Table of Contents


 


Exhibit 4.9


 


SENOMYX, INC.,

Issuer


 


AND


 


U.S. BANK NATIONAL ASSOCIATION,

Trustee


 






 


INDENTURE


 


Dated as of August 7, 2008


 






 


Subordinated Debt Securities


 

















Table of
Contents


 


TABLE OF
CONTENTS


 


	
  ARTICLE 1       DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.01

  	
  Definitions of
  Terms

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2       ISSUE, DESCRIPTION, TERMS,
  EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.01

  	
  Designation
  and Terms of Securities

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.02

  	
  Form of
  Securities and Trustee’s Certificate

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.03

  	
  Denominations:
  Provisions for Payment

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.04

  	
  Execution
  and Authentications

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.05

  	
  Registration
  of Transfer and Exchange

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.06

  	
  Temporary
  Securities

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.07

  	
  Mutilated,
  Destroyed, Lost or Stolen Securities

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.08

  	
  Cancellation

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.09

  	
  Benefits of
  Indenture

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.10

  	
  Authenticating
  Agent

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.11

  	
  Global
  Securities

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3       REDEMPTION OF SECURITIES AND SINKING
  FUND PROVISIONS

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.01

  	
  Redemption

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.02

  	
  Notice of
  Redemption

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.03

  	
  Payment
  Upon Redemption

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.04

  	
  Sinking Fund

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.05

  	
  Satisfaction
  of Sinking Fund Payments with Securities

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.06

  	
  Redemption
  of Securities for Sinking Fund

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4       COVENANTS

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.01

  	
  Payment of
  Principal, Premium and Interest

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.02

  	
  Maintenance
  of Office or Agency

  	
  13

  



 


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  Section 4.03

  	
  Paying Agents

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.04

  	
  Appointment
  to Fill Vacancy in Office of Trustee

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.05

  	
  Compliance
  with Consolidation Provisions

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5       SECURITYHOLDERS’ LISTS AND REPORTS
  BY THE COMPANY AND THE TRUSTEE

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.01

  	
  Company to
  Furnish Trustee Names and Addresses of Securityholders

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.02

  	
  Preservation
  Of Information; Communications With Securityholders

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.03

  	
  Reports by
  the Company

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.04

  	
  Reports by
  the Trustee

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6       REMEDIES OF THE TRUSTEE AND
  SECURITYHOLDERS ON EVENT OF DEFAULT

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.01

  	
  Events of Default

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.02

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.03

  	
  Application
  of Moneys Collected

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.04

  	
  Limitation on
  Suits

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.05

  	
  Rights and
  Remedies Cumulative; Delay or Omission Not Waiver

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.06

  	
  Control by
  Securityholders

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.07

  	
  Undertaking
  to Pay Costs

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7       CONCERNING THE TRUSTEE

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.01

  	
  Certain
  Duties and Responsibilities of Trustee

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.02

  	
  Certain
  Rights of Trustee

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.03

  	
  Trustee Not
  Responsible for Recitals or Issuance or Securities

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.04

  	
  May Hold
  Securities

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.05

  	
  Moneys Held in
  Trust

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.06

  	
  Compensation
  and Reimbursement

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.07

  	
  Reliance on
  Officers’ Certificate

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.08

  	
  Disqualification;
  Conflicting Interests

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.09

  	
  Corporate
  Trustee Required; Eligibility

  	
  22

  



 


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  Section 7.10

  	
  Resignation
  and Removal; Appointment of Successor

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.11

  	
  Acceptance
  of Appointment By Successor

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.12

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.13

  	
  Preferential
  Collection of Claims Against the Company

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.14

  	
  Notice of Default

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8       CONCERNING THE SECURITYHOLDERS

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.01

  	
  Evidence of
  Action by Securityholders

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.02

  	
  Proof of
  Execution by Securityholders

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.03

  	
  Who
  May be Deemed Owners

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.04

  	
  Certain
  Securities Owned by Company Disregarded

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.05

  	
  Actions
  Binding on Future Securityholders

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9      
  SUPPLEMENTAL INDENTURES

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.01

  	
  Supplemental
  Indentures Without the Consent of Securityholders

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.02

  	
  Supplemental
  Indentures With Consent of Securityholders

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.03

  	
  Effect of
  Supplemental Indentures

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.04

  	
  Securities
  Affected by Supplemental Indentures

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.05

  	
  Execution
  of Supplemental Indentures

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10       SUCCESSOR ENTITY

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.01

  	
  Company
  May Consolidate, Etc.

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.02

  	
  Successor
  Entity Substituted

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.03

  	
  Evidence of
  Consolidation, Etc. to Trustee

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11       SATISFACTION AND DISCHARGE

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.01

  	
  Satisfaction
  and Discharge of Indenture

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.02

  	
  Discharge
  of Obligations

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.03

  	
  Deposited
  Moneys to be Held in Trust

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.04

  	
  Payment of
  Moneys Held by Paying Agents

  	
  30

  



 


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  Section 11.05

  	
  Repayment to
  Company

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12       IMMUNITY OF INCORPORATORS,
  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 12.01

  	
  No Recourse

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13       MISCELLANEOUS PROVISIONS

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.01

  	
  Effect on
  Successors and Assigns

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.02

  	
  Actions by
  Successor

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.03

  	
  Surrender
  of Company Powers

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.04

  	
  Notices

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.05

  	
  Governing Law

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.06

  	
  Treatment
  of Securities as Debt

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.07

  	
  Certificates
  and Opinions as to Conditions Precedent

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.08

  	
  Payments on
  Business Days

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.09

  	
  Conflict
  with Trust Indenture Act

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.10

  	
  Counterparts

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.11

  	
  Separability

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.12

  	
  Compliance
  Certificates

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14       SUBORDINATION OF SECURITIES

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 14.01

  	
  Subordination
  Terms

  	
  33

  



 






	
  (1)

  	
   

  	
  This Table of Contents
  does not constitute part of the Indenture and shall not have any bearing on
  the interpretation of any of its terms or provisions.

  



 


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INDENTURE


 


INDENTURE, dated as of August 7, 2008, among SENOMYX, INC.,  a
Delaware corporation (the “Company”), and U.S. BANK NATIONAL
ASSOCIATION as trustee (the “Trustee”):


 


WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of
subordinated debt securities (hereinafter referred to as the “Securities”), in
an unlimited aggregate principal amount to be issued from time to time in one
or more series as in this Indenture provided, as registered Securities without
coupons, to be authenticated by the certificate of the Trustee;


 


WHEREAS, to provide the terms and conditions upon which the Securities are to
be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and


 


WHEREAS, all things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.


 


NOW, THEREFORE, in consideration of the premises and the
purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of
Securities:


 


ARTICLE 1


 


DEFINITIONS


 


Section 1.01         Definitions of Terms.


 


The terms defined in this Section (except as in this Indenture or
any indenture supplemental hereto otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular. All
other terms used in this Indenture that are defined in the Trust Indenture Act
of 1939, as amended, or that are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein or any indenture
supplemental hereto otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.


