EXHIBIT
4.2


 






 


 


NPS PHARMACEUTICALS,
INC.

as Issuer


 


to


 


[                    ],

as Trustee


 


FORM OF

SENIOR INDENTURE


 


Dated as of                             ,
200  


 


 






 

















 


TABLE OF CONTENTS


 


	
  

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  PARTIES

  	
  1

  
	
   

  	
   

  	
   

  
	
  RECITALS
  OF THE COMPANY

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 101

  	
  Definitions

  	
  1

  
	
  SECTION 102

  	
  Compliance
  Certificates and Opinions

  	
  6

  
	
  SECTION 103

  	
  Form of
  Documents Delivered to Trustee

  	
  6

  
	
  SECTION 104

  	
  Acts
  of Holders; Record Dates

  	
  6

  
	
  SECTION 105

  	
  Notices,
  Etc., to Trustee and Company

  	
  8

  
	
  SECTION 106

  	
  Notice
  to Holders; Waiver

  	
  8

  
	
  SECTION 107

  	
  Conflict
  with Trust Indenture Act

  	
  8

  
	
  SECTION 108

  	
  Effect
  of Headings and Table of Contents

  	
  9

  
	
  SECTION 109

  	
  Successors
  and Assigns

  	
  9

  
	
  SECTION 110

  	
  Separability
  Clause

  	
  9

  
	
  SECTION 111

  	
  Benefits
  of Indenture

  	
  9

  
	
  SECTION 112

  	
  Governing
  Law

  	
  9

  
	
  SECTION 113

  	
  Legal
  Holidays

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO SECURITY FORMS

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 201

  	
  Forms
  Generally

  	
  9

  
	
  SECTION 202

  	
  Form of
  Legend for Global Securities

  	
  10

  
	
  SECTION 203

  	
  Form of
  Trustee’s Certificate of Authentication

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE THE SECURITIES

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 301

  	
  Amount
  Unlimited; Issuable in Series

  	
  10

  
	
  SECTION 302

  	
  Denominations

  	
  12

  
	
  SECTION 303

  	
  Execution,
  Authentication, Delivery and Dating

  	
  12

  
	
  SECTION 304

  	
  Temporary
  Securities

  	
  13

  
	
  SECTION 305

  	
  Registration,
  Registration of Transfer and Exchange

  	
  14

  
	
  SECTION 306

  	
  Mutilated,
  Destroyed, Lost and Stolen Securities

  	
  15

  
	
  SECTION 307

  	
  Payment
  of Interest; Interest Rights Preserved

  	
  15

  
	
  SECTION 308

  	
  Persons
  Deemed Owners

  	
  16

  
	
  SECTION 309

  	
  Cancellation

  	
  16

  
	
  SECTION 310

  	
  Computation
  of Interest

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR SATISFACTION AND DISCHARGE

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 401

  	
  Satisfaction
  and Discharge of Indenture

  	
  17

  
	
  SECTION 402

  	
  Application
  of Trust Money

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE REMEDIES

  	
  18

  
	
   

  	
   

  
	
  SECTION 501

  	
  Events
  of Default

  	
  18

  
	
  SECTION 502

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
  19

  
	
  SECTION 503

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  20

  
	
  SECTION 504

  	
  Trustee
  May File Proofs of Claim

  	
  20

  
	
  SECTION 505

  	
  Trustee
  May Enforce Claims Without Possession of Securities

  	
  20

  
	
  SECTION 506

  	
  Application
  of Money Collected

  	
  21

  
	
  SECTION 507

  	
  Limitation
  on Suits

  	
  21

  
	
  SECTION 508

  	
  Unconditional
  Right of Holders to Receive Principal, Premium and Interest

  	
  21

  
	
  SECTION 509

  	
  Restoration
  of Rights and Remedies

  	
  22

  
	
  SECTION 510

  	
  Rights
  and Remedies Cumulative

  	
  22

  
	
  SECTION 511

  	
  Delay
  or Omission Not Waiver

  	
  22

  



 


i

















 


	
  SECTION 512

  	
  Control
  by Holders

  	
  22

  
	
  SECTION 513

  	
  SECTION 513.
  Waiver of Past Defaults

  	
  22

  
	
  SECTION 514

  	
  Undertaking
  for Costs

  	
  23

  
	
  SECTION 515

  	
  Waiver
  of Usury, Stay or Extension Laws

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX THE TRUSTEE

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 601

  	
  Certain
  Duties and Responsibilities

  	
  23

  
	
  SECTION 602

  	
  Notice
  of Defaults

  	
  23

  
	
  SECTION 603

  	
  Certain
  Rights of Trustee

  	
  23

  
	
  SECTION 604

  	
  Not
  Responsible for Recitals or Issuance of Securities

  	
  24

  
	
  SECTION 605

  	
  May Hold
  Securities

  	
  24

  
	
  SECTION 606

  	
  Money
  Held in Trust

  	
  24

  
	
  SECTION 607

  	
  Compensation
  and Reimbursement

  	
  24

  
	
  SECTION 608

  	
  Conflicting
  Interests

  	
  25

  
	
  SECTION 609

  	
  Corporate
  Trustee Required; Eligibility

  	
  25

  
	
  SECTION 610

  	
  Resignation
  and Removal; Appointment of Successor

  	
  25

  
	
  SECTION 611

  	
  Acceptance
  of Appointment by Successor

  	
  26

  
	
  SECTION 612

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  27

  
	
  SECTION 613

  	
  Preferential
  Collection of Claims Against Company

  	
  27

  
	
  SECTION 614

  	
  Appointment
  of Authenticating Agent

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
  COMPANY

  	
  28

  
	
   

  	
   

  
	
  SECTION 701

  	
  Company
  to Furnish Trustee Names and Addresses of Holders

  	
  28

  
	
  SECTION 702

  	
  Preservation
  of Information; Communications to Holders

  	
  29

  
	
  SECTION 703

  	
  Reports
  by Trustee

  	
  29

  
	
  SECTION 704

  	
  Reports
  by Company

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
  OR LEASE

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 801

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
  29

  
	
  SECTION 802

  	
  Successor
  Substituted

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE SUPPLEMENTAL INDENTURES

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 901

  	
  Supplemental
  Indentures Without Consent of Holders

  	
  30

  
	
