EXHIBIT
4.1


 


FORM OF SENIOR INDENTURE


 


	
   

  



 


MOMENTA PHARMACEUTICALS, INC.,


 


ISSUER


 


and


 


[                  
],


 


TRUSTEE


 






 


INDENTURE


 


Dated as of [                ], 20[  ]


 






 


Senior Debt Securities


	
   

  



 

















 


CROSS-REFERENCE TABLE(1)


 


	
  Section of
  

  Trust Indenture Act 

  of 1939, as amended

  	
   

  	
  Section of 

  Indenture

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08

  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13

  
	
  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(b)

  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  13.05(c)

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.05

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.05

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(b)

  7.02

  
	
  315(b)

  	
   

  	
  5.04(d)

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01

  7.02

  
	
  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)

  	
   

  	
  13.06

  



 






(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.


 

















 


TABLE OF CONTENTS(2)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
   

  	
  Definitions of Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
   

  	
  Designation and Terms
  of Securities

  	
   

  	
  5

  
	
  SECTION 2.02

  	
   

  	
  Form of Securities
  and Trustee’s Certificate

  	
   

  	
  7

  
	
  SECTION 2.03

  	
   

  	
  Denominations;
  Provisions for Payment

  	
   

  	
  7

  
	
  SECTION 2.04

  	
   

  	
  Execution and
  Authentications

  	
   

  	
  9

  
	
  SECTION 2.05

  	
   

  	
  Registration of
  Transfer and Exchange

  	
   

  	
  10

  
	
  SECTION 2.06

  	
   

  	
  Temporary Securities

  	
   

  	
  11

  
	
  SECTION 2.07

  	
   

  	
  Mutilated, Destroyed,
  Lost or Stolen Securities

  	
   

  	
  11

  
	
  SECTION 2.08

  	
   

  	
  Cancellation

  	
   

  	
  12

  
	
  SECTION 2.09

  	
   

  	
  Benefits of Indenture

  	
   

  	
  12

  
	
  SECTION 2.10

  	
   

  	
  Authenticating Agent

  	
   

  	
  12

  
	
  SECTION 2.11

  	
   

  	
  Global Securities

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III REDEMPTION
  OF SECURITIES AND SINKING FUND PROVISIONS

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
   

  	
  Redemption

  	
   

  	
  14

  
	
  SECTION 3.02

  	
   

  	
  Notice of Redemption

  	
   

  	
  14

  
	
  SECTION 3.03

  	
   

  	
  Payment upon Redemption

  	
   

  	
  15

  
	
  SECTION 3.04

  	
   

  	
  Sinking Fund

  	
   

  	
  16

  
	
  SECTION 3.05

  	
   

  	
  Satisfaction of Sinking
  Fund Payments with Securities

  	
   

  	
  16

  
	
  SECTION 3.06

  	
   

  	
  Redemption of
  Securities for Sinking Fund

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV COVENANTS

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
   

  	
  Payment of Principal,
  Premium and Interest.

  	
   

  	
  17

  
	
  SECTION 4.02

  	
   

  	
  Maintenance of Office
  or Agency

  	
   

  	
  17

  
	
  SECTION 4.03

  	
   

  	
  Paying Agents

  	
   

  	
  17

  
	
  SECTION 4.04

  	
   

  	
  Appointment to Fill
  Vacancy in Office of Trustee

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01

  	
   

  	
  Company to Furnish
  Trustee Names and Addresses of Securityholders

  	
   

  	
  19

  
	
  SECTION 5.02

  	
   

  	
  Preservation of
  Information; Communications with Securityholders

  	
   

  	
  19

  



 


ii

















 


	
  SECTION 5.03

  	
   

  	
  Reports by the Company

  	
   

  	
  19

  
	
  SECTION 5.04

  	
   

  	
  Reports by the Trustee

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
   

  	
  Events of Default

  	
   

  	
  21

  
	
  SECTION 6.02

  	
   

  	
  Suits for Enforcement
  by Trustee

  	
   

  	
  22

  
	
  SECTION 6.03

  	
   

  	
  Application of Moneys
  Collected

  	
   

  	
  23

  
	
  SECTION 6.04

  	
   

