EXHIBIT 4.4


 


Rigel Pharmaceuticals, Inc.,

Issuer



AND



[TRUSTEE],

Trustee


 






 


INDENTURE



Dated as of [·], 200


 






 


Senior Debt Securities


 


 

















 


 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions of Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

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

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Designation and Terms of Securities

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.02

  	
  Form of Securities and Trustee’s Certificate

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.03

  	
  Denominations: Provisions for Payment

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.04

  	
  Execution and Authentications

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.05

  	
  Registration of Transfer and Exchange

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.06

  	
  Temporary Securities

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.07

  	
  Mutilated, Destroyed, Lost or Stolen Securities

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.08

  	
  Cancellation

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.09

  	
  Benefits of Indenture

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.10

  	
  Authenticating Agent

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.11

  	
  Global Securities

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  REDEMPTION OF SECURITIES AND SINKING FUND
  PROVISIONS

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Redemption

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.02

  	
  Notice of Redemption

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.03

  	
  Payment Upon Redemption

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.04

  	
  Sinking Fund

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.05

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.06

  	
  Redemption of Securities for Sinking Fund

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  COVENANTS

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Principal, Premium and Interest

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.02

  	
  Maintenance of Office or Agency

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.03

  	
  Paying Agents

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.04

  	
  Appointment to Fill Vacancy in Office of Trustee

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.05

  	
  Compliance with Consolidation Provisions

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY
  AND THE TRUSTEE

  	
   

  	
  19

  
					



 


i

















 


	
  Section 5.01

  	
  Company to Furnish Trustee Names and Addresses of Securityholders

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.02

  	
  Preservation Of Information; Communications With Securityholders

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.03

  	
  Reports by the Company

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.04

  	
  Reports by the Trustee

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
  EVENT OF DEFAULT

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.02

  	
  Collection of Indebtedness and Suits for Enforcement by Trustee

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.03

  	
  Application of Moneys Collected

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.04

  	
  Limitation on Suits

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.05

  	
  Rights and Remedies Cumulative; Delay or Omission Not Waiver

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.06

  	
  Control by Securityholders

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.07

  	
  Undertaking to Pay Costs

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  CONCERNING THE TRUSTEE

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Certain Duties and Responsibilities of Trustee

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.02

  	
  Certain Rights of Trustee

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.03

  	
  Trustee Not Responsible for Recitals or Issuance or Securities

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.04

  	
  May Hold Securities

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.05

  	
  Moneys Held in Trust

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.06

  	
  Compensation and Reimbursement

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.07

  	
  Reliance on Officer’s Certificate

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.08

  	
  Disqualification; Conflicting Interests

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.09

  	
  Corporate Trustee Required; Eligibility

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.10

  	
  Resignation and Removal; Appointment of Successor

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.11

  	
  Acceptance of Appointment By Successor

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.12

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.13

  	
  Preferential Collection of Claims Against the Company

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.14

  	
  Notice of Default

  	
   

  	
  33

  
					



 


 


ii

















 


	
  ARTICLE 8

  	
  CONCERNING THE SECURITYHOLDERS

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Evidence of Action by Securityholders

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.02

  	
  Proof of Execution by Securityholders

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.03

  	
  Who May be Deemed Owners

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.04

  	
  Certain Securities Owned by Company Disregarded

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.05

  	
  Actions Binding on Future Securityholders

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  SUPPLEMENTAL INDENTURES

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Supplemental Indentures Without the Consent of Securityholders

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.02

  	
  Supplemental Indentures With Consent of Securityholders

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.03

  	
  Effect of Supplemental Indentures

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.04

  	
  Securities Affected by Supplemental Indentures

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.05

  	
  Execution of Supplemental Indentures

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  SUCCESSOR ENTITY

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Company May Consolidate, Etc.

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.02

  	
  Successor Entity Substituted

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.03

  	
  Evidence of Consolidation, Etc. to Trustee

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  SATISFACTION AND DISCHARGE

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Satisfaction and Discharge of Indenture

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.02

  	
  Discharge of Obligations

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.03

  	
  Deposited Moneys to be Held in Trust

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.04

  	
  Payment of Moneys Held by Paying Agents

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.05

  	
  Repayment to Company

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
  AND DIRECTORS

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  No Recourse

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  MISCELLANEOUS PROVISIONS

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Effect on Successors and Assigns

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.02

  	
  Actions by Successor

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.03

  	
  Surrender of Company Powers

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.04

  	
  Notices

  	
   

  	
  43

  
					



 


 


iii

















 


	
  Section 13.05

  	
  Governing Law

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.06

  	
  Treatment of Securities as Debt

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.07

  	
  Certificates and Opinions as to Conditions Precedent

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.08

  	
  Payments on Business Days

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.09

  	
  Conflict with Trust Indenture Act

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.10

  	
  Counterparts

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.11

  	
  Separability

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.12

  	
  Compliance Certificates

  	
   

  	
  44

  







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


 


 


iv
















INDENTURE


 


INDENTURE, dated as of [·], 200    , among RIGEL PHARMACEUTICALS, INC.,  a Delaware corporation (the “Company”),
and [TRUSTEE], as trustee (the “Trustee”):


 


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


 


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


 


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


 


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


 


ARTICLE 1



DEFINITIONS


 


Section 1.01         Definitions
of Terms.