  SECTION 902

  	
  Supplemental
  Indentures With Consent of Holders

  	
  31

  
	
  SECTION 903

  	
  Execution
  of Supplemental Indentures

  	
  32

  
	
  SECTION 904

  	
  Effect
  of Supplemental Indentures

  	
  32

  
	
  SECTION 905

  	
  Conformity
  with Trust Indenture Act

  	
  32

  
	
  SECTION 906

  	
  Reference
  in Securities to Supplemental Indentures

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN COVENANTS

  	
  32

  
	
   

  	
   

  
	
  SECTION 1001

  	
  Payment of Principal, Premium and
  Interest

  	
  32

  
	
  SECTION 1002

  	
  Maintenance of Office or Agency

  	
  33

  
	
  SECTION 1003

  	
  Money for Securities Payments to Be
  Held in Trust

  	
  33

  
	
  SECTION 1004

  	
  Statement by Officers as to Default

  	
  34

  
	
  SECTION 1005

  	
  Existence

  	
  34

  
	
  SECTION 1006

  	
  Maintenance of Properties

  	
  34

  
	
  SECTION 1007

  	
  Payment of Taxes and Other Claims

  	
  34

  
	
  SECTION 1008

  	
  Maintenance of Insurance

  	
  34

  
	
  SECTION 1009

  	
  Waiver of Certain Covenants

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN REDEMPTION OF SECURITIES

  	
  35

  
	
   

  	
   

  
	
  SECTION 1101

  	
  Applicability of Article

  	
  35

  
	
  SECTION 1102

  	
  Election to Redeem; Notice to
  Trustee

  	
  35

  
	
  SECTION 1103

  	
  Selection by Trustee of Securities
  to Be Redeemed

  	
  35

  
	
  SECTION 1104

  	
  Notice of Redemption

  	
  36

  
	
  SECTION 1105

  	
  Deposit of Redemption Price

  	
  36

  



 


ii

















 


	
  SECTION 1106

  	
  Securities Payable on Redemption
  Date

  	
  37

  
	
  SECTION 1107

  	
  Securities Redeemed in Part

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE [INTENTIONALLY
  OMITTED]

  	
  37

  
	
   

  	
   

  
	
  ARTICLE THIRTEEN [INTENTIONALLY
  OMITTED]

  	
  37

  
	
   

  	
   

  
	
  ARTICLE FOURTEEN [INTENTIONALLY
  OMITTED]

  	
  37

  
	
   

  	
   

  
	
  ARTICLE FIFTEEN DEFEASANCE AND
  COVENANT DEFEASANCE

  	
  37

  
	
   

  	
   

  
	
  SECTION 1501

  	
  Company’s Option to Effect
  Defeasance or Covenant Defeasance

  	
  37

  
	
  SECTION 1502

  	
  Defeasance and Discharge

  	
  37

  
	
  SECTION 1503

  	
  Covenant Defeasance

  	
  38

  
	
  SECTION 1504

  	
  Conditions to Defeasance or
  Covenant Defeasance

  	
  38

  
	
  SECTION 1505

  	
  Deposited Money and U.S. Government
  Obligations to Be Held in Trust; Miscellaneous Provisions

  	
  39

  
	
  SECTION 1506

  	
  Reinstatement

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIXTEEN SINKING FUNDS

  	
  40

  
	
   

  	
   

  
	
  SECTION 1601

  	
  Applicability
  of Article

  	
  40

  
	
  SECTION 1602

  	
  Satisfaction
  of Sinking Fund Payments with Securities

  	
  40

  
	
  SECTION 1603

  	
  Redemption
  of Securities for Sinking Fund

  	
  41

  



 


iii

















 


NPS
PHARMACEUTICALS, INC.


CERTAIN
SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH


318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:


 


	
   

  	
  TRUST INDENTURE

  ACT SECTION

  	
   

  	
  INDENTURE

  SECTION

  
	
   

  	
  Section 310(a)(1)

  	
   

  	
  609

  
	
   

  	
  (a)(2)

  	
   

  	
  609

  
	
   

  	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
  608, 610

  
	
   

  	
  Section 311(a)

  	
   

  	
  613

  
	
   

  	
  (b)

  	
   

  	
  613

  
	
   

  	
  Section 312(a)

  	
   

  	
  701, 702

  
	
   

  	
  (b)

  	
   

  	
  702

  
	
   

  	
  (c)

  	
   

  	
  702

  
	
   

  	
  Section 313(a)

  	
   

  	
  703

  
	
   

  	
  (b)

  	
   

  	
  703

  
	
   

  	
  (c)

  	
   

  	
  703

  
	
   

  	
  (d)

  	
   

  	
  703

  
	
   

  	
  Section 314(a)

  	
   

  	
  704

  
	
   

  	
  (a)(4)

  	
   

  	
  101, 1004

  
	
   

  	
  (b)

  	
   

  	
  Not Applicable

  
	
   

  	
  (c)(1)

  	
   

  	
  102

  
	
   

  	
  (c)(2)

  	
   

  	
  102

  
	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (d)

  	
   

  	
  Not Applicable

  
	
   

  	
  (e)

  	
   

  	
  102

  
	
   

  	
  Section 315(a)

  	
   

  	
  601

  
	
   

  	
  (b)

  	
   

  	
  602

  
	
   

  	
  (c)

  	
   

  	
  601

  
	
   

  	
  (d)

  	
   

  	
  601

  
	
   

  	
  (e)

  	
   

  	
  514

  
	
   

  	
  Section 316(a)

  	
   

  	
  101

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  502, 512

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  513

  
	
   

  	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
  508

  
	
   

  	
  (c)

  	
   

  	
  104

  
	
   

  	
  Section 317(a)(1)

  	
   

  	
  503

  
	
   

  	
  (a)(2)

  	
   

  	
  504

  
	
   

  	
  (b)

  	
   

  	
  1003

  
	
   

  	
  Section 318(a)

  	
   

  	
  107

  



 


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


 


iv

















 


INDENTURE,
dated as of
                    ,
200 , among NPS PHARMACEUTICALS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the “Company”),
having its principal office at 550 Hills Drive, 3rd Fl., Bedminster, New Jersey  07921, and
[                    ],
a national banking association, as Trustee (herein called the “Trustee”).


