be fully protected in relying upon an
Officers’ Certificate and an Opinion of Counsel stating that such amendment,
supplement or waiver is authorized or permitted by this Indenture.  The Company may not sign an amendment or
supplement until the Board of Directors of the Company approves it.


 


ARTICLE 9

DISCHARGE OF INDENTURE; DEFEASANCE


 


9.1                               Discharge
of Indenture.


 


The Company may terminate
its obligations under the Securities of any Series and this Indenture with
respect to such Series, except the obligations referred to in the last
paragraph of this Section 9.1, if there shall have been canceled by the
Trustee or delivered to the Trustee for cancellation all Securities of such Series theretofore
authenticated and delivered (other than any Securities of such Series that
are asserted to have been destroyed, lost or stolen and that shall have been
replaced as provided in Section 2.8 hereof) and the Company has paid all
sums payable by it hereunder or deposited all required sums with the Trustee.


 


After such delivery the
Trustee upon request shall acknowledge in writing the discharge of the Company’s
obligations under the Securities of such Series and this Indenture except
for those surviving obligations specified below.


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company in
Sections 7.7, 9.5 and 9.6 hereof shall survive.


 


9.2                               Legal
Defeasance.


 


The Company may at its
option, by Board Resolution, be discharged from its obligations with respect to
the Securities of any Series on the date the conditions set forth in Section 9.4
below are satisfied (hereinafter, “Legal Defeasance”).  For this purpose, such Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Securities of such Series and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of
the Company, shall, subject to Section 9.6 hereof, execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder:  (A) the rights of Holders of outstanding
Securities of such Series to receive solely from the trust funds described
in Section 9.4 hereof and as more fully set forth in such section,
payments in respect of the principal of, premium, if any, and interest on the
Securities of such Series when such payments are due, (B) the Company’s
obligations with respect to the Securities of such Series under Sections
2.4, 2.5, 2.6, 2.7, 2.8 and 2.9 hereof, (C) the rights, powers, trusts,
duties, and immunities of the Trustee hereunder (including claims of, 


 


 


36

















 


or payments to, the
Trustee under or pursuant to Section 7.7 hereof) and (D) this Article 9.  Subject to compliance with this Article 9,
the Company may exercise its option under this Section 9.2 with respect to
the Securities of any Series notwithstanding the prior exercise of its
option under Section 9.3 below with respect to the Securities of such
Series.


 


9.3                               Covenant
Defeasance.


 


At the option of the
Company, pursuant to a Board Resolution, the Company shall be released from its
obligations under Sections 4.2 through 4.7 hereof, inclusive, and Section 5.1
hereof, with respect to the outstanding Securities of any Series, on and after
the date the conditions set forth in Section 9.4 hereof are satisfied
(hereinafter, “Covenant Defeasance”).  For this purpose, such Covenant Defeasance
means that the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
section or portion thereof, whether directly or indirectly by reason of any
reference elsewhere herein to any such specified Section or portion
thereof or by reason of any reference in any such specified section or portion
thereof to any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of any Series shall be
unaffected thereby.


 


9.4                               Conditions
to Legal Defeasance or Covenant Defeasance.


 


The following shall be
the conditions to application of Section 9.2 or Section 9.3 hereof to
the outstanding Securities of a Series:


 


(1)                                  the
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 7.10
hereof who shall agree to comply with the provisions of this Article 9
applicable to it) as 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 the Securities, (A) money in an amount, or (B) U.S.  Government Obligations or Foreign Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of, premium,
if any, and accrued interest on the outstanding Securities of such Series at
the Stated Maturity of such principal, premium, if any, or interest, or on
dates for payment and redemption of such principal, premium, if any, and
interest selected in accordance with the terms of this Indenture and of the
Securities of such Series;


 


(2)                                  no
Event of Default or Default with respect to the Securities of such Series shall
have occurred and be continuing on the date of such deposit, or shall have
occurred and be continuing at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period under any Bankruptcy Law applicable
to the Company in respect of 


 


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such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period);


 


(3)                                  such
Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest for purposes of the TIA with respect to any securities of
the Company;


 


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


 


(5)                                  the
Company shall have delivered to the Trustee an Opinion of Counsel stating that,
as a result of such Legal Defeasance or Covenant Defeasance, neither the trust nor
the Trustee will be required to register as an investment company under the
Investment Company Act of 1940, as amended;


