Exhibit 4.1


 


SUBORDINATED INDENTURE


 


VERTEX PHARMACEUTICALS INCORPORATED,


 


ISSUER


 


AND


 


U.S. BANK NATIONAL ASSOCIATION,


 


TRUSTEE


 


INDENTURE


 


Dated as of September 28, 2010


 


Subordinated 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

  



 


i

















 


	
  Section of Trust Indenture Act of 1939, as amended

  	
   

  	
  Section of Indenture

  
	
   

  	
   

  	
   

  
	
  316(b)

  	
   

  	
  6.04

  
	
   

  	
   

  	
   

  
	
  316(c)

  	
   

  	
  8.01

  
	
   

  	
   

  	
   

  
	
  317(a)

  	
   

  	
  6.02

  
	
   

  	
   

  	
   

  
	
  317(b)

  	
   

  	
  4.03

  
	
   

  	
   

  	
   

  
	
  318(a)

  	
   

  	
  3.06

  



 






(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.


 


ii

















 


TABLE OF CONTENTS(2)


 


	
  ARTICLE I

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  SECTION 1.01

  	
  Definitions of Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

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

  	
  4

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
  Designation and Terms of Securities

  	
  4

  
	
   

  	
   

  	
   

  
	
  SECTION 2.02

  	
  Form of Securities and Trustee’s Certificate

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 2.03

  	
  Denominations; Provisions for Payment

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 2.04

  	
  Execution and Authentications

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 2.05

  	
  Registration of Transfer and Exchange

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 2.06

  	
  Temporary Securities

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 2.07

  	
  Mutilated, Destroyed, Lost or Stolen Securities

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 2.08

  	
  Cancellation

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 2.09

  	
  Benefits of Indenture

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 2.10

  	
  Authenticating Agent

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 2.11

  	
  Global Securities

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
  Redemption

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 3.02

  	
  Notice of Redemption

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 3.03

  	
  Payment Upon Redemption

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 3.04

  	
  Sinking Fund

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 3.05

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 3.06

  	
  Redemption of Securities for Sinking Fund

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  COVENANTS

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
  Payment of Principal, Premium and Interest

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 4.02

  	
  Maintenance of Office or Agency

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 4.03

  	
  Paying Agents

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 4.04

  	
  Appointment to Fill Vacancy in Office of Trustee

  	
  14

  
				



 


iii

















 


	
  ARTICLE V

  	
  SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
  TRUSTEE

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01

  	
  Company to Furnish Trustee Names and Addresses of
  Securityholders

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 5.02

  	
  Preservation Of Information; Communications With
  Securityholders

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 5.03

  	
  Reports by the Company

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 5.04

  	
  Reports by the Trustee

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
  DEFAULT

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
  Events of Default

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 6.02

  	
  Suits for Enforcement by Trustee

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 6.03

  	
  Application of Moneys Collected

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 6.04

  	
  Limitation on Suits

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 6.05

  	
  Rights and Remedies Cumulative; Delay or Omission Not
  Waiver

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 6.06

  	
  Control by Securityholders

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 6.07

  	
  Undertaking to Pay Costs

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  CONCERNING THE TRUSTEE

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
  Certain Duties and Responsibilities of Trustee

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 7.02

  	
  Certain Rights of Trustee

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 7.03

  	
  Trustee Not Responsible for Recitals or Issuance or
  Securities

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 7.04

  	
  May Hold Securities

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 7.05

  	
  Moneys Held in Trust

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 7.06

  	
  Compensation and Reimbursement

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 7.07

  	
  Reliance on Officers’ Certificate

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 7.08

  	
  Disqualification; Conflicting Interests

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 7.09

  	
  Corporate Trustee Required; Eligibility

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 7.10

  	
  Resignation and Removal; Appointment of Successor

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 7.11

  	
  Acceptance of Appointment By Successor

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 7.12

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  24

  
				



 


iv

















 


	
  SECTION 7.13

  	
  Preferential Collection of Claims Against the Company

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  CONCERNING THE SECURITYHOLDERS

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
  Evidence of Action by Securityholders

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 8.02

  	
  Proof of Execution by Securityholders

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 8.03

  	
  Who May be Deemed Owners

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 8.04

  	
  Certain Securities Owned by Company Disregarded

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 8.05

  	
  Actions Binding on Future Securityholders

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL INDENTURES

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
  Supplemental Indentures Without the Consent of
  Securityholders

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 9.02

  	
  Supplemental Indentures With Consent of Securityholders

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 9.03

  	
  Effect of Supplemental Indentures

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 9.04

  	
  Securities Affected by Supplemental Indentures

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 9.05

  	
  Execution of Supplemental Indentures

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  SUCCESSOR ENTITY

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
  Company May Consolidate, Etc.