 


RECITALS OF THE COMPANY


 


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


 


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


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE
ONE

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION


 


SECTION 101      Definitions.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Act”, when used with
respect to any Holder, has the meaning specified in Section 104.


 


“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person.  For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing; provided that direct or indirect beneficial
ownership of 10% or more of the Voting Stock of a Person shall be deemed to
constitute control.


 

















 


“Authenticating Agent”
means any Person authorized by the Trustee pursuant to Section 614 to act
on behalf of the Trustee to authenticate Securities of one or more series.


 


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


 


“Board Resolution” means
with respect to the Company a copy of a resolution certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company, as the case may
be, to have been duly adopted by its Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.


 


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


 


“Capital Stock” of any
Person means any and all shares, interests, participations or other equivalents
(however designated) of corporate stock or other equity participations,
including partnership interests, whether general or limited, of such Person.


 


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


 


“Common Stock” means the
common stock, $.001 par value, of the Company as the same exists at the date of
execution and delivery of this Indenture or other Capital Stock of the Company
into which such common stock is converted, reclassified or changed from time to
time.


 


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


 


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


 


“Conversion Agent” means
any Person authorized by the Company to convert any Securities on behalf of the
Company.


 


“Corporate Trust Office”
means the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, such office being located on
the date hereof at 60 Livingston Avenue, St. Paul, Minnesota 55107-1419.


 


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


 


“Covenant Defeasance” has
the meaning specified in Section 1503.


 


“Defaulted Interest” has
the meaning specified in Section 307.


 


“Defeasance” has the
meaning specified in Section 1502.


 


“Depositary” means, with
respect to Securities of any series issuable in whole or in part in the form of
one or more Global Securities, a clearing agency registered under the Exchange
Act that is designated to act as Depositary for such Securities as contemplated
by Section 301.


 


2

















 


“Event of Default” has
the meaning specified in Section 501.


 


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


 


“Expiration Date” has the
meaning specified in Section 104.


 


“Global Security” means a
Security that evidences all or part of the Securities of any series and bears
the legend set forth in Section 202 (or such legend as may be specified as
contemplated by Section 301 for such Securities).


 


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


 


“Indenture” means this
instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.  The term “Indenture” shall also include the
terms of particular series of Securities established as contemplated by Section 301.


 


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


 


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


 


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


 


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


 


“Notice of Default” means
a written notice of the kind specified in Section 501(5).


 


“Officers’ Certificate”
means a certificate signed by the Chairman of the Board of Directors, the Chief
Executive Officer, the President, the Chief Financial Officer or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Corporate
Secretary or an Assistant Corporate Secretary of the Company and delivered to
the Trustee.  One of the officers signing
an Officers’ Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.


 


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


 


“Original Issue Discount
Security” means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.


 


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


 


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


 


(2)           Securities for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust 


 


3

















 


by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;


 


(3)           Securities as to which Defeasance has
been effected pursuant to Section 1502; and


 


(4)           Securities which have been paid
pursuant to Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands such Securities are valid obligations
of the Company;


 


provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given, made or taken any request,
demand, authorization, direction, notice, consent, waiver or other action
hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount
of the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the
principal amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the U.S. dollar
equivalent, determined as of such date in the manner provided as contemplated
by Section 301, of the principal amount of such Security (or, in the case
of a Security described in clause (A) or (B) above, of the amount
determined as provided in such clause), and (D) Securities owned by the
Company or any other obligor upon the Securities, or any Affiliate of the
Company or of such other obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the Trustee knows to be
so owned shall be so disregarded. 
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities, or any
Affiliate of the Company or of such other obligor.


 


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


 


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


 


“Place of Payment”, when
used with respect to the Securities of any series, means the place or places
where the principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 301.


 


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


 


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


 


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


 


“Regular Record Date” for
the interest payable on any Interest Payment Date on the Securities of any
series means the date specified for that purpose as contemplated by Section 301.


 


4

















 


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


 


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


 


“Security Register” and “Security
Registrar” have the respective meanings specified in Section 305.


 


“Significant Subsidiary”
means, at any date of determination, any Subsidiary that represents 20% or more
of the Company’s consolidated total assets at the end of the most recent fiscal
quarter for which financial information is available or 20% or more of the
Company’s consolidated net revenues or consolidated operating income for the
most recent four quarters for which financial information is available;
provided, however, that in no event will Cinacalcet Royalty Sub LLC be deemed a
Significant Subsidiary.


 


“Special Record Date” for
the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 307.


 


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


 


“Subsidiary” of any
Person means (1) a corporation more than 50% of the combined voting power
of the outstanding Voting Stock of which is owned, directly or indirectly, by
such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (2) any other Person (other
than a corporation) in which such Person, or one or more other Subsidiaries of
such Person or such Person and one or more other Subsidiaries thereof, directly
or indirectly, has at least a majority ownership and power to direct the
policies, management and affairs thereof.


 


“Successor Company” has
the meaning specified in Section 801.


 


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


 


 “Trustee” means the Person named as the “Trustee”
in the first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as
used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.


 


“U.S. Government
Obligation” has the meaning specified in Section 1504.


 


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


 


“Voting Stock” of any
Person means Capital Stock of such Person which ordinarily has voting power for
the election of directors (or persons performing similar functions) of such
Person, whether at all times or only so long as no senior class of securities
has such voting power by reason of any contingency.


 


“Wholly Owned Subsidiary”
of any Person means a Subsidiary of such Person all of the outstanding Capital
Stock or other ownership interests of which (other than directors’ qualifying
shares) shall at the time be owned by such Person or by one or more Wholly
Owned Subsidiaries of such Person or by such Person and one or more Wholly
Owned Subsidiaries of such Person.


 


5
















 


SECTION 102      Compliance Certificates and Opinions.


 


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


 


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


 


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


 


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


 


(3)           a
statement that, in the opinion of each such individual, he 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, in the opinion of each such individual, such condition
or covenant has been complied with.


 


SECTION 103      Form of Documents Delivered to Trustee.


 


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


 


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


 


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


 


SECTION 104      Acts of Holders; Record Dates.