 


“Authenticating
Agent” means an authenticating agent with respect to all or any
of the series of Securities appointed by the Trustee pursuant to Section 2.10.


 


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


 


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


 


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


 


“Business Day”
means, with respect to any series of Securities, any day other than a day on
which federal or state banking institutions in the Borough of Manhattan, the
City of New York, or in the city of the Corporate Trust Office of the Trustee,
are authorized or obligated by law, executive order or regulation to close.


 


“Certificate”
means a certificate signed by any Officer. The Certificate need not comply with
the provisions of Section 13.07.


 


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“Company”
means SENOMYX, INC., a corporation
duly organized and existing under the laws of the State of Delaware, and,
subject to the provisions of Article Ten, shall also include its
successors and assigns.


 


“Corporate Trust
Office” means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 623 West Fifth
Street, 24th Floor, Los Angeles, CA 90071.


 


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


 


“Default”
means any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.


 


“Depositary”
means, with respect to Securities of any series for which the Company shall
determine that such Securities will be issued as a Global Security, The
Depository Trust Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Securities and Exchange Act
of 1934, as amended (the “Exchange Act”), or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.11.


 


“Event of
Default” means, with respect to Securities of a particular
series, any event specified in Section 6.01, continued for the period of
time, if any, therein designated.


 


“Global Security”
means, with respect to any series of Securities, a Security executed by the
Company and delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction, all in accordance with the Indenture, which shall be
registered in the name of the Depositary or its nominee.


 


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


 


“herein”,
“hereof”
and “hereunder”,
and other words of similar import, refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.


 


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof.


 


“Interest
Payment Date”, when used with respect to any installment of
interest on a Security of a particular series, means the date specified in such
Security or in a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.


 


“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a
chief executive officer, a president, a chief financial officer, a chief legal
officer, any executive vice president, any senior vice president, any vice
president, the treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant secretary.


 


 “Officers’
Certificate” means a certificate signed by any two Officers.
Each such certificate shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.


 


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“Opinion of
Counsel” means an opinion in writing subject to customary
exceptions of legal counsel, who may be an employee of or counsel for the
Company, that is delivered to the Trustee in accordance with the terms hereof.
Each such opinion shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.


 


“Outstanding”,
when used with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all Securities of
that series theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Securities theretofore canceled by the Trustee or
any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or
portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Securities or portions
of such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.07.


 


“Person”
means any individual, corporation, partnership, joint venture, joint-stock
company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a  government or
political subdivision or an agency or instrumentality thereof.


 


“Predecessor
Security” of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.


 


“Responsible
Officer” when used with respect to the Trustee means any trust
officer, any corporate trust officer or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.


 


“Securities”
means the debt Securities authenticated and delivered under this Indenture.


 


“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the
Person or Persons in whose name or names a particular Security shall be
registered on the books of the Company kept for that purpose in accordance with
the terms of this Indenture.


 


“Security
Register” and “Security Registrar” shall have the meanings as set forth
in Section 2.05.


 


“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority
of whose outstanding Voting Stock shall at the time be owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, (ii) any general partnership,
joint venture or similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such Person, or
by one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such Person or any
of its Subsidiaries is a general partner.


 


“Trustee”
means U.S. Bank National Association, and, subject to the provisions of Article Seven,
shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder, “Trustee” shall mean
each such Person. The term “Trustee” as used with respect to a particular
series of the Securities shall mean the trustee with respect to that series.


 


“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended.


 


“Voting Stock”,
as applied to stock of any Person, means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election 


 


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of a majority of the
directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.


 


ARTICLE 2


 


ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES


 


Section 2.01         Designation and Terms of Securities.


 


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 up to the aggregate principal amount of Securities of
that series from time to time authorized by or pursuant to a Board Resolution
or pursuant to one or more indentures supplemental hereto. Prior to the initial
issuance of Securities of any series, there shall be established in or pursuant
to a Board Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental hereto:


 


(1)           the title of the Securities of the series
(which shall distinguish the Securities of that series from all other
Securities);


 


(2)           any limit upon the aggregate principal amount
of the Securities of that series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series);


 


(3)           the date or dates on which the principal of
the Securities of the series is payable, any original issue discount that may
apply to the Securities of that series upon their issuance, the principal
amount due at maturity, and the place(s) of payment;


 


(4)           the rate or rates at which the Securities of
the series shall bear interest or the manner of calculation of such rate or
rates, if any;


 


(5)           the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates, the place(s) of
payment, and the record date for the determination of holders to whom interest
is payable on any such Interest Payment Dates or the manner of determination of
such record dates;


 


(6)           the right, if any, to extend the interest
payment periods and the duration of such extension;


 


(7)           the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company;


 


(8)           the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any sinking fund,
mandatory redemption, or analogous provisions (including payments made in cash
in satisfaction of future sinking fund obligations) 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 form of the Securities of the series
including the form of the Certificate of Authentication for such series;


 


(10)         if
other than denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, the denominations in which the Securities of the series shall
be issuable;


 


(11)         any and
all other terms (including terms, to the extent applicable, relating to any
auction or remarketing of the Securities of that series and any security for
the obligations of the Company with 


 


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respect to such Securities)
with respect to such series (which terms shall not be inconsistent with the
terms of this Indenture, as amended by any supplemental indenture) including
any terms which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities of that
series;


 


(12)         whether
the Securities are issuable as a Global Security and, in such case, the terms
and the identity of the Depositary for such series;


 


(13)         whether
the Securities will be convertible into or exchangeable for shares of common
stock or other securities of the Company or any other Person and, if so, the
terms and conditions upon which such Securities will be so convertible or
exchangeable, including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or optional (at the
Company’s option or the holders’ option) conversion or exchange features, and
the applicable conversion or exchange period;


 


(14)         if other
than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01;


 


(15)         any
additional or different Events of Default or restrictive covenants (which may
include, among other restrictions, restrictions on the Company’s ability or the
ability of the Company’s Subsidiaries to:  incur additional indebtedness;
issue additional securities; create liens; pay dividends or make distributions
in respect of their capital stock; redeem capital stock; place restrictions on
such Subsidiaries placing restrictions on their ability to pay dividends, make
distributions or transfer assets; make investments or other restricted
payments; sell or otherwise dispose of assets; enter into sale-leaseback
transactions; engage in transactions with stockholders or affiliates; issue or
sell stock of their Subsidiaries; or effect a consolidation or merger) or
financial covenants (which may include, among other financial covenants,
financial covenants that require the Company and its Subsidiaries to maintain
specified interest coverage, fixed charge, cash flow-based or asset-based
ratios) provided for with respect to the Securities of the series;


 


(16)         if other
than dollars, the coin or currency in which the Securities of the series are
denominated (including, but not limited to, foreign currency);


 


(17)         the terms
and conditions, if any, upon which the Company shall pay amounts in addition to
the stated interest, premium, if any and principal amounts of the Securities of
the series to any Securityholder that is not a “United States person” for
federal tax purposes;


 


(18)         any
restrictions on transfer, sale or assignment of the Securities of the series;
and


 


(19)         the subordination terms of the Securities of
the series.


