Exhibit 4.11


 


 


SYNTA PHARMACEUTICALS CORP.


 


Issuer


 


AND


 


[  
]   Trustee


 


INDENTURE


 


Dated as of [    ]


 


Subordinated Debt Securities


 

















 
CROSS-REFERENCE TABLE (1)
 


	Section of

Trust Indenture Act

of 1939, as Amended
	 
	Section of

Indenture

	 
	 
	 

	310(a).
	 
	7.09

	310(b).
	 
	7.08

	 
	 
	7.10

	 
	 
	 

	310(c).
	 
	Inapplicable

	311(a).
	 
	7.13(a)

	311(b).
	 
	7.13(b)

	311(c).
	 
	Inapplicable

	312(a).
	 
	5.02(a)

	312(b).
	 
	5.02(b)

	312(c).
	 
	5.02(c)

	313(a).
	 
	5.04(a)

	313(b).
	 
	5.04(a)

	313(c).
	 
	5.04(a)

	 
	 
	5.04(b)

	313(d).
	 
	5.04(b)

	314(a).
	 
	5.03

	314(b).
	 
	Inapplicable

	314(c).
	 
	13.06

	314(d).
	 
	Inapplicable

	314(e).
	 
	13.06

	314(f).
	 
	Inapplicable

	315(a).
	 
	7.01(a)

	 
	 
	7.02

	315(b).
	 
	6.07

	315(c).
	 
	7.01

	315(d).
	 
	7.01(b)

	 
	 
	7.01(c)

	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).
	 
	13.08




 






(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.


 


i

















 


TABLE OF CONTENTS (2)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
  Definitions of Terms.

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

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

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
  Designation and Terms of Securities.

  	
  5

  
	
  SECTION 2.02

  	
  Form of Securities and
  Trustee’s Certificate.

  	
  7

  
	
  SECTION 2.03

  	
  Denominations: Provisions for
  Payment.

  	
  7

  
	
  SECTION 2.04

  	
  Execution and Authentications.

  	
  9

  
	
  SECTION 2.05

  	
  Registration of Transfer and
  Exchange.

  	
  10

  
	
  SECTION 2.06

  	
  Temporary Securities.

  	
  11

  
	
  SECTION 2.07

  	
  Mutilated, Destroyed, Lost or
  Stolen Securities.

  	
  11

  
	
  SECTION 2.08

  	
  Cancellation.

  	
  12

  
	
  SECTION 2.09

  	
  Benefits of Indenture.

  	
  12

  
	
  SECTION 2.10

  	
  Authenticating Agent.

  	
  13

  
	
  SECTION 2.11

  	
  Global Securities

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
  Redemption.

  	
  14

  
	
  SECTION 3.02

  	
  Notice of Redemption.

  	
  14

  
	
  SECTION 3.03

  	
  Payment Upon Redemption.

  	
  16

  
	
  SECTION 3.04

  	
  Sinking Fund.

  	
  16

  
	
  SECTION 3.05

  	
  Satisfaction of Sinking Fund
  Payments with Securities.

  	
  17

  
	
  SECTION 3.06

  	
  Redemption of Securities for
  Sinking Fund.

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  COVENANTS

  	
  17

  
	
  SECTION 4.01

  	
  Payment of Principal, Premium
  and Interest.

  	
  17

  
	
  SECTION 4.02

  	
  Maintenance of Office or Agency.

  	
  17

  
	
  SECTION 4.03

  	
  Paying Agents.

  	
  18

  
	
  SECTION 4.04

  	
  Appointment to Fill Vacancy in
  Office of Trustee.

  	
  19

  
	
  SECTION 4.05

  	
  Compliance with Consolidation
  Provisions.

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01

  	
  Company to Furnish Trustee Names
  and Addresses of Securityholders.

  	
  19

  
	
  SECTION 5.02

  	
  Preservation Of Information;
  Communications With Securityholders.

  	
  19

  
	
  SECTION 5.03

  	
  Reports by the Company.