 


Whenever in this
Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Securities of any or all series may take
action (including the making of any demand or request, the giving of any
direction, 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 specified
percentage have joined therein may be evidenced (a) by any instrument or
any number of instruments of similar tenor executed by Holders in person or by
agent or proxy appointed in writing, (b) by the record of the Holders
voting in favor thereof at any meeting of Holders duly called and held in
accordance with procedures approved by the Trustee, (c) by a combination
of such instrument or instruments and any such record of such a meeting of
Holders or (d) in the case of Securities evidenced by a Global 


 


6

















 


Security,
by any electronic transmission or other message, whether or not in written
format, that complies with the Depositary’s applicable procedures.  Such evidence (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act” of
the relevant Holders.  Proof of execution
of any such instrument or of a writing appointing any such agent or proxy shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.


 


The fact and date of the
execution by any Person of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the
execution thereof.  Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.  The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Trustee
deems sufficient.


 


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


 


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


 


The Company may set any
day as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities
of such series, provided that the Company may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph.  If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date, and no other Holders, shall be entitled to
take the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record
date.  Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no
action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. 
Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Trustee in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 106.


 


The Trustee may set any
day as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section 502,
(iii) any request to institute proceedings referred to in Section 507(2) or
(iv) any direction referred to in Section 512, in each case with
respect to Securities of such series.  If
any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. 
Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.  Promptly after any record date is set pursuant
to this paragraph, the Trustee, at the Company’s expense, shall cause notice of
such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder of Securities of
the relevant series in the manner set forth in Section 106.


 


7

















 


With respect to any
record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to
time may change the Expiration Date to any earlier or later day; provided that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the other party hereto in writing, and to each Holder of
Securities of the relevant series in the manner set forth in Section 106,
on or prior to the existing Expiration Date. 
If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. 
Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.


 


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


 


SECTION 105      Notices, Etc., to Trustee and Company.


 


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


 


(1)           the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing in the English language
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department; or


 


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


 


SECTION 106      Notice to Holders; Waiver.


 


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


 


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


 


SECTION 107      Conflict with Trust Indenture Act.


 


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


 


8

















 


SECTION 108      Effect of Headings and Table of Contents.


 


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


 


SECTION 109      Successors and Assigns.


 


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


 


SECTION 110      Separability Clause.


 


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


 


SECTION 111      Benefits of Indenture.


 


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


 


SECTION 112      Governing Law.


 


This Indenture and the
Securities shall be governed by and construed in accordance with the law of the
State of New York.


 


SECTION 113      Legal Holidays.


 


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


 


ARTICLE
TWO

SECURITY FORMS


 


SECTION 201      Forms Generally.


 


The Securities of each
series shall be in such form (not inconsistent with this ) as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof.  A copy of an appropriate record of such
action shall be certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.


 


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


 


9

















 


SECTION 202      Form of Legend for Global Securities.


 


Unless otherwise
specified as contemplated by Section 301 for the Securities evidenced thereby,
every Global Security authenticated and delivered hereunder shall bear a legend
in substantially the following form:


 


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


 


SECTION 203      Form of Trustee’s Certificate of
Authentication.


 


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


 


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


 


	
   

  	
   

  	
  [                    ],

  
	
   

  	
   

  	
  As
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  



 


ARTICLE
THREE

THE SECURITIES


 


SECTION 301      Amount Unlimited; Issuable in Series.


 


The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.


 


The Securities may be
issued in one or more series.  There
shall be established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,


 


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


 


(2)           any
limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 304,
305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);


 


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


 


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


 


10

















 


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


 


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


 


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


 


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


 


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


 


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


 


(11)         if
other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or
interest on any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United States of America
for any purpose, including for purposes of the definition of “Outstanding” in Section 101;


 


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


 


(13)         if
other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 502;


 


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


 


(15)         if
applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Section 1502 or Section 1503 or both
such Sections and, if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be evidenced;


 


(16)         if
applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the respective
Depositaries for such Global Securities, the form of any legend or legends
which shall be borne by any such Global Security in addition to or in lieu of
that set forth in Section 202 and any circumstances in addition to or in
lieu of those set forth in clause (2) of the last 


 


11

















 


paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof;


 


(17)         any
addition to or change in the Events of Default which applies to any Securities
of the series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and
payable pursuant to Section 502;


 


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


 


(19)         whether
the Securities of the series will be convertible into Common Stock or other
securities of the Company (or cash in lieu thereof) and, if so, the terms and
conditions upon which such conversion will be effected; and


 


(20)         any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(5)).


 


All Securities of any one
series shall be substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in the manner
provided, in the Officers’ Certificate referred to above or in any such
indenture supplemental hereto.


 


If any of the terms of
the series are established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Corporate Secretary or an Assistant Corporate 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.


 


SECTION 302      Denominations.


 


The Securities of each
series shall be issuable only in registered form without coupons and only in
such denominations as shall be specified as contemplated by Section 301.  In the absence of any such specified
denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral
multiple thereof.


 


SECTION 303      Execution, Authentication, Delivery and Dating.


 


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


 


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


 


At any time and from time
to time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities.  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 601)
shall be fully protected in relying upon, an Opinion of Counsel stating,


 


12

















 


(1)           that
the form of such Securities has been established in conformity with the
provisions of this Indenture;


 


(2)           that
to the extent the terms of such Securities have been established by or pursuant
to a Board Resolution as permitted by Section 301, that such terms have
been established in conformity with the provisions of this Indenture; and


 


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


 


If such form or terms
have been so established, the Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee’s own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.


 


Notwithstanding the
provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers’ Certificate otherwise required
pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.


 


Each Security shall be
dated the date of its authentication.


 


No Security shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.  Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 309,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.


 


SECTION 304      Temporary Securities.


 


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


 


If temporary Securities
of any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay.  After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder.  Upon surrender for cancellation of any one or
more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of like tenor and aggregate principal amount. 
Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and tenor.


 


13

















 


SECTION 305      Registration, Registration of Transfer and
Exchange.


 


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


 


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


 


At the option of the
Holder, Securities of any series may be exchanged for other Securities of the
same series, of any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency.  Whenever any
Securities are so surrendered for exchange, the Company shall execute and the
Trustee shall authenticate and deliver the Securities which the Holder making
the exchange is entitled to receive.


 


All Securities issued
upon any registration of transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.