 


All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.


 


If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the secretary or an assistant secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate of the Company setting forth the terms of the series.


 


Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by
which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.


 


Section 2.02         Form of Securities and Trustee’s Certificate.


 


The Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as 


 


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provided in a Board
Resolution, and set forth in an Officers’ Certificate, and they may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to
conform to usage.


 


Section 2.03         Denominations: Provisions for Payment.


 


The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(10). The Securities of a particular
series shall bear interest payable on the dates and at the rate specified with
respect to that series. Subject to Section 2.01(16), the principal of and
the interest on the Securities of any series, as well as any premium thereon in
case of redemption thereof prior to maturity, shall be payable in the coin or
currency of the United States of America that at the time is legal tender for
public and private debt, at the office or agency of the Company maintained for
that purpose. Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.


 


The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Security of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date,
interest on such Security will be paid upon presentation and surrender of such
Security as provided in Section 3.03.


 


Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the
same series (herein called “Defaulted Interest”) shall forthwith cease to be
payable to the registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (1) or clause (2) below:


 


(1)           The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business on a
special record date for the payment of such Defaulted Interest, which shall be
fixed in the following manner: the Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each such Security
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Securities (or their respective Predecessor Securities) are registered on
such special record date.


 


(2)           The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the Trustee.


 


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Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term “regular record date”
as used in this Section with respect to a series of Securities and any
Interest Payment Date for such series shall mean either the fifteenth day of
the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the first day of a month, or the first day of
the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.


 


Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.


 


Section 2.04         Execution and Authentications.


 


The Securities shall be signed on behalf of the Company by one of its
Officers. Signatures may be in the form of a manual or facsimile signature.


 


The Company may use the facsimile signature of any Person who shall
have been an Officer at the time of execution, notwithstanding the fact that at
the time the Securities shall be authenticated and delivered or disposed of
such Person shall have ceased to be such an officer of the Company, and in such
case the Securities shall be valid nevertheless. The Securities may contain
such notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication by the
Trustee.


 


A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of such
Securities, signed by an Officer, and the Trustee in accordance with such
written order shall authenticate and deliver such Securities.


 


In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall
be fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of
this Indenture.


 


The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the Trustee’s
own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner that is not reasonably acceptable to the Trustee.


 


Section 2.05         Registration of Transfer and Exchange.


 


(a)           Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated for
such purpose for other Securities of such series of authorized denominations,
and for a like aggregate principal amount, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, all as provided
in this Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or agency
shall deliver in exchange therefor the Security or Securities of the same
series that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.


 


(b)           The Company shall keep, or cause to be kept,
at its office or agency designated for such purpose, or such other location
designated by the Company, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable times
shall be open 


 


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for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer
of Securities as herein provided shall be appointed as authorized by Board
Resolution (the “Security Registrar”).


 


Upon surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as
the Security presented for a like aggregate principal amount.


 


All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Security Registrar) by a written instrument or instruments
of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized
attorney in writing.


 


(c)           Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental to this Indenture, no
service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any
series, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.


 


(d)           The Company shall not be required (i) to
issue, exchange or register the transfer of any Securities during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of less than all the Outstanding Securities of the same
series and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Securities of any series or portions
thereof called for redemption, other than the unredeemed portion of any such
Securities being redeemed in part. The provisions of this Section 2.05
are, with respect to any Global Security, subject to Section 2.11 hereof.


 


Section 2.06         Temporary Securities.


 


Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such
series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose, and the Trustee shall
authenticate and such office or agency shall deliver in exchange for such
temporary Securities an equal aggregate principal amount of definitive
Securities of such series, unless the Company advises the Trustee to the effect
that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such
series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered hereunder.


 


Section 2.07         Mutilated, Destroyed, Lost or Stolen Securities.


 


In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same
upon the written request or authorization of any officer of the Company. Upon
the issuance of any substituted Security, the Company may 


 


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require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.


 


In case any Security that has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security) if the
applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case
of destruction, loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of the ownership
thereof.


 


Every replacement Security issued pursuant to the provisions of this Section shall
constitute an additional contractual obligation of the Company whether or not the
mutilated, destroyed, lost or stolen Security shall be found at any time, or be
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder. All Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.


 


Section 2.08         Cancellation.


 


All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or
any paying agent, be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company at the time of such
surrender, the Trustee shall deliver to the Company canceled Securities held by
the Trustee. In the absence of such request the Trustee may dispose of canceled
Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise acquire any of
the Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.


 


Section 2.09         Benefits of Indenture.


 


Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto
and the holders of the Securities (and, with respect to the provisions of Article Fourteen,
the holders of any indebtedness of the Company to which the Securities of any
series are subordinated) any legal or equitable right, remedy or claim under or
in respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for the
sole benefit of the parties hereto and of the holders of the Securities (and,
with respect to the provisions of Article Fourteen, the holders of any
indebtedness of the Company to which the Securities of any series are
subordinated).


 


Section 2.10         Authenticating Agent.


 


So long as any of the Securities of any series remain Outstanding there
may be an Authenticating Agent for any or all such series of Securities which
the Trustee shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. All references in this Indenture to the authentication of
Securities by the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a combined
capital and surplus, as most recently reported or determined by it, sufficient
under the laws of any jurisdiction under which it is organized or in which it
is doing business to conduct a trust business, and that is otherwise authorized
under such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall
resign immediately.


 


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Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.


 


Section 2.11         Global Securities.


 


(a)           If the
Company shall establish pursuant to Section 2.01 that the Securities of a
particular series are to be issued as a Global Security, then the Company shall
execute and the Trustee shall, in accordance with Section 2.04,
authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the Outstanding Securities of such series, (ii) shall be registered
in the name of the Depositary or its nominee, (iii) shall be delivered by
the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) shall
bear a legend substantially to the following effect: “Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary.”


 


(b)           Notwithstanding the provisions of Section 2.05,
the Global Security of a series may be transferred, in whole but not in part
and in the manner provided in Section 2.05, only to another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.


 


(c)           If at
any time the Depositary for a series of the Securities notifies the Company
that it is unwilling or unable to continue as Depositary for such series or if
at any time the Depositary for such series shall no longer be registered or in
good standing under the Exchange Act, or other applicable statute or
regulation, and a successor Depositary for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, or if an Event of Default has occurred
and is continuing and the Company has received a request from the Depositary,
this Section 2.11 shall no longer be applicable to the Securities of such
series and the Company will execute, and subject to Section 2.04, the
Trustee will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. In addition, the Company
may at any time determine that the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this Section 2.11
shall no longer apply to the Securities of such series. In such event the
Company will execute and, subject to Section 2.04, the Trustee, upon
receipt of an Officers’ Certificate evidencing such determination by the
Company, will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form
without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee. Such Securities in definitive registered form issued
in exchange for the Global Security pursuant to this Section 2.11(c) 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. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose names such
Securities are so registered.