 


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


 


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


 


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


 


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


 


1

















 


 


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


 


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


 


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


 


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


 


“Corporate
Trust Office” means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at                                                                                                 .


 


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


 


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


 


“Defaulted
Interest” has the meaning set forth in Section 2.03.


 


“Depositary”
means, with respect to Securities of any series for which the Company shall
determine that such Securities will be issued as a Global Security, The
Depository Trust Company, another clearing agency, or any successor registered
as a clearing agency under the Exchange Act, or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.11.


 


“Event
of Default” means, with respect to Securities of a particular
series, any event specified in Section 6.01, continued for the period of
time, if any, therein designated.


 


“Exchange Act”
means the Securities and Exchange Act of 1934, as amended.


 


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


 


“Governmental
Obligations” means securities that are (a) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United


 


 


2

















 


States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof at any time prior to
the stated maturity of the Securities, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the Governmental Obligation or the specific payment
of principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.


 


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


 


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


 


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


 


“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a
chief executive officer, a president, a chief financial officer, a chief
operating officer, any executive vice president, any senior vice president, any
vice president, the treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant secretary.


 


 “Officer’s Certificate”
means a certificate signed by any Officer. 
Each such certificate shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.


 


“Opinion
of Counsel” means an opinion in writing subject to customary
exceptions of legal counsel, who may be an employee of or counsel for the
Company, that is delivered to the Trustee in accordance with the terms
hereof.  Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.


 


“Outstanding”,
when used with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all Securities of
that series theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Securities theretofore canceled by the Trustee or
any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or
portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company


 


 


3

















 


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


 


“Person”
means any individual, corporation, partnership, joint venture, joint-stock
company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a  government or political subdivision or an
agency or instrumentality thereof.


 


“Predecessor
Security” of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.


 


“Responsible
Officer” when used with respect to the Trustee means the
chairman of its board of directors, the chief executive officer, the president,
any vice president, the secretary, the treasurer, any trust officer, any
corporate trust officer or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.


 


“Securities”
means the debt Securities authenticated and delivered under this Indenture.


 


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


 


“Security
Register” and “Security Registrar” shall have the meanings as set forth
in Section 2.05.


 


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


 


“Trustee”
means
                                                  ,
and, subject to the provisions of Article Seven, shall also include its
successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person.  The term “Trustee” as used with respect to a
particular series of the Securities shall mean the trustee with respect to that
series.


 


4

















 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, as
amended.


 


“Voting
Stock”, as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.


 


ARTICLE 2



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


 


Section 2.01         Designation
and Terms of Securities.


 


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


 


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


 


(2)   any limit upon the aggregate principal amount of the
Securities of that series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of that
series);


 


(3)   the date or dates on which the principal of the
Securities of the series is payable, any original issue discount that may apply
to the Securities of that series upon their issuance, the principal amount due
at maturity, and the place(s) of payment;


 


(4)   the rate or rates at which the Securities of the
series shall bear interest or the manner of calculation of such rate or rates,
if any;


 


(5)   the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest will be payable or
the manner of determination of such Interest Payment Dates, the place(s) of
payment, and the record date for the determination of holders to whom interest
is payable on any such Interest Payment Dates or the manner of determination of
such record dates;


 


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


 


 


5

















 


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


 


(8)   the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund, mandatory redemption,
or analogous provisions (including payments made in cash in satisfaction of
future sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the terms and
conditions upon which, Securities of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;


 


(9)   the form of the Securities of the series including the
form of the Certificate of Authentication for such series;


 


(10) if other than denominations of one thousand U.S.
dollars ($1,000) or any integral multiple thereof, the denominations in which
the Securities of the series shall be issuable;


 


(11) any and all other terms (including terms, to the
extent applicable, relating to any auction or remarketing of the Securities of
that series and any security for the obligations of the Company with respect to
such Securities) with respect to such series (which terms shall not be
inconsistent with the terms of this Indenture, as amended by any supplemental
indenture) including any terms which may be required by or advisable under
United States laws or regulations or advisable in connection with the marketing
of Securities of that series;


 


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


 


(13) whether the Securities will be convertible into or
exchangeable for shares of common stock, preferred stock or other securities of
the Company or any other Person and, if so, the terms and conditions upon which
such Securities will be so convertible or exchangeable, including the
conversion or exchange price, as applicable, or how it will be calculated and
may be adjusted, any mandatory or optional (at the Company’s option or the
holders’ option) conversion or exchange features, and the applicable conversion
or exchange period;


 


(14) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;


 