 


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


 


No service charge shall
be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 304,
906, 1107 or otherwise not involving any transfer.


 


If the Securities of any
series (or of any series and specified tenor) are to be redeemed in part, the
Company shall not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and specified tenor,
as the case may be) during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.


 


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


 


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


 


(2)           Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged in
whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, and in either case the
Company fails to appoint a successor Depositary within 90 days, (B) there
shall have occurred and be continuing 


 


14

















 


an Event of Default with respect to such Global Security and the
Depositary shall have notified the Trustee of its decision to exchange such
Global Security for Securities in certificated form or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the foregoing as
have been specified for this purpose as contemplated by Section 301.


 


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


 


(4)           Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.


 


SECTION 306      Mutilated, Destroyed, Lost and Stolen Securities.


 


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


 


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


 


In case any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable or is to be converted, the Company in its discretion may,
instead of issuing a new Security, pay or authorize the conversion of such
Security (without surrender thereof save in the case of a mutilated Security).


 


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


 


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


 


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


 


SECTION 307      Payment of Interest; Interest Rights Preserved.


 


Except as otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is promptly paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.


 


Any interest on any
Security of any series which is payable, but is not promptly paid or duly
provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder


 


15
















 


on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:


 


(1)           The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the following
manner.  The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. 
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given to each Holder of Securities of such
series in the manner set forth in Section 106, not less than 10 days prior
to such Special Record Date.  Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).


 


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


 


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


 


SECTION 308      Persons Deemed Owners.


 


Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


SECTION 309      Cancellation.


 


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


 


16

















 


SECTION 310      Computation of Interest.


 


Except as otherwise
specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.


 


ARTICLE
FOUR

SATISFACTION AND DISCHARGE


 


SECTION 401      Satisfaction and Discharge of Indenture.


 


This Indenture shall upon
Company Request cease to be of further effect with respect to the Securities of
any series, and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when


 


(1)           either


 


(A)          all Securities of such
series theretofore authenticated and delivered (other than (i) Securities
of such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities of
such series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or


 


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


 


(i)            have become due and
payable,


 


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


 


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


 


and
the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose money in an amount sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;


 


(2)           the
Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Securities of such series; and


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 607, any surviving rights of conversion, the
obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.


 


17

















 


SECTION 402      Application of Trust Money.


 


Subject to the provisions
of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and any premium and interest for whose payment such
money has been deposited with the Trustee.


 


ARTICLE
FIVE

REMEDIES


 


SECTION 501      Events of Default.


 


“Event of Default”,
wherever used herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


(1)           default
in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days;


 


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


 


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


 


(4)           default
in the performance, or breach, of any covenant of the Company in Article Eight
of this Indenture;


 


(5)           default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder;


 


(6)           debt
of the Company or any Significant Subsidiary is not paid within any applicable
grace period after final maturity or is accelerated by the holders thereof
because of a default and the total amount of such Indebtedness unpaid or
accelerated exceeds $10.0 million, or its foreign currency equivalent at the
time;


 


(7)           any
judgment or decree for the payment of money in excess of $10.0 million or its
foreign currency equivalent at the time it is entered against the Company or
any Significant Subsidiary, remains outstanding for a period of 60 consecutive
days following the entry of such judgment or decree and is not discharged,
waived or the execution thereof stayed;


 


(8)           the
entry by a court having jurisdiction in the premises of (A) a decree or
order for relief in respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or any Significant Subsidiary bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Significant Subsidiary or of any
substantial part 


 


18

















 


of its or their property, or ordering the winding up or liquidation of
its or their affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of
60 consecutive days;


 


(9)           the
commencement by the Company or any Significant Subsidiary of a voluntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it or them to the entry
of a decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it or
them, or the filing by it or them of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it or them to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of its or their property, or the making
by it or them of an assignment for the benefit of creditors, or the admission
by it or them in writing of its or their inability to pay its or their debts
generally as they become due, or the taking of corporate action by the Company
or any Significant Subsidiary in furtherance of any such action; or


 


(10)         any
other Event of Default provided with respect to Securities of that series.


 


SECTION 502      Acceleration of Maturity; Rescission and
Annulment.


 


If an Event of Default
(other than an Event of Default with respect to the Company specified in Section 501(8) or
501(9)) with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of that series
may declare the principal amount of all the Securities of that series (or, if
any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the
terms thereof) to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.  If an Event of Default with
respect to the Company specified in Section 501(8) or 501(9) with
respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.


 


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


 


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


 


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


 


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


 


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


 


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


 


19

















 


(2)           all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which has become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.


 


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


 


SECTION 503      Collection of Indebtedness and Suits for
Enforcement by Trustee.


 


The Company covenants
that if


 


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


 


(2)           default
is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,


 


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


 


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


 


SECTION 504      Trustee May File Proofs of Claim.


 


In case of any judicial
proceeding relative to the Company or any other obligor upon the Securities, or
the property or creditors of the Company or any other obligor upon the
Securities, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding.  In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.


 


No provision of this
Indenture shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors’ or other similar committee.


 


SECTION 505      Trustee May Enforce Claims Without
Possession of Securities.


 


All rights of action and
claims under this Indenture or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, 


 


20

















 


disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.


 


SECTION 506      Application of Money Collected.


 


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


 


FIRST: To the
payment of all amounts due the Trustee under Section 607;


 


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


 


THIRD: The
balance, if any, to the Company or to such other Person as a court of competent
jurisdiction shall direct.


 


SECTION 507      Limitation on Suits.


 


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


 


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


 


(2)           the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;


 


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


 


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


 


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


 


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


 


SECTION 508      Unconditional Right of Holders to Receive
Principal, Premium and Interest.


 


Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
any premium and (subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption or offer by the Company to purchase the Securities pursuant to the
terms of this Indenture, on the Redemption Date or purchase date, as
applicable) and, if applicable, to convert such Security in accordance with its



 


21

















 


terms,
and to institute suit for the enforcement of any such right, and such rights
shall not be impaired without the consent of such Holder.


 


SECTION 509      Restoration of Rights and Remedies.


 


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


 


SECTION 510      Rights and Remedies Cumulative.


 


Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 306, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.  The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


SECTION 511      Delay or Omission Not Waiver.


