EXHIBIT
4.2


 


SUPERGEN,
INC.


 


TO


 






 


AS
TRUSTEE


 


INDENTURE


 


DATED
AS OF                ,
20               


 


 


SUBORDINATED
DEBT SECURITIES


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS
  OF GENERAL APPLICATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
  Section 1.2

  	
  Compliance Certificates and Opinions

  	
  10

  
	
  Section 1.3

  	
  Form of Documents Delivered to Trustee

  	
  11

  
	
  Section 1.4

  	
  Acts of Holders; Record Dates

  	
  11

  
	
  Section 1.5

  	
  Notices, etc., to Trustee and Company

  	
  13

  
	
  Section 1.6

  	
  Notice to Holders; Waiver

  	
  14

  
	
  Section 1.7

  	
  Conflict with Trust Indenture Act

  	
  14

  
	
  Section 1.8

  	
  Effect of Headings and Table of Contents

  	
  14

  
	
  Section 1.9

  	
  Successors and Assigns

  	
  14

  
	
  Section 1.10

  	
  Separability Clause

  	
  14

  
	
  Section 1.11

  	
  Benefits of Indenture

  	
  15

  
	
  Section 1.12

  	
  Governing Law

  	
  15

  
	
  Section 1.13

  	
  Legal Holidays

  	
  15

  
	
  Section 1.14

  	
  Indenture and Securities Solely Corporate Obligations

  	
  15

  
	
  Section 1.15

  	
  Indenture May be Executed in Counterparts

  	
  15

  
	
   

  	
   

  
	
  ARTICLE 2 SECURITY FORMS

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Forms Generally

  	
  16

  
	
  Section 2.2

  	
  Form of Face of Security

  	
  16

  
	
  Section 2.3

  	
  Form of Reverse of Security

  	
  18

  
	
  Section 2.4

  	
  Form of Legend for Global Securities

  	
  22

  
	
  Section 2.5

  	
  Form of Trustee’s Certificate of Authentication

  	
  22

  
	
  Section 2.6

  	
  Form of Conversion Notice

  	
  22

  
	
   

  	
   

  
	
  ARTICLE 3 THE SECURITIES

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Amount Unlimited; Issuable in Series

  	
  23

  
	
  Section 3.2

  	
  Denominations

  	
  27

  
	
  Section 3.3

  	
  Execution, Authentication, Delivery and Dating

  	
  27

  
	
  Section 3.4

  	
  Temporary Securities

  	
  28

  
	
  Section 3.5

  	
  Registration; Registration of Transfer and Exchange

  	
  29

  
	
  Section 3.6

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  30

  
	
  Section 3.7

  	
  Payment of Interest; Interest Rights Preserved

  	
  31

  
	
  Section 3.8

  	
  Persons Deemed Owners

  	
  32

  
	
  Section 3.9

  	
  Cancellation

  	
  33

  
	
  Section 3.10

  	
  Computation of Interest

  	
  33

  



 

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 4 SATISFACTION AND DISCHARGE

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Satisfaction and Discharge of Indenture

  	
  33

  
	
  Section 4.2

  	
  Application of Trust Money

  	
  34

  
	
   

  	
   

  
	
  ARTICLE 5 REMEDIES

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Events of Default

  	
  34

  
	
  Section 5.2

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  36

  
	
  Section 5.3

  	
  Collection of Indebtedness and Suits for Enforcement by Trustee

  	
  37

  
	
  Section 5.4

  	
  Trustee May File Proofs of Claim

  	
  38

  
	
  Section 5.5

  	
  Trustee May Enforce Claims Without Possession of Securities

  	
  38

  
	
  Section 5.6

  	
  Application of Money Collected

  	
  39

  
	
  Section 5.7

  	
  Limitation on Suits

  	
  39

  
	
  Section 5.8

  	
  Unconditional Right of Holders to Receive Principal, Premium and
  Interest and to Convert

  	
  40

  
	
  Section 5.9

  	
  Restoration of Rights and Remedies

  	
  40

  
	
  Section 5.10

  	
  Rights and Remedies Cumulative

  	
  40

  
	
  Section 5.11

  	
  Delay or Omission Not Waiver

  	
  40

  
	
  Section 5.12

  	
  Control by Holders

  	
  41

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  41

  
	
  Section 5.14

  	
  Undertaking for Costs

  	
  41

  
	
  Section 5.15

  	
  Waiver of Usury, Stay or Extension Laws

  	
  42

  
	
   

  	
   

  
	
  ARTICLE 6 THE TRUSTEE

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Certain Duties and Responsibilities

  	
  42

  
	
  Section 6.2

  	
  Notice of Defaults

  	
  42

  
	
  Section 6.3

  	
  Certain Rights of Trustee

  	
  43

  
	
  Section 6.4

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  44

  
	
  Section 6.5

  	
  May Hold Securities and Act as Trustee under Other Indentures

  	
  44

  
	
  Section 6.6

  	
  Money Held in Trust

  	
  44

  
	
  Section 6.7

  	
  Compensation and Reimbursement

  	
  44

  
	
  Section 6.8

  	
  Conflicting Interests

  	
  45

  
	
  Section 6.9

  	
  Corporate Trustee Required; Eligibility

  	
  45

  
	
  Section 6.10

  	
  Resignation and Removal; Appointment of Successor

  	
  46

  
	
  Section 6.11

  	
  Acceptance of Appointment by Successor

  	
  47

  
	
  Section 6.12

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  48

  
	
  Section 6.13

  	
  Preferential Collection of Claims Against Company

  	
  48

  
	
  Section 6.14

  	
  Appointment of Authenticating Agent

  	
  48

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY
  TRUSTEE AND COMPANY

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Company to Furnish Trustee Names and Addresses of Holders

  	
  50

  
	
  Section 7.2

  	
  Preservation of Information; Communications to Holders

  	
  50

  
	
  Section 7.3

  	
  Reports by Trustee

  	
  51

  
	
  Section 7.4

  	
  Reports by Company

  	
  51

  
	
   

  	
   

  
	
  ARTICLE 8 CONSOLIDATION, MERGER,
  CONVEYANCE, TRANSFER OR LEASE

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Company May Consolidate, etc., Only on Certain Terms

  	
  51

  
	
  Section 8.2

  	
  Successor Substituted

  	
  52

  
	
   

  	
   

  
	
  ARTICLE 9 SUPPLEMENTAL INDENTURES

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Supplemental Indentures Without Consent of Holders

  	
  52

  
	
  Section 9.2

  	
  Supplemental Indentures with Consent of Holders

  	
  54

  
	
  Section 9.3

  	
  Execution of Supplemental Indentures

  	
  55

  
	
  Section 9.4

  	
  Effect of Supplemental Indentures

  	
  55

  
	
  Section 9.5

  	
  Conformity with Trust Indenture Act

  	
  55

  
	
  Section 9.6

  	
  Reference in Securities to Supplemental Indentures

  	
  55

  
	
  Section 9.7

  	
  Subordination Unimpaired

  	
  56

  
	
   

  	
   

  
	
  ARTICLE 10 COVENANTS

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Payment of Principal, Premium and Interest

  	
  56

  
	
  Section 10.2

  	
  Maintenance of Office or Agency

  	
  56

  
	
  Section 10.3

  	
  Money for Securities Payments to be Held in Trust

  	
  57

  
	
  Section 10.4

  	
  Statement by Officers as to Default

  	
  58

  
	
  Section 10.5

  	
  Existence

  	
  58

  
	
  Section 10.6

  	
  Maintenance of Properties

  	
  58

  
	
  Section 10.7

  	
  Payment of Taxes and Other Claims

  	
  58

  
	
  Section 10.8

  	
  Waiver of Certain Covenants

  	
  59

  
	
   

  	
   

  
	
  ARTICLE 11 REDEMPTION OF SECURITIES

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Applicability of Article

  	
  59

  
	
  Section 11.2

  	
  Election to Redeem; Notice to Trustee

  	
  59

  
	
  Section 11.3

  	
  Selection by Trustee of Securities to Be Redeemed

  	
  59

  
	
  Section 11.4

  	
  Notice of Redemption

  	
  60

  
	
  Section 11.5

  	
  Deposit of Redemption Price

  	
  61

  
	
  Section 11.6

  	
  Securities Payable on Redemption Date

  	
  61

  
	
  Section 11.7

  	
  Securities Redeemed in Part

  	
  62

  
	
   

  	
   

  
	
  ARTICLE 12 SINKING FUNDS

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Applicability of Article

  	
  62

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 12.2

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
  62

  
	
  Section 12.3

  	
  Redemption of Securities for Sinking Fund

  	
  63

  
	
   

  	
   

  
	
  ARTICLE 13 DEFEASANCE AND COVENANT
  DEFEASANCE

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Company’s Option to Effect Defeasance or Covenant Defeasance

  	
  63

  
	
  Section 13.2

  	
  Defeasance and Discharge

  	
  63

  
	
  Section 13.3

  	
  Covenant Defeasance

  	
  64

  
	
  Section 13.4

  	
  Conditions to Defeasance or Covenant Defeasance

  	
  65

  
	
  Section 13.5

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

  	
  67

  
	
  Section 13.6

  	
  Reinstatement

  	
  68

  
	
   

  	
   

  
	
  ARTICLE 14 CONVERSION OF SECURITIES

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 14.1

  	
  Applicability of Article

  	
  68

  
	
  Section 14.2

  	
  Exercise of Conversion Privilege

  	
  68

  
	
  Section 14.3

  	
  No Fractional Shares

  	
  70

  
	
  Section 14.4

  	
  Adjustment of Conversion Price or Conversion Rate

  	
  70

  
	
  Section 14.5

  	
  Notice of Certain Corporate Actions

  	
  71

  
	
  Section 14.6

  	
  Reservation of Shares of Common Stock

  	
  71

  
	
  Section 14.7

  	
  Payment of Certain Taxes upon Conversion

  	
  72

  
	
  Section 14.8

  	
  Nonassessability

  	
  72

  
	
  Section 14.9

  	
  Provision in Case of Consolidation, Merger or Sale of Assets

  	
  72

  
	
  Section 14.10

  	
  Duties of Trustee Regarding Conversion

  	
  73

  
	
  Section 14.11

  	
  Repayment of Certain Funds upon Conversion

  	
  73

  
	
   

  	
   

  
	
  ARTICLE 15 SUBORDINATION OF SECURITIES

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 15.1

  	
  Agreement of Subordination

  	
  74

  
	
  Section 15.2

  	
  Payments to Holders

  	
  74

  
	
  Section 15.3

  	
  Subrogation of Securities

  	
  77

  
	
  Section 15.4

  	
  Authorization to Effect Subordination

  	
  78

  
	
  Section 15.5

  	
  Notice to Trustee

  	
  78

  
	
  Section 15.6

  	
  Trustee’s Relation to Senior Debt

  	
  79

  
	
  Section 15.7

  	
  No Impairment of Subordination

  	
  79

  
	
  Section 15.8

  	
  Certain Conversions/Exchanges Deemed Payment

  	
  79

  
	
  Section 15.9

  	
  Article Applicable to Paying Agents

  	
  80

  
	
  Section 15.10

  	
  Senior Debt Entitled to Rely

  	
  80

  
	
  Section 15.11

  	
  Reliance on Judicial Order or Certificate of Liquidating Agent

  	
  80

  
	
  Section 15.12

  	
  Trust Monies Not Subordinated

  	
  81

  



 


iv

















 


SuperGen, Inc.


 


Certain Sections of this Indenture relating to Sections 3.10 through
3.18, inclusive, of the Trust Indenture Act of 1939:


 


	
  Section 310

  	
  (a)(1)

  	
  6.9

  	
   

  
	
   

  	
  (a)(2)

  	
  6.9

  	
   

  
	
   

  	
  (a)(3)

  	
  Not Applicable

  	
   

  
	
   

  	
  (a)(4)

  	
  Not Applicable

  	
   

  
	
   

  	
  (b)

  	
  6.8, 6.10

  	
   

  
	
  Section 311

  	
  (a)

  	
  6.13

  	
   

  
	
   

  	
  (b)

  	
  6.13

  	
   

  
	
  Section 312

  	
  (a)

  	
  7.1, 7.2

  	
   

  
	
   

  	
  (b)

  	
  7.2

  	
   

  
	
   

  	
  (c)

  	
  7.2

  	
   

  
	
  Section 313

  	
  (a)

  	
  7.3

  	
   

  
	
   

  	
  (b)

  	
  7.3

  	
   

  
	
   

  	
  (c)

  	
  7.3

  	
   

  
	
   

  	
  (d)

  	
  7.3

  	
   

  
	
  Section 314

  	
  (a)

  	
  7.4

  	
   

  
	
   

  	
  (a)(4)

  	
  1.1, 10.4

  	
   

  
	
   

  	
  (b)

  	
  Not Applicable

  	
   

  
	
   

  	
  (c)(1)

  	
  1.2

  	
   

  
	
   

  	
  (c)(2)

  	
  1.2

  	
   

  
	
   

  	
  (c)(3)

  	
  Not Applicable

  	
   

  
	
   

  	
  (d)

  	
  Not Applicable

  	
   

  
	
   

  	
  (e)

  	
  1.2

  	
   

  
	
  Section 315

  	
  (a)

  	
  6.1

  	
   

  
	
   

  	
  (b)

  	
  6.2

  	
   

  
	
   

  	
  (c)

  	
  6.1

  	
   

  
	
   

  	
  (d)

  	
  6.1

  	
   

  
	
   

  	
  (e)

  	
  5.14

  	
   

  
	
  Section 316

  	
  (a)

  	
  1.1

  	
   

  
	
   

  	
  (a)(1)(A)

  	
  5.2, 5.12

  	
   

  
	
   

  	
  (a)(1)(B)

  	
  5.13

  	
   

  
	
   

  	
  (a)(2)

  	
  Not Applicable

  	
   

  
	
   

  	
  (a)(2)

  	
  Not Applicable

  	
   

  
	
   

  	
  (b)

  	
  5.8

  	
   

  
	
   

  	
  (c)

  	
  1.4

  	
   

  
	
  Section 317

  	
  (a)(1)

  	
  5.3

  	
   

  
	
   

  	
  (a)(2)

  	
  5.4

  	
   

  
	
   

  	
  (b)

  	
  10.3

  	
   

  
	
  Section 318

  	
  (a)

  	
  1.7

  	
   

  



 


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


 

















 


INDENTURE,
dated as of                     ,
20      , between SuperGen, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the “Company”), having its principal executive office at
4140 Dublin Blvd., Suite 200, Dublin, California, and                     ,
as Trustee (herein called the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company
has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the “Securities”), to be
issued in one or more series as provided in this Indenture.


