Table of Contents


 


Exhibit 4.8


 


SENOMYX, INC.,

Issuer


 


AND


 


U.S. BANK NATIONAL ASSOCIATION,

Trustee


 






 


INDENTURE


 


Dated as of August 7, 2008


 






 


Senior Debt Securities


 

















Table of
Contents


 


TABLE OF
CONTENTS


 


	
  ARTICLE 1
        DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.01

  	
  Definitions of
  Terms

  	
  1

  
	
   

  	
   

  	
   

  	
   

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

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.01

  	
  Designation
  and Terms of Securities

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.02

  	
  Form of
  Securities and Trustee’s Certificate

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.03

  	
  Denominations:
  Provisions for Payment

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.04

  	
  Execution
  and Authentications

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.05

  	
  Registration
  of Transfer and Exchange

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.06

  	
  Temporary
  Securities

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.07

  	
  Mutilated,
  Destroyed, Lost or Stolen Securities

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.08

  	
  Cancellation

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.09

  	
  Benefits of
  Indenture

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.10

  	
  Authenticating
  Agent

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.11

  	
  Global
  Securities

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3
         REDEMPTION
  OF SECURITIES AND SINKING FUND PROVISIONS

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.01

  	
  Redemption

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.02

  	
  Notice of
  Redemption

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.03

  	
  Payment
  Upon Redemption

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.04

  	
  Sinking Fund

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.05

  	
  Satisfaction
  of Sinking Fund Payments with Securities

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.06

  	
  Redemption
  of Securities for Sinking Fund

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4
         COVENANTS

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.01

  	
  Payment of
  Principal, Premium and Interest

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.02

  	
  Maintenance
  of Office or Agency

  	
  13

  



 


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  Section 4.03

  	
  Paying Agents

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.04

  	
  Appointment
  to Fill Vacancy in Office of Trustee

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.05

  	
  Compliance
  with Consolidation Provisions

  	
  14

  
	
   

  	
   

  	
   

  	
   

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

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.01

  	
  Company to
  Furnish Trustee Names and Addresses of Securityholders

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.02

  	
  Preservation
  Of Information; Communications With Securityholders

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.03

  	
  Reports by
  the Company

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.04

  	
  Reports by
  the Trustee

  	
  15

  
	
   

  	
   

  	
   

  	
   

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

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.01

  	
  Events of Default

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.02

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.03

  	
  Application
  of Moneys Collected

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.04

  	
  Limitation on
  Suits

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.05

  	
  Rights and
  Remedies Cumulative; Delay or Omission Not Waiver

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.06

  	
  Control by
  Securityholders

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.07

  	
  Undertaking
  to Pay Costs

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7         CONCERNING THE TRUSTEE

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.01

  	
  Certain
  Duties and Responsibilities of Trustee

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.02

  	
  Certain
  Rights of Trustee

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.03

  	
  Trustee Not
  Responsible for Recitals or Issuance or Securities

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.04

  	
  May Hold
  Securities

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.05

  	
  Moneys Held in
  Trust

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.06

  	
  Compensation
  and Reimbursement

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.07

  	
  Reliance on
  Officers’ Certificate

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.08

  	
  Disqualification;
  Conflicting Interests

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.09

  	
  Corporate
  Trustee Required; Eligibility

  	
  22

  



 


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  Section 7.10

  	
  Resignation
  and Removal; Appointment of Successor

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.11

  	
  Acceptance
  of Appointment By Successor

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.12

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.13

  	
  Preferential
  Collection of Claims Against the Company

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.14

  	
  Notice of Default

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8
          CONCERNING
  THE SECURITYHOLDERS

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.01

  	
  Evidence of
  Action by Securityholders

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.02

  	
  Proof of
  Execution by Securityholders

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.03

  	
  Who
  May be Deemed Owners

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.04

  	
  Certain
  Securities Owned by Company Disregarded

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.05

  	
  Actions
  Binding on Future Securityholders

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9
          SUPPLEMENTAL
  INDENTURES

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.01

  	
  Supplemental
  Indentures Without the Consent of Securityholders

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.02

  	
  Supplemental
  Indentures With Consent of Securityholders

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.03

  	
  Effect of
  Supplemental Indentures

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.04

  	
  Securities
  Affected by Supplemental Indentures

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.05

  	
  Execution
  of Supplemental Indentures

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10
          SUCCESSOR
  ENTITY

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.01

  	
  Company
  May Consolidate, Etc.