  	
  20

  
	
  SECTION 5.04

  	
  Reports by the Trustee.

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
  Events of Default.

  	
  21

  



 


ii

















 


	
  SECTION 6.02

  	
  Collection of Indebtedness and
  Suits for Enforcement by Trustee.

  	
  23

  
	
  SECTION 6.03

  	
  Application of Moneys Collected.

  	
  24

  
	
  SECTION 6.04

  	
  Limitation on Suits.

  	
  25

  
	
  SECTION 6.05

  	
  Rights and Remedies Cumulative;
  Delay or Omission Not Waiver.

  	
  26

  
	
  SECTION 6.06

  	
  Control by Securityholders.

  	
  26

  
	
  SECTION 6.07

  	
  Undertaking to Pay Costs.

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  CONCERNING THE TRUSTEE

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
  Certain Duties and
  Responsibilities of Trustee.

  	
  27

  
	
  SECTION 7.02

  	
  Certain Rights of Trustee.

  	
  29

  
	
  SECTION 7.03

  	
  Trustee Not Responsible for
  Recitals or Issuance of Securities.

  	
  30

  
	
  SECTION 7.04

  	
  May Hold Securities.

  	
  30

  
	
  SECTION 7.05

  	
  Moneys Held in Trust.

  	
  30

  
	
  SECTION 7.06

  	
  Compensation and Reimbursement.

  	
  30

  
	
  SECTION 7.07

  	
  Reliance on Officers’
  Certificate.

  	
  31

  
	
  SECTION 7.08

  	
  Disqualification; Conflicting
  Interests.

  	
  31

  
	
  SECTION 7.09

  	
  Corporate Trustee Required;
  Eligibility.

  	
  31

  
	
  SECTION 7.10

  	
  Resignation and Removal;
  Appointment of Successor.

  	
  32

  
	
  SECTION 7.11

  	
  Acceptance of Appointment By
  Successor.

  	
  33

  
	
  SECTION 7.12

  	
  Merger, Conversion,
  Consolidation or Succession to Business.

  	
  35

  
	
  SECTION 7.13

  	
  Preferential Collection of
  Claims Against the Company.

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  CONCERNING THE SECURITYHOLDERS

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
  Evidence of Action by
  Securityholders.

  	
  35

  
	
  SECTION 8.02

  	
  Proof of Execution by
  Securityholders.

  	
  36

  
	
  SECTION 8.03

  	
  Who May be Deemed Owners.

  	
  36

  
	
  SECTION 8.04

  	
  Certain Securities Owned by
  Company Disregarded.

  	
  36

  
	
  SECTION 8.05

  	
  Actions Binding on Future
  Securityholders.

  	
  37

  
	
  SECTION 8.06

  	
  Purposes for Which Meetings
  May Be Called.

  	
  37

  
	
  SECTION 8.07

  	
  Call Notice and Place of
  Meetings.

  	
  37

  
	
  SECTION 8.08

  	
  Persons Entitled To Vote at
  Meetings.

  	
  38

  
	
  SECTION 8.09

  	
  Quorum; Action.

  	
  38

  
	
  SECTION 8.10

  	
  Determination of Voting Rights;
  Conduct and Adjournment of Meetings.

  	
  38

  
	
  SECTION 8.11

  	
  Counting Votes and Recording
  Action of Meetings.

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL INDENTURES

  	
  40

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
  Supplemental Indentures Without
  the Consent of Securityholders.

  	
  40

  
	
  SECTION 9.02

  	
  Supplemental Indentures With
  Consent of Securityholders.

  	
  41

  
	
  SECTION 9.03

  	
  Effect of Supplemental
  Indentures.

  	
  41

  
	
  SECTION 9.04

  	
  Securities Affected by
  Supplemental Indentures.

  	
  42

  
	
  SECTION 9.05

  	
  Execution of Supplemental
  Indentures.

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  SUCCESSOR ENTITY

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
  Company May Consolidate,
  Etc.

  	
  42

  
	
  SECTION 10.02

  	
  Successor Entity Substituted.