 


(6)                                  in
the case of an election under Section 9.2 above, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling to the effect that or (ii) there has been a change in any
applicable Federal income tax law with the effect that, and such opinion shall
confirm that, the Holders of the outstanding Securities of such Series or
persons in their positions will not recognize income, gain or loss for Federal
income tax purposes solely as a result of such Legal Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would have been
the case if such Legal Defeasance had not occurred;


 


(7)                                  in
the case of an election under Section 9.3 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
of the outstanding Securities of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;


 


(8)                                  the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for in
this Article 9 relating to either the Legal Defeasance under Section 9.2
above or the Covenant Defeasance under Section 9.3 hereof (as the case may
be) have been complied with;


 


(9)                                  the
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit under clause (1) was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any creditors of the
Company or others; and


 


(10)                            the
Company shall have paid or duly provided for payment under terms mutually
satisfactory to the Company and the Trustee all amounts then due to the Trustee
pursuant to Section 7.7 hereof.


 


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9.5                               Deposited
Money and U.S. and Foreign Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.


 


All money, U.S.
Government Obligations and Foreign Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 9.4
hereof in respect of the outstanding Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
as the Trustee may determine, to the Holders of such Securities, of all sums
due and to become due thereon in respect of principal, premium, if any, and
accrued interest, but such money need not be segregated from other funds except
to the extent required by law.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations and Foreign Government
Obligations deposited pursuant to Section 9.4 hereof or the principal,
premium, if any, and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
outstanding Securities.


 


Anything in this Article 9
to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money, U.S. Government
Obligations or Foreign Government Obligations held by it as provided in Section 9.4
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.


 


9.6                               Reinstatement.


 


If the Trustee or Paying
Agent is unable to apply any money, U.S. Government Obligations or Foreign
Government Obligations in accordance with Section 9.1, 9.2, 9.3 or 9.4
hereof 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 this Article 9 until such time as the Trustee or
Paying Agent is permitted to apply all such money, U.S. Government Obligations
or Foreign Government Obligations, as the case may be, in accordance with Section 9.1,
9.2, 9.3 or 9.4 hereof; provided, however, that if the Company
has made any payment of principal of, premium, if any, or accrued interest on
any Securities because of the reinstatement of their obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money, U.S. Government Obligations or Foreign Government
Obligations held by the Trustee or Paying Agent.


 


9.7                               Moneys
Held by Paying Agent.


 


In connection with the
satisfaction and discharge of this Indenture, all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Company, be paid to the Trustee, or if sufficient moneys have been deposited
pursuant to Section 9.1 


 


39

















 


hereof, to the Company, and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.


 


9.8                               Moneys
Held by Trustee.


 


Any moneys deposited with
the Trustee or any Paying Agent or then held by the Company in trust for the
payment of the principal of, or premium, if any, or interest on any Security
that are not applied but remain unclaimed by the Holder of such Security for
two years after the date upon which the principal of, or premium, if any, or
interest on such Security shall have respectively become due and payable shall be
repaid to the Company upon Company Request, or if such moneys are then held by
the Company in trust, such moneys shall be released from such trust; and the
Holder of such Security entitled to receive such payment shall thereafter, as
an unsecured general creditor, look only to the Company for the payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that
the Trustee or any such Paying Agent, before being required to make any such
repayment, may, at the expense of the Company, either mail to each
Securityholder affected, at the address shown in the register of the Securities
maintained by the Registrar or cause to be published once a week for two
successive weeks, in a newspaper published in the English language, customarily
published each Business Day and of general circulation in the City of New York,
New York, a notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing or publication, any unclaimed balance of such moneys then remaining
will be repaid to the Company.  After
payment to the Company or the release of any money held in trust by the
Company, Securityholders entitled to the money must look only to the Company
for payment as general creditors unless applicable abandoned property law
designates another person.


 


ARTICLE
10

MISCELLANEOUS


 


10.1                        Trust
Indenture Act Controls.


 


If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.  If any provision of this
Indenture modifies or excludes any provision of the TIA which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.


 


10.2                        Notices.


 


Any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:


 


40

















 


If to the Company:


 


Dyax Corp.