 


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


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


For and in
consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof appertaining, as follows:


 


ARTICLE 1


 


DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION


 


Section
1.1 Definitions.


 


For all
purposes of this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:


 


(1)                                  the
terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;


 


(2)                                  all
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;


 


(3)                                  all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United
States of America, and, except as otherwise herein expressly provided,
the term “generally accepted accounting principles” with respect to any
computation required or permitted hereunder shall mean such accounting
principles in the United States of America as are generally accepted at the
date of such computation;


 


(4)                                  all
references to “$” refer to the lawful currency of the United States of America;


 

















 


(5)                                  unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this Indenture;
and


 


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


 


“Act,” when
used with respect to any Holder, has the meaning specified in Section 1.4.


 


“Additional
Interest” has the meaning specified in Section 7.02(b).


 


“Affiliate” of
any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person.


 


“Authenticating
Agent” means any Person authorized by the Trustee pursuant to Section 6.14
to act on behalf of the Trustee to authenticate Securities of one or more
series.


 


“Board of
Directors” means either the board of directors of the Company or any duly
authorized committee of that board empowered to act for it with respect to this
Indenture.


 


“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,
and delivered to the Trustee.


 


“Business Day,”
when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to close.


 


“Commission”
means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.


 


“Common Stock”
includes any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which is
not subject to redemption by the Company; provided, however,
subject to the provisions of Section 14.9, shares issuable upon conversion
of Securities shall include only shares of the class designated as Common Stock
of the Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; provided, further,
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such


 


2

















 


reclassifications
bears to the total number of shares of all such classes resulting from all such
reclassifications.


 


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


 


“Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by its Chairman of the Board, its Vice Chairman of the Board,
its Chief Executive Officer, its President or a Vice President, and by its
principal financial officer, its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.


 


“control” when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.


 


“Corporate
Trust Office” means the corporate trust office of the Trustee at                    ,
Attention:  Corporate Trust Department,
or such other office, designated by the Trustee by written notice to the
Company, at which at any particular time its corporate trust business shall be
administered.


 


“corporation”
means a corporation, association, company, joint-stock company or business
trust.


 


“Covenant
Defeasance” has the meaning specified in Section 13.3.


 


“Defaulted
Interest” has the meaning specified in Section 3.7.


 


“Defeasance”
has the meaning specified in Section 13.2.


 


“Depositary”
means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities as
contemplated by Section 3.1.


 


“Designated
Senior Debt” means the Company’s obligations under any particular Senior Debt
in which the instrument creating or evidencing the same or the assumption or
guarantee thereof (or related agreements or documents to which the Company is a
party) expressly provides that such Senior Debt shall be “Designated Senior
Debt” for purposes of this Indenture (provided
that such instrument, agreement or other document may place
limitations and conditions on the right of such Senior Debt to exercise the
rights of Designated Senior Debt).  If
any payment made to any holder of any Designated Senior Debt or its
Representative with respect to such Designated Senior Debt is rescinded or must
otherwise be returned by such holder or Representative upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, the reinstated
Indebtedness of the 


 


3

















 


Company
arising as a result of such rescission or return shall constitute Designated
Senior Debt effective as of the date of such rescission or return.


 


“euro” or “euros”
means the currency adopted by those nations participating in the third stage of
the economic and monetary union provisions of the Treaty on European Union,
signed at Maastricht on February 7, 1992.


 


“European
Economic Area” means the member nations of the European Economic Area pursuant
to the Oporto Agreement on the European Economic Area dated May 2, 1992,
as amended.


 


“European
Union” means the member nations of the European Union established by the Treaty
of European Union, signed at Maastricht on February 2, 1992, which amended
the Treaty of Rome establishing the European Community.


 


“Event of
Default” has the meaning specified in Section 5.1.


 


“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.


 


“Expiration
Date” has the meaning specified in Section 1.4.


 


“Foreign
Government Obligation” means with respect to Securities of any series which are
not denominated in the currency of the United States of America (x) any
security which is (i) a direct obligation of the government which issued
or caused to be issued the currency in which such security is denominated and
for the payment of which obligations its full faith and credit is pledged or,
with respect to Securities of any series which are denominated in euros, a
direct obligation of any member nation of the European Union for the payment of
which obligation the full faith and credit of the respective nation is pledged
so long as such nation has a credit rating at least equal to that of the
highest rated member nation of the European Economic Area, or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or instrumentality
of a government specified in clause (i) above the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by
the such government, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any Foreign Government
Obligation which is specified in clause (x) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any Foreign Government
Obligation which is so specified and held, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the Foreign Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.


 


“Global
Security” means a Security that evidences all or part of the Securities of any
series and bears the legend set forth in Section 2.4 (or such legend as
may be specified as contemplated by Section 3.1 for such Securities).


 


4

















 


“Holder” means
a Person in whose name a Security is registered in the Security Register.


 


“Indebtedness”
means, with respect to any Person, and without duplication, whether absolute or
contingent, secured or unsecured, due or to become due, (a) all
indebtedness, obligations and other liabilities (contingent or otherwise) of
such Person evidenced by a credit or loan agreement, note, bond, debenture, or
other written obligation (whether or not the recourse of the lender is to the
whole of the assets of such person or to only a portion thereof) or for money
borrowed (including obligations of such Person in respect of overdrafts,
foreign exchange contracts, currency exchange agreements, interest rate
protection agreements, and any loans or advances from banks, whether or not
evidenced by notes or similar instruments); (b) all obligations and
liabilities (contingent or otherwise) of such Person evidenced by a note or
similar instrument given in connection with the acquisition of any businesses,
properties or assets of any kind; (c) all obligations and liabilities
(contingent or otherwise) in respect of leases of such Person required, in
conformity with generally accepted accounting principles, to be accounted for
as capitalized lease obligations on the balance sheet of such Person and all
obligations and other liabilities (contingent or otherwise) or as lessee under
any leases or related documents for facilities, capital equipment or related
assets, whether or not capitalized, entered into or leased for financing
purposes; (d) all obligations of such Person (contingent or otherwise)
with respect to interest rate and currency swaps, caps, floors, collars, hedge
agreements, forward contracts or similar agreements or arrangements; (e) all
obligations and other liabilities (contingent or otherwise) of such Person with
respect to letters of credit, bankers’ acceptances or similar facilities,
including reimbursement obligations with respect to the foregoing; (f) all
obligations and liabilities of such Person or assumed as the deferred purchase
price of property or services, but excluding trade accounts payable and accrued
liabilities arising in the ordinary course of business; (g) all
obligations of the type referred to in (a) through (f) above of
another Person the payment of which, in either case, such Person has assumed or
guaranteed or for which such Person is responsible or liable directly or
indirectly, jointly or severally, as obligor, guarantor or otherwise, or which
are secured by a lien on such Person’s property; and (h) any and all
renewals, extensions, modifications, replacements, restatements and refundings
of, or, any indebtedness or obligation issued in exchange for, any such
indebtedness or obligation of the kind described in clauses (a) through (g) above.


 


“Indenture”
means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.  The term “Indenture” shall also include the
terms of particular series of Securities established as contemplated by Section 3.1;
provided, however, that if at any time more than one Person is
acting as Trustee under this Indenture due to the appointment of one or more
separate Trustees for any one or more separate series of Securities, “Indenture”
shall mean, with respect to such series of Securities for which any such Person
is Trustee, 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 pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 3.1, exclusive, however, of any


 


5

















 


provisions or
terms which relate solely to other series of Securities for which such Person
is not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee, but to which such person, as such Trustee, was not a party; provided,
further that in the event that this Indenture is supplemented or amended
by one or more indentures supplemental hereto which are only applicable to
certain series of Securities, the term “Indenture” for a particular series of
Securities shall only include the supplemental indentures applicable thereto.


 


“interest,”
when used with respect to an Original Issue Discount Security, which by its
terms bears interest only after Maturity, means interest payable after
Maturity.


 


“Interest
Payment Date,” when used with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.


 


“Investment
Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.


 


“Maturity,”
when used with respect to any Security, means the date on which the principal
of such Security or an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, repurchase at the option of the Holder, upon
redemption or otherwise.


 


“Notice of
Default” means a written notice of the kind specified in Section 5.1(4).


 


“Officers’
Certificate” means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, and by the principal financial officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.  One of the
officers signing an Officers’ Certificate given pursuant to Section 10.4
shall be the principal executive, financial or accounting officer of the
Company.


 


“Opinion of
Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Company, and who shall be reasonably acceptable to the
Trustee.


 


“Original
Issue Discount Security” means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.


 


“Outstanding,”
when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except


 


(1)                                  Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;


 


6

















 


(2)                                  Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;


 


(3)                                  Securities
as to which Defeasance has been effected pursuant to Section 13.2; and


 


(4)                                  Securities
which have been paid pursuant to Section 3.6 or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;


 


provided,
however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as of such date
upon acceleration of the Maturity thereof to such date pursuant to Section 5.2,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or
determined as contemplated by Section 3.1, (C) the principal amount
of a Security denominated in one or more non-U.S. dollar currencies or currency
units which shall be deemed to be Outstanding shall be the U.S. dollar
equivalent, determined as of such date in the manner provided as contemplated
by Section 3.1, of the principal amount of such Security (or, in the case
of a Security described in clause (A) or (B) above, of the amount
determined as provided in such clause), and (D) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the Trustee knows to be
so owned shall be so disregarded. 
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.


 


“Paying Agent”
means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.


 


“Payment
Blockage Notice” has the meaning specified in Section 15.2.


 


7
















 


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


 


“Place of
Payment,” when used with respect to the Securities of any series, means the
place or places where the principal of and any premium and interest on the
Securities of that series are payable as specified as contemplated by Section 3.1.


 


“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 3.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.


 


“Record Date”
means any Regular Record Date or Special Record Date.


 


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


 


“Redemption
Price,” when used with respect to any Security to be redeemed, means the price
at which it is to be redeemed pursuant to this Indenture.


 


“Regular
Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as
contemplated by Section 3.1.


 


“Reporting
Default” has the meaning specified in Section 7.02(b).


 


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


 


“Responsible
Officer” means, when used with respect to the Trustee, an officer of the
Trustee in the Corporate Trust Office assigned and duly authorized by the
Trustee to administer its corporate trust matters.


 


“Securities”
has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this
Indenture.


 


“Securities
Act” means the Securities Act of 1933 and any statute successor thereto, in
each case as amended from time to time.


 


8

















 


“Security
Register” and “Security Registrar” have the respective meanings specified in Section 3.5.


 


“Senior Debt”
means the principal of, premium, if any, interest (including all interest
accruing subsequent to the commencement of any bankruptcy or similar
proceeding, whether or not a claim for post-petition interest is allowable as a
claim in any such proceeding) and rent payable on or in connection with, and
all fees, costs, expenses and other amounts accrued or due on or in connection
with, Indebtedness of the Company, whether outstanding on the date of this
Indenture or thereafter created, incurred, assumed, guaranteed or in effect
guaranteed by the Company (including all deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to, the foregoing),
unless in the case of any particular Indebtedness the instrument creating or
evidencing the same or the assumption or guarantee thereof expressly provides
that such Indebtedness shall not be senior in right of payment to the
Securities or expressly provides that such Indebtedness is “pari  passu”
or “ junior” to the Securities. 
Notwithstanding the foregoing, the term Senior Debt shall not include
any Indebtedness of the Company to any Subsidiary of the Company.  If any payment made to any holder of any
Senior Debt or its Representative with respect to such Senior Debt is rescinded
or must otherwise be returned by such holder or Representative upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, the
reinstated Indebtedness of the Company arising as a result of such rescission
or return shall constitute Senior Debt effective as of the date of such
rescission or return.


