EXHIBIT
4.8


 


OPTIMER
PHARMACEUTICALS, INC.


AND


[TRUSTEE],


TRUSTEE


 


INDENTURE


 


DATED AS
OF [    ], 200


SUBORDINATED
DEBT SECURITIES


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS

  	
  1

  
	
  Section 1.01

  	
  Definitions of Terms

  	
  1

  
	
   

  	
   

  	
   

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

  	
  4

  
	
  Section 2.01

  	
  Designation and Terms of Securities

  	
  4

  
	
  Section 2.02

  	
  Form of Securities and Trustee’s Certificate

  	
  6

  
	
  Section 2.03

  	
  Denominations: Provisions for Payment

  	
  6

  
	
  Section 2.04

  	
  Execution and Authentications

  	
  7

  
	
  Section 2.05

  	
  Registration of Transfer and Exchange

  	
  7

  
	
  Section 2.06

  	
  Temporary Securities

  	
  8

  
	
  Section 2.07

  	
  Mutilated, Destroyed, Lost or Stolen Securities

  	
  8

  
	
  Section 2.08

  	
  Cancellation

  	
  9

  
	
  Section 2.09

  	
  Benefits of Indenture

  	
  9

  
	
  Section 2.10

  	
  Authenticating Agent

  	
  9

  
	
  Section 2.11

  	
  Global Securities

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND
  PROVISIONS

  	
  11

  
	
  Section 3.01

  	
  Redemption

  	
  11

  
	
  Section 3.02

  	
  Notice of Redemption

  	
  11

  
	
  Section 3.03

  	
  Payment Upon Redemption

  	
  12

  
	
  Section 3.04

  	
  Sinking Fund

  	
  12

  
	
  Section 3.05

  	
  Satisfaction of Sinking Fund Payments with
  Securities

  	
  12

  
	
  Section 3.06

  	
  Redemption of Securities for Sinking Fund

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 COVENANTS

  	
  13

  
	
  Section 4.01

  	
  Payment of Principal, Premium and Interest

  	
  13

  
	
  Section 4.02

  	
  Maintenance of Office or Agency

  	
  13

  
	
  Section 4.03

  	
  Paying Agents

  	
  13

  
	
  Section 4.04

  	
  Appointment to Fill Vacancy in Office of Trustee

  	
  14

  
	
  Section 4.05

  	
  Compliance with Consolidation Provisions

  	
  14

  
	
   

  	
   

  	
   

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

  	
  14

  



 


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  PAGE

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Company to Furnish Trustee Names and Addresses of
  Securityholders

  	
  14

  
	
  Section 5.02

  	
  Preservation Of Information; Communications With
  Securityholders

  	
  14

  
	
  Section 5.03

  	
  Reports by the Company

  	
  15

  
	
  Section 5.04

  	
  Reports by the Trustee

  	
  15

  
	
   

  	
   

  	
   

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

  	
  15

  
	
  Section 6.01

  	
  Events of Default

  	
  15

  
	
  Section 6.02

  	
  Collection of Indebtedness and Suits for Enforcement
  by Trustee

  	
  16

  
	
  Section 6.03

  	
  Application of Moneys Collected

  	
  17

  
	
  Section 6.04

  	
  Limitation on Suits

  	
  18

  
	
  Section 6.05

  	
  Rights and Remedies Cumulative; Delay or Omission
  Not Waiver

  	
  18

  
	
  Section 6.06

  	
  Control by Securityholders

  	
  19

  
	
  Section 6.07

  	
  Undertaking to Pay Costs

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 CONCERNING THE TRUSTEE 

  	
  19

  
	
  Section 7.01

  	
  Certain Duties and Responsibilities of Trustee

  	
  19

  
	
  Section 7.02

  	
  Certain Rights of Trustee

  	
  20

  
	
  Section 7.03

  	
  Trustee Not Responsible for Recitals or Issuance or
  Securities

  	
  21

  
	