  	
  43

  
	
  SECTION 10.03

  	
  Evidence of Consolidation, Etc.
  to Trustee.

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  SATISFACTION AND DISCHARGE

  	
  44

  



 


iii

















 


	
  SECTION 11.01

  	
  Satisfaction and Discharge of
  Indenture.

  	
  44

  
	
  SECTION 11.02

  	
  Discharge of Obligations.

  	
  44

  
	
  SECTION 11.03

  	
  Deposited Moneys to be Held in
  Trust.

  	
  45

  
	
  SECTION 11.04

  	
  Payment of Moneys Held by Paying
  Agents.

  	
  45

  
	
  SECTION 11.05

  	
  Repayment to Company.

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01

  	
  No Recourse.

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  MISCELLANEOUS PROVISIONS

  	
  46

  
	
   

  	
   

  	
   

  
	
  SECTION 13.01

  	
  Effect on Successors and Assigns.

  	
  46

  
	
  SECTION 13.02

  	
  Actions by Successor.

  	
  46

  
	
  SECTION 13.03

  	
  Surrender of Company Powers.

  	
  46

  
	
  SECTION 13.04

  	
  Notices.

  	
  46

  
	
  SECTION 13.05

  	
  Governing Law.

  	
  47

  
	
  SECTION 13.06

  	
  Treatment of Securities as Debt.

  	
  47

  
	
  SECTION 13.07

  	
  Compliance Certificates and Opinions.

  	
  47

  
	
  SECTION 13.08

  	
  Payments on Business Days.

  	
  47

  
	
  SECTION 13.09

  	
  Conflict with Trust Indenture
  Act.

  	
  48

  
	
  SECTION 13.10

  	
  Counterparts.

  	
  48

  
	
  SECTION 13.11

  	
  Separability.

  	
  48

  
	
  SECTION 13.12

  	
  Assignment.

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  SUBORDINATION OF SECURITIES

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 14.01

  	
  Subordination Terms.

  	
  48

  



 






(2) 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.


 


iv

















 


INDENTURE, dated as of [   ], by and between Synta
Pharmaceuticals Corp., a Delaware corporation (the “Company”), and [   ], 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 I


 


DEFINITIONS


 


SECTION 1.01               Definitions
of Terms.


 


The terms defined in this Section (except as in this Indenture
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 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 with respect to all or any
series of the Securities 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 and State of New York, are authorized or obligated by
law, executive order or regulation to close.


 


“Certificate” means a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section 13.07.


 


“Commission” means the Securities and Exchange Commission.


 


“Company” means the corporation named as the “Company” in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Company”
shall mean such successor corporation.


 


“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 [ ], except that
whenever a provision herein refers to an office or agency of the Trustee in the
Borough of Manhattan, the City and State of New York, such office is located,
at the date hereof, at [ ].


 


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


 


“Default” means an event which is, or after 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 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 Section 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.


 


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


 


“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 this
Indenture, which shall be registered in the name of the Depositary or its nominee.


 


“Governmental Obligations” means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations 


 


2

















 


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 non-callable at the option of the
issuer thereof, and shall also include a depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) 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.


 


“Officers’ Certificate” means a certificate signed by the President or
a Vice President and by the Chief Financial Officer, the Treasurer or an
Assistant Treasurer or the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Certificate shall include the
statements provided for in Section 13.07, if and to the extent required by
the provisions thereof.


 


“Opinion of Counsel” means a written opinion of counsel, who may be
counsel to the Company (and may include directors or employees of the Company)
and which opinion is acceptable to the Trustee which acceptance shall not be
unreasonably withheld.


 


“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 III
provided, or provision satisfactory to the Trustee shall have been 


 


3

















 


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, limited liability company,
partnership, joint-venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision 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 mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.


 


“Responsible Officer,” when used with respect to the Trustee, means any
officer of the Trustee, including any vice president, assistant vice president,
secretary, assistant secretary, the treasurer, any assistant treasurer, the
managing director or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.