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.02

  	
  Successor
  Entity Substituted

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.03

  	
  Evidence of
  Consolidation, Etc. to Trustee

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11
          SATISFACTION
  AND DISCHARGE

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.01

  	
  Satisfaction
  and Discharge of Indenture

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.02

  	
  Discharge
  of Obligations

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.03

  	
  Deposited
  Moneys to be Held in Trust

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.04

  	
  Payment of
  Moneys Held by Paying Agents

  	
  30

  



 


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  Section 11.05

  	
  Repayment to
  Company

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12
          IMMUNITY
  OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 12.01

  	
  No Recourse

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13
          MISCELLANEOUS PROVISIONS

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.01

  	
  Effect on
  Successors and Assigns

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.02

  	
  Actions by
  Successor

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.03

  	
  Surrender
  of Company Powers

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.04

  	
  Notices

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.05

  	
  Governing Law

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.06

  	
  Treatment
  of Securities as Debt

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.07

  	
  Certificates
  and Opinions as to Conditions Precedent

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.08

  	
  Payments on
  Business Days

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.09

  	
  Conflict
  with Trust Indenture Act

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.10

  	
  Counterparts

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.11

  	
  Separability

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.12

  	
  Compliance
  Certificates

  	
  32

  



 






	
  (1)

  	
   

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

  



 


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Table of Contents


 


INDENTURE


 


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


 


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


 


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


 


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


 


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


 


ARTICLE 1


 


DEFINITIONS


 


Section 1.01      Definitions of Terms.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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“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 633 West Fifth Street, 24th Floor, Los Angeles,
CA 90071.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Opinion of Counsel”
means an opinion in writing subject to customary exceptions of legal counsel,
who may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms 


 


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hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the
provisions thereof.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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ARTICLE 2


 


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


 


Section 2.01         Designation and Terms of Securities.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(8)     the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund, mandatory
redemption, or analogous provisions (including payments made in cash in
satisfaction of future sinking fund obligations) or at the option of a holder
thereof and the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;


 


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


 


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


 


(11)  any and all other terms (including terms, to the
extent applicable, relating to any auction or remarketing of the Securities of
that series and any security for the obligations of the Company with respect to
such Securities) with respect to such series (which terms shall not be inconsistent
with the terms of this 


 


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Indenture, as amended by any supplemental indenture)
including any terms which may be required by or advisable under United States
laws or regulations or advisable in connection with the marketing of Securities
of that series;


 


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


 


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


 


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


 


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


 


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


 


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


 


(18)  any restrictions on transfer, sale or assignment 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, and
set forth in an Officers’ Certificate, and they may have such letters, numbers
or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or 


 


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as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to
conform to usage.


 


Section 2.03         Denominations: Provisions for Payment.


 


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


 


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


 


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


 


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


 


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


 


Unless otherwise
set forth in a Board Resolution or one or more indentures supplemental hereto
establishing the terms of any series of Securities pursuant to Section 2.01
hereof, the term “regular record date” as used in this Section with
respect to a series of Securities and any Interest Payment Date for such series
shall mean either the fifteenth day of the month immediately preceding the
month in which an Interest Payment Date 


 


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established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the first day of a month,
or the first day of the month in which an Interest Payment Date established for
such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day.


 


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


 


Section 2.04         Execution and Authentications.


 


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


 


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


 


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


 


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


 


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


 


Section 2.05         Registration of Transfer and Exchange.


 


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


 


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


 


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name of the transferee or transferees a new Security
or Securities of the same series as the Security presented for a like aggregate
principal amount.