  Section 7.04

  	
  May Hold Securities

  	
  21

  
	
  Section 7.05

  	
  Moneys Held in Trust

  	
  21

  
	
  Section 7.06

  	
  Compensation and Reimbursement

  	
  21

  
	
  Section 7.07

  	
  Reliance on Officers’ Certificate

  	
  22

  
	
  Section 7.08

  	
  Disqualification; Conflicting Interests

  	
  22

  
	
  Section 7.09

  	
  Corporate Trustee Required; Eligibility

  	
  22

  
	
  Section 7.10

  	
  Resignation and Removal; Appointment of Successor

  	
  22

  
	
  Section 7.11

  	
  Acceptance of Appointment By Successor

  	
  23

  
	
  Section 7.12

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
  24

  
	
  Section 7.13

  	
  Preferential Collection of Claims Against the
  Company

  	
  24

  
	
  Section 7.14

  	
  Notice of Default

  	
  25

  



 


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  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 CONCERNING THE SECURITYHOLDERS

  	
  25

  
	
  Section 8.01

  	
  Evidence of Action by Securityholders

  	
  25

  
	
  Section 8.02

  	
  Proof of Execution by Securityholders

  	
  25

  
	
  Section 8.03

  	
  Who May be Deemed Owners

  	
  26

  
	
  Section 8.04

  	
  Certain Securities Owned by Company Disregarded

  	
  26

  
	
  Section 8.05

  	
  Actions Binding on Future Securityholders

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 SUPPLEMENTAL INDENTURES

  	
  26

  
	
  Section 9.01

  	
  Supplemental Indentures Without the Consent of
  Securityholders

  	
  26

  
	
  Section 9.02

  	
  Supplemental Indentures With Consent of
  Securityholders

  	
  27

  
	
  Section 9.03

  	
  Effect of Supplemental Indentures

  	
  27

  
	
  Section 9.04

  	
  Securities Affected by Supplemental Indentures

  	
  28

  
	
  Section 9.05

  	
  Execution of Supplemental Indentures

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 SUCCESSOR ENTITY

  	
  28

  
	
  Section 10.01

  	
  Company May Consolidate, Etc.

  	
  28

  
	
  Section 10.02

  	
  Successor Entity Substituted

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 SATISFACTION AND DISCHARGE

  	
  29

  
	
  Section 11.01

  	
  Satisfaction and Discharge of Indenture

  	
  29

  
	
  Section 11.02

  	
  Discharge of Obligations

  	
  30

  
	
  Section 11.03

  	
  Deposited Moneys to be Held in Trust

  	
  30

  
	
  Section 11.04

  	
  Payment of Moneys Held by Paying Agents

  	
  30

  
	
  Section 11.05

  	
  Repayment to Company

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
  OFFICERS AND DIRECTORS

  	
  30

  
	
  Section 12.01

  	
  No Recourse

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 MISCELLANEOUS PROVISIONS

  	
  31

  
	
  Section 13.01

  	
  Effect on Successors and Assigns

  	
  31

  
	
  Section 13.02

  	
  Actions by Successor

  	
  31

  
	
  Section 13.03

  	
  Surrender of Company Powers

  	
  31

  
	
  Section 13.04

  	
  Notices

  	
  31

  
				



 


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  PAGE

  
	
   

  	
   

  	
   

  
	
  Section 13.05

  	
   

  	
  Governing Law

  	
  31

  
	
  Section 13.06

  	
   

  	
  Treatment of Securities as Debt

  	
  32

  
	
  Section 13.07

  	
   

  	
  Certificates and Opinions as to Conditions Precedent

  	
  32

  
	
  Section 13.08

  	
   

  	
  Payments on Business Days

  	
  32

  
	
  Section 13.09

  	
   

  	
  Conflict with Trust Indenture Act

  	
  32

  
	
  Section 13.10

  	
   

  	
  Counterparts

  	
  32

  
	