 


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


 


“Security Register” has the meaning specified in Section 2.05.


 


“Security Registrar” has the meaning specified in Section 2.05.


 


“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 in the Security Register.


 


“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 the Person named as the “Trustee” in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee”
shall mean such successor Trustee. 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, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in
effect at the date of execution of this instrument; provided, however, that in
the event the Trust Indenture Act is amended after such 


 


4

















 


date, Trust Indenture Act means, to the extent required by such
amendment, the Trust Indenture Act of 1939, as so amended, or any successor
statute.


 


“Voting Stock,” as applied to 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 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 II


 


ISSUE,
DESCRIPTION, TERMS, EXECUTION, 

REGISTRATION AND EXCHANGE OF SECURITIES


 


SECTION 2.01       Designation
and Terms of Securities.


 


(a)                                  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 of the
Company or pursuant to one or more indentures supplemental hereto. Prior to the
initial issuance of Securities of a given series, there shall be established in
or pursuant to a Board Resolution of the Company, and set forth in an Officers’
Certificate of the Company, or established in one or more indentures
supplemental hereto:


 


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


 


(2)                                  the
aggregate principal amount of the Securities of such series initially to be
issued and 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
currency or units based on or relating to currencies in which debt securities
of such series are denominated and the currency or units in which principal or
interest or both will or may be payable;


 


(4)                                  the
date or dates on which the principal of the Securities of the series is payable
and the place(s) of payment;


 


(5)                                  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;


 


(6)                                  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, 


 


5

















 


and the record
date for the determination of holders to whom interest is payable on any such
Interest Payment Dates or the method for determining such dates;


 


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


 


(8)                                  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;


 


(9)                                  the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund 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;


 


(10)                            whether
or not the debt securities will be secured or unsecured, and the terms of any
secured debt;


 


(11)                            the
form of the Securities of the series including the form of the Certificate of
Authentication for such series;


 


(12)                            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;


 


(13)                            any
and all other terms 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;


 


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


 


(15)                            whether
the Securities will be convertible into shares of common stock or other
securities of the Company and, if so, the terms and conditions upon which such
Securities will be so convertible, including the conversion price and the
conversion period;


 


(16)                            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;


 


(17)                            any
additional or different Events of Default or restrictive covenants 


 


6

















 


provided for
with respect to the Securities of the series; and


 


(18)                            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 provided in a Board Resolution of the Company and as set forth in an
Officers’ Certificate of the Company and the and 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 stock
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(a)(12). The Securities of a particular
series shall bear interest payable on the dates and at the rate specified with
respect to that series.  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 in the Borough of Manhattan, the City and State of
New York. 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 


 


7

















 


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,
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.


 


8

















 


Unless otherwise set forth in a Board Resolution of the Company 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 with
respect to 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
last 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 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 its
President, or one of its Vice Presidents, or its Treasurer, or one of its
Assistant Treasurers, or its Secretary, or one of its Assistant Secretaries,
under its corporate seal attested by its Secretary or one of its Assistant
Secretaries. 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 a
President or Vice President thereof, or of any Person who shall have been a
Treasurer or Assistant Treasurer thereof, or of any Person who shall have been
a Secretary or Assistant Secretary thereof, notwithstanding the fact that at
the time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be the President or a Vice President, the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary, of the
Company. The seal of the Company may be in the form of a facsimile of such seal
and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. 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.


 


A Security shall not be valid or obligatory for any purpose and shall
not be entitled to any benefit under this Indenture, in each case, until
authenticated with a certificate of authentication manually signed by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
certificate shall be conclusive evidence, and the only evidence, that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Security 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 its President or
any Vice President and its Secretary or any Assistant Secretary, 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 


 


9

















 


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 in the Borough of Manhattan,
the City and State of New York, 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 in the Borough of Manhattan, the City and State of New York, 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 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)                                  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 


 


10

















 


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. 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 in the Borough of
Manhattan, the City and State of New York, 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 require the 


 


11

















 


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 XIV,
the holders of Senior Indebtedness, as defined in any supplement to this
Indenture pursuant to Article XIV) 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 XIV, the
holders of Senior Indebtedness).