 


“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 3.7.


 


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


 


“Subsidiary”
means a Person of which at least a majority of the outstanding voting stock
having the power to elect a majority of the board of directors of such Person
(in the case of a corporation) is, or of which at least a majority of the
equity interests (in the case of a Person which is not a corporation) are, at
the time owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.  For the purposes of this definition, “voting
stock” means stock or similar interests to the Company which ordinarily has or
have voting power for the election of directors or persons performing similar
functions, whether at all times or only so long as no senior class of stock or
other interests has or have such voting power by reason of any contingency.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as
of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.


 


“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this


 


9

















 


Indenture, and
thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as
used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.


 


“U.S.
Government Obligation” means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the full faith
and credit of the United States of America is pledged or (ii) an
obligation 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, which, in either case (i) or (ii), is not callable
or redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government Obligation
which is so specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.


 


“Vice
President,” when used with respect to the Company or the Trustee, means any
vice president, whether or not designated by a number or a word or words added
before or after the title “vice president.”


 


Section 1.2            Compliance Certificates and Opinions.


 


Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture
Act.  Each such certificate or opinion
shall be given in the form of an Officers’ Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include,


 


(1)           a statement that
each individual signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;


 


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


 


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


 


10

















 


(4)           a statement as to
whether, in the opinion of each such individual, such condition or covenant has
been complied with.


 


Section 1.3            Form of Documents Delivered to
Trustee.


 


In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.


 


Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his or her certificate or opinion is based are
erroneous.  Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.


 


Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.


 


Section 1.4            Acts of Holders; Record Dates.


 


Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company.  The Trustee shall promptly deliver to the
Company copies of all such instrument or instruments delivered to the
Trustee.  Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or
instruments.  Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this
Section.


 


The fact and
date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him or her the execution thereof.  Where such execution


 


11

















 


is by a signer
acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority.  The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Trustee
deems sufficient.


 


The ownership
of Securities shall be proved by the Security Register.


 


Any request,
demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.


 


The Company
may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any
request, demand, authorization, direction, vote, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the Company may
not set a record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record
date.  Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series on
the date such action is taken.  Promptly
after any record date is set pursuant to this paragraph, the Company, at its
own expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.6.


 


The Trustee
may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction
referred to in Section 5.12, in each case with respect to Securities of
such series.  If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of such
series on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. 
Nothing in this paragraph shall be


 


12

















 


construed to
prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company’s expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Company in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 1.6.


 


With respect
to any record date set pursuant to this Section, the party hereto which sets
such record dates may designate any day as the “Expiration Date” and from time
to time may change the Expiration Date to any earlier or later day; provided
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the other party hereto in writing, and to each
Holder of Securities of the relevant series in the manner set forth in Section 1.6,
on or prior to the existing Expiration Date. 
If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. 
Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.


 


Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Security may do so with regard to all or any part
of the principal amount of such Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with regard to all
or any part of such principal amount.


 


Section 1.5            Notices, etc., to Trustee and
Company.


 


Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,


 


(1)           the Trustee by any
Holder or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing (or by facsimile transmissions,
provided that oral confirmation of receipt shall have been received) to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or


 


(2)           the Company by the
Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, personally delivered or sent via overnight courier
to the Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument or at any other address previously furnished
in writing to the Trustee by the Company, Attention: Chief Financial Officer.


 


13

















 


Section 1.6            Notice to Holders; Waiver.


 


Where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, or delivered by hand or overnight
courier, to each Holder affected by such event, at its address as it appears in
the Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice.  Neither the failure to mail or deliver by
hand or overnight courier any notice, nor any defect in any notice so mailed or
delivered by hand or overnight courier, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice.  Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.


 


In case by
reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.


 


Section 1.7            Conflict with Trust Indenture Act.


 


If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under the Trust Indenture Act to be a part of
and govern this Indenture, the latter provision shall control.  If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act, which may be so modified
or excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or to be excluded, as the case may be.


 


Section 1.8            Effect of Headings and Table of
Contents.


 


The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.


 


Section 1.9            Successors and Assigns.


 


All covenants
and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.


 


Section 1.10         Separability Clause.


 


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


 


14

















 


Section 1.11         Benefits of Indenture.


 


Nothing in
this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, the
holders of Senior Debt and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.


 


Section 1.12         Governing Law.


 


THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 1.13         Legal Holidays.


 


In any case
where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security or the last date on which a Holder has the right to convert a Security
at a particular conversion price or conversion rate, as the case may be, shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of any
Security which specifically states that such provision shall apply in lieu of
this Section)) payment of interest or principal (and premium, if any) or, if
applicable to a particular series of Securities, conversion need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, at the Stated Maturity or on
such last day for conversion, as the case may be.


 


Section 1.14         Indenture and Securities Solely
Corporate Obligations.


 


No recourse
for the payment of the principal of or premium, if any, or interest on any
Security, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture or in any supplemental indenture or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, employee, agent, officer, or director or
subsidiary, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any 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 all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.


 


Section 1.15         Indenture May be Executed in
Counterparts.


 


This
instrument 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.


 


15

















 


ARTICLE 2


 


SECURITY FORMS


 


Section 2.1            Forms Generally.


 


The Securities
of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution
thereof.  If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, 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 Company Order contemplated by Section 3.3
for the authentication and delivery of such Securities.  Any such Board Resolution or record of such
action shall have attached thereto a true and correct copy of the form of
Security referred to therein approved by or pursuant to such Board Resolution.


 


The definitive
Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.


 


Section 2.2            Form of Face of Security.


 


[INSERT
ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS
THEREUNDER.]


 


SUPERGEN, INC.


 


	
  NO.                             

  	
   

  	
  $              

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CUSIP:              

  



 


SuperGen, Inc.,
a corporation duly organized and existing under the laws of Delaware (herein
called the “Company,” which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to                                                               ,
or registered assigns, the principal sum of                                                                                 
dollars on                         
[if the Security is to bear interest prior to
Maturity, insert – , and to pay interest thereon from                   
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on                       
and                     
in each year,


 


16

















 


commencing                               ,
at the rate of         % per annum,
until the principal hereof is paid or made available for payment [if applicable, insert — , provided that any
principal and premium, and any such installment of interest, which is overdue
shall bear interest at the rate of       % per
annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand].  The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the                       
or                       
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.  Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture].


 


[If the Security is not to bear interest prior to
Maturity, insert — The principal of this Security shall not bear
interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the
overdue principal and any overdue premium shall bear interest at the rate of       %
per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment.  Interest on any
overdue principal or premium shall be payable on demand.  Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the rate of       %
per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. 
Interest on any overdue interest shall be payable on demand.]  Payment of the principal of (and premium, if
any) and [if applicable, insert — any
such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in                                           ,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts [if applicable, insert —; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register].


 


Reference is
hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.


 


Unless the
certificate of authentication hereon has been executed by the Trustee referred
to on the reverse hereof by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.


 


17
















 


IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.


 


	
  Dated:

  	
   

  	
   

  	
  SUPERGEN, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
						



 


Section
2.3            Form of Reverse of Security.


 


This Security is one of a
duly authorized issue of securities of the Company (herein called the “Securities”),
issued and to be issued in one or more series under an Indenture, dated as of
                        ,
200_ (herein called the “Indenture,” which term shall have the meaning assigned
to it in such instrument), between the Company and
                    ,
as Trustee (herein called the “Trustee,” which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture and
all indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Debt and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if applicable, insert — , limited in
aggregate principal amount to
$                  ].


 


[If applicable, insert — The Securities of this series are
subject to redemption upon not less than [if
applicable, insert — 30] days’ notice by mail, [IF APPLICABLE,
INSERT — (1) on
                          
in any year commencing with the year
           and ending with
the year            through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (2)] at any time [if applicable, insert — on or after
                          ,
20    ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if
applicable, insert — on or before
                            ,
      %, and if redeemed] during the 12-month
period beginning
                
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a
Redemption Price equal to
          % of the principal
amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the
sinking fund or otherwise)] with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]


 


18

















 


[If applicable, insert —The Securities of this series are
subject to redemption upon not less than [if applicable, insert — 30] days’
notice by mail, (1) on
                  
in any year commencing with the year
           and ending with
the year            through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after
                    ],
as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below:  If redeemed during the 12-month period
beginning
                
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price For

  Redemption Through

  Operation of the Sinking Fund

  	
   

  	
  Redemption Price For Redemption

  Otherwise Than Through

  Operation of the Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a
Redemption Price equal to       % of the
principal amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]


 


[If applicable, insert — Notwithstanding the foregoing, the
Company may not, prior to
                    ,
redeem any Securities of this series as contemplated by [if applicable, insert — clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than       %
per annum.]


 


[If applicable, insert — The sinking fund for this series
provides for the redemption on
                      ,
in each year beginning with the year           
and ending with the year
           of [if applicable, insert — not less than
$                    
(“mandatory sinking fund”) and not more than]
$                      
aggregate principal amount of Securities of this series.  Securities of this series acquired or
redeemed by the Company otherwise than through [if applicable, insert — mandatory] sinking fund payments may
be credited against subsequent [if
applicable, insert — mandatory] sinking fund payments otherwise
required to be made if applicable, insert —,
in the inverse order in which they become due].]


 


[If the Security is subject to redemption of any kind, insert —
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]


 


19

















 


[If applicable, insert — The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]


 


[If the
Security is convertible into other securities of the Company, specify the
conversion features.]


 


The indebtedness evidenced
by this Security is, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt of the Company, and this Security is issued subject to such
provisions of the Indenture with respect thereto.  Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination so provided and (c) appoints
the Trustee his attorney-in-fact for any and all such purposes.


 


[If the Security is not an Original Issue Discount Security, insert —
If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]


 


[If the Security is an Original Issue Discount Security, insert — If
an Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.  Such amount shall be equal to
— insert formula for determining the amount.  Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal, premium and interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Company’s obligations
in respect of the payment of the principal of and premium and interest, if any,
on the Securities of this series shall terminate.]


 


The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of more
than 50% in principal amount of the Securities at the time Outstanding of each
series to be affected.  The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. 
Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.


 


As provided in and subject
to the provisions of the Indenture, the Holder of this Security shall not have
the right to institute any proceeding with respect to the Indenture or for the


 


20

















 


appointment of a receiver or
trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Securities of this series, the Holders of not less than a
majority in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. 
The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.


 


No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.


 


As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this
Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
any place where the principal of and any premium and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.


 


The Securities of this
series are issuable only in registered form without coupons in denominations of
$           and any integral
multiple thereof.  As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.


 


No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.


 


Prior to due presentment of
this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.


 


All terms used in this
Security that are defined in the Indenture shall have the meanings assigned to
them in the Indenture.


 


21

















 


Section 2.4            Form of Legend for Global
Securities.


 


Unless otherwise specified
as contemplated by Section 3.1 for the Securities evidenced thereby, every
Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:


 


THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF.  THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


Section 2.5            Form of Trustee’s Certificate
of Authentication.


 


The Trustee’s certificates
of authentication shall be in substantially the following form:


 


This is one of the
Securities of the series designated herein referred to in the within-mentioned
Indenture.


 


	
   

  	
                                                   

  	
  ,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
					



 


Section 2.6            Form of Conversion Notice.


 


Conversion notices shall be
in substantially the following form:


 


To SuperGen, Inc.:


 


The undersigned owner of
this Security hereby irrevocably exercises the option to convert this Security,
or portion hereof (which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of the Company in accordance with the
terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon the conversion, together with any check in
payment for fractional shares and any Securities representing any unconverted
principal amount hereof, be issued and delivered to the registered holder
hereof unless a different name has been indicated below.  If this Notice is being delivered on a date
after the close of business on a Regular Record Date and prior to the opening
of business on the related Interest Payment Date (unless this Security or the
portion thereof being converted has been called for redemption on a Redemption
Date during the period beginning at the close of business on a Regular Record
Date and ending at the opening of business on the first Business Day after the
next succeeding Interest


 


22

















 


Payment Date, or if such
Interest Payment Date is not a Business Day, the second such Business Day),
this Notice is accompanied by payment, in funds acceptable to the Company, of
an amount equal to the interest payable on such Interest Payment Date of the
principal of this Security to be converted. 
If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
hereto.  Any amount required to be paid
by the undersigned on account of interest accompanies this Security.


 


	
  Principal
  Amount to be Converted

  	
   

  
	
  (in an integral multiple
  of $1,000, if less than all):

  	
   

  
	
   

  
	
  U.S.
  $

  	
                                          

  	
  .

  	
   

  
				



 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s) must be
  guaranteed by an eligible guarantor institution (banks, stockbrokers, savings
  and loan associations and credit unions with membership in an approved
  signature guarantee medallion program) pursuant to Securities and Exchange
  Commission Rule 17Ad-15.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guaranty

  



 


Fill in for registration of
shares of Common Stock and Security if to be issued otherwise than to the
registered Holder.