  Section 13.11

  	
   

  	
  Separability

  	
  32

  
	
  Section 13.12

  	
   

  	
  Compliance Certificates

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14 SUBORDINATION OF SECURITIES

  	
  33

  
	
  Section 14.01

  	
   

  	
  Subordination Terms

  	
  33

  



 


	
  (1)

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

  	
   

  



 


iv

















 


INDENTURE


 


INDENTURE, dated as of [·],
200      , among OPTIMER PHARMACEUTICALS, INC., a Delaware corporation (the “Company”),
and [TRUSTEE], as trustee (the “Trustee”):


 


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


 


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


 


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


 


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


 


ARTICLE
1


 


DEFINITIONS


 


Section 1.01
Definitions of Terms.


 


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


 


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


 


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


 


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


 


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


 


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


 


1

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof and shall include the terms of
particular series of Securities established as contemplated by Section 2.01.


 


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


 


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


 


2

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3

















 


“Voting
Stock”, as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.


 


ARTICLE
2


 


ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND


EXCHANGE
OF SECURITIES


 


Section 2.01
Designation and Terms of Securities.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


(11) any and all other terms (including terms,
to the extent applicable, relating to any auction or remarketing of the
Securities of that series and any security for the obligations of the Company
with respect to such Securities) with respect to such series (which terms shall
not be inconsistent with the terms of this Indenture, as amended by any
supplemental indenture) including any terms which may be required by or
advisable under United States laws or regulations or advisable in connection
with the marketing of Securities of that series;


 


(12) whether the Securities of the series
shall be issued in whole or in part in the form of a Global Security or
Securities; the terms and conditions, if any, upon which such Global Security
or Securities may be exchanged in whole or in part for other individual
Securities; and the Depositary for such Global Security or Securities;


 


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


 


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


 


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


 


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


 


(17) whether
interest will be payable in cash or additional Securities at the Company’s or
the Securityholders’ option and the terms and conditions upon which the
election may be made;


 


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


 


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


 


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


 


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


 


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


 


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


 


5
















 


Section 2.02
Form of Securities and Trustee’s Certificate.


 


The Securities of any
series and the Trustee’s certificate of authentication to be borne by such
Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution,
and set forth in an Officer’s Certificate, and they may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to
conform to usage.


 


Section 2.03
Denominations: Provisions for Payment.


 


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


 


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


 


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


 


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


 


(2) The Company may make payment of any
Defaulted Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, 


 


6

















 


and upon such notice as
may be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.


 


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


 


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


 


Section 2.04
Execution and Authentications.


 


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


 


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


 


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


 


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


 


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


 


Section 2.05
Registration of Transfer and Exchange.


 


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


 


(b) The Company shall keep, or cause to be
kept, at its office or agency designated for such purpose, or such other
location designated by the Company, a register or registers (herein referred to
as the “Security Register”) in which, subject to such reasonable regulations as



 


7

















 


it may prescribe, the
Company shall register the Securities and the transfers of Securities as in
this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Securities and transfer of Securities as herein provided shall be appointed as
authorized by Board Resolution (the “Security Registrar”).


 


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


 


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


 


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


 


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


 


The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among depositary participants or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.


 


Section 2.06
Temporary Securities.


 


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


 


Section 2.07
Mutilated, Destroyed, Lost or Stolen Securities.


 


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


 


8

















 


Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted
Security and deliver the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted Security, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.


 


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


 


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


 


Section 2.08
Cancellation.


 


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


 


Section 2.09
Benefits of Indenture.


 


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


 


Section 2.10
Authenticating Agent.


 


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


 


9

















 


federal or state
authorities. If at any time any Authenticating Agent shall cease to be eligible
in accordance with these provisions, it shall resign immediately.


 


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


 


Section 2.11
Global Securities.


 


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


 


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


 


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


 


10

















 


ARTICLE
3


 


REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS


 


Section 3.01
Redemption.