  	
  Limitation on Suits

  	
   

  	
  24

  
	
  SECTION 6.05

  	
   

  	
  Rights and Remedies
  Cumulative; Delay or Omission Not Waiver

  	
   

  	
  25

  
	
  SECTION 6.06

  	
   

  	
  Control by
  Securityholders

  	
   

  	
  25

  
	
  SECTION 6.07

  	
   

  	
  Undertaking to Pay
  Costs

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII CONCERNING
  THE TRUSTEE

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
   

  	
  Certain Duties and
  Responsibilities of Trustee

  	
   

  	
  26

  
	
  SECTION 7.02

  	
   

  	
  Certain Rights of
  Trustee

  	
   

  	
  27

  
	
  SECTION 7.03

  	
   

  	
  Trustee Not Responsible
  for Recitals or Issuance or Securities

  	
   

  	
  28

  
	
  SECTION 7.04

  	
   

  	
  May Hold
  Securities

  	
   

  	
  29

  
	
  SECTION 7.05

  	
   

  	
  Moneys Held in Trust.

  	
   

  	
  29

  
	
  SECTION 7.06

  	
   

  	
  Compensation and Reimbursement

  	
   

  	
  29

  
	
  SECTION 7.07

  	
   

  	
  Reliance on Officers’
  Certificate

  	
   

  	
  30

  
	
  SECTION 7.08

  	
   

  	
  Disqualification;
  Conflicting Interests

  	
   

  	
  30

  
	
  SECTION 7.09

  	
   

  	
  Corporate Trustee
  Required; Eligibility

  	
   

  	
  30

  
	
  SECTION 7.10

  	
   

  	
  Resignation and
  Removal; Appointment of Successor

  	
   

  	
  30

  
	
  SECTION 7.11

  	
   

  	
  Acceptance of
  Appointment by Successor

  	
   

  	
  32

  
	
  SECTION 7.12

  	
   

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
   

  	
  33

  
	
  SECTION 7.13

  	
   

  	
  Preferential Collection
  of Claims against the Company

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII CONCERNING
  THE SECURITYHOLDERS

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
   

  	
  Evidence of Action by
  Securityholders

  	
   

  	
  34

  
	
  SECTION 8.02

  	
   

  	
  Proof of Execution by
  Securityholders

  	
   

  	
  34

  
	
  SECTION 8.03

  	
   

  	
  Who May be Deemed
  Owners

  	
   

  	
  35

  
	
  SECTION 8.04

  	
   

  	
  Certain Securities
  Owned by Company Disregarded

  	
   

  	
  35

  
	
  SECTION 8.05

  	
   

  	
  Actions Binding on
  Future Securityholders

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX SUPPLEMENTAL
  INDENTURES

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
   

  	
  Supplemental Indentures
  without the Consent of Securityholders

  	
   

  	
  36

  
	
  SECTION 9.02

  	
   

  	
  Supplemental Indentures
  with Consent of Securityholders

  	
   

  	
  37

  
	
  SECTION 9.03

  	
   

  	
  Effect of Supplemental
  Indentures

  	
   

  	
  37

  
	
  SECTION 9.04

  	
   

  	
  Securities Affected by
  Supplemental Indentures

  	
   

  	
  38

  
	
  SECTION 9.05

  	
   

  	
  Execution of
  Supplemental Indentures

  	
   

  	
  38

  



 


iii

















 


	
  ARTICLE X SUCCESSOR
  ENTITY

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
   

  	
  Company
  May Consolidate, Etc.

  	
   

  	
  38

  
	
  SECTION 10.02

  	
   

  	
  Successor Entity
  Substituted

  	
   

  	
  39

  
	
  SECTION 10.03

  	
   

  	
  Evidence of
  Consolidation, Etc. to Trustee

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI SATISFACTION
  AND DISCHARGE

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01

  	
   

  	
  Satisfaction and Discharge
  of Indenture

  	
   

  	
  40

  
	
  SECTION 11.02

  	
   

  	
  Discharge of
  Obligations

  	
   

  	
  40

  
	
  SECTION 11.03

  	
   

  	
  Deposited Moneys to be
  Held in Trust

  	
   

  	
  41

  
	