 


12
















 


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.


 


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 some or all of
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,
the Outstanding Securities of such series which are to be issued as a Global
Security, (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 


 


13

















 


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, this Section 2.11 shall no longer
be applicable to the Securities of such series and the Company will execute,
and subject to Section 2.05, 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 2.05, 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 III


 


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.


 


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 the
right 


 


14

















 


reserved so to
do, 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
in the Borough of Manhattan, the City and State of New York, 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 whole or 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 30 days’ notice 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 its President or any Vice President, 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 


 


15

















 


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 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.


 


16

















 


SECTION 3.05               Satisfaction of Sinking Fund Payments with Securities.


 


The Company (i) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) 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, 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 IV


 


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.


 


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 in the Borough of Manhattan, the City
and State of New York, 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 or surrendered 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 its President or a Vice President and delivered to the trustee,
designate some 


 


17

















 


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.


 


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 with monies held by all other paying agents 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 (an premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such paying agent
is the Trustee) the Company will promptly notify the Trustee of this 


 


18

















 


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 any paying agent to the Trustee,
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 company unless the provisions of
Article X hereof are complied with.


 


ARTICLE V


 


SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE


 


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


 


If the Company is not the Security Register, the Company will furnish
or use reasonable efforts to cause to be furnished to the Trustee (a) on
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 


 


19

















 


names and
addresses of holders of Securities received by the Trustee in its capacity as
Security Registrar (if acting in such capacity) and shall otherwise comply with
Section 312(a) of the Trust Indenture Act.


 


(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.


 


SECTION 5.03               Reports by the Company.


 


(a)                                  The
Company covenants and agrees to file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports that may be required pursuant to Section 13
of the Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such rules and
regulations; provided, however, 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 Commission. The Company also shall comply with
the other provisions of Section 314(a) of the Trust Indenture Act.


 


(b)                                 The
Company covenants and agrees to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations.


 


(c)                                  The
Company covenants and agrees to transmit by mail, first class postage prepaid,
or reputable over-night delivery service that provides for evidence of receipt,
to the Securityholders, as their names and addresses appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by
the Commission.


 


SECTION 5.04               Reports by the Trustee.


 


(a)                                  The
Trustee shall transmit to holders as provided in Section 313 of the Trust 


 


20

















 


Indenture Act
such reports concerning the Trustee and its actions under this Indenture as may
be required by Section 313 of the Trust Indenture Act at the times and in
the manner provided by the Trust Indenture Act.


 


(b)                                 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 stock
exchange upon which any Securities are listed (if so listed) and, if required
by Section 313 of the Trust Indenture Act, also with the Commission. The
Company agrees to notify the Trustee when any Securities become listed on any
stock exchange.


 


ARTICLE VI


 


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 continuance of such default 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 


 


21

















 


certified
mail, or to the Company and the Trustee by the holders of not less than a
majority 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


 


(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 consecutive days.


 


(b)                                 In
each and every such case, 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 a majority 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 (or, if any Securities of that series are discount securities,
that portion of the principal amount as may be specified in the terms of that
series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and
accrued and unpaid interest, if any, 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. Notwithstanding the foregoing,
the payment of such principal (or, if any Securities of that series are
discount securities, that portion of the principal amount as may be specified
in the terms of that series pursuant to Section 2.01(a)(16)) of (and
premium, if any, on) and accrued and unpaid interest, if any, on the Securities
of such series shall remain subordinated to the extent provided in Article XIV.


 


(c)                                  At
any time after the principal of the Securities of that series shall have been
so declared due and payable, and before a 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 (or, by action at a meeting of holders of the
Securities of such series in accordance with Section 8.09, the holders of
a majority in aggregate principal amount of the Securities of such series then
Outstanding represented at such meeting), 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 and (ii) any and
all Events of Default under this Indenture with respect to such series, other
than the nonpayment of 


 


22

















 


principal of
(and premium, if any, on) and accrued and unpaid interest, if any, on
Securities of that series that shall have become due solely because of such
acceleration, shall have been remedied, cured 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 (1) in case it shall default in the payment of any
installment of interest on any of the Securities of a series, or 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 (2) 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.