 


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


 


Section 3.02
Notice of Redemption.


 


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


 


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


 


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


 


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


 


11

















 


Section 3.03
Payment Upon Redemption.


 


(a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of
Securities of the series to be redeemed specified in such notice shall become
due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption and interest on such Securities or portions of Securities shall
cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest with
respect to any such Security or portion thereof. On presentation and surrender
of such Securities on or after the date fixed for redemption at the place of
payment specified in the notice, said Securities shall be paid and redeemed at
the applicable redemption price for such series, together with interest accrued
thereon to the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).


 


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


 


Section 3.04
Sinking Fund.


 


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


 


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


 


Section 3.05
Satisfaction of Sinking Fund Payments with Securities.


 


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


 


Section 3.06
Redemption of Securities for Sinking Fund.


 


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


 


12

















 


ARTICLE
4


 


COVENANTS


 


Section 4.01
Payment of Principal, Premium and Interest.


 


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


 


Section 4.02
Maintenance of Office or Agency.


 


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


 


Section 4.03
Paying Agents.


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


Section 4.04
Appointment to Fill Vacancy in Office of Trustee.


 


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


 


Section 4.05
Compliance with Consolidation Provisions.


 


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


 


ARTICLE
5


 


SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE


 


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


 


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


 


Section 5.02
Preservation Of Information; Communications With Securityholders.


 


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


 


14
















 


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


 


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


 


     Section 5.03 Reports by the Company.


 


     The
Company covenants and agrees to provide a copy to the Trustee, after the
Company files the same with the Securities and Exchange Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Securities and Exchange
Commission may from time to time by rules and regulations prescribe) that
the Company files with the Securities and Exchange Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; provided, however,
the Company shall not be required to deliver to the Trustee any materials for
which the Company has sought and received confidential treatment by the Securities
and Exchange Commission; and provided further, that so long as such
filings by the Company are available on the Securities and Exchange
Commission’s Electronic Data Gathering, Analysis and Retrieval System (EDGAR),
or Interactive Data Electronic Applications (IDEA), or any successor system,
such filings shall be deemed to have been filed with the Trustee for purposes
hereof without any further action required by the Company; provided that an
electronic link to such filing, together with an electronic notice of such
filing have been sent to the Trustee.  For the avoidance of doubt, a
failure by the Company to file annual reports, information and other reports
with the Securities and Exchange Commission within the time period prescribed
thereof by the Securities and Exchange Commission shall not be deemed a breach
of this Section 5.03.


 


     Section 5.04 Reports by the Trustee.


 


          (a) If required by Section 313(a) of
the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1,
shall transmit by mail, first class postage prepaid, to the Securityholders, as
their names and addresses appear upon the Security Register, a brief report
dated as of such May 1, which complies with Section 313(a) of
the Trust Indenture Act.


 


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


 


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


 


ARTICLE 6


 


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT
OF DEFAULT


 


     Section 6.01 Events of Default.


 


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


 


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


 


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


 


               (3) the Company fails to observe or
perform any other of its covenants or agreements with respect to that series
contained in this Indenture or otherwise established with respect to that
series of Securities pursuant to Section 2.01 hereof (other than a
covenant or agreement that has been expressly included in this Indenture solely
for 


 


15

















 


the
benefit of one or more series of Securities other than such series) for a
period of 90 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is a “Notice of
Default” hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the holders
of at least 25% in principal amount of the Securities of that series at the
time Outstanding;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


          (a) The Company covenants that (i) in
case it shall default in the payment of any installment of interest on any of
the Securities of a series, or in any payment required by any sinking or
analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a 


 


16

















 


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


 


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


 


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


 


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


 


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


 


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


 


     Section 6.03 Application of Moneys Collected.


 


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


 


17

















 


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


 


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


 


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


 


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


 


     Section 6.04 Limitation on Suits.


 


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


 


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


 


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


 


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


 


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


 


18

















 


     Section 6.06 Control by Securityholders.