  SECTION 11.04

  	
   

  	
  Payment of Moneys Held
  by Paying Agents

  	
   

  	
  41

  
	
  SECTION 11.05

  	
   

  	
  Repayment to Company

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII IMMUNITY OF
  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.01

  	
   

  	
  No Recourse

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII
  MISCELLANEOUS PROVISIONS

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.01

  	
   

  	
  Effect on Successors
  and Assigns

  	
   

  	
  42

  
	
  SECTION 13.02

  	
   

  	
  Actions by Successor

  	
   

  	
  42

  
	
  SECTION 13.03

  	
   

  	
  Notices

  	
   

  	
  42

  
	
  SECTION 13.04

  	
   

  	
  Governing Law

  	
   

  	
  43

  
	
  SECTION 13.05

  	
   

  	
  Compliance Certificates
  and Opinions

  	
   

  	
  43

  
	
  SECTION 13.06

  	
   

  	
  Payments on Business
  Days

  	
   

  	
  43

  
	
  SECTION 13.07

  	
   

  	
  Conflict with Trust
  Indenture Act

  	
   

  	
  44

  
	
  SECTION 13.08

  	
   

  	
  Counterparts

  	
   

  	
  44

  
	
  SECTION 13.09

  	
   

  	
  Separability

  	
   

  	
  44

  
	
  SECTION 13.10

  	
   

  	
  Assignment

  	
   

  	
  44

  



 






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


 


iv

















 


INDENTURE, dated as of
[      ], 20[  ], between Momenta Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”), and [        ], as trustee (the “Trustee”):


 


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


 


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


 


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


 


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


 


ARTICLE I


 


DEFINITIONS


 


SECTION 1.01                                      Definitions of Terms.


 


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


 


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


 


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


 


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


 

















 


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


 


“Business Day” means,
with respect to any series of Securities, any day other than a day on which
Federal or State banking institutions in the Borough of Manhattan, The City of
New York, are authorized or obligated by law, executive order or regulation to
close.


 


“Certificate” means a
certificate signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company.  The Certificate need not comply with the
provisions of Section 13.05.


 


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


 


“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate
trust business shall be principally administered, which office at the date
hereof is located at [                         
], except that whenever a provision herein refers to an office or agency
of the Trustee in the Borough of Manhattan, The City of New York, such office
is located, at the date hereof, at [                    ].


 


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


 


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


 


“Depositary” means, with respect
to Securities of any series, for which the Company shall determine that such
Securities will be issued as a Global Security, The Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a
clearing agency under the Securities 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.


 


“Foreign Currency” means
a currency issued by the government of a country other than the United States.


 


“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.


 


2

















 


“Governmental Obligations”
means securities that are (i) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged or (ii) obligations
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, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act
of 1933, as amended) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the custodian
in respect of the Governmental Obligation or the specific payment of principal
of or interest on the Governmental Obligation evidenced by such depositary
receipt.


 


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


 


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


 


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


 


“Officers’ Certificate”
means a certificate signed by the President or a Senior Vice President and by
the Treasurer or an Assistant Treasurer or the Controller or an Assistant
Controller or the Secretary or an Assistant Secretary of the Company that is
delivered to the Trustee in accordance with the terms hereof.  Each such certificate shall include the
statements provided for in Section 13.05, if and to the extent required by
the provisions thereof.


 


“Opinion of Counsel”
means an opinion in writing of legal counsel, who may be an employee of or
counsel for the Company, that is delivered to the Trustee in accordance with
the terms hereof.  Each such opinion
shall include the statements provided for in Section 13.05, 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 


 


3

















 


Company) or shall have
been set aside and segregated in trust by the Company (if the Company shall act
as its own paying agent); provided, however, that if such Securities or
portions of such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and (c) Securities in lieu of or in substitution for
which other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.07.


 


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


 


“Predecessor Security” of
any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered
under Section 2.07 in lieu of a 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 President, any Senior 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” means the
debt Securities authenticated and delivered under this Indenture.


 


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


 


“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.


 


4

















 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, subject to the provisions of
Sections 9.01, 9.02 and 10.01, as in effect at the date of execution of this instrument.