 


(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 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 affected the 


 


23

















 


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
this 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 this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.


 


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 the payment, if only partially paid, and upon surrender thereof if
fully paid:


 


24

















 


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


 


SECOND:                                         To
the payment of all Senior Indebtedness of the Company if and to the extent
required by Article XIV; and


 


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.


 


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 a
majority 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; and (iv) the Trustee for 60 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 60 day period, the
holders of a majority in principal amount of the Securities of that series (or
such amount as shall have acted at a meeting of the holders of Securities of
such series pursuant to the provisions of this Indenture) do not give the
Trustee a direction inconsistent with the request; provided, however, that no
one or more of such holders may use this Indenture to prejudice the rights of
another holder or to obtain preference or priority over another holder.


 


Notwithstanding anything contained herein to the contrary, 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 


 


25

















 


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 on 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 8.01, shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture or be unduly prejudicial to the
rights of holders of Securities of any other series at the time Outstanding
determined in accordance with Section 8.01. 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 would involve the Trustee in
personal liability.


 


The holders either (a) through the written consent of not less
than a majority in aggregate principal amount of the Securities of any series
at the time Outstanding or (b) by action at a meeting of holders of the
Securities of such series in accordance with Section 8.09, by the holders
of a majority in aggregate principal amount of the Securities of such series
then Outstanding represented at such meeting, 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)) and except in respect a provision hereof which,
under 


 


26

















 


Section 9.02, cannot be modified or amended without the consent of
the holders of each Outstanding Security affected; provided however that this Section shall
not limit the right of holders of Securities of a series to rescind and annul
any acceleration as set forth in Section 6.01. 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. The provisions which otherwise
would be automatically deemed to be contained in this Indenture pursuant to Section 316(a)(1) of
the Trust Indenture Act are hereby expressly excluded from this Indenture,
except to the extent such provisions are expressly included herein.


 


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 VII


 


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 


 


27

















 


willful misconduct,
except that:


 


(1)                                  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:


 


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


 


(ii)                                  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 requirement of this Indenture;


 


(2)                                  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;


 


(3)                                  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


 


(4)                                  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.


 


28

















 


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 the President or any Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
thereof (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;


 


(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 


 


29

















 


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.


 


SECTION 7.03               Trustee Not Responsible for Recitals or Issuance of
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 performance of any of the powers and duties hereunder
of the 


 


30

















 


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. 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 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 expenses, disbursements and
advances shall constitute additional indebtedness hereunder. 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
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 Commission, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least 50 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 publishes reports of condition 


 


31

















 


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 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 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:


 


(1)                                  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


 


(2)                                  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


 


(3)                                  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 


 


32

















 


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, unless the Trustee’s duty to resign is
stayed as provided herein, 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 Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor trustee shall accept such appointment and which (1) 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 


 


33

















 


Trustee with
respect to the Securities of that or those series to which the appointment of
such successor trustee relates, (2) 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 (3) 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.


 


34
















 


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, 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.


 


ARTICLE VIII


 


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 


 


35

















 


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.


 


(c)                                  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 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 of 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 


 


36

















 


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.


 


SECTION 8.06               Purposes for Which Meetings May Be Called.


 


A meeting of holders of any
series of Securities may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be made, given or taken by holders of such series of Securities.


 


Notwithstanding anything
contained in this Article VIII, the Trustee may, during the pendency of a
Default or an Event of Default, call a meeting of holders of any series of
Securities in accordance with its standard practices.


 


SECTION 8.07               Call Notice and Place of Meetings.


