EXHIBIT
4.3


 




 


 





NPS PHARMACEUTICALS, INC.,

as Issuer


 


 


to


 


 


[                    ],

as Trustee


 


 


FORM OF

SUBORDINATED 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

  	
  7

  
	
  SECTION 105.

  	
  Notices, Etc., to Trustee and
  Company

  	
  8

  
	
  SECTION 106.

  	
  Notice to Holders; Waiver

  	
  8

  
	
  SECTION 107.

  	
  Conflict with Trust Indenture Act

  	
  9

  
	
  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

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR
  SATISFACTION AND DISCHARGE

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 401.

  	
  Satisfaction and Discharge of
  Indenture

  	
  17

  
	
  SECTION 402.

  	
  Application of Trust Money

  	
  17

  
	
   

  	
   

  	
   

  
	
  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

  	
  19

  
	
  SECTION 504.

  	
  Trustee May File Proofs of
  Claim

  	
  20

  
	
  SECTION 505.

  	
  Trustee May Enforce Claims
  Without Possession of Securities

  	
  20

  



 


i

















 


	
  SECTION 506.

  	
  Application of Money Collected

  	
  20

  
	
  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

  	
  21

  
	
  SECTION 510.

  	
  Rights and Remedies Cumulative

  	
  22

  
	
  SECTION 511.

  	
  Delay or Omission Not Waiver

  	
  22

  
	
  SECTION 512.

  	
  Control by Holders

  	
  22

  
	
  SECTION 513.

  	
  Waiver of Past Defaults

  	
  22

  
	
  SECTION 514.

  	
  Undertaking for Costs

  	
  22

  
	
  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

  	
  28

  
	
  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

  	
  31

  
	
  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

  	
  32

  
	
  SECTION 1003.

  	
  Money for Securities Payments to Be
  Held in Trust

  	
  32

  
	
  SECTION 1004.

  	
  Statement by Officers as to Default

  	
  33

  



 


ii

















 


	
  SECTION 1005.

  	
  Existence

  	
  33

  
	
  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

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN
  REDEMPTION OF SECURITIES

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 1101.

  	
  Applicability of Article

  	
  34

  
	
  SECTION 1102.

  	
  Election to Redeem; Notice to
  Trustee

  	
  34

  
	
  SECTION 1103.

  	
  Selection by Trustee of Securities
  to Be Redeemed

  	
  35

  
	
  SECTION 1104.

  	
  Notice of Redemption

  	
  35

  
	
  SECTION 1105.

  	
  Deposit of Redemption Price

  	
  36

  
	
  SECTION 1106.

  	
  Securities Payable on Redemption
  Date

  	
  36

  
	
  SECTION 1107.

  	
  Securities Redeemed in Part

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE
  SUBORDINATION OF SECURITIES

  	
  37

  
	
   

  	
   

  
	
  SECTION 1201.

  	
  Applicability of Article

  	
  37

  
	
  SECTION 1202.

  	
  Securities Subordinate to Senior
  Debt

  	
  37

  
	
  SECTION 1203.

  	
  Payment Over of Proceeds Upon
  Dissolution, Etc.

  	
  37

  
	
  SECTION 1204.

  	
  No Payment When Senior Debt of the
  Company in Default

  	
  38

  
	
  SECTION 1205.

  	
  Payment Permitted If No Default

  	
  39

  
	
  SECTION 1206.

  	
  Subrogation to Rights of Holders of
  Senior Debt of the Company

  	
  39

  
	
  SECTION 1207.

  	
  Provisions Solely to Define
  Relative Rights

  	
  39

  
	
  SECTION 1208.

  	
  Trustee to Effectuate Subordination

  	
  39

  
	
  SECTION 1209.

  	
  No Waiver of Subordination
  Provisions

  	
  39

  
	
  SECTION 1210.

  	
  Notice to Trustee

  	
  40

  
	
  SECTION 1211.

  	
  Reliance on Judicial Order or
  Certificate of Liquidating Agent

  	
  40

  
	
  SECTION 1212.

  	
  Trustee Not Fiduciary for Holders
  of Senior Debt of the Company

  	
  40

  
	
  SECTION 1213.

  	
  Rights of Trustee as Holder of
  Senior Debt of the Company; Preservation of Trustee’s Rights

  	
  41

  
	
  SECTION 1214.

  	
  Article Applicable to Paying
  Agents

  	
  41

  
	
  SECTION 1215.

  	
  Defeasance of this
  Article Twelve

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN
  [INTENTIONALLY OMITTED]

  	
  41

  
	
   

  	
   

  
	
  ARTICLE FOURTEEN
  [INTENTIONALLY OMITTED]

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIFTEEN
  DEFEASANCE AND COVENANT DEFEASANCE

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 1501.

  	
  Company’s Option to Effect
  Defeasance or Covenant Defeasance

  	
  41

  
	
  SECTION 1502.