(15) any additional or different Events of Default or
restrictive covenants (which may include, among other restrictions,
restrictions on the Company’s ability or the ability of the Company’s
Subsidiaries to:  incur additional
indebtedness; issue additional securities; create liens; pay dividends or make
distributions in respect of the capital stock of the Company or the Company’s
Subsidiaries; redeem capital stock; place restrictions on the Company’s
Subsidiaries’ ability to pay dividends, make distributions or transfer assets;
make investments or other restricted payments; sell or otherwise dispose of
assets; enter into sale-


 


6

















 


leaseback transactions;
engage in transactions with stockholders or affiliates; issue or sell stock of
the Company’s Subsidiaries; or effect a consolidation or merger) or financial
covenants (which may include, among other financial covenants, financial covenants
that require the Company and its Subsidiaries to maintain specified interest
coverage, fixed charge, cash flow-based, asset-based or other financial ratios)
provided for with respect to the Securities of the series;


 


(16) if other than dollars, the coin or currency in which
the Securities of the series are denominated (including, but not limited to,
foreign currency);


 


(17) the terms and conditions, if any, upon which the
Company shall pay amounts in addition to the stated interest, premium, if any
and principal amounts of the Securities of the series to any Securityholder
that is not a “United States person” for federal tax purposes; and


 


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


 


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


 


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


 


Securities of any particular series may be issued at
various times, with different dates on which the principal or any installment
of principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different redemption dates.


 


Section 2.02         Form of
Securities and Trustee’s Certificate.


 


The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution, and set forth in an
Officer’s Certificate, and they may have such letters, numbers or other marks
of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, 


 


or as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which Securities of that series may be
listed, or to conform to usage.


 


Section 2.03         Denominations:
Provisions for Payment.


 


The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, subject to Section 2.01(a)(10).


 


 


7

















 


The Securities of a
particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. 
Subject to Section 2.01(a)(16), the principal of and the interest
on the Securities of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin or currency
of the United States of America that at the time is legal tender for public and
private debt, at the office or agency of the Company maintained for that purpose.  Each Security shall be dated the date of its
authentication.  Interest on the
Securities shall be computed on the basis of a 360-day year composed of twelve
30-day months.


 


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


 


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


 


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


 


 


8
















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


 


Unless otherwise set forth in a Board Resolution or
one or more indentures supplemental hereto establishing the terms of any series
of Securities pursuant to Section 2.01 hereof, the term “regular record
date” as used in this Section with respect to a series of Securities and
any Interest Payment Date for such series shall mean either the fifteenth day
of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the first day of a month, or the first day of the
month in which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.


 


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


 


Section 2.04         Execution
and Authentications.


 


The Securities shall be signed on behalf of the
Company by one of its Officers. 
Signatures may be in the form of a manual or facsimile signature.


 


The Company may use the facsimile signature of any
Person who shall have been an Officer, notwithstanding the fact that at the
time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be such an officer of the Company.  The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or
usage.  Each Security shall be dated the
date of its authentication by the Trustee.


 


A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating
Agent.  Such signature shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.  At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the
Trustee for authentication, together with a written order of the Company for
the authentication and delivery of such Securities, signed by an Officer, and
the Trustee in accordance with such written order shall authenticate and
deliver such Securities.


 


In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, if requested, and
(subject to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.


 


 


9

















 


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


 


Section 2.05         Registration
of Transfer and Exchange.


 


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


 


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


 


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


 


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


 


(c)           Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officer’s Certificate, or established in one or
more indentures supplemental to this Indenture, no service charge shall be made
for any exchange or registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.


 


(d)           The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series and
ending at the close of business on the day of such mailing, nor (ii) to
register the


 


 


10

















 


transfer of or exchange any Securities of any series
or portions thereof called for redemption, other than the unredeemed portion of
any such Securities being redeemed in part. 
The provisions of this Section 2.05 are, with respect to any Global
Security, subject to Section 2.11 hereof.


 


Section 2.06         Temporary
Securities.


 


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


 


Section 2.07         Mutilated,
Destroyed, Lost or Stolen Securities.


 


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


 


In case any Security that has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Security) if
the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as they may require to save them harmless, and, in
case of destruction, loss 


 


11

















 


or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Security and of the ownership thereof.


 


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


 


Section 2.08         Cancellation.


 


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


 


Section 2.09         Benefits
of Indenture.


 


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


 


Section 2.10         Authenticating
Agent.


 


So long as any of the Securities of any series remain
Outstanding there may be an Authenticating Agent for any or all such series of
Securities which the Trustee shall have the right to appoint.  Said Authenticating Agent shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series
issued upon exchange, transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.  All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series.  Each Authenticating Agent shall be acceptable
to the Company and shall be a corporation that has a combined capital and


 


 


12

















 


surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a trust
business, and that is otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by federal or state
authorities.  If at any time any
Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.


 


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


 


Section 2.11         Global
Securities.


 


(a)           If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section 2.04,
authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the Outstanding Securities of such series, (ii) shall be registered
in the name of the Depositary or its nominee, (iii) shall be delivered by
the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) shall
bear a legend substantially to the following effect: “Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary.”


 


(b)           Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depositary
for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.