 


ARTICLE 3


 


REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS


 


Section 3.01         Redemption.


 


The Company may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established for such
series pursuant to Section 2.01 hereof.


 


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Section 3.02         Notice of Redemption.


 


(a)           In case the Company shall desire to exercise
such right to redeem all or, as the case may be, a portion of the Securities of
any series in accordance with any right the Company reserved for itself to do
so pursuant to Section 2.01 hereof, the Company shall, or shall cause the
Trustee to, give notice of such redemption to holders of the Securities of such
series to be redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 90 days before the date
fixed for redemption of that series to such holders at their last addresses as
they shall appear upon the Security Register, unless a shorter period is
specified in the Securities to be redeemed. Any notice that is mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any case, failure
duly to give such notice to the holder of any Security of any series designated
for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other Securities
of such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with
any such restriction.


 


Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are to
be redeemed, and shall state that payment of the redemption price of such
Securities to be redeemed will be made at the office or agency of the Company,
upon presentation and surrender of such Securities, that interest accrued to
the date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the redemption
is for a sinking fund, if such is the case. If less than all the Securities of
a series are to be redeemed, the notice to the holders of Securities of that series
to be redeemed in part shall specify the particular Securities to be so
redeemed.


 


In case any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the redemption date,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.


 


(b)           If less than all the Securities of a series
are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of
the date fixed for redemption as to the aggregate principal amount of
Securities of the series to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as it shall deem appropriate and fair in
its discretion and that may provide for the selection of a portion or portions
(equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof)
of the principal amount of such Securities of a denomination larger than
$1,000, the Securities to be redeemed and shall thereafter promptly notify the
Company in writing of the numbers of the Securities to be redeemed, in whole or
in part. The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by an Officer, instruct the Trustee or any
paying agent to call all or any part of the Securities of a particular series
for redemption and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own name as the
Trustee or such paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit to remain with, the
Trustee or such paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by
mail that may be required under the provisions of this Section.


 


Section 3.03         Payment Upon Redemption.


 


(a)           If the giving of notice of redemption shall
have been completed as above provided, the Securities or portions of Securities
of the series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption and interest on such Securities or portions of Securities shall
cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest with
respect to any such Security or portion thereof. On presentation and surrender
of such Securities on or after the date fixed for redemption at the place of
payment specified in the notice, said Securities 


 


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shall be paid and redeemed
at the applicable redemption price for such series, together with interest
accrued thereon to the date fixed for redemption (but if the date fixed for
redemption is an interest payment date, the interest installment payable on
such date shall be payable to the registered holder at the close of business on
the applicable record date pursuant to Section 2.03).


 


(b)           Upon presentation of any Security of such
series that is to be redeemed in part only, the Company shall execute and the
Trustee shall authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of the Company, a
new Security of the same series of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.


 


Section 3.04         Sinking Fund.


 


The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to
any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such
series.


 


The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking
fund payment,” and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 3.05. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of Securities
of such series.


 


Section 3.05         Satisfaction of Sinking Fund
Payments with Securities.


 


The Company (i) may deliver Outstanding Securities of a series and
(ii) may apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.


 


Section 3.06         Redemption of Securities for
Sinking Fund.


 


Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities of that series pursuant to Section 3.05
and the basis for such credit and will, together with such Officers’
Certificate, deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.02. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.


 


ARTICLE 4


 


COVENANTS


 


Section 4.01         Payment of Principal,
Premium and Interest.


 


The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established
with respect to such Securities. Payments of principal on the Securities may be
made at the time provided herein and established with respect to such
Securities by U.S. dollar check drawn on and mailed to the address of the 


 


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Securityholder entitled
thereto as such address shall appear in the Security Register, or U.S. dollar
wire transfer to, a U.S. dollar account (such wire transfer to be made only to
a Securityholder of an aggregate principal amount of Securities of the applicable
series in excess of U.S. $2,000,000 and only if such Securityholder shall have
furnished wire instructions in writing to the Trustee no later than 15 days
prior to the relevant payment date). Payments of interest on the Securities may
be made at the time provided herein and established with respect to such
Securities by U.S. dollar check mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security Register, or U.S.
dollar wire transfer to, a U.S. dollar account (such a wire transfer to be made
only to a Securityholder of an aggregate principal amount of Securities of the
applicable series in excess of U.S. $2,000,000 and only if such Securityholder
shall have furnished wire instructions in writing to the Security Registrar and
the Trustee no later than 15 days prior to the relevant payment date.


 


Section 4.02         Maintenance of Office or
Agency.


 


So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency, with respect to each such series and at
such other location or locations as may be designated as provided in this Section 4.02,
where (i) Securities of that series may be presented for payment, (ii) Securities
of that series may be presented as herein above authorized for registration of
transfer and exchange, and (iii) notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
given or served, such designation to continue with respect to such office or
agency until the Company shall, by written notice signed by any officer
authorized to sign an Officers’ Certificate and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands. The Company initially
appoints the Corporate Trust Office of the Trustee as its paying agent with
respect to the Securities.


 


Section 4.03         Paying Agents.


 


(a)           If the Company shall appoint one or more
paying agents for all or any series of the Securities, other than the Trustee,
the Company will cause each such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:


 


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


 


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


 


(3)           that it will, at any time during the
continuance of any failure referred to in the preceding paragraph (a)(2) above,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and


 


(4)           that it will perform all other duties of
paying agent as set forth in this Indenture.


 


(b)           If the Company shall act as its own paying
agent with respect to any series of the Securities, it will on or before each
due date of the principal of (and premium, if any) or interest on Securities of
that series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay such principal (and premium,
if any) or interest so becoming due on Securities of that series until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of such action, or any failure (by it or any
other obligor on such Securities) to take such action. Whenever the Company
shall have one or more paying agents for any series of Securities, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities of that series, deposit with the paying agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled 


 


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to such principal, premium
or interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of this action or failure so to act.


 


(c)           Notwithstanding anything in this Section to
the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may
at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or direct any paying agent to
pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and, upon
such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to
such money.


 


Section 4.04         Appointment to Fill Vacancy
in Office of Trustee.


 


The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.


 


Section 4.05         Compliance with
Consolidation Provisions.


 


The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the
Company is not the survivor of such transaction, or sell or convey all or
substantially all of its property to any other Person unless the provisions of Article Ten
hereof are complied with.


 


ARTICLE 5


 


SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE


 


Section 5.01         Company to Furnish Trustee
Names and Addresses of Securityholders.


 


The Company will furnish or cause to be furnished to the Trustee (a) within
15 days after each regular record date (as defined in Section 2.03) a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the holders of each series of Securities as of such regular record
date, provided that the Company shall not be obligated to furnish or cause to
furnish such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company and (b) at
such other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that, in either case, no such list need be furnished for any
series for which the Trustee shall be the Security Registrar .


 


Section 5.02         Preservation Of Information;
Communications With Securityholders.