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 10.02

  	
  Successor Entity Substituted

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 10.03

  	
  Evidence of Consolidation, Etc.

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  SATISFACTION AND DISCHARGE

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01

  	
  Satisfaction and Discharge of Indenture

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 11.02

  	
  Discharge of Obligations

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 11.03

  	
  Deposited Moneys to be Held in Trust

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 11.04

  	
  Payment of Moneys Held by Paying Agents

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 11.05

  	
  Repayment to Company

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
  DIRECTORS

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01

  	
  No Recourse

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  MISCELLANEOUS PROVISIONS

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 13.01

  	
  Effect on Successors and Assigns

  	
  30

  
				



 


v

















 


	
  SECTION 13.02

  	
  Actions by Successor

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 13.03

  	
  Notices

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 13.04

  	
  Governing Law

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 13.05

  	
  Submission to Jurisdiction; Appointment of Agent for
  Service of Process

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 13.06

  	
  Compliance Certificates and Opinions

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 13.07

  	
  Payments on Business Days

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 13.08

  	
  Conflict with Trust Indenture Act

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 13.09

  	
  Counterparts

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 13.10

  	
  Separability

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 13.11

  	
  Assignment

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  SUBORDINATION OF SECURITIES

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 14.01

  	
  Subordination Terms

  	
  32

  
				



 






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


 


vi
















 


INDENTURE,
dated as of September 28, 2010, between VERTEX PHARMACEUTICALS
INCORPORATED, a corporation duly organized and existing under the laws of the
Commonwealth of Massachusetts, having its principal office at 130 Waverly
Street, Cambridge, Massachusetts 02139 (the “Company”), and U.S. BANK NATIONAL
ASSOCIATION, as trustee (the “Trustee”):


 


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


 


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


 


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


 


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


 


ARTICLE 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.


 


“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 both (1) the Chief Executive Officer, the
President or a Vice President and (2) so long as not the same as the
officer signing pursuant to clause (1), the Chief Business Officer, the
Treasurer or the Clerk of the Company, and delivered to the Trustee.  The Certificate need not comply with the
provisions of Section 13.05.


 


1

















 


“Company”
means Vertex Pharmaceuticals Incorporated, a corporation duly organized and
existing under the laws of the Commonwealth of Massachusetts 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 One Federal Street, Boston, Massachusetts 02110,
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 100 Wall Street, Suite 1600, New York, New
York 10005.


 


“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 as described in Section 6.01 that has occurred and is
continuing.


 


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


 


“Governmental
Obligations” means securities that are (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 both (1) the Chief Executive
Officer, the President or a Vice President and (2) so long as not the same
as the officer signing pursuant to clause (1), the Chief Business Officer, the
Treasurer or the Clerk 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 13.06, if and to the extent required by the provisions thereof.


 


2

















 


“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 13.06,
if and to the extent required by the provisions thereof.


 


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


 


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


 


“Place
of Payment,” when used with respect to the Securities of any series and subject
to Section 4.02, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable as specified
as contemplated by Section 2.01.


 


“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 Chief Executive
Officer, 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.


 


“Senior
Indebtedness” means indebtedness issued pursuant to a senior indenture, as
supplemented or amended by one or more indentures supplemental thereto, payment
of which shall be senior to the payment of the Securities issued hereunder,
pursuant to Section 14 hereof.


 


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


 


“Trustee”
means U.S. Bank National Association, and, subject to the provisions of
Article Seven, shall also include its successors and assigns, and, if at
any time there is more than one Person acting in such capacity 


 


3

















 


hereunder,
“Trustee” shall mean each such Person. 
The term “Trustee” as used with respect to a particular series of the
Securities shall mean the trustee with respect to that series.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended, 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 place or places where the principal of and any premium
and interest on any Securities of the series shall be payable and the manner in
which any payment may be made;


 


(5)           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;


 


(6)           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;


 


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


 


(8)           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;


 


(9)           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 


 


4

















 


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;


 


(10)         the form of the Securities of the series including the form
of the certificate of authentication for such series;


 


(11)         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;


 


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


 


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


 


(14)         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;


 


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


 


(16)         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;


 


(17)         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;


 


(18)         the subordination terms of the Securities of the series; and


 


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


 


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


 


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


 


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 


 


5

















 


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 Section 2.01(10).  The Securities
of a particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. 
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 a Place of Payment for
that series.  Each Security shall be dated
the date of its authentication.  Interest
on the Securities shall be computed on the basis of a 360-day year composed of
twelve 30-day months.