 


(c)           If at any time the Depositary for a series of the Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, or if an Event of
Default has occurred and is continuing and the Company has received a request
from the Depositary or from the Trustee, this Section 2.11 shall no longer
be applicable to the Securities of such series and the Company will execute,
and subject to Section 2.04, the Trustee will authenticate and deliver the
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security.  In addition, the
Company may at any time determine that


 


13

















 


the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this Section 2.11
shall no longer apply to the Securities of such series.  In such event the Company will execute and,
subject to Section 2.04, the Trustee, upon receipt of an Officer’s
Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange
for such Global Security.  Upon the exchange
of the Global Security for such Securities in definitive registered form
without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee.  Such Securities
in definitive registered form issued in exchange for the Global Security
pursuant to this Section 2.11(c) shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee.  The Trustee shall
deliver such Securities to the Depositary for delivery to the Persons in whose
names such Securities are so registered.


 


ARTICLE 3



REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS


 


Section 3.01         Redemption.


 


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


 


Section 3.02         Notice
of Redemption.


 


(a)   In case the Company shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Securities of any
series in accordance with any right the Company reserved for itself to do so
pursuant to Section 2.01 hereof, the Company shall, or shall cause the
Trustee to, give notice of such redemption to holders of the Securities of such
series to be redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 90 days before the date
fixed for redemption of that series to such holders at their last addresses as
they shall appear upon the Security Register, unless a shorter period is
specified in the Securities to be redeemed. 
Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the registered
holder receives the notice.  In any case,
failure duly to give such notice to the holder of any Security of any series
designated for redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the redemption of any
other Securities of such series or any other series.  In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officer’s Certificate evidencing compliance with
any such restriction.


 


Each such notice of redemption shall specify the date
fixed for redemption and the redemption price at which Securities of that
series are to be redeemed, and shall state that payment of the redemption price
of such Securities to be redeemed will be made at the office or


 


 


14

















 


agency of the Company,
upon presentation and surrender of such Securities, that interest accrued to
the date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the redemption
is from a sinking fund, if such is the case. 
If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in part shall
specify the particular Securities to be so redeemed.


 


In case any Security is to be redeemed in part only,
the notice that relates to such Security shall state the portion of the
principal amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will
be issued.


 


(b)           If less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days’ notice (unless a shorter
notice shall be satisfactory to the Trustee) in advance of the date fixed for
redemption as to the aggregate principal amount of Securities of the series to
be redeemed, and thereupon the Trustee shall select, by lot or in such other
manner as it shall deem appropriate and fair in its discretion and that may
provide for the selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal amount of
such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part.  The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by an Officer, instruct
the Trustee or any paying agent to call all or any part of the Securities of a
particular series for redemption and to give notice of redemption in the manner
set forth in this Section, such notice to be in the name of the Company or its
own name as the Trustee or such paying agent may deem advisable.  In any case in which notice of redemption is
to be given by the Trustee or any such paying agent, the Company shall deliver
or cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or
other records, or suitable copies or extracts therefrom, sufficient to enable
the Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.


 


Section 3.03         Payment
Upon Redemption.


 


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


 


 


15

















 


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


 


Section 3.04         Sinking
Fund.


 


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


 


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


 


Section 3.05         Satisfaction
of Sinking Fund Payments with Securities.


 


The Company (i) may deliver Outstanding
Securities of a series and (ii) may apply as a credit Securities of a
series that have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in
each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited.  Such Securities shall be received and
credited for such purpose by the Trustee at the redemption price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.


 


Section 3.06         Redemption
of Securities for Sinking Fund.


 


Not less than 45 days prior to each sinking fund
payment date for any series of Securities (unless a shorter period shall be
satisfactory to the Trustee), the Company will deliver to the Trustee an
Officer’s Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and
will, together with such Officer’s Certificate, deliver to the Trustee any
Securities to be so delivered.  Not less
than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.02. 
Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.


 


16

















 


ARTICLE 4



COVENANTS


 


Section 4.01         Payment
of Principal, Premium and Interest.


 


The Company will duly and punctually pay or cause to
be paid the principal of (and premium, if any) and interest on the Securities
of that series at the time and place and in the manner provided herein and
established with respect to such Securities. 
Payments of principal on the Securities may be made at the time provided
herein and established with respect to such Securities by U.S. dollar check
drawn on and mailed to the address of the Securityholder entitled thereto as
such address shall appear in the Security Register, or U.S. dollar wire
transfer to, a U.S. dollar account (such wire transfer to be made only to a
Securityholder of an aggregate principal amount of Securities of the applicable
series in excess of U.S. $2,000,000 and only if such Securityholder shall have
furnished wire instructions to the Trustee no later than 15 days prior to the
relevant payment date).  Payments of
interest on the Securities may be made at the time provided herein and
established with respect to such Securities by U.S. dollar check mailed to the
address of the Securityholder entitled thereto as such address shall appear in
the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account
(such a wire transfer to be made only to a Securityholder of an aggregate
principal amount of Securities of the applicable series in excess of U.S.
$2,000,000 and only if such Securityholder shall have furnished wire
instructions in writing to the Security Registrar and the Trustee no later than
15 days prior to the relevant payment date.