  	
  Defeasance and Discharge

  	
  41

  
	
  SECTION 1503.

  	
  Covenant Defeasance

  	
  42

  
	
  SECTION 1504.

  	
  Conditions to Defeasance or
  Covenant Defeasance

  	
  42

  
	
  SECTION 1505.

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

  	
  43

  
	
  SECTION 1506.

  	
  Reinstatement

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIXTEEN
  SINKING FUNDS

  	
  44

  
	
   

  	
   

  
	
  SECTION 1601.

  	
  Applicability of Article

  	
  44

  
	
  SECTION 1602.

  	
  Satisfaction of Sinking Fund
  Payments with Securities

  	
  44

  
	
  SECTION 1603.

  	
  Redemption of Securities for
  Sinking Fund

  	
  45

  



 


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.


 


“Designated Senior Debt” with respect to any series of Securities shall
have the meaning specified as contemplated by Section 301.


 


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


 


2

















 


“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.


 


“Junior Subordinated Payment” has the meaning specified in Section 1203.


 


“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 by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such 


 


3





















 


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.


 


“Payment Blockage Period” has the meaning specified in Section 1204.


 


“Payment Default” has the meaning specified in Section 1204.


 


“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.


 


“Proceeding” has the meaning specified in Section 1203.


 


“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.


 


4

















 


“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.


 


“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.


 


“Securities Payment” has the meaning specified in Section 1203.


 


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


 


“Senior Debt” with respect to any series of Securities shall have the
meaning specified as contemplated by Section 301.


 


“Senior Nonmonetary Default” has the meaning specified in Section 1204.


 


“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”.


 


5
















 


“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.


 


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.


 


6

















 


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
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 


 


7

















 


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.


 


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.


 


8

















 


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.


 


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, the holders of Senior Debt 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 Indenture) 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 


 


9

















 


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.


 


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 change to the subordination
provisions that apply to the Securities of the series from those contained in Article Twelve
with respect to the Securities, and the definitions of Senior Debt and
Designated Senior Debt which shall apply to the Securities of the series;


 


(3)                                  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, 


 


10





















 


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);


 


(4)                                  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;


 


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


 


(6)                                  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;


 


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


 


(8)                                  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;


 


(9)                                  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;


 


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


 


(11)                            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;


 


(12)                            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;


 


(13)                            if the principal of or any premium or
interest on any Securities of the series is to be payable, at the election of
the Company or the Holder 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);


 


(14)                            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;


 


(15)                            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);


 


11





















 


(16)                            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;


 


(17)                            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 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;


 


(18)                            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;


 


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


 


(20)                            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


 


(21)                            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.


 


The Securities shall be subordinated in right of payment to Senior Debt
of the Company as provided in Article Twelve.


 


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.


 


12

















 


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,


 


(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 


 


13

















 


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.


 


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 


 


14





















 


the Company fails to
appoint a successor Depositary within 90 days, (B) there shall have
occurred and be continuing 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 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:


 


15
















 


(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.


 


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.


 


16

















 


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.


 


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.


 


17

















 


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 occasioned by the provisions of Article Twelve
or 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 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 


 


18





















 


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


 


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


 


(3)           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,


 


(4)           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


 


(5)           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


 


(6)           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


 


19

















 


(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,
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;


 


20

















 


SECOND:       SECOND: Subject to Article Twelve,
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 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.


 


21

















 


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.


 


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.


 


22

















 


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;


 


(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 


 


23





















 


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


 


(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.


 


24





















 


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,


 


(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


 


25
















 


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 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 indenture 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.


 


26

















 


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.


 


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.


 


27

















 


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: 

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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 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.


 


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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 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.


 


29

















 


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;


 


(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


 


30

















 


(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 or subordination 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


 


(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 


 


31

















 


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.


 


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, 


 


32

















 


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 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 


 


33

















 


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.


 


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(21), 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 


 


34

















 


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
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,


 


35
















 


(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
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.


 


36

















 


ARTICLE TWELVE 

SUBORDINATION OF SECURITIES


 


SECTION 1201.              Applicability
of Article.


 


Unless otherwise provided with respect to the Securities of any series
in or pursuant to the Board Resolution or supplemental indenture establishing
such series of Securities pursuant to Section 301, the provisions of this Article shall
be applicable to each series of Securities.


 


SECTION 1202.              Securities
Subordinate to Senior Debt.


 


The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the
provisions of Article Four and Article Fifteen), the payment of the
principal of (and premium, if any) and interest on each and all of the
Securities of such series are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior Debt of the
Company.


 


No provisions of this Article Twelve shall prevent the occurrence
of any Event of Default.


 


SECTION 1203.              Payment
Over of Proceeds Upon Dissolution, Etc.