 


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


 


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


 


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


 


6

















 


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


 


Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.01 hereof, the term “regular record date” as used in this
Section with respect to a series of Securities 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 two of its officers,
each of whom shall be the Chief Executive Officer, the President, the Chief
Business Officer, the Treasurer, any Vice President or the Clerk of the
Company.  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 the
Chief Executive Officer, the President, the Chief Business Officer, the
Treasurer, a Vice President or the Clerk of the Company, 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 Chief Executive Officer,
the President, the Chief Business Officer, the Treasurer, a Vice President or
the Clerk 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 the Chief Executive Officer, the President, the Chief
Business Officer, the Treasurer, a Vice President or the Clerk of the Company
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.


 


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 a Place of Payment, for other Securities of such series of
authorized 


 


7

















 


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 a Place of Payment, 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 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 a Place of
Payment for that series, 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.


 


8

















 


SECTION 2.07  Mutilated, Destroyed, Lost or Stolen
Securities.


 


In
case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request, the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. 
In every case the applicant for a substituted Security shall furnish to
the Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and the Trustee evidence
to their satisfaction of the destruction, loss or theft of the applicant’s
Security and of the ownership thereof. 
The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the
Company.  Upon the issuance of any
substituted Security, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.  In case any
Security that has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish to the 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 (and, with respect to the provisions of
Article Fourteen, the holders of Senior Indebtedness), any legal or
equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Securities (and, with respect to the
provisions of Article Fourteen, the holders of Senior Indebtedness).


 


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 


 


9

















 


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


 


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


 


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 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.


 


10
















 


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 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 a Place of Payment for that series, 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 Chief Executive Officer or 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.


 


11

















 


SECTION 3.03  Payment Upon Redemption.


 


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


 


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


 


SECTION 3.04  Sinking Fund.


 


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


 


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


 


SECTION 3.05  Satisfaction of Sinking Fund Payments with
Securities.


 


The
Company (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 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.


 


12

















 


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 each Place of Payment 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 Chief Executive Officer or 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 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 


 


13

















 


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.


 


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 


 


14

















 


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 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.


 


(d)           Delivery of any information,
documents and reports to the Trustee pursuant to this Section is for
informational purposes only and the Trustee’s receipt of such items shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


 


SECTION 5.04  Reports by the Trustee.


 


(a)           On or before May 15 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 February 15, 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.


 


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
of the events specified as “Events of Default” for such series as provided in
Section 2.01, if such event has occurred and is continuing.


 


15

















 


(b)           If so specified with respect
to Securities of a particular series as provided in Section 2.01, upon the
occurrence of an Event of Default with respect to Securities of that series,
unless the principal of all the Securities of that series shall have already
become due and payable, either the Trustee or the holders of not less than a
majority in aggregate principal amount of the Securities of that series then
outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by such Securityholders), may declare the principal of all the
Securities of that series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable.


 


(c)           If so specified with respect
to Securities of a particular series as provided in Section 2.01, 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 so specified as provided
in Section 2.01 with respect to a category of Event of Default for Securities
of a particular series, if such an Event of Default 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 manner provided by law out of the property of the Company or
other obligor upon the Securities of that series, wherever situated.


 


(b)           If so specified with respect
to Securities of a particular series as provided in Section 2.01, 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.


 


16

















 


(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.


 


(d)           If so specified with respect
to Securities of a particular series as provided in Section 2.01, upon the
occurrence of an Event of Default with respect to Securities of that series,
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 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;


 


SECOND:               To the payment of all Senior Indebtedness of
the Company if and to the extent required by Article Fourteen; and


 


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


 


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 a majority 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.


 


17

















 


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.


 


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 an uncured default in the payment of
the principal of (or premium, if any) or interest on, any of the Securities of
that series as and when the same shall become due by the terms of such
Securities otherwise than by acceleration (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
and any premium has been deposited with the Trustee (in accordance with
Section 6.01(c)).  Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.


 


SECTION 6.07  Undertaking to Pay Costs.


 


All
parties to this Indenture agree, and each holder of any Securities by such
holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any 


 


18

















 


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 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


 


19

















 


(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 Chief Executive Officer or 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);


 


(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.