 


Section 4.02         Maintenance
of Office or Agency.


 


So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency with respect to
each such series and at such other location or locations as may be designated
as provided in this Section 4.02, where (i) Securities of that series
may be presented for payment, (ii) Securities of that series may be
presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by any officer authorized to sign an Officer’s
Certificate and delivered to the Trustee, designate some other office or agency
for such purposes or any of them.  If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.  The Company initially appoints the Corporate
Trust Office of the Trustee as its paying agent with respect to the Securities.


 


Section 4.03         Paying
Agents.


 


(a)   If the Company shall appoint one or more paying agents
for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute


 


17

















 


and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:


 


(1)           that it will hold all sums held by it as such agent for the payment of
the principal of (and premium, if any) or interest on the Securities of that
series (whether such sums have been paid to it by the Company or by any other
obligor of such Securities) in trust for the benefit of the Persons entitled
thereto;


 


(2)           that it will give the Trustee notice of any failure by the Company (or
by any other obligor of such Securities) to make any payment of the principal
of (and premium, if any) or interest on the Securities of that series when the
same shall be due and payable;


 


(3)           that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such paying agent; and


 


(4)           that it will perform all other duties of paying agent as set forth in
this Indenture.


 


(b)           If the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the principal
of (and premium, if any) or interest on Securities of that series, set aside,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or interest so
becoming due on Securities of that series until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. 
Whenever the Company shall have one or more paying agents for any series
of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with the
paying agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
paying agent is the Trustee) the Company will promptly notify the Trustee of
this action or failure so to act.


 


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


 


 


18
















Section 4.04         Appointment
to Fill Vacancy in Office of Trustee.


 


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


 


Section 4.05         Compliance
with Consolidation Provisions.


 


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


 


ARTICLE 5



SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE


 


Section 5.01         Company
to Furnish Trustee Names and Addresses of Securityholders.


 


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


 


Section 5.02         Preservation
Of Information; Communications With Securityholders.


 


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


 


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


 


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


 


19

















 


its obligations under Section 312(b) of the
Trust Indenture Act in accordance with the provisions of Section 312(b) of
the Trust Indenture Act.


 


Section 5.03         Reports
by the Company.


 


The Company covenants and agrees to provide (which
delivery may be via electronic mail) to the Trustee, after the Company files
the same with the Securities and Exchange Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Securities and Exchange Commission may
from time to time by rules and regulations prescribe) that the Company
files with the Securities and Exchange Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; provided, however, the Company
shall not be required to deliver to the Trustee any materials for which the
Company has sought and received confidential treatment by the Securities and
Exchange Commission; and provided further, so long as such filings by the
Company are available on the Securities and Exchange Commission’s Electronic
Data Gathering, Analysis and Retrieval System (EDGAR), such filings shall be
deemed to have been filed with the Trustee for purposes of this Section 5.03
without any further action required by the Company.


 


Section 5.04         Reports
by the Trustee.


 


(a)           If required by Section 313(a) of the Trust Indenture Act, the
Trustee, within sixty (60) days after each May 1, shall transmit by mail,
first class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register, a brief report dated as of such May 1,
which complies with Section 313(a) of the Trust Indenture Act.


 


(b)           The Trustee shall comply with Section 313(b) and 313(c) of
the Trust Indenture Act.


 


(c)           A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each securities
exchange upon which any Securities are listed (if so listed) and also with the
Securities and Exchange Commission.  The
Company agrees to notify the Trustee when any Securities become listed on any
securities exchange.


 


ARTICLE 6



REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT


 


Section 6.01         Events
of Default.


 


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


 


(1)           the Company defaults in the payment of any installment of interest upon
any of the Securities of that series, as and when the same shall become due and
payable,


 


 


20

















 


and such default continues for a period of 90 days;
provided, however, that a valid extension of an interest payment period by the
Company in accordance with the terms of any indenture supplemental hereto shall
not constitute a default in the payment of interest for this purpose;


 


(2)           the Company defaults in the payment of the principal of (or premium, if
any, on) any of the Securities of that series as and when the same shall become
due and payable whether at maturity, upon redemption, by declaration or
otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series; provided, however, that a valid
extension of the maturity of such Securities in accordance with the terms of
any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;


 


(3)           the Company fails to observe or perform any other of its covenants or
agreements with respect to that series contained in this Indenture or otherwise
established with respect to that series of Securities pursuant to Section 2.01
hereof (other than a covenant or agreement that has been expressly included in
this Indenture solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have been given to the Company
by the Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of at least 25% in principal amount of the Securities of
that series at the time Outstanding;


 


(4)           the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences
a voluntary case, (ii) consents to the entry of an order for relief
against it in an involuntary case, (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property or (iv) makes
a general assignment for the benefit of its creditors; or


 


(5)           a court of competent jurisdiction enters an order under any Bankruptcy
Law that (i) is for relief against the Company in an involuntary case, (ii) appoints
a Custodian of the Company for all or substantially all of its property or (iii) orders
the liquidation of the Company, and the order or decree remains unstayed and in
effect for 90 days.