 


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


 


     Section 6.07 Undertaking to Pay Costs.


 


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


 


ARTICLE 7


 


CONCERNING THE TRUSTEE


 


     Section 7.01 Certain Duties and Responsibilities
of Trustee.


 


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


 


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


 


19

















 


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


 


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


 


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


 


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


 


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


 


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


 


     Section 7.02 Certain Rights of Trustee.


 


     Except
as otherwise provided in Section 7.01:


 


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


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


          (h) In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond
its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances;


 


          (i) In no event shall the Trustee be
responsible or liable for special, indirect, or consequential loss or damage of
any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action; and


 


          (j) The Trustee agrees to accept and
act upon instructions or directions pursuant to this Indenture sent by
unsecured e-mail, facsimile transmission or other similar unsecured electronic
methods; provided, however, that (a) the party providing such written
instructions, subsequent to such transmission of written instructions, shall
provide the originally executed instructions or directions to the Trustee in a
timely manner, and (b) such originally executed instructions or directions
shall be signed by an authorized representative of the party providing such
instructions or directions.  If the party elects to give the Trustee
e-mail or facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions,
the Trustee’s understanding of such instructions shall be deemed
controlling.  The Trustee shall not be liable for any losses, costs
or expenses arising directly or indirectly from the Trustee’s reliance upon and
compliance with such instructions notwithstanding such instructions conflict or
are inconsistent with a subsequent written instruction.  The party
providing electronic instructions agrees to assume all risks arising out of the
use of such electronic methods to submit instructions and directions to the
Trustee, including without limitation the risk of the Trustee acting on
unauthorized instructions, and the risk or interception and misuse by third
parties.


 


     In
addition, the Trustee shall not be deemed to have knowledge of any Event of
Default except (1) any Event of Default occurring pursuant to
Sections 6.01(a)(1) and 6.01(a)(2) or (2) any Event of
Default of which the Trustee shall have received written notification in the
manner set forth in this Indenture or a Responsible Officer of the Trustee
shall have obtained actual knowledge. 


 


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


 


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


 


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


 


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


 


     Section 7.04 May Hold Securities.


 


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


 


     Section 7.05 Moneys Held in Trust.


 


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


 


     Section 7.06 Compensation and Reimbursement.


 


          (a) The Company covenants and agrees
to pay to the Trustee, and the Trustee shall be entitled to, such reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a 


 


21

















 


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


 


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


 


     Section 7.07 Reliance on Officer’s Certificate.


 


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


 


     Section 7.08 Disqualification; Conflicting
Interests.


 


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


 


     Section 7.09 Corporate Trustee Required;
Eligibility.


 


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


 


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


 


     Section 7.10 Resignation and Removal; Appointment
of Successor.


 


          (a) The Trustee or any successor
hereafter appointed may at any time resign with respect to the Securities of
one or more series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, 


 


22

















 


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


 


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


 


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


 


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


 


               (iii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence
a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its
property shall be appointed or consented to, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation; then, in any such case, the
Company may remove the Trustee with respect to all Securities and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities for at least six
months may, on behalf of that holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.


 


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


 


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


 


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


 


     Section 7.11 Acceptance of Appointment By
Successor.


 


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


 


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


 


23

















 


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


 


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


 


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


 


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


 


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


 


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


 


     Section 7.13 Preferential Collection of Claims
Against the Company.


 


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


 


24

















 


     Section 7.14 Notice of Default


 


     If
any Event of Default occurs and is continuing and if such Event of Default is
known to a Responsible Officer of the Trustee, the Trustee shall mail to each
Securityholder in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act notice of the Event of Default within 45 days
after it occurs and 30 days after it is known to a Responsible Officer of
the Trustee or written notice of it is received by the Trustee, unless such
Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Securityholders.


 


ARTICLE 8


 


CONCERNING THE SECURITYHOLDERS


 


     Section 8.01 Evidence of Action by
Securityholders.


