EXHIBIT 4.7


 


OPTIMER PHARMACEUTICALS, INC.

ISSUER


AND


[TRUSTEE],

TRUSTEE


 


INDENTURE


 


DATED AS OF [      ],
200


SENIOR 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

  	
  5

  
	
  Section 2.03

  	
  Denominations:
  Provisions For Payment

  	
  6

  
	
  Section 2.04

  	
  Execution
  And Authentications

  	
  7

  
	
  Section 2.05

  	
  Registration
  Of Transfer And Exchange

  	
  7

  
	
  Section 2.06

  	
  Temporary
  Securities

  	
  8

  
	
  Section 2.07

  	
  Mutilated,
  Destroyed, Lost Or Stolen Securities

  	
  8

  
	
  Section 2.08

  	
  Cancellation

  	
  9

  
	
  Section 2.09

  	
  Benefits
  Of Indenture

  	
  9

  
	
  Section 2.10

  	
  Authenticating
  Agent

  	
  9

  
	
  Section 2.11

  	
  Global
  Securities

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS

  	
  10

  
	
  Section 3.01

  	
  Redemption

  	
  10

  
	
  Section 3.02

  	
  Notice
  Of Redemption

  	
  10

  
	
  Section 3.03

  	
  Payment
  Upon Redemption

  	
  11

  
	
  Section 3.04

  	
  Sinking
  Fund

  	
  12

  
	
  Section 3.05

  	
  Satisfaction
  Of Sinking Fund Payments With Securities

  	
  12

  
	
  Section 3.06

  	
  Redemption
  Of Securities For Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4 COVENANTS

  	
  12

  
	
  Section 4.01

  	
  Payment
  Of Principal, Premium And Interest

  	
  12

  
	
  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

  
	
  Section 5.01

  	
  Company
  To Furnish Trustee Names And Addresses Of Securityholders

  	
  14

  
	
  Section 5.02

  	
  Preservation
  Of Information; Communications With Securityholders

  	
  14

  
	
  Section 5.03

  	
  Reports
  By The Company

  	
  14

  
	
  Section 5.04

  	
  Reports
  By The Trustee

  	
  15

  
	
   

  	
   

  	
   

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

  	
  15

  
	
  Section 6.01

  	
  Events
  Of Default

  	
  15

  
	
  Section 6.02

  	
  Collection
  Of Indebtedness And Suits For Enforcement By Trustee

  	
  16

  
	
  Section 6.03

  	
  Application
  Of Moneys Collected

  	
  17

  
	
  Section 6.04

  	
  Limitation
  On Suits

  	
  17

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
  Section 6.05

  	
  Rights
  And Remedies Cumulative; Delay Or Omission Not Waiver

  	
  18

  
	
  Section 6.06

  	
  Control
  By Securityholders

  	
  18

  
	
  Section 6.07

  	
  Undertaking
  To Pay Costs

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7 CONCERNING THE TRUSTEE 

  	
  19

  
	
  Section 7.01

  	
  Certain
  Duties And Responsibilities Of Trustee

  	
  19

  
	
  Section 7.02

  	
  Certain
  Rights Of Trustee

  	
  20

  
	
  Section 7.03

  	
  Trustee
  Not Responsible For Recitals Or Issuance Or Securities

  	
  21

  
	
  Section 7.04

  	
  May Hold
  Securities

  	
  21

  
	
  Section 7.05

  	
  Moneys
  Held In Trust

  	
  21

  
	
  Section 7.06

  	
  Compensation
  And Reimbursement

  	
  21

  
	
  Section 7.07

  	
  Reliance
  On Officers’ Certificate

  	
  22

  
	
  Section 7.08

  	
  Disqualification;
  Conflicting Interests

  	
  22

  
	
  Section 7.09

  	
  Corporate
  Trustee Required; Eligibility

  	
  22

  
	
  Section 7.10

  	
  Resignation
  And Removal; Appointment Of Successor

  	
  22

  
	
  Section 7.11

  	
  Acceptance
  Of Appointment By Successor

  	
  23

  
	
  Section 7.12

  	
  Merger,
  Conversion, Consolidation Or Succession To Business

  	
  24

  
	