 


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


 


(c)           At any time after the principal of (and premium, if any, on) and
accrued and unpaid interest on the Securities of that series shall have been so
declared due and payable,


 


 


21

















 


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


 


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


 


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


 


Section 6.02         Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


(a)           The Company covenants that (i) in case it shall default in the
payment of any installment of interest on any of the Securities of a series, or
in any payment required by any sinking or analogous fund established with
respect to that series as and when the same shall have become due and payable,
and such default shall have continued for a period of 90 days, or (ii) in
case it shall default in the payment of the principal of (or premium, if any,
on) any of the Securities of a series when the same shall have become due and
payable, whether upon maturity of the Securities of a series or upon redemption
or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of
that series, the whole amount that then shall have been become due and payable
on all such Securities for principal (and premium, if any) or interest, or
both, as the case may be, with interest upon the overdue principal (and
premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments of interest at the
rate per annum expressed in the Securities of that series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the Trustee under Section 7.06.


 


(b)           If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the


 


 


22

















 


sums so due and unpaid, and may prosecute any such
action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law or equity out of the property of the
Company or other obligor upon the Securities of that series, wherever situated.


 


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


 


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


 


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


 


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


 


 


23

















 


Section 6.03         Application
of Moneys Collected.


 


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


 


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


 


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


 


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


 


Section 6.04         Limitation
on Suits.


 


No holder of any Security of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless (i) such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series specifying
such Event of Default, as hereinbefore provided; (ii) the holders of not
less than 25% in aggregate principal amount of the Securities of such series
then Outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be incurred
therein or thereby; (iv) the Trustee for 90 days after its receipt of such
notice, request and offer of indemnity, shall have failed to institute any such
action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give
the Trustee a direction inconsistent with the request.


 


Notwithstanding anything contained herein to the
contrary or any other provisions of this Indenture, the right of any holder of
any Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker and holder
and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or


 


 


24

















 


prejudice the rights of
the holders of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series.  For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.


 


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


 


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


 


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


 


Section 6.06         Control
by Securityholders.


 


The holders of a majority
in aggregate principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.04, shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture.  Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or officers of the
Trustee, determine that the proceeding so directed, subject to the Trustee’s
duties under the Trust Indenture Act, would involve the Trustee in personal liability
or might be unduly prejudicial to the Securityholders not involved in the
proceeding.  The holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding affected thereby, determined in accordance with Section 8.04,
may on behalf of the holders of all of the Securities of such series waive any
past default in the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series and its
consequences, except a default in the payment of the principal of, or premium,
if any, or interest on, any of the Securities of that series as and when the
same shall become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)).  Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Securities of such series shall be
restored to their former positions and rights


 


25

















 


hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.


 


Section 6.07         Undertaking
to Pay Costs.


 


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


 


ARTICLE 7



CONCERNING THE TRUSTEE


 


Section 7.01         Certain
Duties and Responsibilities of Trustee.


 


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


 


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


 


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


 


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


 


26

















 


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


 


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


 


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


 


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


 


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


 


Section 7.02         Certain
Rights of Trustee.


 


Except as otherwise
provided in Section 7.01:


 


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


 


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


 


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


 


27

















 


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


 


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


 


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


 


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


 


In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (1) any Event of
Default occurring pursuant to Sections 6.01(a)(1) and 6.01(a)(2) or (2) any
Default or Event of Default of which the Trustee shall have received written
notification in the manner set forth in this Indenture or a Responsible Officer
of the Trustee shall have obtained actual knowledge.  Delivery of reports, information and
documents to the Trustee under Section 5.03 is for informational purposes
only and the information and the Trustee’s receipt of the foregoing shall not
constitute constructive notice of any information contained therein, or
determinable from information contained therein including the Company’s
compliance with any of their covenants thereunder (as to which the Trustee is
entitled to rely exclusively on an Officer’s Certificate).


 


 


28
















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


 


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


 


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


 


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


 


Section 7.04         May Hold
Securities.


 


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


 


Section 7.05         Moneys
Held in Trust.


 


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


 


Section 7.06         Compensation
and Reimbursement.


 


(a)           The Company covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust) as the Company and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, and, except as otherwise expressly provided herein,
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all Persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence or bad faith and
except as the Company and Trustee may from time to time agree in writing.  The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the reasonable costs
and expenses of defending itself against any claim of liability in the
premises.


 


29

















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


 


Section 7.07         Reliance
on Officer’s Certificate.


 


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


 


Section 7.08         Disqualification;
Conflicting Interests.


 


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


 


Section 7.09         Corporate
Trustee Required; Eligibility.


 


There shall at all times be a Trustee with respect to
the Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia, or a corporation
or other Person permitted to act as trustee by the Securities and Exchange
Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority.


 


If such corporation or other Person publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.  In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.


 


30

















Section 7.10         Resignation
and Removal; Appointment of Successor.