 


	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Social Security or Other
  Taxpayer

  
	
   

  	
   

  	
  Identification Number

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Please print Name and
  Address

  	
   

  	
   

  
	
  (including zip code)

  	
   

  	
   

  



 


[The above conversion notice
is to be modified, as appropriate, for conversion into other securities or
property of the Company.]


 


ARTICLE 3


 


THE SECURITIES


 


Section 3.1            Amount Unlimited; Issuable in Series.


 


The aggregate principal
amount of Securities that may be authenticated and delivered under this
Indenture is unlimited.  The Securities
may be issued in one or more series. 
There shall be


 


23

















 


established in or pursuant
to a Board Resolution and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers’ Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,


 


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


 


(2)           any limit upon the aggregate
principal amount of the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or
11.7 and except for any Securities which, pursuant to Section 3.3, are
deemed never to have been authenticated and delivered hereunder);


 


(3)           the Person to whom any interest on a
Security of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;


 


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


 


(5)           the rate or rates (which may be fixed
or variable) at which any Securities of the series shall bear interest, if any,
the date or dates from which any such interest shall accrue, the Interest
Payment Dates on which any such interest shall be payable and the Regular
Record Date for any such interest payable on any Interest Payment Date (or the
method for determining the dates and rates);


 


(6)           the place or places where the
principal of and any premium and interest on any Securities of the series shall
be payable;


 


(7)           the period or periods within which,
the price or prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part, at the option of
the Company and, if other than by a Board Resolution, the manner in which any
election by the Company to redeem the Securities shall be evidenced;


 


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


 


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


 


24

















 


(10)         if the amount of principal of or any
premium or interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner in which such
amounts shall be determined;


 


(11)         if other than the currency of the
United States of America, the currency, currencies or currency units in which
the principal of or any premium or interest on any Securities of the series
shall be payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any purpose, including for
purposes of the definition of “Outstanding” in Section 1.1;


 


(12)         if the principal of or any premium or
interest on any Securities of the series is to be payable, at the election of
the Company or the Holder thereof, in one or more currencies or currency units
other than that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any premium
or interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in which such
amount shall be determined);


 


(13)         if other than the entire principal
amount thereof, the portion of the principal amount of any Securities of the
series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.2;


 


(14)         if the principal amount payable at the
Stated Maturity of any Securities of the series will not be determinable as of
any one or more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such date for
any purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to be
the principal amount shall be determined);


 


(15)         if applicable, that the Securities of
the series, in whole or any specified part, shall be defeasible pursuant to Section 13.2
or Section 13.3 or both such Sections, or any other defeasance provisions
applicable to any Securities of the series, and, if other than by a Board
Resolution, the manner in which any election by the Company to defease such
Securities shall be evidenced;


 


(16)         if applicable, the terms of any right
to convert or exchange Securities of the series into shares of Common Stock of
the Company or other securities or property;


 


(17)         if applicable, that any Securities of
the series shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be borne by
any such Global Security in addition to or in lieu of that set forth in Section 2.4
and any circumstances in addition to or in lieu of those set forth in
clause (2) of the last paragraph of Section 3.5 in which any
such Global Security may be exchanged in whole or in part for


 


25

















 


Securities registered, and
any transfer of such Global Security in whole or in part may be registered, in
the name or names of Persons other than the Depositary for such Global Security
or a nominee thereof;


 


(18)         any addition to or change in the Events
of Default which applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 5.2;


 


(19)         any addition to or change in the
covenants set forth in Article 10 which applies to Securities of the
series;


 


(20)         any Authenticating Agents, Paying
Agents, Security Registrars or such other agents necessary in connection with
the issuance of the Securities of such series, including, without limitation,
exchange rate agents and calculation agents;


 


(21)         if applicable, the terms of any
security that will be provided for a series of Securities, including provisions
regarding the circumstances under which collateral may be released or
substituted;


 


(22)         if applicable, the terms of any
guaranties for the Securities and any circumstances under which there may be
additional obligors on the Securities;


 


(23)         any addition to or change in or
modification to the subordinated provisions of this Indenture relating to the
Securities of that series (including the provisions of Article 15), or
different subordination provisions, including a different definition of “Senior
Debt” or “Designated Senior Debt,” will apply to Securities of the series; and


 


(24)         any other terms of the series (which
terms shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 9.1(5)).


 


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 the Board Resolution referred to
above and (subject to Section 3.3) set forth, or determined in the manner
provided, in the Officers’ Certificate referred to above or in any such
indenture supplemental hereto.


 


If any of the terms of the
series are established by action taken pursuant to a Board Resolution, 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 setting forth the terms of the
series.


 


The Securities shall be
subordinated in right of payment to Senior Debt as provided in Article 15.


 


26

















 


Section 3.2            Denominations.


 


The Securities of each
series shall be issuable only in registered form without coupons and only in
such denominations as shall be specified as contemplated by Section 3.1.  In the absence of any such specified
denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral
multiple thereof.


 


Section 3.3            Execution, Authentication, Delivery
and Dating.


 


The Securities shall be
executed on behalf of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its Chief Executive Officer, its principal financial
officer, its President or one of its Vice Presidents, attested by its
Treasurer, its Secretary or one of its Assistant Treasurers or Assistant
Secretaries.  The signature of any of
these officers on the Securities may be manual or facsimile.


 


Securities bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.


 


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 Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. 
If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, 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 6.1)
shall be fully protected in relying upon, a copy of such Board Resolution, the
Officers’ Certificate setting forth the terms of the series and an Opinion of
Counsel, with such Opinion of Counsel stating,


 


(1)           if the form of such Securities has
been established by or pursuant to Board Resolution as permitted by Section 2.1,
that such form has been established in conformity with the provisions of this
Indenture;


 


(2)           if the terms of such Securities have
been established by or pursuant to Board Resolution as permitted by Section 3.1,
that such terms have been established in conformity with the provisions of this
Indenture; and


 


(3)           that such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general
equity principles.


 


27
















 


If such form or terms
have been so established, 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 which is not reasonably acceptable to
the Trustee.


 


Notwithstanding the
provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver the Officers’ Certificate otherwise required pursuant
to Section 3.1 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.


 


Each Security shall be
dated the date of its authentication.


 


No Security shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.  Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 3.9,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.


 


Neither the Company nor
the Trustee shall have any responsibility for any defect in the CUSIP number
that appears on any Security, check, advice of payment or redemption notice,
and any such document may contain a statement to the effect that CUSIP numbers
have been assigned by an independent service for convenience of reference and
that neither the Company nor the Trustee shall be liable for any inaccuracy in
such numbers.


 


Section
3.4                                   Temporary
Securities.


 


Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.


 


If temporary Securities
of any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay.  After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder.  Upon surrender for cancellation of any one or
more temporary Securities of any series, the Company shall 


 


28

















 


execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of like tenor and aggregate principal amount. 
Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and tenor.


 


Section
3.5                                   Registration;
Registration of Transfer and Exchange.


 


The Company shall cause
to be kept at the Corporate Trust Office of the Trustee a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities.  The Trustee is
hereby appointed “Security Registrar” for the purpose of registering Securities
and transfers of Securities as herein provided.


 


Upon surrender for registration
of transfer of any Security of a series at the office or agency of the Company
in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of the same series, of
any authorized denominations and of like tenor and aggregate principal amount.


 


At the option of the
Holder, Securities of any series may be exchanged for other Securities of the
same series, of any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency.  Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities that the Holder making
the exchange is entitled to receive.  All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.


 


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


 


No service charge shall
be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 3.4,
9.6 or 11.7 not involving any transfer.


 


If the Securities of any
series (or of any series and specified tenor) are to be redeemed in part, the
Company shall not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and specified tenor,
as the case may be) during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 11.3 and ending at the
close of business on the day


 


29

















 


of
such mailing, or (B) to register the transfer of or exchange any Security
so selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.


 


The provisions of
clauses (1), (2), (3) and (4) below shall apply only to Global
Securities:


 


(1)                                  Each Global Security authenticated under
this Indenture shall be registered in the name of the Depositary designated for
such Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.


 


(2)                                  Notwithstanding any other provision in
this Indenture, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the foregoing as
have been specified for this purpose as contemplated by Section 3.1.


 


(3)                                  Subject to clause (2) above,
any exchange of a Global Security for other Securities may be made in whole or
in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such
Global Security shall direct.


 


(4)                                  Every Security authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this Section, Section 3.4,
3.6, 9.6 or 11.7 or otherwise, shall be authenticated and delivered in the form
of, and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.


 


Section
3.6                                   Mutilated,
Destroyed, Lost and Stolen Securities.


 


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


 


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


 


30

















 


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


 


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


 


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


 


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


 


Section
3.7                                   Payment
of Interest; Interest Rights Preserved.


 


Except as otherwise
provided as contemplated by Section 3.1 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.


 


Any interest on any
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
clause (1) or (2) below:


 


(1)                                  The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names the Securities of such
series (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
Security of such series 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 be not more than 15


 


31

















 


days and not 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 given to each Holder of Securities of such series in the manner
set forth in Section 1.6, 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 so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).


 


(2)                                  The Company may make payment of any
Defaulted Interest on the Securities of any series 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.


 


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


 


Subject to the provisions
of Section 14.2, in the case of any Security (or any part thereof) which
is converted after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security the principal of (or
premium, if any, on) which shall become due and payable, whether at Stated
Maturity or by declaration of acceleration or otherwise prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest Payment Date
shall be payable on such Interest Payment Date notwithstanding such conversion
and such interest (whether or not punctually paid or duly provided for) shall
be paid to the Person in whose name that Security (or any one or more
Predecessor Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately
preceding sentence or in Section 14.2, in the case of any Security (or any
part thereof) which is converted, interest whose Stated Maturity is after the
date of conversion of such Security (or such part thereof) shall not be
payable.


 


Section
3.8                                   Persons
Deemed Owners.


 


Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 3.7)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


32

















 


Section
3.9                                   Cancellation.


 


All Securities
surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it.  The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee.  No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture.  All canceled Securities held by the Trustee
shall be disposed of in accordance with its customary procedures.


 


Section
3.10                            Computation
of Interest.


 


Except as otherwise
specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.


 


ARTICLE 4


 


SATISFACTION
AND DISCHARGE


 


Section
4.1                                   Satisfaction
and Discharge of Indenture.


 


This Indenture shall upon
Company Request cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when


 


(1)                                  either


 


(A)                              all Securities theretofore authenticated
and delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 3.6
and (ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Trustee or the Company and
thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or


 


(B)                                all such Securities not theretofore
delivered to the Trustee for cancellation


 


(i)                                     have become due and payable, or


 


33

















 


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


 


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


 


and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose money in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date of
such deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;


 


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


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.7, the obligations of the Trustee to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the
last paragraph of Section 10.3 shall survive.


 


Section
4.2                                   Application
of Trust Money.


 


Subject to the provisions
of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.


 


ARTICLE 5


 


REMEDIES


 


Section
5.1                                   Events
of Default.


 


“Event of Default,”
wherever used herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be occasioned by the provisions of Article 15 or be voluntary or
involuntary or be effected by operation


 


34

















 


of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless in the Board
Resolution, supplemental indenture or Officers’ Certificate establishing such
series, it is provided that such series shall not have the benefit of said
Event of Default:


 


(1)                                  default in the payment of any interest
upon any Security of that series when it becomes due and payable, and
continuance of such default for a period of 90 days; or


 


(2)                                  default in the payment of the principal
of or any premium on any Security of that series at its Maturity; or


 


(3)                                  default in the deposit of any sinking
fund payment, when and as due by the terms of a Security of that series; or


 


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


 


(5)                                  the entry by a court having jurisdiction
in the premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive days; or


 


(6)                                  the commencement by the Company of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any 


 


35

















 


substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such action; or


 


(7)                                  any other Event of Default provided with
respect to Securities of that series in the Board Resolution, supplemental
indenture or Officers’ Certificate establishing that series.


 


Section
5.2                                   Acceleration
of Maturity; Rescission and Annulment.


 


(a)                                  Unless the Board Resolution, supplemental
indenture or Officers’ Certificate establishing such series provides otherwise,
if an Event of Default (other than an Event of Default specified in Section 5.1(5) or
5.1(6)) with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of that series
may declare the principal amount of all the Securities of that series (or, if
any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the
terms thereof), and premium, if any, together with accrued and unpaid interest,
if any, thereon, to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal amount (or specified amount), and premium, if any,
together with accrued and unpaid interest, if any, thereon, shall become
immediately due and payable.  If an Event
of Default specified in Section 5.1(5) or 5.1(6) with respect to
Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof), and premium, if any,
together with accrued and unpaid interest, if any, thereon, shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.  Any payments by the Company on the Securities
following any such acceleration will be subject to the subordination provisions
of Article 15 to the extent provided therein.