 


20
















 


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


 


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


 


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


 


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


 


SECTION 7.04  May Hold Securities.


 


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


 


SECTION 7.05  Moneys Held in Trust.


 


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


 


SECTION 7.06  Compensation and Reimbursement.


 


(a)           The Company covenants and agrees to pay to the Trustee,
and the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company and the Trustee may from time to
time agree in writing, for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise expressly
provided herein, the Company will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith.  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.


 


(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.


 


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 


 


21

















 


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 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, 


 


22

















 


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.


 


(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 by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor trustee relates.


 


23

















 


(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.


 


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 


 


24

















 


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.


 


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 


 


25

















 


not
any notation in regard thereto is made upon such Security.  Any action taken by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the holders of
all the Securities of that series.


 


ARTICLE 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.


 


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 


 


26

















 


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 of interest thereon, or reduce any premium payable upon the redemption
thereof 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.


 


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.


 


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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 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.


 


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).


 


SECTION 10.03  Evidence of Consolidation, Etc.


 


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.


 


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


 


SECTION 11.02  Discharge of Obligations.


 


If
at any time all such Securities of a particular series not heretofore delivered
to the Trustee for cancellation or that have not become due and payable as
described in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an amount of
Governmental Obligations sufficient to pay at maturity or upon redemption all
such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then after the
date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee, the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 11.05
hereof that shall survive until such Securities shall mature and be paid.  Thereafter, Sections 7.06 and 11.05 shall
survive.


 


SECTION 11.03  Deposited Moneys to be Held in Trust.


 


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


 


SECTION 11.04  Payment of Moneys Held by Paying Agents.


 


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


 


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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 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 


 


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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: Vertex Pharmaceuticals Incorporated,
130 Waverly Street, Cambridge, MA  02139,
Attn: General Counsel.  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.


 


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  Submission to Jurisdiction; Appointment of
Agent for Service of Process.


 


The
Company hereby appoints U.S. Bank National Association, acting through its
office at 100 Wall Street, New York, New York 10005 (or such other address in
the Borough of Manhattan, The City of New York, as such agent shall furnish in
writing to the Trustee) as its authorized agent (the “Authorized Agent”) upon
which process may be served in any legal action or proceeding against it with
respect to its obligations under this Indenture or the Securities of any
series, as the case may be, instituted in any federal or state court in the
Borough of Manhattan, The City of New York by the holder of any Security, and
agrees that service of process upon the Authorized Agent, together with written
notice of said service mailed or delivered to the Company, addressed as
provided in Section 13.03, shall be deemed in every respect effective
service of process upon the Company in any such legal action or proceeding, and
the Company hereby irrevocably submits to the non-exclusive jurisdiction of any
such court in respect of any such legal action or proceeding and waives, to the
extent it may effectively do so, any objection it may have to the laying of the
venue of any such legal action or proceeding. 
Such appointment shall be irrevocable so long as the holders of
Securities shall have any rights pursuant to the terms of the Securities or of
this Indenture until the appointment of a successor Authorized Agent by the
Company and such successor’s acceptance of such appointment.  The Company reserves the right to appoint
another person located, or with an office, in the Borough of Manhattan, The
City of New York, selected in its sole discretion, as a successor Authorized
Agent, and upon acceptance of such appointment by such a successor the
appointment of the prior Authorized Agent shall terminate.  If for any reason U.S. Bank National
Association ceases to be able to act as the Authorized Agent or to have an
address in the Borough of Manhattan, The City of New York, the Company will
appoint a successor Authorized Agent in accordance with the preceding
sentence.  The Company further agrees to
take any and all action, including the filing of any and all documents and
instruments as may be necessary to continue such designation and appointment of
such agent or successor in full force and effect for as long as required
hereunder.


 


SECTION 13.06  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.


 


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(c)           The Company shall furnish to the Trustee, within 120 days
after the end of each fiscal 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 13.07  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.


 


SECTION 13.08  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 13.09  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 13.10  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 13.11  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.


 


ARTICLE XIV


 


SUBORDINATION OF SECURITIES


 


SECTION 14.01  Subordination Terms.


 


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


 


[Remainder of page intentionally left blank.]


 


32

















 


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


 


	
   

  	
  VERTEX
  PHARMACEUTICALS INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ian F. Smith

  
	
   

  	
  Name:

  	
  Ian
  F. Smith

  
	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S
  BANK NATIONAL ASSOCIATION,

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen R. Beard

  
	
   

  	
  Name:

  	
  Karen
  R. Beard

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


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