Exhibit 4.5


 


DEPOMED, INC.


 


Issuer


 


AND


 


[                             ]


 


Trustee


 


INDENTURE


 


Dated as of
             
  , 200


 


Senior Debt Securities


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I
  DEFINITIONS

  	
   

  
	
  SECTION 1.1

  	
  DEFINITIONS
  OF TERMS

  	
   

  
	
   

  	
   

  	
   

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

  	
   

  
	
  SECTION 2.1

  	
  DESIGNATION
  AND TERMS OF SECURITIES

  	
   

  
	
  SECTION 2.2

  	
  FORM OF
  SECURITIES AND TRUSTEE’S CERTIFICATE

  	
   

  
	
  SECTION 2.3

  	
  DENOMINATIONS:
  PROVISIONS FOR PAYMENT

  	
   

  
	
  SECTION 2.4

  	
  EXECUTION
  AND AUTHENTICATIONS

  	
   

  
	
  SECTION 2.5

  	
  REGISTRATION
  OF TRANSFER AND EXCHANGE

  	
   

  
	
  SECTION 2.6

  	
  TEMPORARY
  SECURITIES

  	
   

  
	
  SECTION 2.7

  	
  MUTILATED,
  DESTROYED, LOST OR STOLEN SECURITIES

  	
   

  
	
  SECTION 2.8

  	
  CANCELLATION

  	
   

  
	
  SECTION 2.9

  	
  BENEFITS
  OF INDENTURE

  	
   

  
	
  SECTION 2.10

  	
  AUTHENTICATING
  AGENT

  	
   

  
	
  SECTION 2.11

  	
  GLOBAL
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
  REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS

  	
   

  
	
  SECTION 3.1

  	
  REDEMPTION

  	
   

  
	
  SECTION 3.2

  	
  NOTICE
  OF REDEMPTION

  	
   

  
	
  SECTION 3.3

  	
  PAYMENT
  UPON REDEMPTION

  	
   

  
	
  SECTION 3.4

  	
  SINKING
  FUND

  	
   

  
	
  SECTION 3.5

  	
  SATISFACTION
  OF SINKING FUND PAYMENTS WITH SECURITIES

  	
   

  
	
  SECTION 3.6

  	
  REDEMPTION
  OF SECURITIES FOR SINKING FUND

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV
  COVENANTS

  	
   

  
	
  SECTION 4.1

  	
  PAYMENT
  OF PRINCIPAL, PREMIUM AND INTEREST

  	
   

  
	
  SECTION 4.2

  	
  MAINTENANCE
  OF OFFICE OR AGENCY

  	
   

  
	
  SECTION 4.3

  	
  PAYING
  AGENTS

  	
   

  
	
  SECTION 4.4

  	
  APPOINTMENT
  TO FILL VACANCY IN OFFICE OF TRUSTEE

  	
   

  
	
  SECTION 4.5

  	
  COMPLIANCE
  WITH CONSOLIDATION PROVISIONS

  	
   

  
	
   

  	
   

  	
   

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

  	
   

  
	
  SECTION 5.1

  	
  COMPANY
  TO FURNISH TRUSTEE NAMES AND ADDRESSES OF SECURITYHOLDERS

  	
   

  
	
  SECTION 5.2

  	
  PRESERVATION
  OF INFORMATION; COMMUNICATIONS WITH SECURITYHOLDERS

  	
   

  
	
  SECTION 5.3

  	
  REPORTS
  BY THE COMPANY

  	
   

  
	
  SECTION 5.4

  	
  REPORTS
  BY THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

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

  	
   

  
	
  SECTION 6.1

  	
  EVENTS
  OF DEFAULT

  	
   

  
	
  SECTION 6.2

  	
  COLLECTION
  OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE

  	
   

  
	
  SECTION 6.3

  	
  APPLICATION
  OF MONEYS COLLECTED

  	
   

  
	
  SECTION 6.4

  	
  LIMITATION
  ON SUITS

  	
   

  
	
  SECTION 6.5

  	
  RIGHTS
  AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER

  	
   

  
	
  SECTION 6.6

  	
  CONTROL
  BY SECURITYHOLDERS

  	
   

  
	
  SECTION 6.7

  	
  UNDERTAKING
  TO PAY COSTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII
  CONCERNING THE TRUSTEE

  	
   

  
	
  SECTION 7.1

  	
  CERTAIN
  DUTIES AND RESPONSIBILITIES OF TRUSTEE

  	
   

  



 


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  SECTION 7.2

  	
  CERTAIN
  RIGHTS OF TRUSTEE

  	
   

  
	
  SECTION 7.3

  	
  TRUSTEE
  NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR SECURITIES

  	
   

  
	
  SECTION 7.4

  	
  MAY HOLD
  SECURITIES

  	
   

  
	