 


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


 


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


 


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


 


Section 2.06         Temporary Securities.


 


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


 


Section 2.07         Mutilated, Destroyed, Lost or Stolen
Securities.


 


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


 


In case any
Security that has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without 


 


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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 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.


 


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.


 


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Section 2.11         Global Securities.


 


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


 


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


 


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


 


ARTICLE 3


 


REDEMPTION OF SECURITIES AND SINKING
FUND PROVISIONS


 


Section 3.01         Redemption.


 


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


 


Section 3.02         Notice of Redemption.


 


(a)           In case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series in accordance
with any right the Company reserved for itself to do so pursuant to Section 2.01
hereof, the Company shall, or shall cause the Trustee to, give notice of such
redemption to holders of the Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than
30 days and not more than 90 days before the date fixed for redemption of that
series to 


 


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such holders at their last addresses as they shall
appear upon the Security Register, unless a shorter period is specified in the
Securities to be redeemed. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with
any such restriction.


 


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


 


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


 


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


 


Section 3.03         Payment Upon Redemption.


 


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


 


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shall deliver to the holder thereof, at the expense of
the Company, a new Security of the same series of authorized denominations in
principal amount equal to the unredeemed portion of the Security so presented.


 


Section 3.04         Sinking Fund.


 


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


 


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


 


Section 3.05         Satisfaction of Sinking Fund Payments
with Securities.


 


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


 


Section 3.06         Redemption of Securities for Sinking
Fund.


 


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


 


ARTICLE 4


 


COVENANTS


 


Section 4.01         Payment of Principal, Premium and
Interest.


 


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


 


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Securityholder of an aggregate principal amount of
Securities of the applicable series in excess of U.S. $2,000,000 and only if
such Securityholder shall have furnished wire instructions in writing to the
Security Registrar and the Trustee no later than 15 days prior to the relevant
payment date.


 


Section 4.02         Maintenance of Office or Agency.


 


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


 


Section 4.03         Paying Agents.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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Company or such paying agent; and, upon such payment
by the Company or any paying agent to the Trustee, the Company or such paying
agent shall be released from all further liability with respect to such money.


 


Section 4.04         Appointment to Fill Vacancy in Office
of Trustee.


 


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


 


Section 4.05         Compliance with Consolidation
Provisions.


 


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


 


ARTICLE 5


 


SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE


 


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


 


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


 


Section 5.02         Preservation Of Information;
Communications With Securityholders.


 


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


 


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


 


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


 


Section 5.03         Reports by the Company.


 


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


 


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Section 5.04         Reports by the Trustee.


 


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


 


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


 


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


 


ARTICLE 6


 


REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT


 


Section 6.01         Events of Default.


 


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


 


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


 


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


 


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


 


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


 


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


 


(b)           In each and every such case (other than an Event of Default specified
in clause (4) or clause (5) above), unless the principal of all the
Securities of that series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of
the Securities of that series 


 


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then Outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by such Securityholders), may declare
the principal of (and premium, if any, on) and accrued and unpaid interest on
all the Securities of that series to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and
payable. If an Event of Default specified in clause (4) or clause (5) above
occurs, the principal of and accrued and unpaid interest on all the Securities
of that series shall automatically be immediately due and payable without any
declaration or other act on the part of the Trustee or the holders of the
Securities.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.03         Application of Moneys Collected.


 


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


 


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


 


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


 


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


 


Section 6.04         Limitation on Suits.


 


No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this 


 


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Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless (i) such holder
previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default, as hereinbefore provided; (ii) the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder; (iii) such holder or holders shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; (iv) the Trustee for 90
days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during
such 90 day period, the holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with
the request.


 


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


 


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


 


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


 


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


 


Section 6.06         Control by Securityholders.