 


(a)                                  The Trustee may
at any time call a meeting of holders of any series of Securities for any
purpose specified in Section 8.06 hereof, to be held at such time and at
such place in The City of New York or Boston, Massachusetts. Notice of every
meeting of holders of any series of Securities, setting forth the time and the
place of such meeting, in general terms the action proposed to be taken at such
meeting and the percentage of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum at such meeting,
shall be given, in the manner provided in Section 13.04 hereof, not less
than 21 nor more than 180 days prior to the date fixed for the meeting to
holders of Outstanding Securities of such series.


 


(b)                                 In case at any
time the Company, pursuant to a Board Resolution, or the holders of at least
10% in principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the holders of Securities of such
series for any purpose specified in Section 8.06 hereof, by written
request 


 


37

















 


setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the holders of
Securities of such series in the amount specified, as the case may be, may
determine the time and the place in The City of New York or Boston,
Massachusetts for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in paragraph (a) of this Section.


 


SECTION 8.08               Persons Entitled To Vote at Meetings.


 


To be entitled to vote at
any meeting of holders of Securities of a given series, a Person shall be (a) a
holder of one or more Outstanding Securities of such series or (b) a
Person appointed by an instrument in writing as proxy for a holder or holders
of one or more Outstanding Securities of such series by such holder or holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of holders shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


SECTION 8.09       Quorum;
Action.


 


The Persons entitled to vote
a majority in aggregate principal amount of the Outstanding Securities of a
given series shall constitute a quorum with respect to a meeting of holders of
Outstanding Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 8.07(a) hereof, except that
such notice need be given only once and not less than five days prior to the
date on which the meeting is scheduled to be reconvened.


 


At a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid, any
resolution and all matters (except as limited by the proviso to the first
paragraph of Section 9.02 hereof) shall be effectively passed and decided
if passed or decided by the Persons entitled to vote not less than a majority
in aggregate principal amount of Outstanding Securities of a series represented
and voting at such meeting with respect to a meeting of holders of Outstanding
Securities of such series.


 


Any resolution passed or
decisions taken at any meeting of holders of Securities duly held in accordance
with this Section shall be binding on all the holders of Securities of
such series, whether or not present or represented at the meeting.


 


SECTION 8.10               Determination of Voting Rights; Conduct and
Adjournment of Meetings.


 


(a)                                  Notwithstanding
any other provisions of this Indenture, the Trustee may make 


 


38

















 


such reasonable regulations
as it may deem advisable for any meeting of holders of Securities in regard to
proof of the holding of Securities and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.


 


(b)                                 The Trustee
shall, by an instrument in writing, appoint a temporary chairman (which may be
the Trustee) of the meeting, unless the meeting shall have been called by the
Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof,
in which case the Company or the holders of Securities of such series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman.  A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities
of such series represented at the meeting.


 


(c)                                  At any meeting,
each holder of a Security of the series in respect of which such meeting is
being held or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security of such series challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. 
The chairman of the meeting shall have no right to vote, except as a
holder of a Security of such series or proxy.


 


(d)                                 Any meeting of
holders of Securities duly called pursuant to Section 8.07 hereof at which
a quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in principal amount of the Outstanding Securities of the series
in respect of which such meeting is being held represented at the meeting, and
the meeting may be held as so adjourned without further notice.


 


SECTION 8.11               Counting Votes and Recording Action of Meetings.


 


The vote upon any resolution
submitted to any meeting of holders of Securities of a given series shall be by
written ballots on which shall be subscribed the signatures of the holders of
Securities of such series or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them.  The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting.  A record, at least in duplicate, of the
proceedings of each meeting of holders of Securities of such series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 8.07 hereof and, if applicable, Section 8.09
hereof. Each copy shall be signed and verified by the affidavits of 


 


39

















 


the
permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the
meeting.  Any record so signed and
verified shall be conclusive evidence of the matters therein stated.