 


In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment
for the benefit of creditors or any other marshalling of assets and liabilities
of the Company, then and in any such event specified in (a), (b) or (c) above
(each such event, if any, herein sometimes referred to as a “Proceeding”) the
holders of Senior Debt of the Company shall be entitled to receive payment in
full of all amounts due or to become due on or in respect of all Senior Debt of
the Company, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt
of the Company, before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character, whether in cash, property
or securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
subordinated to the payment of the Securities, such payment or distribution
being hereinafter referred to as a “Junior Subordinated Payment”), on account
of principal of (or premium, if any) or interest on the Securities or on
account of any purchase or other acquisition of Securities by the Company or
any Subsidiary of the Company (all such payments, distributions, purchases and acquisitions,
other than the payment or distribution of stock or securities of the Company
referred to in the second succeeding paragraph, herein referred to,
individually and collectively, as a “Securities Payment”), and to that end the
holders of Senior Debt of the Company shall be entitled to receive, for
application to the payment thereof, any Securities Payment which may be payable
or deliverable in respect of the Securities in any such Proceeding.


 


In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt of the Company is paid in full or
payment thereof provided for in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt of the Company, and if such
fact shall, at or prior to the time of such Securities Payment, have been made
known to the Trustee or, as the case may be, such Holder, then and in such
event such Securities Payment shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Debt of the Company remaining
unpaid, to the extent necessary to pay all Senior Debt of the Company in full,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Debt of the Company.


 


For purposes of this Article only, the words “any payment or
distribution of any kind or character, whether in cash, property or securities”
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which
stock or securities are subordinated


 


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in right of payment to all then outstanding Senior
Debt of the Company to substantially the same extent as the Securities are so
subordinated as provided in this Article. 
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its assets to another
Person upon the terms and conditions set forth in Article Eight shall not
be deemed a Proceeding for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer such assets, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions set forth in Article Eight.


 


SECTION 1204.              No
Payment When Senior Debt of the Company in Default.


 


In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made
unless and until such Senior Payment Default shall have been cured or waived or
shall have ceased to exist or all amounts then due and payable in respect of
Senior Debt of the Company shall have been paid in full, or provision shall
have been made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt of the Company; provided,
however, that nothing in this Section shall prevent the satisfaction of
any sinking fund payment in accordance with Article Sixteen by delivering
and crediting pursuant to Section 1602 Securities which have been acquired
(upon redemption or otherwise) prior to such Senior Payment Default.


 


“Senior Payment Default” means any default in the payment of principal
of (or premium, if any) or interest on any Senior Debt of the Company when due,
whether at the Stated Maturity of any such payment or by declaration of
acceleration, call for redemption or otherwise.


 


In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company
and the Trustee of written notice of such Senior Nonmonetary Default from the
agent for the Designated Senior Debt which is the subject of such Senior
Nonmonetary Default, no Securities Payment shall be made during the period (the
“Payment Blockage Period”) commencing on the date of such receipt of such
written notice and ending on the earlier of (i) the date on which such
Senior Nonmonetary Default shall have been cured or waived or shall have ceased
to exist or all Designated Senior Debt the subject of such Senior Nonmonetary
Default shall have been discharged; (ii) the 179th day after the date of
such receipt of such written notice; or (iii) the date on which the
Payment Blockage Period shall have been terminated by written notice to the
Company or the Trustee from the agent for the Designated Senior Debt initiating
the Payment Blockage Period; provided, however, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article Sixteen
by delivering and crediting pursuant to Section 1602 Securities which have
been acquired (upon redemption or otherwise) prior to the date of such receipt
of such written notice.  No more than one
Payment Blockage Period may be commenced with respect to the Securities of a
particular series during any 360-day period and there shall be a period of at
least 181 consecutive days in each 360-day period when no Payment Blockage
Period is in effect.  For all purposes of
this paragraph, no Senior Nonmonetary Default that existed or was continuing on
the date of commencement of any Payment Blockage Period shall be, or be made,
the basis for the commencement of a subsequent Payment Blockage Period, whether
or not within a period of 360 consecutive days, unless such Senior Nonmonetary
Default shall have been cured for a period of not less than 90 consecutive
days.


 


“Senior Nonmonetary Default” means the occurrence or existence and
continuance of any event of default with respect to any Designated Senior Debt
of the Company, other than a Senior Payment Default, permitting the holders of
such Designated Senior Debt (or a trustee or agent on behalf of the holders
thereof) to declare such Designated Senior Debt due and payable prior to the
date on which it would otherwise become due and payable.


 


In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to
the time of such Securities Payment, have been made known to the Trustee or, as
the case may be, such Holder, then and in such event such Securities Payment
shall be paid over and delivered forthwith to the Company.


 


The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1203 would be applicable.


 


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SECTION 1205.              Payment
Permitted If No Default.