 


“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 the directors (or the equivalent)
of such Person, other than shares, interests, participations or other
equivalents having such power only by reason of the occurrence of a
contingency.


 


ARTICLE II


 


ISSUE, DESCRIPTION, TERMS, EXECUTION,

REGISTRATION AND EXCHANGE OF SECURITIES


 


SECTION 2.01                                      Designation and Terms of Securities.


 


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


 


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


 


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


 


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


 


(8)                                 the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any sinking fund 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 with respect to
such series (which terms shall not be inconsistent with the terms of this
Indenture, as amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or regulations or
advisable in connection with the marketing of Securities of that series;


 


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


 


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


 


(14)                          if other than U.S. dollars, the Foreign
Currency in which the Securities of that series are denominated;


 


(15)                          if other than the currency in which the
Securities of that series are denominated, the currency in which payment of the
principal of or interest on the Securities of such series shall be payable;


 


(16)                          if the principal of or interest on the
Securities of the series is to be payable, at the election of the Company or a
holder thereof, in a currency other than that in which the Securities are
denominated, the period or periods within which, and the terms and conditions
upon which, such election may be made;


 


(17)                          if the amount of payments of principal of
and interest on the Securities of the series may be determined with reference
to an index based on a currency other than that in which the Securities of the
series are denominated, the manner in which such amounts shall be determined;


 


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(18)         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; and


 


(19)         any additional or different Events of
Default or restrictive covenants provided for with respect to the Securities of
the series.


 


(b)           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.


 


(c)           If any of the terms of the series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers’ Certificate setting forth the terms of the
series.


 


(d)           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
as set forth in an Officers’ Certificate and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which Securities of that series may be listed, or to conform to usage.


 


SECTION 2.03               Denominations; Provisions for
Payment.


 


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


 


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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 


 


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“regular record date” as
used in this Section with respect to a series of Securities with respect
to any Interest Payment Date for such series shall mean either the fifteenth
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or the last
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the fifteenth day of a month, whether
or not such date is a Business Day.


 


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


 


SECTION 2.04               Execution and Authentications.


 


The Securities shall be
signed on behalf of the Company by its President, or one of its Senior Vice
Presidents, or its Treasurer, or one of its Assistant Treasurers, or its
Secretary, or one of its Assistant Secretaries, under its corporate seal
attested by its Secretary or one of its Assistant Secretaries.  Signatures may be in the form of a manual or
facsimile signature.  The Company may use
the facsimile signature of any Person who shall have been a President or Senior
Vice President thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that at the time the
Securities shall be authenticated and delivered or disposed of such Person
shall have ceased to be the President or a Senior Vice President, or the
Secretary or an Assistant Secretary, of the Company.  The seal of the Company may be in the form of
a facsimile of such seal and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities.  The
Securities may contain such notations, legends or endorsements required by law,
stock exchange rule or usage.  Each
Security shall be dated the date of its authentication 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 its
President or any Senior Vice President and its Secretary or any Assistant
Secretary, and the Trustee in accordance with such written order shall
authenticate and deliver such Securities.


 


In authenticating such
Securities and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to 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.


 


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


 


SECTION 2.05               Registration of Transfer and
Exchange.


 


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


 


(b)           The Company shall keep, or cause to
be kept, at its office or agency designated for such purpose in the Borough of
Manhattan, the City and State of New York, or such other location designated by
the Company a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable times
shall be open for inspection by the Trustee. 
The registrar for the purpose of registering Securities and transfer of
Securities as herein provided shall be appointed as authorized by a Board
Resolution (the “Security Registrar”).


 


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


 


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


 


(c)           No service charge shall be made for
any exchange or registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the Company may
require payment of a sum sufficient to cover any tax or 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 (1) 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 


 


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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 (2) to register the transfer of
or exchange any Securities of any series or portions thereof called for
redemption.  The provisions of this Section 2.05
are, with respect to any Global Security, subject to Section 2.11 hereof.


 


SECTION 2.06               Temporary Securities.


 


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


 


SECTION 2.07               Mutilated, Destroyed, Lost or
Stolen Securities.