 


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


 


SECTION 512      Control by Holders.


 


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


 


(1)           such
direction shall not be in conflict with any rule of law or with this
Indenture, and


 


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


 


SECTION 513      Waiver of Past Defaults.


 


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


 


(1)           in
the payment of the principal of or any premium or interest on any Security of
such series (including any Security which is required to have been purchased by
the Company pursuant to an offer to purchase by the Company made pursuant to
the terms of this Indenture), or


 


(2)           in
respect of a covenant or provision hereof that under Article Nine cannot
be modified or amended without the consent of the Holder of each Outstanding
Security of such series.


 


22

















 


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


 


SECTION 514      Undertaking for Costs.


 


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


 


SECTION 515      Waiver of Usury, Stay or Extension Laws.


 


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


 


ARTICLE
SIX

THE TRUSTEE


 


SECTION 601      Certain Duties and Responsibilities.


 


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


 


SECTION 602      Notice of Defaults.


 


If a default occurs
hereunder with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 501(5) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof.  For the purpose of this Section, the term “default”
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.


 


SECTION 603      Certain Rights of Trustee.


 


Subject to the provisions
of Section 601:


 


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


 


23

















 


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


 


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


 


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


 


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


 


(6)           the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and


 


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


 


SECTION 604      Not Responsible for Recitals or Issuance of
Securities.


 


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


 


SECTION 605      May Hold Securities.


 


The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.


 


SECTION 606      Money Held in Trust.


 


Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law.  The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.


 


SECTION 607      Compensation and Reimbursement.


 


The Company agrees


 


24

















 


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


 


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


 


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


 


SECTION 608      Conflicting Interests.


 


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


 


SECTION 609      Corporate Trustee Required; Eligibility.


 


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


 


SECTION 610      Resignation and Removal; Appointment of Successor


 


No resignation or removal
of the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 611.


 


The Trustee may resign at
any time with respect to the Securities of one or more series by giving written
notice thereof to the Company.  If the
instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.


 


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


 


If at any time:


 


(1)           the
Trustee shall fail to comply with Section 608 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months,


 


25
















 


(2)           the
Trustee shall cease to be eligible under Section 609 and shall fail to
resign after written request therefor by the Company or by any such Holder, or


 


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


 


then,
in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.


 


If the Trustee shall
resign, be removed or become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause, with respect to the Securities of one
or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section 611.  If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 611,
any Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.


 


The Company shall give
notice of each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of Securities of such
series in the manner provided in Section 106. Each notice shall include
the name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.


 


SECTION 611      Acceptance
of Appointment by Successor.


 


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


 


In case of the
appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that 


 


26

















 


nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.


 


Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.


 


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


 


SECTION 612      Merger,
Conversion, Consolidation or Succession to Business.


 


Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.  As soon as practicable, the successor Trustee
shall mail a notice of its succession to the Company and the Holders of the
Securities then Outstanding.  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 613      Preferential
Collection of Claims Against Company.


 


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


 


SECTION 614      Appointment
of Authenticating Agent.


 


The Trustee may appoint
an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer, conversion or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder.  Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.  Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a Person organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority.  If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.  If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.


 


27

















 


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


 


An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and to
the Company.  The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give notice of such appointment in the
manner provided in Section 106 to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve.  Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. 
No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.


 


The Trustee agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 607.


 


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


 


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


 




	
   

  	
   

  	
  [                    ],

  
	
   

  	
   

  	
  As Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  As Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  






 


ARTICLE
SEVEN


HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


SECTION 701      Company
to Furnish Trustee Names and Addresses of Holders.


 


The Company will furnish
or cause to be furnished to the Trustee with respect to the Securities of each
series:


 


(1)           not
more than 10 days after each record date with respect to the payment of
interest, if any, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of such series as of
such record date, and


 


(2)           at
such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to 


 


28





















 


the time such list is furnished; excluding from any such list names and
addresses received by the Trustee in its capacity as Security Registrar.


 


SECTION 702      Preservation
of Information; Communications to Holders.


 


The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 701 and the names and addresses of Holders received
by the Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished.


 


The rights of Holders to
communicate with other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture Act.


 


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


 


SECTION 703      Reports
by Trustee.


 


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


 


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


 


SECTION 704      Reports
by Company.


 


The Company shall file
with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act shall be filed with the Trustee within 15 days after the same
is so required to be filed with the Commission.


 


ARTICLE
EIGHT


CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE


 


SECTION 801      Company
May Consolidate, Etc., Only on Certain Terms.


 


The Company shall not, in
a single transaction or a series of related transactions, consolidate with or
merge into any other Person or permit any other Person to consolidate with or
merge into the Company or, directly or indirectly, transfer, convey, sell,
lease or otherwise dispose of all or substantially all of its assets, unless:


 


(1)           in
a transaction in which the Company does not survive or in which the Company
transfers, conveys, sells, leases or otherwise disposes of all or substantially
all of its assets, the successor entity (a “Successor Company”) shall be a
corporation, partnership, trust or other entity organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and prompt payment of the principal of and any premium and
interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;


 


(2)           immediately
after giving pro forma effect to such transaction and treating any indebtedness
which becomes an obligation of the Company or any Subsidiary as a result of
such transaction as 


 


29





















 


having been incurred by the Company or such Subsidiary at the time of
such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have happened
and be continuing;


 


(3)           if,
as a result of any such consolidation or merger or such transfer, conveyance,
sale, lease or other disposition, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or the
Successor Company, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or
prior to) all indebtedness secured thereby;


 


(4)           any
other conditions provided pursuant to Section 301 with respect to the
Securities of a series are satisfied; and


 


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


 


SECTION 802      Successor
Substituted.


 


Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
transfer, conveyance, sale, lease or other disposition of all or substantially
all of the assets of the Company in accordance with Section 801, the
Successor Company shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.


 


ARTICLE
NINE


SUPPLEMENTAL
INDENTURES


 


SECTION 901      Supplemental
Indentures Without Consent of Holders.


 


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


 


(1)           to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the
Securities;


 


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


 


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


 


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


 


30





















 


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


 


(6)           to
secure the Securities;


 


(7)           to
establish the form or terms of Securities of any series as permitted by
Sections 201 and 301;


 


(8)           to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611;


 


(9)           to
cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or


 


(10)         to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (10) shall
not adversely affect the interests of the Holders of Securities of any series in
any material respect.