 


(b)                                 Notwithstanding the foregoing, at the
election of the Company, the sole remedy with respect to an Event of Default
for the failure by the Company to comply with its obligations under Section 314(a)(1) of
the Trust Indenture Act relating to the Company’s failure to file any documents
or reports that the Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act or of its covenants set forth in Section 7.4
(any such Event of Default, a “Reporting Default”), shall for the first 180 calendar
days after the occurrence of such Reporting Default consist exclusively of the
right to receive additional interest (the “Additional Interest”) on the
Securities at an annual rate equal to (i) 0.25% of the principal amount of
the Securities for the first 90 calendar days after the occurrence of such
Reporting Default and (ii) 0.50% of the principal amount of the Securities
from the 91st day to, and including, the 180th day after the occurrence of such
Reporting Default.  If the Company so
elects, the Additional Interest shall accrue on all Outstanding Securities from
and including the date on which such Reporting Default first occurs until such
violation is cured or waived and shall be payable as provided in Section 3.7.  On the 181st day after such Reporting Default
(if such violation is not cured or waived prior to such 181st calendar day),
then


 


36

















 


the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding securities may declare the principal of, and premium, if any,
together with accrued and unpaid interest, if any, on all such Securities to be
due and payable immediately.


 


If the Company elects to
pay the Additional Interest as the sole remedy for the Reporting Default, the
Company shall notify in writing, by a certificate, the Holders, the Paying
Agent and the Trustee of such election at any time on or before the close of
business on the first Business Day following the date on which such Event of
Default first occurs.  Unless and until a
Responsible Officer of the Trustee receives at the Corporate Trust Office such
a certificate, the Trustee may assume without inquiry that Additional Interest
is not payable.  The Company shall pay the
Additional Interest semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment Date following the date of such
Reporting Default, in the same manner as described on the face of the Security.


 


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


 


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


 


(A)                              all overdue interest on all Securities of
that series,


 


(B)                                the principal of (and premium, if any,
on) any Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,


 


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


 


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


 


(2)                                  all Events of Default with respect to
Securities of that series, other than the non-payment of the principal of
Securities of that series that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.


 


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


 


Section 5.3                         Collection of Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants that
if


 


 


37
















 


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


 


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


 


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


 


Section 5.4                         Trustee May File Proofs of Claim.


 


In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. 
In particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 6.7.  No provision of this Indenture shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of
the Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors’ or other similar committee.


 


Section 5.5                         Trustee May Enforce Claims Without Possession of Securities.


 


All rights of action and
claims under this Indenture or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought


 


38

















 


in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.


 


Section 5.6                         Application of Money Collected.


 


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


 


FIRST:  To the payment of all amounts due the Trustee
under Section 6.7;


 


SECOND:  Subject to Article 15, to the payment of
the amounts then due and unpaid for principal of and any premium, if any, and
interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal and
any premium, if any, and interest, respectively; and


 


THIRD:  The balance, if any, to the Company or any
other Person or Persons entitled thereto.


 


Section 5.7                         Limitation on Suits.


 


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


 


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


 


(2)                                  the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of
that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;


 


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


 


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


 


(5)                                  no direction
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;


 


39

















 


it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.


 


Section 5.8                         Unconditional Right of Holders to Receive Principal, Premium and Interest
and to Convert.


 


Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
any premium and (subject to Section 3.7) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date), to convert such Securities in accordance
with Article 14 to the extent that such right to convert is applicable to
such Security, and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.


 


Section 5.9                         Restoration of Rights and Remedies.


 


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


 


Section
5.10                  Rights and Remedies Cumulative.


 


Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise.  The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.


 


Section
5.11                  Delay or Omission Not Waiver.


 


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


 


40

















 


Section
5.12                  Control by Holders.


 


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


 


(1)                                  such direction
shall not be in conflict with any rule of law or with this Indenture and
the Trustee shall not have determined that the action so directed would be
unjustly prejudicial to Holders of Securities of that series, or any other
series, not taking part in such direction; and


 


(2)                                  the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent
with such direction or this Indenture.


 


Section
5.13                  Waiver of Past Defaults.


 


The Holders of not less than
a majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except


 


(1)                                  a default in
the payment of the principal of or any premium or interest on any Security of
such series as and when the same shall become due and payable by the terms
thereof, otherwise than by acceleration (unless such default has been cured and
a sum sufficient to pay all matured installments of interest, principal and
premium, if any, has been deposited with the Trustee), or


 


(2)                                  to the extent
such right is applicable to such Security, a failure by the Company on request
to convert any Security into Common Stock; or


 


(3)                                  in respect of a
covenant or provision hereof which under Article 9 cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such
series affected.


 


Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.


 


Section
5.14                  Undertaking for Costs.


 


In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court


 


41

















 


to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or in any suit for the enforcement of the right to convert any Security in
accordance with Article 14.


 


Section
5.15                  Waiver of Usury, Stay or Extension Laws.


 


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


 


ARTICLE 6


 


THE TRUSTEE


 


Section 6.1                         Certain Duties and Responsibilities.


 


The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act.  Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.  Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.


 


Section 6.2                         Notice of Defaults.


 


If a default occurs
hereunder with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however,
that except in the case of a default in the payment of principal of (or
premium, if any) or interest on any Securities of such series or in the payment
of any sinking fund installment or any conversion right applicable to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as 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 interests of the holders of Securities of such series; provided,
further, however, that in the case of any default of the
character specified in Section 5.1(4) with respect to Securities of
such series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term “default”
means any event that is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.


 


Except with respect to Section 10.1,
the Trustee shall have no duty to inquire as to the performance of the Company
with respect to the covenants contained in Article 10.  In addition, the


 


42

















 


Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event
of Default occurring pursuant to Sections 5.1(1), 5.1(2) and 5.1(3) (defaults
in payments on the Securities) or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge.


 


Delivery of reports,
information and documents to the Trustee under Section 7.4 is for
informational purposes only 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 hereunder (as to which the Trustee is
entitled to rely conclusively on Officers’ Certificates).


 


Section 6.3                         Certain Rights of Trustee.


 


Subject to the provisions of
Section 6.1:


 


(1)                                  in the absence
of bad faith on the part of the Trustee, the Trustee may rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;


 


(2)                                  any request or
direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, and any resolution of the Board of Directors
shall be sufficiently evidenced by a Board Resolution;


 


(3)                                  whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) is entitled to and may, in the absence of bad faith on its part,
rely upon an Officers’ Certificate;


 


(4)                                  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, suffered or omitted by it hereunder in good faith and in
reliance thereon;


 


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


 


(6)                                  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, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to


 


43

















 


make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and


 


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


 


Section 6.4                         Not Responsible for Recitals or Issuance of Securities.


 


The recitals contained
herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness.  The Trustee makes no
representations as to the validity, sufficiency or priority of this Indenture
or of the Securities.  Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.


 


Section 6.5                         May Hold Securities and Act as Trustee under Other Indentures.


 


The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.


 


Subject to the limitations
imposed by the Trust Indenture Act, nothing in this Indenture shall prohibit
the Trustee from becoming and acting as trustee under other indentures under
which other securities, or certificates of interest of participation in other
securities, of the Company are outstanding in the same manner as if it were not
Trustee hereunder.


 


Section 6.6                         Money Held in Trust.


 


Money held by the Trustee in
trust hereunder 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 money received by it hereunder except as
otherwise agreed with the Company.


 


Section 6.7                         Compensation and Reimbursement.


 


The Company agrees:


 


(1)                                  to pay to the
Trustee from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);


 


44

















 


(2)                                  except as
otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and


 


(3)                                  to indemnify
the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 5.1(5) or
Section 5.1(6) hereof occurs, the expenses and the compensation for
the services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any applicable
bankruptcy, insolvency, reorganization or similar law.


 


Section 6.8                         Conflicting Interests.


 


If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act
and there is an Event of Default under the Securities of that series, the
Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.  To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.


 


Section 6.9                         Corporate Trustee Required; Eligibility.


 


There shall at all times be
one (and only one) Trustee hereunder with respect to the Securities of each
series, which may be Trustee hereunder for Securities of one or more other
series.  Each Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has (or
if the Trustee is a member of a bank holding company system, its bank holding
company has) a combined capital and surplus of at least $50,000,000.  If any such Person or bank holding company
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section and to the extent permitted by the Trust Indenture Act,
the combined capital and surplus of such Person or bank holding company shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 
If at any time the Trustee with respect to the Securities of any series
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.


 


45

















 


Section
6.10                  Resignation and Removal; Appointment of Successor.


 


No resignation or removal of
the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 6.11.  The Trustee may resign at any time with
respect to the Securities of one or more series by giving written notice thereof
to the Company.  If the instrument of
acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving 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 the
Securities of such series.


 


The Trustee may be removed
at any time with respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.


 


If at any time:


 


(1)                                  the Trustee
shall fail to comply with Section 6.8 after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Security for
at least six months, or


 


(2)                                  the Trustee
shall cease to be eligible under Section 6.9 and shall fail to resign
after written request therefor by the Company or by any such Holder, or


 


(3)                                  the Trustee
shall become incapable of acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed 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, (A) the
Company by a Board Resolution may remove the Trustee with respect to all
Securities, or (B) subject to Section 5.14, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.


 


If the Trustee shall resign,
be removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section 6.11.  If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the


 


46

















 


successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 6.11,
the retiring Trustee may petition, or any Holder who has been a bona fide
Holder of a Security of such series for at least six months may petition, on
behalf of himself and all others similarly situated, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.


 


The Company shall give
notice of each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of Securities of such
series in the manner provided in Section 1.6.  Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.


 


Section
6.11                  Acceptance of Appointment by Successor.


 


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.


 


In case of the appointment
hereunder of a successor Trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts


 


47
















 


hereunder
administered by any other such Trustee; 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 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 all 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.


 


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 the first
or second preceding paragraph, as the case may be.


 


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.


 


Section 6.12                  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 all or substantially all 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 such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. 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.  In the event that any Securities shall not
have been authenticated by such predecessor Trustee, any such successor Trustee
may authenticate and deliver such Securities in either its own name or that of
a predecessor Trustee, with the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee.


 


Section 6.13                  Preferential
Collection of Claims Against Company.


 


If and when
the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company (or
any such other obligor).


 


Section 6.14                  Appointment of
Authenticating Agent.


 


The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or


 


48

















 


partial
redemption thereof or pursuant to Section 3.6, 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.  Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. 
Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having (or if the
Authenticating Agent is a member of a bank holding company system, its bank
holding company has) a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority.  If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 
If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.


 


Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under
this Section, without the execution or filing of any paper or any further act
on the part of the Trustee or the Authenticating Agent.


 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company.  The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company.  Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall
be acceptable to the Company and shall give notice of such appointment in the
manner provided in Section 1.6 to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve.  Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. 
No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.


 


The Trustee
agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to the provisions of Section 6.7.


 


49

















 


If an
appointment with respect to one or more series is made pursuant to this Section 6.12,
the Securities of such series may have endorsed thereon, in lieu of the Trustee’s
certificate of authentication, an alternative certificate of authentication in
the following form:


 


This is one of
the Securities of the series designated therein referred to in the
within-mentioned Indenture.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
  As
  Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
				



 


ARTICLE 7


 


HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
COMPANY


 


Section 7.1                         Company
to Furnish Trustee Names and Addresses of Holders.


 


The Company
will furnish or cause to be furnished to the Trustee


 


(1)           semi-annually, not
later than 15 days after the Regular Record Date for each respective series of
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of such
Regular Record Date, as the case may be, or if there is no Regular Record Date
for such series of Securities, semi-annually, and


 


(2)           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;


 


(3)           provided that no
such list need be furnished by the Company to the Trustee so long as the
Trustee is acting as Security Registrar.


 


Section 7.2                         Preservation
of Information; Communications to Holders.


 


The Trustee
shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the
Trustee as provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to
it as provided in Section 7.1 upon receipt of a new list so furnished.


 


The rights of
Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and
privileges of the Trustee,


 


50

















 


shall be as
provided by the Trust Indenture Act. 
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.


 


Section 7.3                         Reports
by Trustee.


 


The Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.


 


Reports so required
to be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than July 15 in each calendar year, commencing with
the first July 15 after the first issuance of Securities pursuant to this
Indenture.


 


A copy of each
such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed with the
Commission and with the Company.  The
Company will notify the Trustee when any Securities are listed on any stock
exchange.


 


Section 7.4                         Reports
by Company.


 


Any
information, documents or other reports that the Company shall file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is filed with the
Commission; provided that any such information, documents or reports
filed or furnished with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval (or EDGAR) system shall be deemed to be filed
with the Trustee as of the time such information, documents or reports are
filed or furnished via EDGAR.


 


ARTICLE 8


 


CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE


 


Section 8.1                         Company May Consolidate,
etc., Only on Certain Terms.


 


The Company
shall not consolidate with or merge into any other Person (other than a
Subsidiary of the Company) (in a transaction in which the Company is not the
surviving corporation) or convey, transfer or lease its properties and assets
substantially as an entirety to any Person (other than a Subsidiary of the
Company), unless:


 


(1)           in case the Company
shall consolidate with or merge into another Person (in a transaction in which
the Company is not the surviving corporation) or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company


 


51

















 


substantially
as an entirety shall be a corporation, limited liability company, partnership,
trust or other business entity, shall be organized and validly existing under
the laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed and the
conversion rights shall be provided for in accordance with Article 14, if
applicable, or as otherwise specified pursuant to Section 3.1, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the Person (if other than the Company) formed by
such consolidation or into which the Company shall have been merged or by the
Person which shall have acquired the Company’s assets;


 


(2)           immediately after
giving effect to such transaction and treating any indebtedness which becomes
an obligation of the Company or any Subsidiary as a result of such transaction
as having been incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have occurred and be
continuing; and


 


(3)           the Company has delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.