 


(a)           The Trustee shall preserve, in as current a
form as is reasonably practicable, all information as to the names and
addresses of the holders of Securities contained in the most recent list
furnished to it as provided in Section 5.01 and as to the names and
addresses of holders of Securities received by the Trustee in its capacity as
Security Registrar (if acting in such capacity).


 


(b)           The Trustee may destroy any list furnished to
it as provided in Section 5.01 upon receipt of a new list so furnished.


 


(c)           Securityholders may communicate as provided
in Section 312(b) of the Trust Indenture Act with other
Securityholders with respect to their rights under this Indenture or under the
Securities, and, in connection with any such communications, the Trustee shall
satisfy its obligations under Section 312(b) of the Trust Indenture
Act in accordance with the provisions of Section 312(b) of the Trust
Indenture Act.


 


Section 5.03         Reports by the Company.


 


The Company covenants and agrees to provide a copy to the Trustee,
after the Company files the same with the Securities and Exchange Commission,
copies of the annual reports and of the information, documents and other 


 


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reports (or copies of such
portions of any of the foregoing as the Securities and Exchange Commission may
from time to time by rules and regulations prescribe) that the Company
files with the Securities and Exchange Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; provided, however, that the
Company shall not be required to deliver to the Trustee any materials for which
the Company has sought and received confidential treatment by the Securities
and Exchange Commission.


 


Section 5.04         Reports by the Trustee.


 


(a)           If required by Section 313(a) of
the Trust Indenture Act, the Trustee, within sixty (60) days after each May 15,
shall transmit by mail, first class postage prepaid, to the Securityholders, as
their names and addresses appear upon the Security Register, a brief report
dated as of such May 15, which complies with Section 313(a) of the
Trust Indenture Act.


 


(b)           The Trustee shall comply with Section 313(b) and
313(c) of the Trust Indenture Act.


 


(c)           A copy of each such report shall, at the time
of such transmission to Securityholders, be filed by the Trustee with the
Company, with each securities exchange upon which any Securities are listed (if
so listed) and also with the Securities and Exchange Commission. The Company
agrees to notify the Trustee when any Securities become listed on any
securities exchange.


 


ARTICLE 6


 


REMEDIES OF
THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT


 


Section 6.01         Events of Default.


 


(a)           Whenever used herein with respect to
Securities of a particular series, “Event of Default” means any one or more of
the following events that has occurred and is continuing:


 


(1)           the Company defaults in the payment of any
installment of interest upon any of the Securities of that series, as and when
the same shall become due and payable, and such default continues for a period
of 90 days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of interest
for this purpose;


 


(2)           the Company defaults in the payment of the
principal of (or premium, if any, on) any of the Securities of that series as
and when the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series; provided,
however, that a valid extension of the maturity of such Securities in
accordance with the terms of any indenture supplemental hereto shall not
constitute a default in the payment of principal or premium, if any;


 


(3)           the Company fails to observe or perform any
other of its covenants or agreements with respect to that series contained in
this Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series) for a
period of 90 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is a “Notice of
Default” hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the holders
of at least 25% in principal amount of the Securities of that series at the
time Outstanding;


 


(4)           the Company pursuant to or within the meaning
of any Bankruptcy Law (i) commences a voluntary case, (ii) consents
to the entry of an order for relief against it in an involuntary case, (iii) consents
to the appointment of a Custodian of it or for all or substantially all of its
property or (iv) makes a general assignment for the benefit of its
creditors; or


 


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(5)           a court of competent jurisdiction enters an
order under any Bankruptcy Law that (i) is for relief against the Company
in an involuntary case, (ii) appoints a Custodian of the Company for all
or substantially all of its property or (iii) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect for 90
days.


 


(b)           In each and every such case (other than an
Event of Default specified in clause (4) or clause (5) above), unless
the principal of all the Securities of that series shall have already become
due and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of (and premium, if any, on)
and accrued and unpaid interest on all the Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable. If an Event of Default specified in
clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be
immediately due and payable without any declaration or other act on the part of
the Trustee or the holders of the Securities.


 


(c)           At any time after the principal of (and
premium, if any, on) and accrued and unpaid interest on the Securities of that
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate principal amount
of the Securities of that series then Outstanding hereunder, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of that series and the principal of (and premium, if any, on) any
and all Securities of that series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to
the extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Securities of
that series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and (ii) any and all Events of
Default under the Indenture with respect to such series, other than the
nonpayment of principal on (and premium, if any, on) and accrued and unpaid
interest on Securities of that series that shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06.


 


No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.


 


(d)           In case the Trustee shall have proceeded to
enforce any right with respect to Securities of that series under this
Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case, subject
to any determination in such proceedings, the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as though
no such proceedings had been taken.


 


Section 6.02         Collection of Indebtedness
and Suits for Enforcement by Trustee.


 


(a)           The Company covenants that (i) in case
it shall default in the payment of any installment of interest on any of the
Securities of a series, or in any payment required by any sinking or analogous
fund established with respect to that series as and when the same shall have
become due and payable, and such default shall have continued for a period of
90 Business Days, or (ii) in case it shall default in the payment of the
principal of (or premium, if any, on) any of the Securities of a series when
the same shall have become due and payable, whether upon maturity of the
Securities of a series or upon redemption or upon declaration or otherwise
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Securities of that series, the whole amount that
then shall have been become due and payable on all such Securities for
principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum expressed in the Securities of
that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.06.


 


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


 


(c)           In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may be
otherwise provided by law) be entitled to file such proofs of claim and other
papers and documents as may be necessary or advisable in order to have the
claims of the Trustee and of the holders of Securities of such series allowed
for the entire amount due and payable by the Company under the Indenture at the
date of institution of such proceedings and for any additional amount that may
become due and payable by the Company after such date, and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of
such series to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to such
Securityholders, to pay to the Trustee any amount due it under Section 7.06.


 


(d)           All rights of action and of asserting claims
under this Indenture, or under any of the terms established with respect to
Securities of that series, may be enforced by the Trustee without the
possession of any of such Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for payment to the Trustee
of any amounts due under Section 7.06, be for the ratable benefit of the
holders of the Securities of such series.


 


In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.


 


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


 


Section 6.03         Application of Moneys
Collected.


 


Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Securities of that series, and notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:


 


FIRST: To the payment of reasonable costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;


 


SECOND:  To the payment of all indebtedness of the Company to
which such series of Securities is subordinated to the extent required by Section 7.06
and Article Fourteen;


 


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THIRD: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and interest, 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 premium, if any) and
interest, respectively; and


 


FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto, as requested by the Company.


 


Section 6.04         Limitation on Suits.


 


No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default,
as hereinbefore provided; (ii) the holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder; (iii) such holder or
holders shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby; (iv) the Trustee for 90 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any such action,
suit or proceeding and (v) during such 90 day period, the holders of a
majority in principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.