 


(a)           The Trustee or any successor hereafter appointed may at any time resign
with respect to the Securities of one or more series by giving written notice
thereof to the Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Securityholders of such series, as their names and
addresses appear upon the Security Register. 
Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Securities of such series by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee.  If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee.  Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


31

















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


 


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


 


Section 7.11         Acceptance
of Appointment By Successor.


 


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


 


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


 


32

















successor trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor trustee relates.


 


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


 


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


 


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


 


Section 7.12         Merger,
Conversion, Consolidation or Succession to Business.


 


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


 


Section 7.13         Preferential
Collection of Claims Against the Company.


 


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


 


Section 7.14         Notice of Default


 


If any Default or any Event of Default occurs and is
continuing and if such Default or Event of Default is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Securityholder in the
manner and to the extent provided in Section 313(c) of the Trust
Indenture


 


33

















Act notice of the Default or Event of Default within
the earlier of 90 days after it occurs and 30 days after it is known to a
Responsible Officer of the Trustee or written notice of it is received by the
Trustee, unless such Default or Event of Default has been cured; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Securityholders.


 


ARTICLE 8


 


CONCERNING THE SECURITYHOLDERS


 


Section 8.01         Evidence
of Action by Securityholders.


 


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


 


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


 


Section 8.02         Proof
of Execution by Securityholders.


 


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


 


34

















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


 


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


 


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


 


Section 8.03         Who
May be Deemed Owners.


 


Prior to the due presentment for registration of
transfer of any Security, the Company, the Trustee, any paying agent and any
Security Registrar may deem and treat the Person in whose name such Security
shall be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any
notice of ownership or writing thereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal of,
premium, if any, and (subject to Section 2.03) interest on such Security
and for all other purposes; and neither the Company nor the Trustee nor any
paying agent nor any Security Registrar shall be affected by any notice to the
contrary.


 


Section 8.04         Certain
Securities Owned by Company Disregarded.


 


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


 


Section 8.05         Actions
Binding on Future Securityholders.


 


At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by
the holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the
evidence to be included in the Securities the holders of which have consented
to such action may, by filing written notice with the Trustee, and upon proof
of holding as provided in Section 8.02, revoke


 


35

















such action so far as concerns such Security.  Except as aforesaid any such action taken by
the holder of any Security shall be conclusive and binding upon such holder and
upon all future holders and owners of such Security, and of any Security issued
in exchange therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Security.  Any action taken by the
holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.


 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


Section 9.01         Supplemental
Indentures Without the Consent of Securityholders.


 


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


 


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


 


(b)           to comply with Article Ten;


 


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


 


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


 


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


 


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


 


(g)           to provide for the issuance of and establish the form and terms and
conditions of the Securities of any series as provided in Section 2.01, to
establish the form of any


 


36

















certifications required to be furnished pursuant to
the terms of this Indenture or any series of Securities, or to add to the
rights of the holders of any series of Securities;


 


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


 


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


 


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


 


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


 


Section 9.02         Supplemental
Indentures With Consent of Securityholders.


 


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


 


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


 


Section 9.03         Effect
of Supplemental Indentures.


 


Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this
Indenture shall, with respect to such series, be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the


 


37

















holders of Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.


 


Section 9.04         Securities
Affected by Supplemental Indentures.


 


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


 


Section 9.05         Execution
of Supplemental Indentures.


 


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


 


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


 


38
















ARTICLE 10



SUCCESSOR ENTITY


 


Section 10.01       Company
May Consolidate, Etc.


 


Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or
established in one or more indentures supplemental to this Indenture, nothing
contained in this Indenture shall prevent any consolidation or merger of the
Company with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however, (a) the
Company hereby covenants and agrees that, upon any such consolidation or merger
(in each case, if the Company is not the survivor of such transaction), sale,
conveyance, transfer or other disposition, the due and punctual payment of the
principal of (premium, if any) and interest on all of the Securities of all
series in accordance with the terms of each series, according to their tenor,
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or performed by
the Company shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
reasonably satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such
property and (b) in the event that the Securities of any series then
Outstanding are convertible into or exchangeable for shares of common stock or
other securities of the Company, such entity shall, by such supplemental
indenture, make provision so that the Securityholders of Securities of that
series shall thereafter be entitled to receive upon conversion or exchange of
such Securities the number of securities or property to which a holder of the
number of shares of common stock or other securities of the Company deliverable
upon conversion or exchange of those Securities would have been entitled had
such conversion or exchange occurred immediately prior to such consolidation,
merger, sale, conveyance, transfer or other disposition.


 


Section 10.02       Successor
Entity Substituted.


 


(a)           In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor entity by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the obligations set forth under Section 10.01
on all of the Securities of all series Outstanding, such successor entity shall
succeed to and be substituted for the Company with the same effect as if it had
been named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the
Securities.


 


39

















 


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


 


(c)           Nothing contained in this Article shall require any action by the
Company in the case of a consolidation or merger of any Person into the Company
where the Company is the survivor of such transaction, or the acquisition by
the Company, by purchase or otherwise, of all or any part of the property of
any other Person (whether or not affiliated with the Company).