 


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


 


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


 


     Section 8.02 Proof of Execution by
Securityholders.


 


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


 


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


 


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


 


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


 


25
















 


     Section 8.03 Who May be Deemed Owners.


 


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


 


     Section 8.04 Certain Securities Owned by Company
Disregarded.


 


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


 


     Section 8.05 Actions Binding on Future
Securityholders.


 


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


 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


     Section 9.01 Supplemental Indentures Without the
Consent of Securityholders.


 


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


 


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


 


          (b)   to
comply with Article Ten;


 


26

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


     Section 9.02 Supplemental Indentures With Consent
of Securityholders.


 


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


 


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


 


     Section 9.03 Effect of Supplemental Indentures.


 


     Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, this Indenture shall, with respect to such series, be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of 


 


27

















 


the
Trustee, the Company and the holders of Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.


 


     Section 9.04 Securities Affected by Supplemental
Indentures.


 


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


 


     Section 9.05 Execution of Supplemental Indentures.


 


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


 


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


 


ARTICLE 10


 


SUCCESSOR ENTITY


 


     Section 10.01 Company May Consolidate, Etc.


 


     Nothing
contained in this Indenture shall prevent any consolidation or merger of the
Company with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however, (a) the
Company hereby covenants and agrees that, upon any such consolidation or merger
(in each case, if the Company is not the survivor of such transaction), sale,
conveyance, transfer or other disposition, the due and punctual payment of the
principal of (premium, if any) and interest on all of the Securities of all
series in accordance with the terms of each series, according to their tenor,
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or performed by
the Company shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture 


 


28

















 


Act,
as then in effect) reasonably satisfactory in form to the Trustee executed and
delivered to the Trustee by the entity formed by such consolidation, or into
which the Company shall have been merged, or by the entity which shall have
acquired such property and (b) in the event that the Securities of any
series then Outstanding are convertible into or exchangeable for shares of
common stock or other securities of the Company, such entity shall, by such
supplemental indenture, make provision so that the Securityholders of
Securities of that series shall thereafter be entitled to receive upon
conversion or exchange of such Securities the number of securities or property
to which a holder of the number of shares of common stock or other securities
of the Company deliverable upon conversion or exchange of those Securities
would have been entitled had such conversion or exchange occurred immediately
prior to such consolidation, merger, sale, conveyance, transfer or other
disposition.


 


     Section 10.02 Successor Entity Substituted.


 


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


 


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


 


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


 


ARTICLE 11


 


SATISFACTION AND DISCHARGE


 


     Section 11.01 Satisfaction and Discharge of
Indenture.


 


     If
at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated and not
delivered to the Trustee for cancellation (other than any Securities that shall
have been destroyed, lost or stolen and that shall have been replaced or paid
as provided in Section 2.07 and Securities for whose payment money or
Governmental Obligations have theretofore been deposited in trust or segregated
and held in trust by the Company and thereupon repaid to the Company or
discharged from such trust, as provided in Section 11.05); or (b) all
such Securities of a particular series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and the Company shall deposit or cause to be deposited
with the Trustee as trust funds the entire amount in moneys or Governmental
Obligations or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay at maturity or upon
redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease 


 


29

















 


to
be of further effect with respect to such series except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until
the date of maturity or redemption date, as the case may be, and
Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the
Company shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such series.


 


     Section 11.02 Discharge of Obligations.


 


     If
at any time all such Securities of a particular series not heretofore delivered
to the Trustee for cancellation or that have not become due and payable as
described in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an amount of
Governmental Obligations sufficient to pay at maturity or upon redemption all
such Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to
such date of maturity or date fixed for redemption, as the case may be, and if
the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company with respect to such series, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with the Trustee
the obligations of the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions of
Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof
that shall survive until such Securities shall mature and be paid.


 


     Thereafter,
Sections 7.06 and 11.05 shall survive.