 


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


 


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Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save
each of 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 


 


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thereof, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.  All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series.  Each Authenticating Agent shall be acceptable
to the Company and shall be a corporation that has a combined capital and
surplus, as most recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in which it is doing
business to conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or examination
by Federal or State authorities.  If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.


 


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


 


SECTION 2.11               Global Securities.


 


(a)           If the Company shall establish
pursuant to Section 2.01 that 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 (1) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (2) shall be registered in the name of the Depositary or
its nominee, (3) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction and (4) 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 


 


13

















 


aware of such condition, as the case may be, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company
will execute and, subject to Section 2.05, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange
for such Global Security.  In addition,
the Company may at any time determine that the Securities of any series shall
no longer be represented by a Global Security and that the provisions of this Section 2.11
shall no longer apply to the Securities of such series.  In such event the Company will execute and,
subject to Section 2.05, the Trustee, upon receipt of an Officers’
Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange
for such Global Security.  Upon the
exchange of the Global Security for such Securities in definitive registered
form without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee.  Such Securities
in definitive registered form issued in exchange for the Global Security
pursuant to this Section 2.11(c) shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee.  The Trustee shall
deliver such Securities to the Depositary for delivery to the Persons in whose
names such Securities are so registered.


 


ARTICLE III


 


REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS


 


SECTION 3.01               Redemption.


 


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


 


SECTION 3.02               Notice of Redemption.


 


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


 


14

















 


the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with any such restriction.


 


Each such notice of
redemption shall specify the date fixed for redemption and the redemption price
at which Securities of that series are to be redeemed, and shall state that
payment of the redemption price of such Securities to be redeemed will be made
at the office or agency of the Company in the Borough of Manhattan, the City
and State of New York, upon presentation and surrender of such Securities, that
interest accrued to the date fixed for redemption will be paid as specified in said
notice, that from and after said date interest will cease to accrue and that
the redemption is for a sinking fund, if such is the case.  If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to
be redeemed in whole or in part shall specify the particular Securities to be
so redeemed.  In case any Security is to
be redeemed in part only, the notice that relates to such Security shall state
the portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.


 


(b)           If less than all the Securities of a
series are to be redeemed, the Company shall give the Trustee at least 45 days’
notice in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and that may provide for the selection
of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any
integral multiple thereof) of the principal amount of such Securities of a
denomination larger than $1,000, the Securities to be redeemed and shall
thereafter promptly notify the Company in writing of the numbers of the
Securities to be redeemed, in whole or in part. 
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Senior Vice
President, instruct the Trustee or any paying agent to call all or any part of
the Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may
deem advisable.  In any case in which
notice of redemption is to be given by 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


 


15














 


surrender of such Securities on or after the date
fixed for redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption price for
such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 2.03).


 


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


 


SECTION 3.04             Sinking Fund.


 


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


 


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


 


SECTION 3.05             Satisfaction of
Sinking Fund Payments with Securities.


 


The Company (a) may
deliver Outstanding Securities of a series (other than any Securities
previously called for redemption) and (b) 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, provided that such Securities have
not been previously so credited.  Such Securities
shall be received and credited for such purpose by the Trustee at the
redemption price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.


 


SECTION 3.06             Redemption of
Securities for Sinking Fund.


 


Not less than 45 days
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers’ Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of the series, the portion 


 


16

















 


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


 


ARTICLE  IV


 


COVENANTS


 


SECTION 4.01             Payment of Principal,
Premium and Interest.


 


The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and
interest on the Securities of that series at the time and place and in the
manner provided herein and established with respect to such Securities.


 


SECTION 4.02             Maintenance of Office
or Agency.


 


So long as any series of
the Securities remain Outstanding, the Company agrees to maintain an office or
agency in the Borough of Manhattan, the City and State of New York, with
respect to each such series and at such other location or locations as may be
designated as provided in this Section 4.02, where (a) Securities of
that series may be presented for payment, (b) Securities of that series
may be presented as herein above authorized for registration of transfer and
exchange, and (c) notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by its President or a Senior Vice President 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.


 


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 


 


17

















 


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, (1) the agreement to hold
sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (2) the Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any paying agent to pay, to the Trustee all sums held in trust by the
Company or such paying agent, such sums to be held by the Trustee upon the same
terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with respect to
such money.