 


SECTION 902      Supplemental
Indentures With Consent of Holders.


 


With the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:


 


(1)           change
the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security or
any other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in which, any Security or
any premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of (a) any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date or in the case of an offer to purchase Securities which has been made
pursuant to a covenant contained in this Indenture, on or after the applicable
purchase date) or (b) any conversion right with respect to any Security,
or modify the provisions of this Indenture with respect to the conversion of
the Securities, in a manner adverse to the Holders;


 


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


 


(3)           modify
any of the provisions of this Section, Section 513 or Section 1009,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to “the Trustee” and concomitant changes
in this Section and Section 1009, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8); or


 


31





















 


(4)           following
the making of an offer to purchase Securities from any Holder which has been
made pursuant to a covenant contained in this Indenture, modify the provisions
of this Indenture with respect to such offer to purchase in a manner adverse to
such Holder.


 


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


 


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


 


SECTION 903      Execution
of Supplemental Indentures.


 


In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. 
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.


 


SECTION 904      Effect
of Supplemental Indentures.


 


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


 


SECTION 905      Conformity
with Trust Indenture Act.


 


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


 


SECTION 906      Reference
in Securities to Supplemental Indentures.


 


Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental Indenture.  If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and such new Securities may be
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.


 


ARTICLE
TEN


COVENANTS


 


SECTION 1001   Payment
of Principal, Premium and Interest.


 


The Company covenants and
agrees for the benefit of each series of Securities that it will duly and
promptly pay the principal of and any premium and interest on the Securities of
that series in accordance with the terms of the Securities and this Indenture.  Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 11:00 A.M., New York City
time, on the due date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal, premium, if any,
and interest then due.


 


32

















 


SECTION 1002   Maintenance
of Office or Agency.


 


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


 


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


 


SECTION 1003   Money
for Securities Payments to Be Held in Trust.


 


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


 


Whenever the Company
shall have one or more Paying Agents for any series of Securities, it will,
prior to 11:00 A.M., New York City time, on each due date of the principal
of or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.


 


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


 


The Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.


 


Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of or any premium or interest on any Security of any
series and remaining unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general 


 


33

















 


circulation
in The City of New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.


 


SECTION 1004   Statement
by Officers as to Default.


 


(a)           The Company will deliver to the
Trustee, within 90 days after the end of each fiscal year of the Company ending
after the date hereof, an Officers’ Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge.


 


(b)           The Company shall deliver to the
Trustee, as soon as possible and in any event within five days after the
Company becomes aware or should reasonably become aware of the occurrence of an
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers’ Certificate setting forth
the details of such Event of Default or default, and the action which the
Company proposes to take with respect thereto.


 


SECTION 1005   Existence.


 


Subject to Article Eight,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect the existence, rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall not be
required to preserve any such right or franchise if it shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.


 


SECTION 1006   Maintenance
of Properties.


 


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


 


SECTION 1007   Payment
of Taxes and Other Claims.


 


The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.


 


SECTION 1008   Maintenance
of Insurance.


 


The Company shall, and
shall cause its Subsidiaries to, keep at all times all of their properties
which are of an insurable nature insured against loss or damage with insurers
believed by the Company to be responsible to the extent that property of
similar character is usually so insured by corporations similarly situated and
owning like properties in accordance with good business practice.


 


34

















 


SECTION 1009   Waiver
of Certain Covenants.


 


Except as otherwise
specified as contemplated by Section 301 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth
in any of Sections 1005 through 1008 or in any covenant provided pursuant to Section 301(20),
901(2) or 901(7) for the benefit of the Holders of such series if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.


 


ARTICLE
ELEVEN


REDEMPTION
OF SECURITIES


 


SECTION 1101   Applicability
of Article.


 


Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for such Securities) in accordance with this Article.


 


SECTION 1102   Election
to Redeem; Notice to Trustee.


 


The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 301 for such
Securities.  In case of any redemption at
the election of the Company of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least five Business Days prior to giving notice of such redemption
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed.  In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers’ Certificate evidencing
compliance with such restriction.


 


SECTION 1103   Selection
by Trustee of Securities to Be Redeemed.


 


If less than all the
Securities of any series are to be redeemed (unless all the Securities of such
series and of a specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, (i) in compliance with the requirements
of the principal national securities exchange on which such Securities are
listed, if such Securities are listed on any national securities exchange, and (ii) if
such Securities are not so listed, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of a portion of the principal amount of any
Security of such series, provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security.  If less than all the Securities of such
series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected by the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in accordance with the
preceding sentence.


 


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


 


The provisions of the two
preceding paragraphs shall not apply with respect to any redemption affecting
only a single Security, whether such Security is to be redeemed in whole or in
part.  In the case of any such


 


35
















 


redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.


 


For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.  If any Security selected for partial
redemption is surrendered for conversion after such selection, the converted
portion of such Security shall be deemed (so far as may be) to be the portion
selected for redemption.  Upon any
redemption of less than all the Securities of a series, for purposes of
selection for redemption the Company and the Trustee may treat as Outstanding
Securities surrendered for conversion during the period of 15 days next
preceding the mailing of a notice of redemption, and need not treat as
Outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.


 


SECTION 1104          Notice of Redemption.


 


Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the Security Register;
provided, however, notice of redemption may be given more than 60 days prior to
the Redemption Date if the notice is issued in connection with a satisfaction
and discharge pursuant to Article Four.


 


All notices of redemption
shall state:


 


(1)                                  the
Redemption Date,


 


(2)                                  the
Redemption Price, if then determinable and otherwise the method of its
determination,


 


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


 


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


 


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


 


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


 


(7)                                  if
applicable, the conversion price then in effect and the date on which the right
to convert such Securities will expire.


 


Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company and shall be irrevocable.  If any Security called for redemption is
converted pursuant hereto, any money deposited with the Trustee or any Paying
Agent or so segregated and held in trust for the redemption of such Security
shall be paid to the Company upon delivery of a Company Request to the Trustee or
such Paying Agent, or, if then held by the Company, shall be discharged from
such trust.


 


SECTION 1105          Deposit of Redemption Price.