 


The holders of a
majority in aggregate principal amount of the Securities of any series at the
time Outstanding, determined in accordance with Section 8.04, shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to such series; provided, however, that such
direction shall not be in conflict with any rule of law or with this
Indenture. Subject to the provisions of Section 7.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or officers of the Trustee, determine
that the proceeding so directed, subject to the Trustee’s duties under the
Trust Indenture Act, would involve the Trustee in personal liability or might
be unduly prejudicial to the Securityholders not involved in the proceeding.
The holders of a majority in aggregate principal amount of the Securities of
any series at the time Outstanding affected thereby, determined in accordance
with Section 8.04, may on behalf of the holders of all of the Securities
of such series waive any past default in the performance of any of the
covenants contained herein or established pursuant to Section 2.01 with
respect to such series and its consequences, except a default in the payment of
the principal of, or premium, if any, or interest on, any of the Securities of
that series as and when the same shall become due by the terms of such
Securities otherwise than by acceleration (unless such default has been 


 


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cured and a sum sufficient to pay all matured
installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 6.01(c)). Upon any such waiver,
the default covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the Securities
of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.


 


Section 6.07         Undertaking to Pay Costs.


 


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


 


ARTICLE 7


 


CONCERNING THE TRUSTEE


 


Section 7.01         Certain Duties and Responsibilities
of Trustee.


 


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


 


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


 


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


 


(A)          the
duties and obligations of the Trustee shall with respect to the Securities of
such series be determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable with respect to the Securities of such
series except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


 


(B)          in
the absence of bad faith on the part of the Trustee, the Trustee may with
respect to the Securities of such series conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture;


 


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


 


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


 


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


 


Section 7.02         Certain Rights of Trustee.


 


Except as
otherwise provided in Section 7.01:


 


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


 


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


 


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


 


(d)           The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (that has not been cured or waived), to
exercise with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and to use the same  degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.04         May Hold Securities.


 


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


 


Section 7.05         Moneys Held in Trust.


 


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


 


Section 7.06         Compensation and Reimbursement.


 


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


 


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(b)           The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses,
disbursements and advances shall constitute 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 reasonably necessary or
desirable that a matter be proved or established prior to taking or suffering
or omitting to take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers’ Certificate delivered to
the Trustee and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.


 


Section 7.08         Disqualification; Conflicting
Interests.


 


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


 


Section 7.09         Corporate Trustee Required; Eligibility.


 


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


 


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


 


Section 7.10         Resignation and Removal; Appointment
of Successor.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.11         Acceptance of Appointment By
Successor.


 


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


 


(b)           In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee
relates, (ii) shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts 


 


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hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and that no Trustee shall be
responsible for any act or failure to act on the part of any other Trustee
hereunder; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein, such retiring Trustee shall with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in the
Trustee under this Indenture, and each such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates.


 


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


 


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


 


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


 


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


 


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


 


Section 7.13         Preferential Collection of Claims
Against the Company.


 


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


 


Section 7.14         Notice of Default


 


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


 


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ARTICLE 8


 


CONCERNING THE SECURITYHOLDERS


 


Section 8.01         Evidence of Action by Securityholders.


 


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


 


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


 


Section 8.02         Proof of Execution by Securityholders.


 


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


 


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


 


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


 


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


 


Section 8.03         Who May be Deemed Owners.


 


Prior to the due
presentment for registration of transfer of any Security, the Company, the
Trustee, any paying agent and any Security Registrar may deem and treat the
Person in whose name such Security shall be registered upon the books of the
Company as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the Company
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.


 


Section 8.04         Certain Securities Owned by Company
Disregarded.


 


In determining
whether the holders of the requisite aggregate principal amount of Securities
of a particular series have concurred in any direction, consent or waiver under
this Indenture, the Securities of that series that are owned by the Company or
any other obligor on the Securities of that series or by any Person directly or
indirectly 


 


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


 


Section 8.05         Actions Binding on Future
Securityholders.


 


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


 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


Section 9.01         Supplemental Indentures Without the
Consent of Securityholders.