 


SECTION 4.04             Appointment to Fill
Vacancy in Office of Trustee.


 


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


 


18

















 


ARTICLE  V


 


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) on each regular record date
(as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series of
Securities as of such regular record date, provided that the Company shall not
be obligated to furnish or cause to be furnished 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.  The Company, the
Trustee, the Security Registrar and any other Person shall have the protection
of the Trust Indenture Act Section 312(c).


 


SECTION 5.03             Reports by the
Company.


 


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


 


19

















 


national securities exchange as may be prescribed from
time to time in such rules and regulations.


 


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


 


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


 


SECTION 5.04             Reports by the
Trustee.


 


(a)           On or before [           ]
in each year in which any of the Securities are Outstanding, the Trustee 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 the preceding [            ],
if and to the extent required under Section 313(a) of the Trust
Indenture Act.


 


(b)           The Trustee shall
comply with Sections 313(b), 313(c) and 313(d) 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 stock exchange upon which any
Securities are listed (if so listed) and also with the Commission.  The Company agrees to notify the Trustee when
any Securities become listed on any stock exchange.


 


(d)           If an Event of Default
occurs and is continuing and the Trustee receives actual notice of such Event
of Default, the Trustee shall mail to each Securityholder notice of the uncured
Event of Default within 90 days after the occurrence thereof.  Except in the case of an Event of Default in
payment of principal of, or interest on, any Securities, or in the payment of
any sinking or purchase fund installment, the Trustee may withhold the 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 interests of the
Securityholders.


 


20

















 


ARTICLE  VI


 


REMEDIES OF THE TRUSTEE
AND SECURITYHOLDERS ON EVENT OF DEFAULT


 


SECTION 6.01             Events of Default.


 


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


 


(1)           the Company defaults in
the payment of any installment of interest upon any of the Securities of that
series, as and when the same shall become due and payable, and such default
continues for a period of 60 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;


 


(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; or


 


(6)           any other Event of
Default provided for in such series of Securities.


 


(b)          If an Event of Default
described in clauses (1), (2), (3) or (6) occurs and is continuing,
then, and in each and every such case, unless the principal of all of the Securities
of 


 


21

















 


such 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 such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Company (and to
the Trustee if given by Securityholders), may declare the entire principal of
all Securities of such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.  If an Event
of Default described in clauses (4) or (5) occurs and is continuing,
then and in each and every such case, the entire principal of all the
Securities then Outstanding and interest accrued thereon, if any, shall become
immediately due and payable.


 


(c)           At any time after the
principal of 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:  (1) 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) 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 any
amount payable to the Trustee under Section 7.06, and (2) any and all
other Events of Default under the Indenture with respect to such series, other
than the nonpayment of principal 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             Suits for Enforcement
by Trustee.


 


(a)           If an Event of Default
specified in Section 6.01(a)(1) or (2) hereof occurs and is
continuing, 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 


 


22

















 


manner provided by law out of the property of the
Company or other obligor upon the Securities of that series, wherever situated.


 


(b)           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 a series allowed for the entire amount due and payable by the
Company under this Indenture at the date of institution of such proceedings and
for any additional amount that may become due and payable by the Company after
such date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized by
each of the holders of Securities of such series to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Securityholders, to pay to the Trustee any amount due
it under Section 7.06.


 


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


 


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


 


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


 


SECTION 6.03             Application of Moneys
Collected.


 


Any moneys collected by
the Trustee pursuant to this Article with respect to a particular series
of Securities shall be applied in the following order, at the date or dates
fixed by the 


 


23

















 


Trustee and, in case of
the distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Securities of that series, and notation
thereon the payment, if only partially paid, and upon surrender thereof if
fully paid:


 


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


 


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.


 


SECTION 6.04             Limitation on Suits.


 


No holder of any Security
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless (a) 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; (b) 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; (c) 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; (d) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding; and (e) during
such 60-day period, the holders of a majority in principal amount of the
Securities of that series shall not have given the Trustee a direction
inconsistent with the request.


 


Notwithstanding anything
contained herein to the contrary, 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.  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.


 


24

















 


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


 


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


 


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


 


SECTION 6.06             Control by
Securityholders.