 


Section 8.2                         Successor
Substituted.


 


Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 8.1, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


Section 9.1                         Supplemental
Indentures Without Consent of Holders.


 


Without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:


 


52

















 


(1)           to evidence the
succession of another Person to the Company, or successive successions, and the
assumption by any such successor of the covenants of the Company herein and in
the Securities in compliance with Article 8; or


 


(2)           to add to the
covenants of the Company for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or power
herein conferred upon the Company; or


 


(3)           to add any
additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for
the benefit of less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the benefit of such
series); or


 


(4)           to add to or change
any of the provisions of this Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in bearer form, registrable or
not registrable as to principal, and with or without interest coupons, or to
permit or facilitate the issuance of Securities in uncertificated form; or


 


(5)           to add to, change or
eliminate any of the provisions of this Indenture in respect of one or more
series of Securities, provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision or (B) shall become effective only when
there is no such Security Outstanding; or


 


(6)           to secure the
Securities, including provisions regarding the circumstances under which
Collateral may be released or substituted; or


 


(7)           to add or provide
for a guaranty of the Securities or additional obligors on the Securities; or


 


(8)           to establish the
form or terms of Securities of any series as permitted by Sections 2.1 and
3.1; or


 


(9)           to evidence and
provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or


 


(10)         to cure any
ambiguity, to correct or supplement any provision herein which may be defective
or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided that


 


53

















 


such action
pursuant to this clause (10) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect; or


 


(11)         to supplement any of
the provisions of the Indenture to such extent as shall be necessary to permit
or facilitate the defeasance and discharge of any series of Securities pursuant
to Articles 4 and 13, provided that any such action shall not adversely
affect the interests of the Holders of Securities of such series or any other
series of Securities in any material respect.


 


Section 9.2                         Supplemental
Indentures with Consent of Holders.


 


With the
consent of the Holders of a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,


 


(1)           change the Stated
Maturity of the principal of, or any installment of principal of or interest
on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2, or change the place of
payment or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or modify the
provisions of this Indenture with respect to the subordination of such series
of Securities in a manner materially adverse to the Holders of Securities of
such series, or, in the case of Securities of any series that are convertible
into Securities or other securities of the Company, adversely affect the right
of Holders to convert any of the Securities of such series other than as provided
in or pursuant to this Indenture, or


 


(2)           reduce the
percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or


 


(3)           modify any of the
provisions of this Section, Section 5.13 or Section 10.8, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby; provided, however,
that this clause shall not be


 


54

















 


deemed to
require the consent of any Holder with respect to changes in the references to “the
Trustee” and concomitant changes in this Section and Section 10.8, or
the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 9.1(8), or


 


(4)           if applicable, make
any change that adversely affects the right to convert any security as provided
in Article 14 or pursuant to Section 3.1 (except as permitted by Section 9.1(9)).


 


A supplemental
indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.


 


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


 


Section 9.3                         Execution
of Supplemental Indentures. 


 


In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Sections 6.1 and 6.3) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture.  The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.


 


Section 9.4                         Effect of
Supplemental Indentures.


 


Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.


 


Section 9.5                         Conformity
with Trust Indenture Act.


 


Every
supplemental indenture executed pursuant to this Article shall conform to
the requirements of the Trust Indenture Act.


 


Section 9.6                         Reference
in Securities to Supplemental Indentures. 


 


Securities of
any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. 
If the


 


55

















 


Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.


 


Section 9.7                         Subordination
Unimpaired. 


 


No provision
in any supplemental indenture that affects the superior position of the holders
of Senior Debt shall be effective against holders of Senior Debt.


 


ARTICLE 10


 


COVENANTS


 


Section 10.1                  Payment of
Principal, Premium and Interest.


 


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


 


Section 10.2                  Maintenance of
Office or Agency.


 


The Company
will maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange, where Securities of that series may be surrendered for
conversion and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.  Unless otherwise provided in a supplemental
indenture or pursuant to Section 3.1 hereof, the Place of Payment for any
series of Securities shall be the Corporate Trust Office of the Trustee.


 


The Company
may also from time to time designate one or more other offices or agencies
where the Securities of one or more series may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes.  The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


56

















 


Section 10.3                  Money for
Securities Payments to be Held in Trust.


 


If the Company
shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or any
premium or interest on any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal and any premium and interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.


 


Whenever the
Company shall have one or more Paying Agents for any series of Securities, it
will, on or prior to each due date of the principal of or any premium or
interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.


 


The Company
will cause each Paying Agent for any series of Securities other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.


 


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 by Company Order 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 trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to such money.


 


Any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of or any premium or interest on any Security of
any series and remaining unclaimed for a period ending on the earlier of the
date that is ten Business Days prior to the date such money would escheat to
the State or two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date


 


57
















 


of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.


 


Section 10.4                  Statement by Officers as to
Default.


 


The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.  The fiscal year of the Company currently ends
on December 31; and the Company will give the Trustee prompt written
notice of any change of its fiscal year.


 


Section 10.5                  Existence.


 


Subject to Article 8, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence.


 


Section 10.6                  Maintenance of Properties.


 


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


 


Section 10.7                  Payment of Taxes and Other Claims.


 


The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or upon the income,
profits or property of the Company, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim (i) whose amount, applicability or
validity is being contested in good faith by appropriate proceedings or (ii) if
the failure to pay or discharge would not have a material adverse effect on the
assets, business, operations, properties or condition (financial or otherwise)
of the Company and its subsidiaries, taken as a whole.


 


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Section 10.8                  Waiver of Certain Covenants.


 


Except as otherwise specified as contemplated by Section 3.1 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 3.1(19),
9.1(2), 9.1(7), 10.6 or 10.7 for the benefit of the Holders of such series if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.


 


ARTICLE 11


 


REDEMPTION OF
SECURITIES


 


Section 11.1                  Applicability of Article.


 


Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for such Securities) in
accordance with this Article.


 


Section 11.2                  Election to Redeem; Notice to
Trustee.


 


The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section 3.1
for such Securities.  In case of any
redemption at the election of the Company of less than all the Securities of
any series (including any such redemption affecting only a single Security),
the Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities
to be redeemed.  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 such restriction.


 


Section 11.3                  Selection by Trustee of
Securities to Be Redeemed.


 


If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by lot, or in the Trustee’s
discretion, on a pro-rata basis, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such 


 


59

















 


Security.  If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to
be redeemed shall be selected not more than 45 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series and specified
tenor not previously called for redemption in accordance with the preceding
sentence.


 


If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption.  Securities that have been converted during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.


 


The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to
be redeemed.


 


The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. 
In the case of any such redemption in part, the unredeemed portion of
the principal amount of the Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security.


 


For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.


 


Section 11.4                  Notice of Redemption.


 


Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not fewer than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
each Holder of Securities to be redeemed, at its address appearing in the
Security Register.


 


All notices of redemption shall state:


 


(1)                                  the Redemption Date,


 


(2)                                  the Redemption Price (including accrued interest,
if any),


 


(3)                                  if less than all the Outstanding Securities of any
series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities,
the principal amounts) of the particular Securities to be redeemed and, if less
than all the Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the particular Security to
be redeemed,


 


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(4)                                  in case any Security is to be redeemed in part
only, that on and after the Redemption Date, upon surrender of such Security,
the Holder of such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount thereof
remaining unredeemed,


 


(5)                                  that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,


 


(6)                                  the place or places where each such Security is to
be surrendered for payment of the Redemption Price,


 


(7)                                  if applicable, the conversion price or conversion
rate, as the case may be, the date on which the right to convert the principal
of the Securities or the portions thereof to be redeemed will terminate, and
the place or places where such Securities may be surrendered for conversion,


 


(8)                                  that the redemption is for a sinking fund, if such
is the case, and


 


(9)                                  the CUSIP number or numbers and/or common codes of
the Security being redeemed.


 


Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.


 


Section 11.5                  Deposit of Redemption Price.


 


On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.


 


If any Security called for redemption is converted, any money deposited
with the Trustee or with a Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to the right of any Holder of
such Security to receive interest as provided in the last paragraph of Section 3.7)
be paid to the Company on Company Request, or if then held by the Company,
shall be discharged from such trust.


 


Section 11.6                  Securities Payable on Redemption
Date.


 


Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price 


 


61

















 


and accrued interest) such Securities shall cease to bear
interest.  Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.7.


 


If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.


 


Section 11.7                  Securities Redeemed in Part.


 


Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or its attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.


 


ARTICLE 12


 


SINKING FUNDS


 


Section 12.1                  Applicability of Article.


 


The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 3.1 for such Securities.


 


The minimum amount of any sinking fund payment provided for by the
terms of any Securities 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 such Securities is herein referred to as an “optional sinking fund
payment.”  If provided for by the terms
of any Securities, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 12.2. 
Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.


 


Section 12.2                  Satisfaction of Sinking Fund
Payments with Securities.


 


The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a
credit Securities of a series which have been redeemed 


 


62

















 


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 any Securities
of such series required to be made pursuant to the terms of such Securities as
and to the extent provided for by the terms of such Securities; provided that
the Securities to be so credited have not been previously so credited.  The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.


 


Section 12.3                  Redemption of Securities for
Sinking Fund.


 


Not fewer than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying
the amount of the next ensuing sinking fund payment for such Securities
pursuant to the terms of such Securities, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if any, which is to
be satisfied by delivering and crediting Securities pursuant to Section 12.2
and will also deliver to the Trustee any Securities to be so delivered.  Not fewer than 30 days prior to 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 11.3
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 11.4.  Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.


 


ARTICLE 13


 


DEFEASANCE AND
COVENANT DEFEASANCE


 


Section 13.1                  Company’s Option to Effect
Defeasance or Covenant Defeasance.


 


The Company may elect, at its option at any time, to have Section 13.2
or Section 13.3 applied to any Securities or any series of Securities, as
the case may be, designated pursuant to Section 3.1 as being defeasible
pursuant to such Section 13.2 or 13.3, in accordance with any applicable
requirements provided pursuant to Section 3.1 and upon compliance with the
conditions set forth below in this Article. 
Any such election shall be evidenced by a Board Resolution or in another
manner specified as contemplated by Section 3.1 for such Securities.


 


Section 13.2                  Defeasance and Discharge.


 


Upon the Company’s exercise of its option (if any) to have this Section applied
to any Securities or any series of Securities, as the case may be, the Company
shall be deemed to have been discharged from its obligations, and the
provisions of Article 15 shall cease to be effective, with respect to such
Securities as provided in this Section on and after the date the
conditions set forth in Section 13.4 are satisfied (hereinafter called “Defeasance”).  For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness



 


63

















 


represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), subject to the following which
shall survive until otherwise terminated or discharged hereunder:


 


(1)                                  the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 13.4 and as more
fully set forth in such Section, payments in respect of the principal of and
any premium and interest on such Securities when payments are due,


 


(2)                                  the Company’s obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, and, if
applicable, Article 14,


 


(3)                                  the rights, powers, trusts, duties and immunities
of the Trustee hereunder, and


 


(4)                                  this Article.


 


Subject to compliance with this Article, the Company may exercise its
option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 13.3
applied to such Securities.


 


Section 13.3                  Covenant Defeasance.


 


Upon the Company’s exercise of its option (if any) to have this Section applied
to any Securities or any series of Securities, as the case may be,


 


(1)                                  the Company shall be released from its obligations
under Sections 10.6 and 10.7 and any covenants provided pursuant to
Sections 3.1(19), 9.1(2) or 9.1(7) for the benefit of the
Holders of such Securities,


 


(2)                                  the occurrence of any event specified in
Sections 5.1(4) (with respect to any of Sections 10.6 and 10.7
and any such covenants provided pursuant to Section 3.1(19), 9.1(2) or
9.1(7)) and the occurrence of any Event of Default specified pursuant to Section 3.1,
shall be deemed not to be or result in an Event of Default, and


 


(3)                                  the provisions of Article 15 shall cease to
be effective,


 


in each case with respect to such Securities or series of Securities as
provided in this Section on and after the date the conditions set forth in
Section 13.4 are satisfied (hereinafter called “Covenant Defeasance”).  For this purpose, such Covenant Defeasance
means that, with respect to such Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so
specified in the case of Section 5.1(4) and the occurrence of any
Event of Default specified pursuant to Section 3.1) or Article 15,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or Article or by reason of any reference in any such
Section or Article to any other provision 


 


64

















 


herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.


 


Section 13.4                  Conditions to Defeasance or
Covenant Defeasance.