175 Crossing Boulevard

Framingham, Massachusetts 01702

Attention:  Chief Financial Officer


 


Copy to:


 


Edwards Angell Palmer &
Dodge LLP


111 Huntington Avenue


Boston,
Massachusetts  02199


Attention:  Nathaniel S. Gardiner, Esq.


 


If to the Trustee:


 


 


 


 


 


 


 


The Company or the
Trustee by written notice to the other may designate additional or different
addresses for subsequent notices or communications.  Any notice or communication to the Company or
the Trustee shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and five (5) calendar days after mailing
if sent by registered or certified mail, postage prepaid (except that a notice
of change of address shall not be deemed to have been given until actually
received by the addressee).


 


Any notice or
communication mailed to a Securityholder shall be mailed to him by first-class
mail, postage prepaid, at his address shown on the register kept by the
Registrar.  In addition, notices or
communications to Securityholders shall be given by release made to Reuters
Economic Services and Bloomberg Business News.


 


Failure to mail a notice
or communication to a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders.  If a notice or communication to a
Securityholder is mailed in the manner provided above, it shall be deemed duly
given five (5) calendar days after mailing, whether or not the addressee
receives it.


 


In case by reason of the
suspension of regular mail service, or by reason of any other cause, it shall
be impossible to mail any notice as required by this Indenture, then such
method of notification as shall be made with the approval of the Trustee shall
constitute a sufficient mailing of such notice.


 


41

















 


 


In the case of Global
Securities, notices or communications to be given to Securityholders shall be
given to the Depositary, in accordance with its applicable policies as in
effect from time to time.


 


10.3                        Communications
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 any other Series.  The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).


 


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:


 


(1)                                  an
Officers’ Certificate (which shall include the statements set forth in Section 10.5
below) 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


 


(2)                                  an
Opinion of Counsel (which shall include the statements set forth in Section 10.5
below) stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.


 


10.5                        Statement
Required in Certificate and Opinion.


 


Each certificate and
opinion with respect to compliance with a condition or covenant provided for in
this Indenture shall include:


 


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


 


(2)                                  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;


 


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


 


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


 


42

















 


10.6                        Rules by
Trustee and Agents.


 


The Trustee may make
reasonable rules for action by or at meetings of Securityholders.  The Registrar and Paying Agent may make
reasonable rules for their functions.


 


10.7                        Business
Days; Legal Holidays.


 


A “Business Day”
is a day that is not a Legal Holiday.  A “Legal Holiday” is a Saturday, a Sunday, a federally
recognized holiday or a day on which banking institutions are not required to
be open in the State of New York.


 


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.


 


10.8                        Governing
Law.


 


THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD
APPLY THE LAW OF ANY OTHER JURISDICTION. 
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE COMMONWEALTH OF MASSACHUSETTS IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.


 


10.9                        No Adverse
Interpretation of Other Agreements.


 


This Indenture may not be
used to interpret another indenture, loan, security or debt agreement of the
Company or any Subsidiary thereof.  No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.


 


10.10                 No Recourse
Against Others.


 


A director, officer,
employee, stockholder or incorporator, 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 creations.  Each
Securityholder by accepting a Security waives and releases all such
liability.  Such waiver and release are
part of the consideration for the issuance of the Securities.


 


10.11                 Successors and
Assigns.


 


All agreements of the
Company in this Indenture and the Securities shall bind its successors and
assigns, whether so expressed or not. 
All agreements of the Trustee, any additional trustee and any Paying
Agents in this Indenture shall bind their respective successors and assigns.


 


43

















 


10.12                 Multiple
Counterparts.


 


The parties may sign
multiple counterparts of this Indenture. 
Each signed counterpart shall be deemed an original, but all of them
together represent one and the same agreement.


 


10.13                 Table of
Contents, Headings, Etc.


 


The table of contents,
cross-reference sheet 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.


 


10.14                 Separabilty.


 


Each provision of this
Indenture shall be considered separable and if for any reason any provision
which is not essential to the effectuation of the basic purpose of this
Indenture or 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.


 


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 ECU), 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 10.16, “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.


 


44

















 


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.


 


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 premium (if any) 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.


 


[Remainder of Page Intentionally
Left Blank]


 


45

















 


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


 


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


 


	
   

  	
  DYAX CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [Name of Trustee]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


46