 


Notwithstanding anything contained herein to the contrary or any other
provisions of this Indenture, the right of any holder of any Security to
receive payment of the principal of (and premium, if any) and interest on such
Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without
the consent of such holder and by accepting a Security hereunder it is
expressly understood, intended and covenanted by the taker and holder of every
Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right
in any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any
other of such Securities, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities of such series. For the protection
and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.


 


Section 6.05         Rights and Remedies
Cumulative; Delay or Omission Not Waiver.


 


(a)           Except as otherwise provided in Section 2.07,
all powers and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.


 


(b)           No delay or omission of the Trustee or of any
holder of any of the Securities to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any such default
or an acquiescence therein; and, subject to the provisions of Section 6.04,
every power and remedy given by this Article or by law to the Trustee or
the Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.


 


Section 6.06         Control by Securityholders.


 


The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance with
Section 8.04, shall have the right to direct the time, method and place of



 


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conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to such series; provided, however, that
such direction shall not be in conflict with any rule of law or with this
Indenture. Subject to the provisions of Section 7.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or officers of the Trustee, determine
that the proceeding so directed, subject to the Trustee’s duties under the
Trust Indenture Act, would involve the Trustee in personal liability or might
be unduly prejudicial to the Securityholders not involved in the proceeding.
The holders of a majority in aggregate principal amount of the Securities of
any series at the time Outstanding affected thereby, determined in accordance
with Section 8.04, may on behalf of the holders of all of the Securities
of such series waive any past default in the performance of any of the
covenants contained herein or established pursuant to Section 2.01 with
respect to such series and its consequences, except a default in the payment of
the principal of, or premium, if any, or interest on, any of the Securities of
that series as and when the same shall become due by the terms of such
Securities otherwise than by acceleration (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
and any premium has been deposited with the Trustee (in accordance with Section 6.01(c)).
Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders
of the Securities of such series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.


 


Section 6.07         Undertaking to Pay Costs.


 


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


 


ARTICLE 7


 


CONCERNING
THE TRUSTEE


 


Section 7.01         Certain Duties and
Responsibilities of Trustee.


 


(a)           The Trustee, prior to the occurrence of an
Event of Default with respect to the Securities of a series and after the
curing of all Events of Default with respect to the Securities of that series
that may have occurred, shall undertake to perform with respect to the
Securities of such series such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the
Securities of a series has occurred (that has not been cured or waived), the
Trustee shall exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.


 


(b)           No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:


 


(i)            prior to the occurrence of an Event of
Default with respect to the Securities of a series and after the curing or
waiving of all such Events of Default with respect to that series that may have
occurred:


 


(A)          the duties and obligations of the Trustee
shall with respect to the Securities of such series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable with
respect to the Securities of such series except for the performance of such
duties and obligations as are specifically 


 


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set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and


 


(B)          in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to the Securities of such series
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions that 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;


 


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


 


(iii)         the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee under
this Indenture with respect to the Securities of that series; and


 


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


 


Section 7.02         Certain Rights of Trustee.


 


Except as otherwise provided in Section 7.01:


 


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


 


(b)           Any request, direction, order or demand of
the Company mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company by any authorized
officer of the Company (unless other evidence in respect thereof is
specifically prescribed herein);


 


(c)           The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted hereunder in good faith and in reliance thereon;


 


(d)           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 Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of
an Event of Default with respect to a series of the Securities (that has not
been cured or waived), to exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;


 


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


 


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(f)            The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, security, or other papers or documents, unless requested in
writing so to do by the holders of not less than a majority in principal amount
of the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding. The reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall be repaid by the Company
upon demand; and


 


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


 


In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (1) any Event of Default occurring
pursuant to Sections 6.01(a)(1) and 6.01(a)(2) or (2) any
Default or Event of Default of which a Responsible Officer of the Trustee shall
have received written notification in the manner set forth in this Indenture or
a Responsible Officer of the Trustee shall have obtained actual knowledge.
Delivery of reports, information and documents to the Trustee under Section 5.03
is for informational purposes only and the information and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any
information contained therein, or determinable from information contained
therein including the Company’s compliance with any of their covenants
thereunder (as to which the Trustee is entitled to rely exclusively on an
Officers’ Certificate).


 


Section 7.03         Trustee Not Responsible for
Recitals or Issuance or Securities.


 


(a)           The recitals contained herein and in the
Securities shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same.


 


(b)           The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities.


 


(c)           The Trustee shall not be accountable for the
use or application by the Company of any of the Securities or of the proceeds
of such Securities, or for the use or application of any moneys paid over by
the Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys
received by any paying agent other than the Trustee.


 


Section 7.04         May Hold Securities.


 


The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, paying agent or
Security Registrar.


 


Section 7.05         Moneys Held in Trust.


 


Subject to the provisions of Section 11.05, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.


 


Section 7.06         Compensation and
Reimbursement.


 


(a)           The Company covenants and agrees to pay to
the Trustee, and the Trustee shall be entitled to, such reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the
execution of the trusts hereby created and in the exercise and 


 


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performance of any of the
powers and duties hereunder of the Trustee, and, except as otherwise expressly
provided herein, the Company will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence or bad faith and
except as the Company and Trustee may from time to time agree in writing. The
Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of
the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability in the premises.


 


(b)           The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall constitute indebtedness
of the Company to which the Securities are subordinated. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Securities.


 


Section 7.07         Reliance on Officers’
Certificate.


 


Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
reasonably necessary or desirable that a matter be proved or established prior
to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate
delivered to the Trustee and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions of
this Indenture upon the faith thereof.


 


Section 7.08         Disqualification;
Conflicting Interests.


 


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


 


Section 7.09         Corporate Trustee Required;
Eligibility.


 


There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia, or a corporation or other
Person permitted to act as trustee by the Securities and Exchange Commission,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state, territorial,
or District of Columbia authority.


 


If such corporation or other Person publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation or other Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section 7.10.


 


Section 7.10         Resignation and Removal;
Appointment of Successor.


 


(a)           The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more
series by giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a 


 


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successor trustee with
respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee with respect to Securities of such series, or any Securityholder
of that series who has been a bona fide holder of a Security or Securities for
at least six months may on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.


 


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


 


(i)            the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by the Company
or by any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months; or


 


(ii)           the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall fail to resign
after written request therefor by the Company or by any such Securityholder; or


 


(iii)         the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or commence a voluntary
bankruptcy proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;


 


then,
in any such case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of that holder and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.


 


(c)           The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding may at
any time remove the Trustee with respect to such series by so notifying the
Trustee and the Company and may appoint a successor Trustee for such series
with the consent of the Company.


 


(d)           Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become effective
upon acceptance of appointment by the successor trustee as provided in Section 7.11.


 


(e)           Any successor trustee appointed pursuant to
this Section may be appointed with respect to the Securities of one or
more series or all of such series, and at any time there shall be only one
Trustee with respect to the Securities of any particular series.


 


Section 7.11         Acceptance of Appointment By
Successor.


 


(a)           In case of the appointment hereunder of a
successor trustee with respect to all Securities, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.