 


The holders of a majority
in aggregate principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.01, shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture or be
unduly prejudicial to the rights of holders of Securities of any other series
at the time Outstanding determined in accordance with Section 8.01.  Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability.  The holders of a
majority in aggregate principal amount of the Securities of any series at the
time Outstanding affected thereby, determined in accordance with Section 8.01,
may on behalf of the holders of all of the Securities of such series waive any
past default in the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series and its
consequences, except a default in the payment of the principal of (or premium,
if any) or interest on, any of the Securities of that series as and when the
same shall become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)).  Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.


 


25














 


SECTION 6.07               Undertaking to Pay
Costs.


 


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


 


ARTICLE  VII


 


CONCERNING THE TRUSTEE


 


SECTION 7.01               Certain Duties and
Responsibilities of Trustee.


 


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


 


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


 


(i)  the duties and
obligations of the Trustee shall with respect to the Securities of such series
be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the Securities of such series
except for the performance 


 


26

















 


of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and


 


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


 


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


 


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


 


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


 


SECTION 7.02               Certain Rights of
Trustee.


 


Except as otherwise
provided in Section 7.01:


 


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


 


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


 


27

















 


(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 person would exercise or use under the
circumstances in the conduct of his own affairs;


 


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


 


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


 


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


 


SECTION 7.03               Trustee Not
Responsible for Recitals or Issuance 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.


 


28

















 


(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. 
The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises.


 


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


 


29

















 


SECTION 7.07               Reliance on
Officers’ Certificate.


 


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


 


SECTION 7.08               Disqualification;
Conflicting Interests.


 


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


 


SECTION 7.09               Corporate Trustee
Required; Eligibility.


 


There shall at all times
be a Trustee with respect to the Securities issued hereunder which shall at all
times be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the District
of Columbia, or a corporation or other Person permitted to act as trustee by
the Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. 
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.  The Company may not, nor may
any Person directly or indirectly controlling, controlled by or under common
control with the Company, serve as Trustee. 
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 7.10.


 


SECTION 7.10               Resignation and
Removal; Appointment of Successor.


 


(a)           The Trustee or any
successor hereafter appointed, may at any time resign with respect to the
Securities of one or more series by giving written notice thereof to the
Company and by transmitting notice of resignation by mail, first class postage
prepaid, to the Securityholders of such series, as their names and addresses
appear upon the Security Register.  Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Securities of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning 


 


30

















 


Trustee and one copy to the successor trustee.  If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee with respect
to Securities of such series, or any Securityholder of that series who has been
a bona fide holder of a Security or Securities for at least six months may on
behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. 
Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


31

















 


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


 


SECTION 7.11               Acceptance of
Appointment by Successor.


 


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


 


(b)           In case of the
appointment hereunder of a successor trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each
successor trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor
trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates, (2) shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee and that no Trustee shall be responsible for any act or failure to
act on the part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that or those series
to which the appointment of such successor trustee relates have no further
responsibility for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture, and each
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates; but, on request of the Company
or any successor trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor trustee, to the extent contemplated by such
supplemental indenture, the property and money held 


 


32

















 


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, 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.


 


33

















 


ARTICLE  VIII


 


CONCERNING THE
SECURITYHOLDERS


 


SECTION 8.01               Evidence of Action
by Securityholders.


 


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


 


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


 


SECTION 8.02               Proof of Execution
by Securityholders.


 


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


 


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


 


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


 


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


 


34

















 


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 (and premium, if any) and (subject
to Section 2.03) interest on such Security and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.


 


SECTION 8.04               Certain Securities
Owned by Company Disregarded.


 


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


 


SECTION 8.05               Actions Binding on
Future Securityholders.


 


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


 


35

















 


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  IX


 


SUPPLEMENTAL INDENTURES


 


SECTION 9.01               Supplemental
Indentures without the Consent of Securityholders.


 


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


 


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


 


(e)           to add to, delete from
or revise the conditions, limitations and restrictions on the authorized
amount, terms, 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; or


 


(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.


 


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.