 


Prior to 11:00 A.M.,
New York City time, on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as 


 


36

















 


provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.


 


SECTION 1106          Securities Payable on Redemption Date.


 


Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest.  Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 301, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.


 


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


 


SECTION 1107          Securities Redeemed in Part.


 


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


 


ARTICLE TWELVE

[INTENTIONALLY OMITTED]


 


ARTICLE THIRTEEN

[INTENTIONALLY OMITTED]


 


ARTICLE FOURTEEN

[INTENTIONALLY OMITTED]


 


ARTICLE FIFTEEN

DEFEASANCE AND COVENANT DEFEASANCE


 


SECTION 1501          Company’s Option to Effect Defeasance or
Covenant Defeasance.


 


The Company may elect, at
its option at any time, to have Section 1502 or Section 1503 applied
to any Securities or any series of Securities, as the case may be, designated
pursuant to Section 301 as being defeasible pursuant to such Section 1502
or 1503, in accordance with any applicable requirements provided pursuant to Section 301
and upon compliance with the conditions set forth below in this Article.  Any such election shall be evidenced in or
pursuant to a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities.


 


SECTION 1502          Defeasance and Discharge.


 


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


 


37

















 


as provided in this Section on
and after the date the conditions set forth in Section 1504 are satisfied
(herein called “Defeasance”).  For this
purpose, such Defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Securities and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1504 and as more
fully set forth in such Section, payments in respect of the principal of and
any premium and interest on such Securities when payments are due, or, if
applicable, to convert such Securities in accordance with their terms, (2) the
Company’s obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, and, if applicable, their obligations with respect to the
conversion of such Securities, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (4) this Article.  Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to
any Securities notwithstanding the prior exercise of its option (if any) to
have Section 1503 applied to such Securities.


 


SECTION 1503          Covenant Defeasance.


 


Upon the Company’s
exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the
Company shall be released from its obligations under Section 801(3),
Sections 1005 through 1008, inclusive, and any covenants provided pursuant to Section 301(20),
901(2) or 901(7) for the benefit of the Holders of such Securities,
and (2) the occurrence of any event specified in Sections 501(5) (with
respect to any of Section 801(3), Sections 1005 through 1008, inclusive,
and any such covenants provided pursuant to Section 301(20), 901(2) or
901(7)), 501(6), 501(7)), 501(10) and 501(11) shall be deemed not to be or
result in an Event of Default, in each case with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 1504 are satisfied (herein called “Covenant Defeasance”).  For this purpose, such Covenant Defeasance
means that, with respect to such Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so
specified in the case of Section 501(5)), whether directly or indirectly
by reason of any reference elsewhere herein to any such Section or Article or
by reason of any reference in any such Section or Article to any
other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.


 


SECTION 1504          Conditions to Defeasance or Covenant
Defeasance.


 


The following shall be
the conditions to the application of Section 1502 or Section 1503 to
any Securities or any series of Securities, as the case may be:


 


(1)                                  The Company shall irrevocably have
deposited or caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on such Securities
on the respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities.  As used
herein, “U.S. Government Obligation” means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government Obligation
which is so specified and held, provided that (except as required by law) such
custodian is not authorized 


 


38

















 


to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal or interest evidenced by such depositary
receipt.


 


(2)                                  In the event of an election to have Section 1502
apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this instrument, there has been
a change in the applicable Federal income tax law, in either case (A) or (B) to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be effected
with respect to such Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.


 


(3)                                  In the event of an election to have Section 1503
apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.


 


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


 


(5)                                  No event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be continuing at the
time of such deposit or, with regard to any such event specified in Sections
501(7) and (8), at any time on or prior to the 121st day after the date of
such deposit (it being understood that this condition shall not be deemed
satisfied until after such 121st day).


 


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


 


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


 


(8)                                  The Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit shall not cause
either the Trustee or the trust so created to be subject to the Investment
Company Act of 1940.


 


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


 


SECTION 1505          Deposited Money and U.S. Government
Obligations to Be Held in Trust; Miscellaneous Provisions.


 


Subject to the provisions
of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (solely for purposes of this Section and Section 1506,
the Trustee and any such other trustee are referred to collectively as the “Trustee”)
pursuant to Section 1504 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the 


 


39

















 


Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section 1504
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.


 


Anything in this Article to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 1504 with respect to any Securities
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.


 


SECTION 1506          Reinstatement.


 


If the Trustee or the
Paying Agent is unable to apply any money in accordance with this Article with
respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 1502
or 1503 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 1505 with respect to such Securities in accordance
with this Article; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money so held in trust.


 


ARTICLE SIXTEEN

SINKING FUNDS


 


SECTION 1601          Applicability of Article.


 


The provisions of this Article shall
be applicable to any sinking fund for the retirement of Securities of any
series except as otherwise specified as contemplated by Section 301 for
such Securities.


 


The minimum amount of any
sinking fund payment provided for by the terms of any Securities is herein
referred to as a “mandatory sinking fund payment”, and any payment in excess of
such minimum amount provided for by the terms of such Securities is herein
referred to as an “optional sinking fund payment.”  If provided for by the terms of any
Securities, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1602. 
Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.


 


SECTION 1602          Satisfaction of Sinking Fund Payments with
Securities.


 


The Company (1) may
deliver Outstanding Securities of a series (other than any previously called
for redemption) and (2) may apply as a credit Securities of a series which
have been (x) converted or (y) 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 any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided, however, that the Securities to be so
credited have not been previously so credited. 
The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the Securities
so to be redeemed, for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.


 


40

















 


SECTION 1603          Redemption of Securities for Sinking Fund.


 


Not less than 35 days
prior to each sinking fund payment date for any Securities, the Company will
deliver to the Trustee an Officers’ Certificate specifying the amount of the
next ensuing sinking fund payment for such Securities pursuant to the terms of
such Securities, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities pursuant to Section 1602 and will also
deliver to the Trustee any Securities to be so delivered.  Not less than 32 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 1103
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 1104.  Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.


 


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


 


* * * * * * *


 


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


 


	
   

  	
  ISSUER:

  
	
   

  	
   

  
	
   

  	
  NPS
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TRUSTEE:  

  
	
   

  	
   

  
	
   

  	
  [                    ],
  

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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