  Section 7.13

  	
  Preferential
  Collection Of Claims Against The Company

  	
  24

  
	
  Section 7.14

  	
  Notice
  Of Default

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8 CONCERNING THE SECURITYHOLDERS

  	
  25

  
	
  Section 8.01

  	
  Evidence
  Of Action By Securityholders

  	
  25

  
	
  Section 8.02

  	
  Proof
  Of Execution By Securityholders

  	
  25

  
	
  Section 8.03

  	
  Who
  May Be Deemed Owners

  	
  25

  
	
  Section 8.04

  	
  Certain
  Securities Owned By Company Disregarded

  	
  25

  
	
  Section 8.05

  	
  Actions
  Binding On Future Securityholders

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9 SUPPLEMENTAL INDENTURES

  	
  26

  
	
  Section 9.01

  	
  Supplemental
  Indentures Without The Consent Of Securityholders

  	
  26

  
	
  Section 9.02

  	
  Supplemental
  Indentures With Consent Of Securityholders

  	
  27

  
	
  Section 9.03

  	
  Effect
  Of Supplemental Indentures

  	
  27

  
	
  Section 9.04

  	
  Securities
  Affected By Supplemental Indentures

  	
  27

  
	
  Section 9.05

  	
  Execution
  Of Supplemental Indentures

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10 SUCCESSOR ENTITY

  	
  28

  
	
  Section 10.01

  	
  Company
  May Consolidate, Etc.

  	
  28

  
	
  Section 10.02

  	
  Successor
  Entity Substituted

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11 SATISFACTION AND DISCHARGE

  	
  29

  
	
  Section 11.01

  	
  Satisfaction
  And Discharge Of Indenture

  	
  29

  
	
  Section 11.02

  	
  Discharge
  Of Obligations

  	
  29

  
	
  Section 11.03

  	
  Deposited
  Moneys To Be Held In Trust

  	
  30

  
	
  Section 11.04

  	
  Payment
  Of Moneys Held By Paying Agents

  	
  30

  
	
  Section 11.05

  	
  Repayment
  To Company

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  30

  
	
  Section 12.01

  	
  No
  Recourse

  	
  30

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
  ARTICLE
  13 MISCELLANEOUS PROVISIONS

  	
  31

  
	
  Section 13.01

  	
  Effect
  On Successors And Assigns

  	
  31

  
	
  Section 13.02

  	
  Actions
  By Successor

  	
  31

  
	
  Section 13.03

  	
  Surrender
  Of Company Powers

  	
  31

  
	
  Section 13.04

  	
  Notices

  	
  31

  
	
  Section 13.05

  	
  Governing
  Law

  	
  31

  
	
  Section 13.06

  	
  Treatment
  Of Securities As Debt

  	
  31

  
	
  Section 13.07

  	
  Certificates
  And Opinions As To Conditions Precedent

  	
  31

  
	
  Section 13.08

  	
  Payments
  On Business Days

  	
  32

  
	
  Section 13.09

  	
  Conflict
  With Trust Indenture Act

  	
  32

  
	
  Section 13.10

  	
  Counterparts

  	
  32

  
	
  Section 13.11

  	
  Separability

  	
  32

  
	
  Section 13.12

  	
  Compliance
  Certificates

  	
  32

  



 






(1) 
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.


 


iii

















 


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
debt securities (hereinafter referred to as the “Securities”), in an unlimited
aggregate principal amount to be issued from time to time in one or more series
as in this Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;


 


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


 


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


 


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


 


ARTICLE 1


DEFINITIONS


 


Section 1.01 Definitions Of Terms.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Company” means
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.


 


1

















 


“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.


 


“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. 


 


2

















 


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.


 


“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.


 


3

















 


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;


 


                         (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;


 


4

















 


                         (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;
and


 


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


 


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


 


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


 


     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.


 


5

















 


    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, 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.


 


6
















 


     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
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.


 


7

















 


     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 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



 


8

















 


Company
and the Trustee such security or indemnity as they may require to save them
harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Security and of the ownership thereof.


 


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


 


     Section 2.08 Cancellation.


 


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


 


     Section 2.09 Benefits Of Indenture.


 


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


 


     Section 2.10 Authenticating Agent.


 


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


 


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


 


9

















 


     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.