 


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


 


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


 


(b)           to comply with Article Ten;


 


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


 


(d)           to add to the covenants, restrictions, conditions or provisions
relating to the Company for the benefit of the holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are
to be for the benefit of less than all series of Securities, stating that such
covenants, restrictions, conditions or provisions are expressly being included
solely for the benefit of such series), to make the occurrence, or the
occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to surrender any
right or power herein conferred upon the Company;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 9.02         Supplemental Indentures With Consent
of Securityholders.


 


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


 


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


 


Section 9.03         Effect of Supplemental Indentures.


 


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


 


Section 9.04         Securities Affected by Supplemental
Indentures.


 


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


 


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to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.


 


Section 9.05         Execution of Supplemental Indentures.


 


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


 


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


 


ARTICLE 10


 


SUCCESSOR ENTITY


 


Section 10.01       Company May Consolidate, Etc.


 


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


 


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Section 10.02       Successor Entity Substituted.


 


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


 


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


 


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


 


Section 10.03       Evidence of Consolidation, Etc. to
Trustee.


 


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


 


ARTICLE 11


 


SATISFACTION AND DISCHARGE


 


Section 11.01       Satisfaction and Discharge of
Indenture.


 


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


 


Section 11.02       Discharge of Obligations.


 


If at any time all
such Securities of a particular series not heretofore delivered to the Trustee
for cancellation or that have not become due and payable as described in Section 11.01
shall have been paid by the Company by depositing irrevocably with the Trustee
as trust funds moneys or an amount of Governmental Obligations or a combination
thereof sufficient to pay at maturity or upon redemption all such Securities of
that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to
such date of maturity or date fixed for redemption, as the case may be, and if
the Company 


 


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shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then after the
date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4,03, 7.06, 7.10 and 11.05
hereof that shall survive until such Securities shall mature and be paid.


 


Thereafter,
Sections 7.06 and 11.05 shall survive.


 


Section 11.03       Deposited Moneys to be Held in Trust.


 


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


 


Section 11.04       Payment of Moneys Held by Paying
Agents.


 


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


 


Section 11.05       Repayment to Company.


 


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


 


ARTICLE 12


 


IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS


 


Section 12.01       No Recourse.


 


No recourse under
or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, past,
present or future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such predecessor or
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal liability
of every name and nature, either at common law or in equity or by constitution
or statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived 


 


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and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Securities.


 


ARTICLE 13


 


MISCELLANEOUS PROVISIONS


 


Section 13.01       Effect on Successors and Assigns.


 


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


 


Section 13.02       Actions by Successor.


 


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


 


Section 13.03       Surrender of Company Powers.


 


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


 


Section 13.04       Notices.


 


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


 


Section 13.05       Governing Law.


 


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


 


Section 13.06       Treatment of Securities as Debt.


 


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


 


Section 13.07       Certificates and Opinions as to
Conditions Precedent.


 


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


 


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


 


Section 13.08       Payments on Business Days.


 


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


 


Section 13.09       Conflict with Trust Indenture Act.


 


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


 


Section 13.10       Counterparts.


 


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


 


Section 13.11       Separability.


 


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


 


Section 13.12       Compliance Certificates.


 


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


 


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


 


	
   

  	
   

  	
   

  	
  SENOMYX,
  INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   /s/ David B. Berger

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   David
  B. Berger

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President, General Counsel and Corporate Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   /s/ Paula Oswald

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   Paula
  Oswald

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
     Vice
  President

  
								



 

















Table of Contents


 


CROSS-REFERENCE
TABLE (1)


 


	
  Section of Trust Indenture Act Of 1939, as Amended

  	
   

  	
  Section of Indenture

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13

  
	
  311(b)

  	
   

  	
  7.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.01

  
	
   

  	
   

  	
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(c)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a)

  
	
   

  	
   

  	
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  
	
   

  	
   

  	
  13.12

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.07(a)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.07(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a)

  
	
   

  	
   

  	
  7.01(b)

  
	
  315(b)

  	
   

  	
  7.14

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
  315(e)

  	
   

  	
  6.07

  
	
  316(a)

  	
   

  	
  6.06

  
	
   

  	
   

  	
  8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  13.09

  



 






	
  (1)

  	
   

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

  



 


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