 


Section 10.03       Evidence of Consolidation, Etc. to
Trustee.


 


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


 


ARTICLE 11



SATISFACTION AND DISCHARGE


 


Section 11.01       Satisfaction
and Discharge of Indenture.


 


If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series
theretofore authenticated and not delivered to the Trustee for cancellation
(other than any Securities that shall have been destroyed, lost or stolen and
that shall have been replaced or paid as provided in Section 2.07 and
Securities for whose payment money or Governmental Obligations have theretofore
been deposited in trust or segregated and held in trust by the Company and
thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05);
or (b) all such Securities of a particular series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in
moneys or Governmental Obligations or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
at maturity or upon redemption all Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause
to be paid all other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.03, 2.05, 2.07,
4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and 11.05, that shall
survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to such
series.


 


40

















 


Section 11.02       Discharge
of Obligations.


 


If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have
not become due and payable as described in Section 11.01 shall have been
paid by the Company by depositing irrevocably with the Trustee as trust funds
moneys or an amount of Governmental Obligations sufficient to pay at maturity
or upon redemption all such Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of the Company
under this Indenture with respect to such series shall cease to be of further
effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02,
4,03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities
shall mature and be paid.


 


Thereafter, Sections 7.06 and 11.05 shall survive.


 


Section 11.03       Deposited
Moneys to be Held in Trust.


 


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


 


Section 11.04       Payment
of Moneys Held by Paying Agents.


 


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


 


Section 11.05       Repayment
to Company.


 


Any moneys or Governmental Obligations deposited with
any paying agent or the Trustee, or then held by the Company, in trust for
payment of principal of or premium, if any, or interest on the Securities of a
particular series that are not applied but remain unclaimed by the holders of
such Securities for at least two years after the date upon which the principal
of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, or such other shorter period set forth in applicable
escheat or abandoned or unclaimed property law, shall be repaid to the Company
on May 31 of each year or upon the Company’s request or (if then held by
the Company) shall be discharged from such trust; and thereupon the paying
agent and the Trustee shall be released from all further liability with respect
to such moneys or Governmental Obligations, and the holder of any of the
Securities entitled to receive such payment shall thereafter, as a general
creditor, look only to the Company for the payment thereof.


 


41

















 


ARTICLE 12



IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


Section 12.01       No
Recourse.


 


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


 


ARTICLE 13



MISCELLANEOUS PROVISIONS


 


Section 13.01       Effect
on Successors and Assigns.


 


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


 


Section 13.02       Actions
by Successor.


 


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


 


Section 13.03       Surrender
of Company Powers.


 


The Company by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers reserved to the Company, and 


 


42

















 


thereupon such power so
surrendered shall terminate both as to the Company and as to any successor
corporation.


 


Section 13.04       Notices.


 


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


 


Section 13.05       Governing
Law.


 


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


 


Section 13.06       Treatment
of Securities as Debt.


 


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


 


Section 13.07       Certificates
and Opinions as to Conditions Precedent.


 


(a)           Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officer’s Certificate stating that all conditions
precedent provided for in this Indenture (other than the certificate to be
delivered pursuant to Section 13.12) relating to the proposed action have been
complied with and, if requested, an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.


 


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


 


43

















 


covenant or condition has been complied with; and (iv)
a statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.


 


Section 13.08       Payments
on Business Days.


 


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


 


Section 13.09       Conflict
with Trust Indenture Act.


 


If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.


 


Section 13.10       Counterparts.


 


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


 


Section 13.11       Separability.


 


In case any one or more of the provisions contained in
this Indenture or in the Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such Securities shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.


 


Section 13.12       Compliance Certificates.


 


The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year during which any Securities of any
series were outstanding, an officer’s certificate stating whether or not the
signers know of any Default or Event of Default that occurred during such
fiscal year.  Such certificate shall
contain a certification from the principal executive officer, principal
financial officer or principal accounting officer of the Company that a review
has been conducted of the activities of the Company and the Company’s
performance under this Indenture and that the Company has complied with all
conditions and covenants under this Indenture. 
For purposes of this Section 13.12, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.  If the officer of the
Company signing such certificate has knowledge of such a Default or Event of
Default, the certificate shall describe any such Default or Event of Default
and its status.


 


44

















 


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


 


	
   

  	
  RIGEL PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [TRUSTEE], as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


45

















 


CROSS-REFERENCE TABLE (1)


 


	
  Section of Trust Indenture Act of 1939, as Amended

  	
   

  	
  Section of Indenture

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13

  
	
  311(b)

  	
   

  	
  7.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.01

  
	
   

  	
   

  	
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(c)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a)

  
	
   

  	
   

  	
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  
	
   

  	
   

  	
  13.12

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.07(a)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.07(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a)

  
	
   

  	
   

  	
  7.01(b)

  
	
  315(b)

  	
   

  	
  7.14

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
  315(e)

  	
   

  	
  6.07

  
	
  316(a)

  	
   

  	
  6.06

  
	
   

  	
   

  	
  8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  13.09

  







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


 


46