 


ARTICLE IX


 


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)                                  cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein or which is otherwise defective, or make any
other provisions with respect to matters or questions arising under this
Indenture which the Company and the Trustee may deem necessary or desirable and
which shall not be inconsistent with the provisions of this Indenture;


 


(b)                                 to comply with Article X;


 


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


 


(d)                                 to add to the
covenants of the Company for the benefit of the holders of all or any Series of
Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included
solely for the benefit of such series) 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; or


 


(h)                                 comply with the
requirements of the Commission in order to effect or maintain 


 


40

















 


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 written consent of
the holders of at least a majority in aggregate principal amount of the
Outstanding Securities of any series or by action at a meeting of holders of
the Securities of such series in accordance with Section 8.09, by the
holders of a majority in aggregate principal amount of the Securities of such
series then Outstanding represented at such meeting, the Company, when
authorized by Board Resolutions, 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, (i) 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, (ii) reduce
the aforesaid percentage of Securities, the holders of which are required to
consent to any such supplemental indenture, or any consent or waiver, (iii) reduce
the principal amount of discount securities payable upon acceleration of the
maturity of any Securities of any series or (iv) make the principal of or
premium or interest on any Security of a series payable in currency or currency
units other than that stated in the Securities of such series.


 


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
the 


 


41

















 


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 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 of the Company, 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 Opinion of
Counsel as conclusive evidence 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 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 X


 


SUCCESSOR ENTITY


 


SECTION 10.01             Company May Consolidate, Etc.


 


Nothing contained in this
Indenture or in any of the Securities 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 


 


42

















 


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,
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) 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.


 


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
due and punctual payment of the principal of, premium, if any, and interest on
all of the Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Securities pursuant to Section 2.01
to be performed by the Company with respect to each series, 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 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.


 


43

















 


ARTICLE XI


 


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 (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
sufficient or a combination thereof, sufficient (assuming that no tax liability
will be imposed on the Trustee) in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, 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.


 


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 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.


 


44

















 


SECTION 11.03             Deposited Moneys to be Held in Trust.


 


Subject to Section 11.05,
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 or interest on the
Securities of a particular series that are not applied but remain unclaimed by
the holders of such Securities for 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, shall be repaid to the Company or (if then
held by the Company) shall be discharged from such trust in each case, promptly
after the end of any such two-year period or, at the request of the Company, on
a later date specified by the Company; 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 an unsecured general creditor,
look only to the Company for the payment thereof.


 


ARTICLE XII


 


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 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 


 


45

















 


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 XIII


 


MISCELLANEOUS PROVISIONS


 


SECTION 13.01             Effect on Successors and Assigns.


 


All the covenants,
stipulations, promises and agreements in this Indenture contained 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 or demand that by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the holders of Securities to or on the Company may be given or served by being
deposited first class postage prepaid in a post-office letterbox addressed
(until another address is filed in writing by the Company with the Trustee), as
follows:  [   ]. 
Any notice, election, request or demand by the Company or any
Securityholder 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.  Any notice
or communication to a holder shall be mailed by first-class mail to his address
shown on the Security Register kept by the Security Registrar.  Failure to mail a notice or communication to
a holder or any defect in such notice or communication shall not affect its
sufficiency with respect to other holders. 
If a notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given as of the date it is mailed,
whether or not the addressee receives it, except that notice to the Trustee or
the Company shall only be effective upon receipt thereof by the Trustee or the
Company, respectively. If the 


 


46

















 


Company
mails a notice or communication to holders of Securities, it shall mail a copy
to the Trustee at the same time.


 


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.


 


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.


 


SECTION 13.07             Compliance Certificates and Opinions.


 


(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 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 (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) 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 as 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.


 


47

















 


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             Assignment.


 


The Company will have the
right at all times to assign any of its rights or obligations under this
Indenture to a direct or indirect wholly-owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company, will remain
liable for all such obligations. Subject to the foregoing, this Indenture is
binding upon and inures to the benefit of the parties thereto and their
respective successors and assigns. This Indenture may not otherwise be assigned
by the parties thereto.


 


ARTICLE XIV


 


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 the Securities of such series.


 


48

















 


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


 


	
   

  	
  SYNTA
  PHARMACEUTICALS CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                                ],

  
	
   

  	
  As
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


49