 


(b)           In case of the appointment hereunder of a
successor trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor trustee with
respect to the 


 


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Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee
relates, (ii) shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor trustee relates.


 


(c)           Upon request of any such successor trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.


 


(d)           No successor trustee shall accept its
appointment unless at the time of such acceptance such successor trustee shall
be qualified and eligible under this Article.


 


(e)           Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the Company.


 


Section 7.12         Merger, Conversion,
Consolidation or Succession to Business.


 


Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Trustee,
including the administration of the trust created by this Indenture, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.


 


Section 7.13         Preferential Collection of
Claims Against the Company.


 


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


 


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Section 7.14         Notice of Default


 


If any Default or any Event of Default occurs and is continuing and if
such Default or Event of Default is known to a Responsible Officer of the
Trustee, the Trustee shall mail to each Securityholder in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act notice
of the Default or Event of Default within 45 days after it occurs, unless such
Default or Event of Default has been cured; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Securityholders.


 


ARTICLE 8


 


CONCERNING
THE SECURITYHOLDERS


 


Section 8.01         Evidence of Action by
Securityholders.


 


Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders
of such majority or specified percentage of that series have joined therein may
be evidenced by any instrument or any number of instruments of similar tenor
executed by such holders of Securities of that series in person or by agent or
proxy appointed in writing.


 


If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers’
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


 


Section 8.02         Proof of Execution by
Securityholders.


 


Subject to the provisions of Section 7.01, proof of the execution
of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any Person of
any of the Securities shall be sufficient if made in the following manner:


 


(a)           The fact and date of the execution by any
such Person of any instrument may be proved in any reasonable manner acceptable
to the Trustee.


 


(b)           The ownership of Securities shall be proved
by the Security Register of such Securities or by a certificate of the Security
Registrar thereof.


 


The
Trustee may require such additional proof of any matter referred to in this Section as
it shall deem necessary.


 


Section 8.03         Who May be Deemed
Owners.


 


Prior to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered
upon the books of the Company as the absolute owner of such Security (whether
or not such Security 


 


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shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other
than the Security Registrar) for the purpose of receiving payment of or on
account of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the Company
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.


 


Section 8.04         Certain Securities Owned by
Company Disregarded.


 


In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent or waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that series or
by any Person directly or indirectly controlling or controlled by or under
common control with the Company or any other obligor on the Securities of that
series shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good
faith may be regarded as Outstanding for the purposes of this Section, if the
pledgee shall establish to the satisfaction of the Trustee the pledgee’s right
so to act with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.


 


Section 8.05         Actions Binding on Future
Securityholders.


 


At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of
the majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof, irrespective
of whether or not any notation in regard thereto is made upon such Security.
Any action taken by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Securities of that series.


 


ARTICLE 9


 


SUPPLEMENTAL
INDENTURES


 


Section 9.01         Supplemental Indentures
Without the Consent of Securityholders.


 


In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:


 


(a)           to cure any ambiguity, defect, or
inconsistency herein or in the Securities of any series;


 


(b)           to comply with Article Ten;


 


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


 


(d)           to add to the covenants, restrictions, conditions
or provisions relating to the Company for the benefit of the holders of all or
any series of Securities (and if such covenants, restrictions, conditions or
provisions are to be for the benefit of less than all series of Securities,
stating that such covenants, restrictions, conditions or provisions are
expressly being included solely for the benefit of such series), to make the
occurrence, 


 


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or the occurrence and the
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default, or to surrender any right or
power herein conferred upon the Company;


 


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


 


(f)            to make any change that does not adversely
affect the rights of any Securityholder in any material respect;


 


(g)           to provide for the issuance of and establish
the form and terms and conditions of the Securities of any series as provided
in Section 2.01, to establish the form of any certifications required to
be furnished pursuant to the terms of this Indenture or any series of
Securities, or to add to the rights of the holders of any series of Securities;


 


(h)           to evidence and provide for the acceptance of
appointment hereunder by a successor trustee; or


 


(i)            to comply with any requirements of the
Securities and Exchange Commission or any successor in connection with the
qualification of this Indenture under the Trust Indenture Act.


 


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


 


Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders
of any of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 9.02.


 


Section 9.02         Supplemental Indentures With
Consent of Securityholders.


 


With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or indentures
at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the Securities of
such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then
Outstanding and affected thereby, (a) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof or (b) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such
supplemental indenture.


 


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


 


Section 9.03         Effect of Supplemental
Indentures.


 


Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, this Indenture shall,
with respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all 


 


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the terms and conditions of
any such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.


 


Section 9.04         Securities Affected by
Supplemental Indentures.


 


Securities of any series affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Company, provided such form meets the
requirements of any securities exchange upon which such series may be listed,
as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of that series so modified as to conform, in
the opinion of the Board of Directors, to any modification of this Indenture contained
in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
that series then Outstanding.


 


Section 9.05         Execution of Supplemental
Indentures.


 


Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, 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 or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to
the provisions of Section 7.01, may receive an Officers’ Certificate or an
Opinion of Counsel stating that any supplemental indenture executed pursuant to
this Article is authorized or permitted by, and conforms to, the terms of
this Article and that it is proper for the Trustee under the provisions of
this Article to join in the execution thereof; provided, however, that
such Officers’ Certificate or Opinion of Counsel need not be provided in
connection with the execution of a supplemental indenture that establishes the
terms of a series of Securities pursuant to Section 2.01 hereof.


 


Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.


 


ARTICLE 10


 


SUCCESSOR
ENTITY


 


Section 10.01   Company May Consolidate,
Etc.


 


Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or
more indentures supplemental to this Indenture, nothing contained in this
Indenture shall prevent any consolidation or merger of the Company with or into
any other Person (whether or not affiliated with the Company) or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance, transfer or
other disposition of the property of the Company or its successor or successors
as an entirety, or substantially as an entirety, to any other corporation
(whether or not affiliated with the Company or its successor or successors)
authorized to acquire and operate the same; provided, however, (a) the
Company hereby covenants and agrees that, upon any such consolidation or merger
(in each case, if the Company is not the survivor of such transaction), sale,
conveyance, transfer or other disposition, the due and punctual payment of the
principal of (premium, if any) and interest on all of the Securities of all
series in accordance with the terms of each series, according to their tenor,
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or performed by
the Company shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
reasonably satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such
property and (b) in the event that the Securities of any series then
Outstanding are 


 


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convertible into or
exchangeable for shares of common stock or other securities of the Company,
such entity shall, by such supplemental indenture, make provision so that the
Securityholders of Securities of that series shall thereafter be entitled to
receive upon conversion or exchange of such Securities the number of securities
or property to which a holder of the number of shares of common stock or other
securities of the Company deliverable upon conversion or exchange of those
Securities would have been entitled had such conversion or exchange occurred
immediately prior to such consolidation, merger, sale, conveyance, transfer or
other disposition.


 


Section 10.02   Successor Entity Substituted.