 


The following shall be the conditions to the application of Section 13.2
or Section 13.3 to any Securities or any series of Securities, as the case
may be:


 


(1)                                  The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefits of the Holders of such Securities,


 


(A)                              in the case of Securities of a series denominated
in currency of the United States of America,


 


(i)                                     cash in currency of the United States of America
in an amount, or


 


(ii)                                  U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment, an amount in cash, or


 


(iii)                               a combination thereof, or


 


(B)                                in the case of Securities of a series denominated
in currency other than that of the United States of America,


 


(i)                                     cash in the currency in which such series of
Securities is denominated in an amount, or


 


(ii)                                  Foreign Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment, an amount in cash, or


 


(iii)                               a combination thereof,


 


in each case sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the 


 


65

















 


respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities.


 


(2)                                  In the event of an election to have Section 13.2
apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that


 


(A)                              the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or


 


(B)                                since the date of this instrument, there has been
a change in the applicable Federal income tax law,


 


(C)                                in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the Holders of
such Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.


 


(3)                                  In the event of an election to have Section 13.3
apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.


 


(4)                                  The Company shall have delivered to the Trustee an
Officers’ Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange, will
be delisted as a result of such deposit.


 


(5)                                  No event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to such Securities
or any other Securities shall have occurred and be continuing at the time of
such deposit or, with regard to any such event specified in Sections 5.1(5) and
(6), at any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until after
such 90th day).


 


(6)                                  Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the meaning of the
Trust Indenture Act (assuming all Securities are in default within the meaning
of such Act).


 


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(7)                                  Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound.


 


(8)                                  Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration thereunder.


 


(9)                                  At the time of such deposit,


 


(A)                              no default in the payment of any principal of or
premium or interest on any Senior Debt shall have occurred and be continuing,


 


(B)                                no event of default with respect to any Senior
Debt shall have resulted in such Senior Debt becoming, and continuing to be,
due and payable prior to the date on which it would otherwise have become due
and payable (unless payment of such Senior Debt has been made or duly provided
for), and


 


(C)                                no other event of default with respect to any
Senior Debt shall have occurred and be continuing permitting (after notice or
lapse of time or both) the holders of such Senior Debt (or a trustee on behalf
of such holders) to declare such Senior Debt due and payable prior to the date
on which it would otherwise have become due and payable.


 


(10)                            The Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance
have been complied with.


 


Section 13.5                  Deposited Money, U.S. Government
Obligations and Foreign Government Obligations to be Held in Trust;
Miscellaneous Provisions.


 


Subject to the provisions of the last paragraph of Section 10.3,
all money, U.S. Government Obligations and Foreign Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 13.6, the
Trustee and any such other trustee are referred to collectively as the “Trustee”)
pursuant to Section 13.4 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.  Money, U.S.
Government Obligations and Foreign Government Obligations so held in trust
shall not be subject to the provisions of Article 15.


 


67
















 


The Company
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations or Foreign
Government Obligations deposited pursuant to Section 13.4 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Securities.


 


Anything in
this Article to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money, U.S.
Government Obligations or Foreign Government Obligations held by it as provided
in Section 13.4 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.


 


Section 13.6         Reinstatement.


 


If the Trustee
or the Paying Agent is unable to apply any money in accordance with this Article with
respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 13.2
or 13.3 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 13.5 with respect to such Securities in accordance
with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.


 


ARTICLE 14


 


CONVERSION OF SECURITIES


 


Section 14.1         Applicability of Article.


 


The provisions
of this Article shall be applicable to the Securities of any series which
are convertible into shares of Common Stock of the Company, and the issuance of
such shares of Common Stock upon the conversion of such Securities, except as
otherwise specified as contemplated by Section 3.1 for the Securities of
such series.


 


Section 14.2         Exercise of Conversion Privilege.


 


In order to
exercise a conversion privilege, the Holder of a Security of a series with such
a privilege shall surrender such Security to the Company at the office or
agency maintained for that purpose pursuant to Section 10.2, accompanied
by a duly executed conversion notice to the Company substantially in the form
set forth in Section 2.6 stating that the Holder elects to convert


 


68

















 


such Security or a specified portion
thereof.  Such notice shall also state,
if different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for shares of Common Stock,
which shall be issuable on such conversion, shall be issued.  Securities surrendered for conversion shall
(if so required by the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to the Company and
the Trustee duly executed by the Holder or its attorney duly authorized in
writing; and Securities so surrendered for conversion (in whole or in part)
during the period from the close of business on any Regular Record Date to the
opening of business on the next succeeding Interest Payment Date (excluding
Securities or portions thereof called for redemption during the period
beginning at the close of business on a Regular Record Date and ending at the
opening of business on the first Business Day after the next succeeding
Interest Payment Date, or if such Interest Payment Date is not a Business Day, the
second such Business Day) shall also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security then being
converted, and such interest shall be payable to such Holder notwithstanding
the conversion of such Security, subject to the provisions of Section 3.7
relating to the payment of Defaulted Interest by the Company.  As promptly as practicable after the receipt
of such notice and of any payment required pursuant to a Board Resolution and,
subject to Section 3.3, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures
supplemental hereto setting forth the terms of such series of Security, and the
surrender of such Security in accordance with such reasonable regulations as
the Company may prescribe, the Company shall issue and shall deliver, at the
office or agency at which such Security is surrendered, to such Holder or on
its written order, a certificate or certificates for the number of full shares
of Common Stock issuable upon the conversion of such Security (or specified
portion thereof), in accordance with the provisions of such Board Resolution,
Officers’ Certificate or supplemental indenture, and cash as provided therein
in respect of any fractional share of such Common Stock otherwise issuable upon
such conversion. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice and
such payment, if required, shall have been received in proper order for
conversion by the Company and such Security shall have been surrendered as
aforesaid (unless such Holder shall have so surrendered such Security and shall
have instructed the Company to effect the conversion on a particular date
following such surrender and such Holder shall be entitled to convert such
Security on such date, in which case such conversion shall be deemed to be
effected immediately prior to the close of business on such date) and at such
time the rights of the Holder of such Security as such Security Holder shall
cease and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock of the Company shall be issuable upon
such conversion shall be deemed to have become the Holder or Holders of record
of the shares represented thereby. 
Except as set forth above and subject to the final paragraph of Section 3.7,
no payment or adjustment shall be made upon any conversion on account of any
interest accrued on the Securities (or any part thereof) surrendered for
conversion or on account of any dividends on the Common Stock of the Company
issued upon such conversion.


 


In the case of
any Security which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of


 


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authorized denominations, in aggregate
principal amount equal to the unconverted portion of such Security.


 


Section 14.3         No Fractional Shares.


 


No fractional
share of Common Stock of the Company shall be issued upon conversions of
Securities of any series.  If more than
one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion shall
be computed on the basis of the aggregate principal amount of the Securities
(or specified portions thereof to the extent permitted hereby) so
surrendered.  If, except for the
provisions of this Section 14.3, any Holder of a Security or Securities
would be entitled to a fractional share of Common Stock of the Company upon the
conversion of such Security or Securities, or specified portions thereof, the
Company shall pay to such Holder an amount in cash equal to the current market
value of such fractional share computed, (i) if such Common Stock is
listed or admitted to unlisted trading privileges on a national securities
exchange or market, on the basis of the last reported sale price regular way on
such exchange or market on the last trading day prior to the date of conversion
upon which such a sale shall have been effected, or (ii) if such Common
Stock is not at the time so listed or admitted to unlisted trading privileges
on a national securities exchange or market, on the basis of the average of the
bid and asked prices of such Common Stock in the over-the-counter market, on
the last trading day prior to the date of conversion, as reported by the
National Quotation Bureau, Incorporated or similar organization if the National
Quotation Bureau, Incorporated is no longer reporting such information, or if
not so available, the fair market price as determined by the Board of
Directors.  For purposes of this Section,
“trading day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not traded on the Nasdaq
National Market, or if the Common Stock is not traded on the Nasdaq National
Market, on the principal exchange or market on which the Common Stock is traded
or quoted.


 


Section 14.4         Adjustment of Conversion Price or
Conversion Rate.


 


The conversion
price or conversion rate, as the case may be, of Securities of any series that
is convertible into Common Stock of the Company shall be adjusted for any stock
dividends, stock splits, reclassifications, combinations or similar
transactions in accordance with the terms of the supplemental indenture or
Board Resolutions setting forth the terms of the Securities of such series.


 


Whenever the
conversion price or conversion rate, as the case may be, is adjusted, the
Company shall compute the adjusted conversion price or conversion rate, as the
case may be, in accordance with terms of the applicable Board Resolution or
supplemental indenture and shall prepare an Officers’ Certificate setting forth
the adjusted conversion price or conversion rate, as the case may be, and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 10.2 and,
if different, with the Trustee.  The
Company shall forthwith cause a notice setting forth the adjusted conversion
price or conversion rate, as the case may be, to be mailed, first class postage
prepaid, to each Holder of Securities of such series at its address appearing
on the Security Register and to any conversion agent other than the Trustee.


 


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Section 14.5         Notice of Certain Corporate Actions.


 


In case:


 


(1)           the Company shall
declare a dividend (or any other distribution) on its Common Stock payable
otherwise than in cash out of its retained earnings (other than a dividend for
which approval of any shareholders of the Company is required) that would
require an adjustment pursuant to Section 14.4; or


 


(2)           the Company shall
authorize the granting to all or substantially all of the holders of its Common
Stock of rights, options or warrants to subscribe for or purchase any shares of
capital stock of any class or of any other rights (other than any such grant
for which approval of any shareholders of the Company is required); or


 


(3)           of any
reclassification of the Common Stock of the Company (other than a subdivision
or combination of its outstanding shares of Common Stock, or of any
consolidation, merger or share exchange to which the Company is a party and for
which approval of any shareholders of the Company is required), or of the sale
of all or substantially all of the assets of the Company; or


 


(4)           of the voluntary or
involuntary dissolution, liquidation or winding up of the Company;


 


then the
Company shall cause to be filed with the Trustee, and shall cause to be mailed
to all Holders at their last addresses as they shall appear in the Security
Register, at least 20 days (or 10 days in any case specified in clause (1) or
(2) above) prior to the applicable record date hereinafter specified, a
notice stating (i) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights, options or warrants, or, if a
record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined, or (ii) the date on which such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled
to exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up. 
If at any time the Trustee shall not be the conversion agent, a copy of
such notice shall also forthwith be filed by the Company with the Trustee.


 


Section 14.6         Reservation of Shares of Common Stock.


 


The Company
shall at all times reserve and keep available, free from preemptive rights, out
of its authorized but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common Stock of the
Company then issuable upon the conversion of all outstanding Securities of any
series that has conversion rights.


 


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Section 14.7         Payment of Certain Taxes upon
Conversion.


 


Except as provided
in the next sentence, the Company will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of its Common Stock on
conversion of Securities pursuant hereto. 
The Company shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery of shares
of its Common Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Company the amount
of any such tax, or has established, to the satisfaction of the Company, that
such tax has been paid.


 


Section 14.8         Nonassessability.


 


The Company
covenants that all shares of its Common Stock that may be issued upon
conversion of Securities will upon issue in accordance with the terms hereof be
duly and validly issued and fully paid and nonassessable.


 


Section 14.9         Provision in Case of Consolidation,
Merger or Sale of Assets.


 


In case of any
consolidation or merger of the Company with or into any other Person, any
merger of another Person with or into the Company (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation
of outstanding shares of Common Stock of the Company) or any conveyance, sale,
transfer or lease of all or substantially all of the assets of the Company, the
Person formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security of
a series then Outstanding that is convertible into Common Stock of the Company
shall have the right thereafter (which right shall be the exclusive conversion
right thereafter available to said Holder), during the period such Security
shall be convertible, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, conveyance, sale, transfer or
lease, assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated or merged with or into or which
merged into or with the Company or to which such conveyance, sale, transfer or
lease was made, as the case may be (a “Constituent Person”), or an Affiliate of
a Constituent Person and (ii) failed to exercise his rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer or lease
(provided that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer, or
lease is not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, conveyance, sale, transfer or
lease by others than a Constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised (“Non-electing
Share”), then for the purpose of this Section 14.9 the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease by the holders of each Non-electing Share
shall be deemed to be the kind and


 


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amount so receivable per share by a plurality
of the Non-electing Shares).  Such
supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article or in accordance with the terms of the supplemental indenture or
Board Resolutions setting forth the terms of such adjustments.  The above provisions of this Section 14.9
shall similarly apply to successive consolidations, mergers, conveyances,
sales, transfers or leases.  Notice of
the execution of such a supplemental indenture shall be given by the Company to
the Holder of each Security of a series that is convertible into Common Stock of
the Company as provided in Section 1.6 promptly upon such execution.


 


Neither the
Trustee nor any conversion agent, if any, shall be under any responsibility to
determine the correctness of any provisions contained in any such supplemental
indenture relating either to the kind or amount of shares of stock or other
securities or property or cash receivable by Holders of Securities of a series
convertible into Common Stock of the Company upon the conversion of their
Securities after any such consolidation, merger, conveyance, transfer, sale or
lease or to any such adjustment, but may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, an
Opinion of Counsel with respect thereto, which the Company shall cause to be
furnished to the Trustee upon request.


 


Section 14.10       Duties of Trustee Regarding Conversion.