 


     Section 11.03 Deposited Moneys to be Held in
Trust.


 


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


 


     Section 11.04 Payment of Moneys Held by Paying
Agents.


 


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


 


     Section 11.05 Repayment to Company.


 


     Any
moneys or Governmental Obligations deposited with any paying agent or the
Trustee, or then held by the Company, in trust for payment of principal of or
premium, if any, or interest on the Securities of a particular series that are
not applied but remain unclaimed by the holders of such Securities for at least
two years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have respectively become due and payable, or
such other shorter period set forth in applicable escheat or abandoned or
unclaimed property law, shall be repaid to the Company on May 31 of each
year or upon the Company’s request or (if then held by the Company) shall be
discharged from such trust; and thereupon the paying agent and the Trustee
shall be released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities entitled to
receive such payment shall thereafter, as a general creditor, look only to the
Company for the payment thereof.


 


ARTICLE 12


 


IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS


 


     Section 12.01 No Recourse.


 


     No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or 


 


30

















 


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


 


ARTICLE 13


 


MISCELLANEOUS PROVISIONS


 


     Section 13.01 Effect on Successors and Assigns.


 


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


 


     Section 13.02 Actions by Successor.


 


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


 


     Section 13.03 Surrender of Company Powers.


 


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


 


     Section 13.04 Notices.


 


     Except
as otherwise expressly provided herein, any notice, request or demand that by
any provision of this Indenture is required or permitted to be given, made or
served by the Trustee or by the holders of Securities or by any other Person
pursuant to this Indenture to or on the Company may be given or served by being
deposited in first class mail, postage prepaid, addressed (until another
address is filed in writing by the Company with the Trustee), as follows: 10110
Sorrento Valley Road, Suite C, San Diego, California,  92121, Attn: Corporate Secretary. Any notice,
election, request or demand by the Company or any Securityholder or by any
other Person pursuant to this Indenture to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.


 


     Section 13.05 Governing Law.


 


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


 


31

















 


     Section 13.06 Treatment of Securities as Debt.


 


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


 


     Section 13.07 Certificates and Opinions as to
Conditions Precedent.


 


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


 


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


 


     Section 13.08 Payments on Business Days.


 


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


 


     Section 13.09 Conflict with Trust Indenture Act.


 


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


 


     Section 13.10 Counterparts.


 


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


 


     Section 13.11 Separability.


 


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


 


     Section 13.12 Compliance Certificates.


 


     The
Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year during which any Securities of any series were outstanding, an
officer’s certificate stating whether or not the signers know of any Event of
Default that occurred during such fiscal year. Such certificate shall contain a
certification from 


 


32

















 


the
principal executive officer, principal financial officer or principal
accounting officer of the Company that a review has been conducted of the
activities of the Company and the Company’s performance under this Indenture
and that the Company has complied with all conditions and covenants under this
Indenture. For purposes of this Section 13.12, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. If the officer of the Company signing such
certificate has knowledge of such Event of Default, the certificate shall
describe any such Event of Default and its status.


 


ARTICLE 14


 


SUBORDINATION OF SECURITIES


 


     Section 14.01 Subordination Terms.


 


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


 


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


 


	
   

  	
  OPTIMER PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [TRUSTEE], as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


33





















 


CROSS-REFERENCE TABLE (1)


 


	
  Section of Trust Indenture Act of 1939, as Amended

  	
   

  	
  Section of Indenture

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13

  
	
  311(b)

  	
   

  	
  7.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.01

  
	
   

  	
   

  	
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(c)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a)

  
	
   

  	
   

  	
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  
	
   

  	
   

  	
  13.12

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.07(a)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.07(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a)

  
	
   

  	
   

  	
  7.01(b)

  
	
  315(b)

  	
   

  	
  7.14

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
  315(e)

  	
   

  	
  6.07

  
	
  316(a)

  	
   

  	
  6.06

  
	
   

  	
   

  	
  8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  13.09

  



 






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


 


34