 


(a)           In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by the
successor entity by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the obligations set forth
under Section 10.01 on all of the Securities of all series Outstanding,
such successor entity shall succeed to and be substituted for the Company with
the same effect as if it had been named as the Company herein, and thereupon
the predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.


 


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


 


(c)           Nothing contained in this Article shall
require any action by the Company in the case of a consolidation or merger of
any Person into the Company where the Company is the survivor of such
transaction, or the acquisition by the Company, by purchase or otherwise, of
all or any part of the property of any other Person (whether or not affiliated
with the Company).


 


Section 10.03   Evidence of Consolidation,
Etc. to Trustee.


 


The Trustee, subject to the provisions of Section 7.01, may
receive an Officers’ Certificate or an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
other disposition, and any such assumption, comply with the provisions of this
Article.


 


ARTICLE 11


 


SATISFACTION
AND DISCHARGE


 


Section 11.01   Satisfaction and Discharge
of Indenture.


 


If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any Securities
that shall have been destroyed, lost or stolen and that shall have been
replaced or paid as provided in Section 2.07 and Securities for whose
payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company and thereupon repaid to
the Company or discharged from such trust, as provided in Section 11.05);
or (b) all such Securities of a particular series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in
moneys or Governmental Obligations or a combination thereof, sufficient to pay at
maturity or upon redemption all Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any)  and interest due or
to become due to such date of maturity or date fixed for redemption, as the
case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder with respect to such series by the Company then this
Indenture shall thereupon cease to be of further effect with respect to such
series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03
and 7.10, that shall survive until the date of maturity or redemption date, as
the case may be, and Sections 7.06 and 11.05, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.


 


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Section 11.02       Discharge of Obligations.


 


If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the
Company by depositing irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations or a combination thereof sufficient to pay
at maturity or upon redemption all such Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company with
respect to such series, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the Trustee the obligations
of the Company under this Indenture with respect to such series shall cease to
be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4.01,
4.02, 4.03, 7.06, 7.10 and 11.05 hereof that shall survive until such
Securities shall mature and be paid.


 


Thereafter, Sections 7.06 and 11.05 shall survive.


 


Section 11.03       Deposited Moneys to be Held
in Trust.


 


All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.


 


Section 11.04       Payment of Moneys Held by
Paying Agents.


 


In connection with the satisfaction and discharge of this Indenture all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.


 


Section 11.05       Repayment to Company.


 


Any moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment of principal
of or premium, if any, or interest on the Securities of a particular series that
are not applied but remain unclaimed by the holders of such Securities for at
least two years after the date upon which the principal of (and premium, if
any) or interest on such Securities shall have respectively become due and
payable, or such other shorter period set forth in applicable escheat or
abandoned or unclaimed property law, shall be repaid to the Company upon the
Company’s written request; and thereupon the paying agent and the Trustee shall
be released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities entitled to
receive such payment shall thereafter, as a general creditor, look only to the
Company for the payment thereof.


 


ARTICLE 12


 


IMMUNITY OF
INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


Section 12.01       No Recourse.


 


No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and 


 


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that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or
of any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Securities.


 


ARTICLE 13


 


MISCELLANEOUS
PROVISIONS


 


Section 13.01       Effect on Successors and
Assigns.


 


All the covenants, stipulations, promises and agreements in this
Indenture made by or on behalf of the Company shall bind its successors and
assigns, whether so expressed or not.


 


Section 13.02       Actions by Successor.


 


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


 


Section 13.03       Surrender of Company Powers.


 


The Company by instrument in writing executed by authority of its Board
of Directors and delivered to the Trustee may surrender any of the powers
reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company and as to any successor corporation.


 


Section 13.04       Notices.


 


Except as otherwise expressly provided herein, any notice, request or
demand that by any provision of this Indenture is required or permitted to be
given, made or served by the Trustee or by the holders of Securities or by any
other Person pursuant to this Indenture to or on the Company may be given or
served by being deposited in first class mail, postage prepaid, addressed
(until another address is filed in writing by the Company with the Trustee), as
follows: 4767 Nexus Centre Drive, San Diego, CA 92121, Attention: David B.
Berger, Vice President, General Counsel and Corporate Secretary. Any notice,
election, request or demand by the Company or any Securityholder or by any
other Person pursuant to this Indenture to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.


 


Section 13.05       Governing Law.


 


This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State, except to the extent that
the Trust Indenture Act is applicable.


 


Section 13.06       Treatment of Securities as
Debt.


 


It is intended that the Securities will be treated as indebtedness and
not as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.


 


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Section 13.07       Certificates and Opinions as
to Conditions Precedent.


 


(a)           Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent provided for in this Indenture (other
than the certificate to be delivered pursuant to Section 13.12) relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.


 


(b)           Each certificate or opinion provided for in
this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (i) a statement that
the Person making such certificate or opinion has read such covenant or
condition; (ii) 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; (iii) a statement that, in the
opinion of such Person, he has made such examination or investigation as is
reasonably necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and (iv) a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.


 


Section 13.08       Payments on Business Days.


 


Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or
more indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.


 


Section 13.09       Conflict with Trust
Indenture Act.


 


If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.


 


Section 13.10       Counterparts.


 


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


 


Section 13.11       Separability.


 


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


 


Section 13.12       Compliance Certificates.


 


The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year during which any Securities of any series were outstanding,
an officer’s certificate stating whether or not the signers know of any Default
or Event of Default that occurred during such fiscal year. Such certificate
shall contain a certification from the principal executive officer, principal
financial officer or principal accounting officer of the Company that a review
has been conducted of the activities of the Company and the Company’s
performance under this Indenture and that the Company has complied with all
conditions and covenants under this Indenture. For purposes of this Section 13.12,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If the officer of the
Company signing such certificate has knowledge of such a Default or Event of
Default, the certificate shall describe any such Default or Event of Default
and its status.


 


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ARTICLE 14


 


SUBORDINATION
OF SECURITIES


 


Section 14.01       Subordination Terms.


 


The payment by the Company of the principal of, premium, if any, and
interest on any series of securities issued hereunder shall be subordinated to
the extent set forth in an indenture supplemental hereto relating to such
Securities.


 


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


 


	
   

  	
  SENOMYX, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David B. Berger

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David B. Berger

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President, General Counsel and Corporate Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paula Oswald

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Paula Oswald

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
								



 

















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CROSS-REFERENCE TABLE (1)


 


	
  Section of
  Trust Indenture Act Of 1939, as Amended

  	
   

  	
  Section of Indenture

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13

  
	
  311(b)

  	
   

  	
  7.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.01

  
	
   

  	
   

  	
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(c)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a)

  
	
   

  	
   

  	
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  
	
   

  	
   

  	
  13.12

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.07(a)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.07(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a)

  
	
   

  	
   

  	
  7.01(b)

  
	
  315(b)

  	
   

  	
  7.14

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
  315(e)

  	
   

  	
  6.07

  
	
  316(a)

  	
   

  	
  6.06

  
	
   

  	
   

  	
  8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  13.09

  



 






	
  (1)

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

  



 


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