 


Neither the
Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any Holder of Securities of any series that is convertible
into Common Stock of the Company to determine whether any facts exist which may
require any adjustment of the conversion price or conversion rate, as the case
may be, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, whether herein or in any supplemental
indenture, any resolutions of the Board of Directors or written instrument
executed by one or more officers of the Company provided to be employed in
making the same.  Neither the Trustee nor
any conversion agent shall be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock of the Company, or of any
securities or property, which may at any time be issued or delivered upon the conversion
of any Securities and neither the Trustee nor any conversion agent makes any
representation with respect thereto. 
Subject to the provisions of Section 6.1, neither the Trustee nor
any conversion agent shall be responsible for any failure of the Company to
issue, transfer or deliver any shares of its Common Stock or stock certificates
or other securities or property upon the surrender of any Security for the
purpose of conversion or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one or
more duly authorized officers of the Company.


 


Section 14.11       Repayment of Certain Funds upon
Conversion.


 


Any funds which
at any time shall have been deposited by the Company or on its behalf with the
Trustee or any other paying agent for the purpose of paying the principal of,
and premium, if any, and interest, if any, on any of the Securities (including,
but not limited to, funds deposited for the sinking fund referred to in Article 12
hereof and funds deposited pursuant to Article 13 hereof)


 


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and which shall not be required for such
purposes because of the conversion of such Securities as provided in this Article 14
shall after such conversion be repaid to the Company by the Trustee upon the
Company’s written request.


 


ARTICLE 15


 


SUBORDINATION OF SECURITIES


 


Section 15.1         Agreement of Subordination.


 


Except as
otherwise provided in a supplemental indenture or pursuant to Section 3.1,
the Company covenants and agrees, and each Holder of Securities issued
hereunder by its acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article 15;
and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees to be bound by
such provisions.


 


The payment of
the principal of, premium, if any, and interest on all Securities (including,
but not limited to, the redemption price with respect to the Securities called
for redemption in accordance with Article 11 as provided in the Indenture)
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and subject in right of payment to the prior payment in full of
all Senior Debt, whether outstanding at the date of this Indenture or
thereafter incurred.


 


No provision
of this Article 15 shall prevent the occurrence of any default or Event of
Default hereunder.


 


Section 15.2         Payments to Holders.


 


No payment
shall be made with respect to the principal of, or premium, if any, or interest
on the Securities (including, but not limited to, the redemption price with
respect to the Securities to be called for redemption in accordance with Article 11
as provided in the Indenture), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 15.5, if:


 


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


 


(ii)           a default, other
than a Payment Default, on any Designated Senior Debt occurs and is continuing
that then permits holders of such Designated Senior Debt to accelerate its
maturity and the Trustee receives a


 


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notice of the
default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt,
a Representative of Designated Senior Debt or the Company (a “Non-Payment
Default”).


 


If the Trustee
receives any Payment Blockage Notice pursuant to clause (ii) above,
no subsequent Payment Blockage Notice shall be effective for purposes of this Section unless
and until at least 365 days shall have elapsed since the initial effectiveness
of the immediately prior Payment Blockage Notice.  No Non-Payment Default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice.


 


The Company
may and shall resume payments on and distributions in respect of the Securities
upon the earlier of:


 


(2)           in the case of any
Payment Default, the date upon which the Payment Default is cured or waived or
ceases to exist, or


 


(3)           in the case of a
Non-Payment Default, the earlier of (a) the date upon which such
Non-Payment Default is cured, waived or ceases to exist or (b) 179 days
after the date on which the applicable Payment Blockage Notice is received by
the Trustee,


 


unless this Article 15
otherwise prohibits the payment or distribution at such time.


 


Upon any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, reorganization, liquidation,
receivership or other proceedings, or upon an assignment for the benefit of
creditors or any marshalling of the assets and liabilities of the Company, or
otherwise, all amounts due or to become due upon all Senior Debt shall first be
paid in full in cash or other payment satisfactory to the holders of such
Senior Debt, or payment thereof in accordance with its terms provided for in
cash or other payment satisfactory to the holders of such Senior Debt, before
any payment is made on account of the principal of, premium, if any, or interest
on the Securities (except payments made pursuant to Article 4 from monies
deposited with the Trustee pursuant thereto prior to commencement of
proceedings for such dissolution, winding-up, liquidation, reorganization,
assignment for the benefit of creditors or the marshalling of assets and
liabilities of the Company); and upon any such dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company or bankruptcy, insolvency,
receivership or other proceeding, any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled, except for the provision of this Article 15, shall (except as
aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Debt (pro rata to
such holders on the basis of the respective amounts of Senior Debt held by such
holders, or as otherwise required by law or a court order) or their
Representative or


 


75

















 


Representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Debt may have been issued, as their respective interests may appear, to
the extent necessary to pay all Senior Debt in full, in cash or other payment
satisfactory to the holders of such Senior Debt, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt, before
any payment or distribution or provision therefor is made to the Holders of the
Securities or to the Trustee.


 


For purposes
of this Article 15, the words, “cash, property or securities” shall not be
deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least
to the extent provided in this Article 15 with respect to the Securities
to the payment of all Senior Debt which may at the time be outstanding; provided
that (i) the Senior Debt is assumed by the new corporation, if any,
resulting from any reorganization or readjustment, and (ii) the rights of
the holders of Senior Debt (other than leases which are not assumed by the
Company or the new corporation, as the case may be) are not, without the
consent of such holders, altered by such reorganization or readjustment.  The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article 8 shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 15.2 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article 8.


 


In the event
of the acceleration of the Securities because of an Event of Default, no
payment or distribution shall be made to the Trustee or any Holder of
Securities in respect of the principal of, premium, if any, or interest on the
Securities (including, but not limited to, the redemption price with respect to
the Securities called for redemption in accordance with Article 11 as
provided in the Indenture), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 15.5,
until all Senior Debt has been paid in full in cash or other payment
satisfactory to the holders of Senior Debt or such acceleration is rescinded in
accordance with the terms of this Indenture. 
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.


 


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


 


76

















 


Senior Debt in full in cash or other payment
satisfactory to the holders of such Senior Debt, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior Debt.


 


Nothing in
this Section 15.2 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.7. 
This Section 15.2 shall be subject to the further provisions of Section 15.5.


 


Section 15.3         Subrogation of Securities.


 


Subject to the
payment in full of all Senior Debt, the rights of the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to the
holders of such Senior Debt pursuant to the provisions of this Article 15
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to other indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of Senior
Debt to receive payments or distributions of cash, property or securities of
the Company applicable to the Senior Debt until the principal, premium, if any,
and interest on the Securities shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of the Senior Debt
of any cash, property or securities to which the Holders of the Securities or
the Trustee would be entitled except for the provisions of this Article 15,
and no payment over pursuant to the provisions of this Article 15, to or
for the benefit of the holders of Senior Debt by Holders of the Securities or
the Trustee, shall, as between the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Debt; and no payments or
distributions of cash, property or securities to or for the benefit of the
Holders of the Securities pursuant to the subrogation provisions of this Article 15,
which would otherwise have been paid to the holders of Senior Debt shall be
deemed to be a payment by the Company to or for the account of the
Securities.  It is understood that the
provisions of this Article 15 are and are intended solely for the purposes
of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Debt, on the other hand.


 


Nothing
contained in this Article 15 or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Debt, and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Debt, nor shall anything herein or therein prevent
the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article 15 of the holders of
Senior Debt in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.


 


Upon any
payment or distribution of assets of the Company referred to in this Article 15,
the Trustee, subject to the provisions of Section 6.1, and the Holders of
the Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such bankruptcy, dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a


 


77
















 


certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Debt and other indebtedness of
the Company, the amount thereof or payable thereon and all other facts
pertinent thereto or to this Article 15.


 


Section 15.4         Authorization to Effect Subordination.


 


Each Holder of a Security by
the holder’s acceptance thereof authorizes and directs the Trustee on the
holder’s behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 15 and appoints
the Trustee to act as the holder’s attorney-in-fact for any and all such
purposes.  If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 5.4 hereof at least 30 days before the expiration of
the time to file such claim, the holders of any Senior Debt or their
representatives are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Securities.


 


Section 15.5         Notice to Trustee.


 


The Company shall give
prompt written notice in the form of an Officers’ Certificate to a Responsible
Officer of the Trustee and to any Paying Agent of any fact known to the Company
which would prohibit the making of any payment of monies to or by the Trustee
or any Paying Agent in respect of the Securities pursuant to the provisions of
this Article 15.  Notwithstanding
the provisions of this Article 15 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article 15,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the Corporate Trust Office from the Company (in the
form of an Officers’ Certificate) or a Representative or a holder or holders of
Senior Debt or from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section 6.1,
shall be entitled in all respects to assume that no such facts exist; provided
that if on a date not fewer than two Business Days prior to the date upon which
by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of the principal of, or premium, if
any, or interest on any Security) the Trustee shall not have received, with
respect to such monies, the notice provided for in this Section 15.5,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary which may be received by it on or after such prior
date.


 


Notwithstanding anything in
this Article 15 to the contrary, nothing shall prevent any payment by
the Trustee to the Holders of monies deposited with it pursuant to Section 4.1,
and any such payment shall not be subject to the provisions of Section 15.1
or 15.2.


 


The Trustee, subject to the
provisions of Section 6.1, shall be entitled to rely on the delivery to it
of a written notice by a Representative or a person representing himself to be
a holder of Senior


 


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Debt (or a trustee on behalf
of such holder) to establish that such notice has been given by a
Representative or a holder of Senior Debt or a trustee on behalf of any such
holder or holders.  The Trustee shall not
be required to make any payment or distribution to or on behalf of a holder of
Senior Debt pursuant to this Article 15 unless it has received
satisfactory evidence as to the amount of Senior Debt held by such person, the
extent to which such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such person under
this Article 15.


 


Section 15.6         Trustee’s Relation to Senior Debt.


 


The Trustee in its
individual capacity shall be entitled to all the rights set forth in this Article 15
in respect of any Senior Debt at any time held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.


 


With respect to the holders
of Senior Debt, the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in this Article 15,
and no implied covenants or obligations with respect to the holders of Senior
Debt shall be read into this Indenture against the Trustee.  The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and, subject to the provisions of Section 6.1,
the Trustee shall not be liable to any holder of Senior Debt (i) for any
failure to make any payments or distributions to such holders or (ii) if
it shall pay over or deliver to Holders of Securities, the Company or any other
Person money or assets to which any holder of Senior Debt shall be entitled by
virtue of this Article 15 or otherwise.


 


Section 15.7         No Impairment of Subordination.


 


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


 


Section 15.8         Certain Conversions/Exchanges Deemed
Payment.


 


For the purposes of this Article 15
only, (1) the issuance and delivery of junior securities upon conversion
or exchange of Securities in accordance with Article 14 or otherwise
(except upon conversion of the Securities in accordance with their terms) shall
not be deemed to constitute a payment or distribution on account of the
principal of (or premium, if any) or interest on Securities or on account of
the purchase or other acquisition of Securities, and (2) the payment,
issuance or delivery of cash (except in satisfaction of fractional shares
pursuant to Section 14.3), property or securities (other than junior
securities) upon conversion or exchange of a Security shall be deemed to
constitute payment on account of the principal of such Security.  For the purposes of this Section 15.8,
the term “junior securities” means (a) shares of any stock of any class of
the Company,


 


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or (b) securities of
the Company which are subordinated in right of payment to all Senior Debt which
may be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article.  Nothing contained in this Article 15 or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of Securities, the right, which is absolute and unconditional,
of the Holder of any Security to convert such Security in accordance with Article 14.


 


Section 15.9         Article Applicable to Paying
Agents.


 


If at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be
then acting hereunder, the term “Trustee” as used in this Article shall
(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, however, that the first
paragraph of Section 15.5 shall not apply to the Company or any Affiliate
of the Company if the Company or such Affiliate acts as Paying Agent.


 


The Trustee shall not be
responsible for the actions or inactions of any other Paying Agents (including
the Company if acting as its own Paying Agent) and shall have no control of any
funds held by such other Paying Agents.


 


Section 15.10       Senior Debt Entitled to Rely.


 


The holders of Senior Debt
(including, without limitation, Designated Senior Debt) shall have the right to
rely upon this Article 15, and no amendment or modification of the provisions
contained herein shall diminish the rights of such holders unless such holders
shall have agreed in writing thereto.


 


Section 15.11       Reliance on Judicial Order or Certificate
of Liquidating Agent.


 


Upon any payment or
distribution of assets of the Company referred to in this Article, the Trustee
and the Holders shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company or bankruptcy, insolvency,
receivership or other like proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.


 


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Section 15.12       Trust Monies Not Subordinated.


 


Notwithstanding anything
contained herein to the contrary, payments from money, U.S. Government
Obligations and/or Foreign Government Obligations held in trust under Article 4
or Article 13 by the Trustee for the payment of the principal of, premium,
if any, and interest on the Securities shall not be subordinated to the prior
payment in full of any Senior Debt of the Company or subject to the
restrictions set forth in this Article 15, and none of the Holders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Debt of the Company or any other creditor of the Company.


 


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


 


	
   

  	
  SUPERGEN, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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