 


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 


 


10

















 


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.


 


     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 


 


11

















 


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.


 


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 


 


12

















 


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.


 


          (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 


 


13

















 


paying
agent to pay, to the Trustee all sums held in trust by the Company or such
paying agent, such sums to be held by the Trustee upon the same terms and
conditions as those upon which such sums were held by the Company or such
paying agent; and, upon such payment by the Company or any paying agent to the
Trustee, the Company or such paying agent shall be released from all further
liability with respect to such money.


 


     Section 4.04 Appointment To Fill Vacancy In
Office Of Trustee.


 


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


 


     Section 4.05 Compliance With
Consolidation Provisions.


 


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


 


ARTICLE 5


 


SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE


 


     Section 5.01 Company To Furnish Trustee Names And
Addresses Of Securityholders.


 


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


 


     Section 5.02 Preservation Of Information;
Communications With Securityholders.


 


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


 


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


 


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


 


     Section 5.03 Reports By The Company.


 


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


 


14

















 


     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 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.


 


15

















 


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


 


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


 


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


 


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


 


     Section 6.02 Collection Of Indebtedness And Suits
For Enforcement By Trustee.


 


          (a) The Company covenants that (i) in
case it shall default in the payment of any installment of interest on any of
the Securities of a series, or in any payment required by any sinking or
analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a
period of 90 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.


 


16
















 


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


 


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


 


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


 


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


 


     Section 6.03 Application Of Moneys Collected.


 


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


 


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


 


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


 


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


 


     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 


 


17

















 


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


 


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


 


     Section 6.05 Rights And Remedies Cumulative;
Delay Or Omission Not Waiver.


 


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


 


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


 


     Section 6.06 Control By Securityholders.


 


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


 


18

















 


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


 


     Section 6.07 Undertaking To Pay Costs.


 


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


 


ARTICLE 7


 


CONCERNING THE TRUSTEE


 


     Section 7.01 Certain Duties And Responsibilities
Of Trustee.


 


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


 


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


 


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


 


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


 


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


 


               (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;


 


19

















 


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


 


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


 


     Section 7.02 Certain Rights Of Trustee. Except
as otherwise provided in Section 7.01:


 


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


 


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


 


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


 


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


 


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


 


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


 


          (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 


 


20

















 


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 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 additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities.


 


21

















 


     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, 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


 


22

















 


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


 


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


 


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


 


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


 


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


 


     Section 7.11 Acceptance Of Appointment By
Successor.


 


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


 


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


 


23

















 


powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee
relates; but, on request of the Company or any successor trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor trustee, to
the extent contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor trustee relates.


 


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


 


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


 


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


 


     Section 7.12 Merger, Conversion, Consolidation Or
Succession To Business.


 


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


 


     Section 7.13 Preferential Collection Of Claims
Against The Company.


 


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


 


     Section 7.14 Notice Of Default.


 


     If
any 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.


 


24

















 


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.


 


     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 


 


25

















 


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


 


     Section 8.05 Actions Binding On Future
Securityholders.


 


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


 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


     Section 9.01 Supplemental Indentures Without The
Consent Of Securityholders.


 


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


 


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


 


          (b) to comply with Article Ten;


 


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


 


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


 


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


 


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


 


26
















 


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


 


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


 


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


 


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


 


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


 


     Section 9.02 Supplemental Indentures With Consent
Of Securityholders.


 


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


 


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


 


     Section 9.03 Effect Of Supplemental Indentures.


 


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


 


     Section 9.04 Securities Affected By Supplemental
Indentures.


 


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


 


27

















 


     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 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


 


28

















 


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 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


 


29

















 


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
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.


 


30

















 


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. Any notice,
election, request or demand by the Company or any Securityholder or by any
other Person pursuant to this Indenture to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.


 


     Section 13.05 Governing Law.


 


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


 


     Section 13.06 Treatment Of Securities As Debt.


 


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


 


     Section 13.07 Certificates And Opinions As To
Conditions Precedent.


 


          (a) Upon any application or demand by
the Company to the Trustee to take any action under any of the provisions of
this Indenture, the Company shall furnish to the Trustee an 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.


 


31

















 


          (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 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.


 


32

















 


     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