 


36

















 


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 Board Resolutions, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner not covered by Section 9.01 the
rights of the holders of the Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the holders of each Security then Outstanding and affected thereby, (i) extend
the fixed maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, or make the
principal thereof or interest thereon payable in any currency other than that
provided in the Securities or in accordance with the terms thereof, or impair
or affect the right of any Securityholder to institute suit for the payment or
conversion thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, or modify any of the provisions
of this paragraph except to increase any required percentage or to provide that
certain other provisions cannot be modified or waived without the consent of
the holder of each Security so affected; or (ii) 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.


 


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SECTION  9.04              Securities
Affected by Supplemental Indentures.


 


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


 


SECTION  9.05              Execution
of Supplemental Indentures.


 


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


 


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


 


ARTICLE  X


 


SUCCESSOR ENTITY


 


SECTION  10.01            Company
May Consolidate, Etc.


 


Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company with or into any other Person (whether
or not affiliated with the Company) or successive consolidations or mergers in
which the Company or its 


 


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successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the
property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation or merger (in each case, if the
Company is not the survivor of such transaction), sale, conveyance, transfer or
other disposition, the due and punctual payment of the principal of (premium,
if any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture with respect to each series or established with respect to such
series pursuant to Section 2.01 to be kept or performed by the Company
shall be expressly assumed, by supplemental indenture (which shall conform to
the provisions of the Trust Indenture Act as then in effect) satisfactory in
form to the Trustee executed and delivered to the Trustee by the entity formed
by such consolidation, or into which the Company shall have been merged, or by
the entity which shall have acquired such property; provided, further, that
immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing.


 


SECTION  10.02            Successor
Entity Substituted.


 


(a)           In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon the assumption
by the successor entity by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of (and premium, if any) and interest on all of the
Securities of all series Outstanding and the due and punctual performance of
all of the covenants and conditions of this Indenture or established with
respect to each series of the Securities pursuant to Section 2.01 to be
performed by the Company with respect to each series, such successor entity
shall succeed to and be substituted for the Company with the same effect as if
it had been named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.


 


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


 


(c)           Nothing contained in this Article shall
apply to limit or impose any requirements upon the 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).


 


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SECTION  10.03            Evidence
of Consolidation, Etc. to Trustee.


 


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


 


ARTICLE  XI


 


SATISFACTION AND
DISCHARGE


 


SECTION  11.01            Satisfaction
and Discharge of Indenture.


 


If at
any time: (a) the Company shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated (other than
any Securities that have been destroyed, lost or stolen and that 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,
4.02, 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 


 


40

















 


pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, then after the date such
moneys or Governmental Obligations, as the case may be, are deposited with the
Trustee, the obligations of the Company under this Indenture with respect to
such series shall cease to be of further effect except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.03, 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 (and
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,
shall be repaid to the Company 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 an unsecured general creditor, look
only to the Company for the payment thereof.


 


ARTICLE  XII


 


IMMUNITY OF
INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


SECTION  12.01            No
Recourse.


 


No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or director,
past, present or future as such, of the Company or of any predecessor or
successor corporation, either directly or through the Company or any 


 


41

















 


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


 


ARTICLE  XIII


 


MISCELLANEOUS
PROVISIONS


 


SECTION  13.01            Effect
on Successors and Assigns.


 


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


 


SECTION  13.02            Actions
by Successor.


 


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


 


SECTION  13.03            Notices.


 


Except
as otherwise expressly provided herein any notice or demand that by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the holders of Securities to or on the Company may be given
or served by being deposited first class postage prepaid in a post-office letterbox
addressed (until another address is filed in writing by the Company with the
Trustee), as follows:  [                                ].  Any notice, election, request or demand by
the Company or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.


 


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SECTION  13.04            Governing
Law.


 


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


 


SECTION  13.05            Compliance
Certificates and Opinions.


 


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


 


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


 


(c)           The Company shall furnish to the Trustee,
on [        ] of each year, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of such obligor’s
compliance with all conditions and covenants under this Indenture.  For purposes of this subsection, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided hereunder.


 


SECTION  13.06            Payments
on Business Days.


 


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


 


43

















 


SECTION  13.07            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  13.08            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  13.09            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  13.10            Assignment.


 


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


 


44

















 


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


 


	
   

  	
  MOMENTA
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                             ],

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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