 


Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time
except during the pendency of any Proceeding referred to in Section 1203
or under the conditions described in Section 1204, from making Securities
Payments, or (b) the application by the Trustee of any money deposited
with it hereunder to Securities Payments or the retention of such Securities
Payment by the Holders, if, at the time of such application by the Trustee, it
did not have knowledge that such Securities Payment would have been prohibited
by the provisions of this Article.


 


SECTION 1206.              Subrogation
to Rights of Holders of Senior Debt of the Company.


 


Subject to the payment in full of all amounts due or to become due on
or in respect of Senior Debt of the Company, or the provision for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of the Company, the Holders of the Securities shall be
subrogated to the rights of the holders of such Senior Debt of the Company to
receive payments and distributions of cash, property and securities applicable
to the Senior Debt of the Company until the principal of (and premium, if any)
and interest on the Securities shall be paid in full.  For purposes of such subrogation, no payments
or distributions to the holders of the Senior Debt of the Company of any cash,
property or securities to which the Holders of the Securities or the Trustee would
be entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt
of the Company by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt of the Company and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt of the Company.


 


SECTION 1207.              Provisions
Solely to Define Relative Rights.


 


The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt of the Company on the other hand.  Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a) impair,
as among the Company, its creditors other than holders of Senior Debt of the
Company and the Holders of the Securities, the obligation of the Company, which
is absolute and unconditional (and which, subject to the rights under this Article of
the holders of Senior Debt of the Company, is intended to rank equally with all
other general obligations of the Company), to pay to the Holders of the
Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Debt of the Company; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this Article of
the holders of Senior Debt of the Company to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.


 


SECTION 1208.              Trustee
to Effectuate Subordination.


 


Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.


 


SECTION 1209.              No
Waiver of Subordination Provisions.


 


No right of any present or future holder of any Senior Debt of the
Company to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.


 


Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt of the Company may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of 


 


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Senior Debt of the Company, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Debt of the Company, or otherwise
amend or supplement in any manner Senior Debt of the Company or any instrument
evidencing the same or any agreement under which Senior Debt of the Company is
outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt of the Company; (iii) release
any Person liable in any manner for the collection of Senior Debt of the
Company; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.


 


SECTION 1210.              Notice
to Trustee.


 


The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. 
Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Debt of the Company or from any trustee therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section at least three Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium, if any) or
interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.


 


Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt of the Company (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Debt of the Company (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Debt of the Company to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Debt of the Company held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article,
and if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.


 


SECTION 1211.              Reliance
on Judicial Order or Certificate of Liquidating Agent.


 


Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such Proceeding
is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Debt of the Company and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.


 


SECTION 1212.              Trustee
Not Fiduciary for Holders of Senior Debt of the Company.


 


The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt of the Company and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute to Holders
of Securities or to the Company or to any other Person cash, property or
securities to which any holders of Senior Debt of the Company shall be entitled
by virtue of this Article or otherwise.


 


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SECTION 1213.              Rights
of Trustee as Holder of Senior Debt of the Company; Preservation of Trustee’s
Rights.


 


The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt of the
Company which may at any time be held by it, to the same extent as any other
holder of Senior Debt of the Company, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.


 


Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.


 


SECTION 1214.              Article Applicable
to Paying Agents.


 


In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term “Trustee”
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1213 shall not apply to the Company or any Affiliate
of the Company if it or such Affiliate acts as Paying Agent.


 


SECTION 1215.              Defeasance
of this Article Twelve.


 


The subordination of the Securities of a series provided by this Article Twelve
is expressly made subject to the provisions for Defeasance or Covenant
Defeasance in Article Fifteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such Defeasance or Covenant
Defeasance, the Securities of such series then outstanding shall thereupon
cease to be subordinated pursuant to this Article Twelve.


 


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, and the
provisions of Article Twelve shall cease to be effective, 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 “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 


 


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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(21),
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(21), 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 and (3) the provisions of Article Twelve
shall cease to be effective, 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)) or Article Twelve, 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 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) 


 


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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)           At the time of such deposit, (A) no
default in the payment of any principal of or premium or interest on any Senior
Debt of the Company shall have occurred and be continuing, (B) no event of
default with respect to any Senior Debt of the Company shall have resulted in
such Senior Debt becoming, and continuing to be, due and payable prior to the
date on which it would otherwise have become due and payable (unless payment of
such Senior Debt has been made or duly provided for), and (C) no other
event of default with respect to any Senior Debt of the Company shall have
occurred and be continuing permitting (after notice or lapse of time or both)
the holders of such Senior Debt (or a trustee on behalf of such holders) to
declare such Senior Debt due and payable prior to the date on which it would
otherwise have become due and payable.


 


(9)           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.


 


(10)         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 


 


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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. Money and U.S. Government Obligations so held in trust
shall not be subject to the provisions of Article Twelve.


 


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.


 


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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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