  SECTION 7.5

  	
  MONEYS
  HELD IN TRUST

  	
   

  
	
  SECTION 7.6

  	
  COMPENSATION
  AND REIMBURSEMENT

  	
   

  
	
  SECTION 7.7

  	
  RELIANCE
  ON OFFICERS’ CERTIFICATE

  	
   

  
	
  SECTION 7.8

  	
  DISQUALIFICATION;
  CONFLICTING INTERESTS

  	
   

  
	
  SECTION 7.9

  	
  CORPORATE
  TRUSTEE REQUIRED; ELIGIBILITY

  	
   

  
	
  SECTION 7.10

  	
  RESIGNATION
  AND REMOVAL; APPOINTMENT OF SUCCESSOR

  	
   

  
	
  SECTION 7.11

  	
  ACCEPTANCE
  OF APPOINTMENT BY SUCCESSOR

  	
   

  
	
  SECTION 7.12

  	
  MERGER,
  CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS

  	
   

  
	
  SECTION 7.13

  	
  PREFERENTIAL
  COLLECTION OF CLAIMS AGAINST THE COMPANY

  	
   

  
	
  SECTION 7.14

  	
  NOTICE
  OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  CONCERNING THE SECURITYHOLDERS

  	
   

  
	
  SECTION 8.1

  	
  EVIDENCE
  OF ACTION BY SECURITYHOLDERS

  	
   

  
	
  SECTION 8.2

  	
  PROOF
  OF EXECUTION BY SECURITYHOLDERS

  	
   

  
	
  SECTION 8.3

  	
  WHO
  MAY BE DEEMED OWNERS

  	
   

  
	
  SECTION 8.4

  	
  CERTAIN
  SECURITIES OWNED BY COMPANY DISREGARDED

  	
   

  
	
  SECTION 8.5

  	
  ACTIONS
  BINDING ON FUTURE SECURITYHOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
  SUPPLEMENTAL INDENTURES

  	
   

  
	
  SECTION 9.1

  	
  SUPPLEMENTAL
  INDENTURES WITHOUT THE CONSENT OF SECURITYHOLDERS

  	
   

  
	
  SECTION 9.2

  	
  SUPPLEMENTAL
  INDENTURES WITH CONSENT OF SECURITYHOLDERS

  	
   

  
	
  SECTION 9.3

  	
  EFFECT
  OF SUPPLEMENTAL INDENTURES

  	
   

  
	
  SECTION 9.4

  	
  SECURITIES
  AFFECTED BY SUPPLEMENTAL INDENTURES

  	
   

  
	
  SECTION 9.5

  	
  EXECUTION
  OF SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X
  SUCCESSOR ENTITY

  	
   

  
	
  SECTION 10.1

  	
  COMPANY
  MAY CONSOLIDATE, ETC

  	
   

  
	
  SECTION 10.2

  	
  SUCCESSOR
  ENTITY SUBSTITUTED

  	
   

  
	
  SECTION 10.3

  	
  EVIDENCE
  OF CONSOLIDATION, ETC. TO TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI
  SATISFACTION AND DISCHARGE

  	
   

  
	
  SECTION 11.1

  	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  	
   

  
	
  SECTION 11.2

  	
  DISCHARGE
  OF OBLIGATIONS

  	
   

  
	
  SECTION 11.3

  	
  DEPOSITED
  MONEYS TO BE HELD IN TRUST

  	
   

  
	
  SECTION 11.4

  	
  PAYMENT
  OF MONEYS HELD BY PAYING AGENTS

  	
   

  
	
  SECTION 11.5

  	
  REPAYMENT
  TO COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  
	
  SECTION 12.1

  	
  NO
  RECOURSE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII
  MISCELLANEOUS PROVISIONS

  	
   

  
	
  SECTION 13.1

  	
  EFFECT
  ON SUCCESSORS AND ASSIGNS

  	
   

  
	
  SECTION 13.2

  	
  ACTIONS
  BY SUCCESSOR

  	
   

  
	
  SECTION 13.3

  	
  SURRENDER
  OF COMPANY POWERS

  	
   

  
	
  SECTION 13.4

  	
  NOTICES

  	
   

  
	
  SECTION 13.5

  	
  GOVERNING
  LAW

  	
   

  
	
  SECTION 13.6

  	
  TREATMENT
  OF SECURITIES AS DEBT

  	
   

  
	
  SECTION 13.7

  	
  COMPLIANCE
  CERTIFICATES AND OPINIONS

  	
   

  
	
  SECTION 13.8

  	
  PAYMENTS
  ON BUSINESS DAYS

  	
   

  
	
  SECTION 13.9

  	
  CONFLICT
  WITH TRUST INDENTURE ACT

  	
   

  



 


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  SECTION 13.10

  	
  COUNTERPARTS

  	
   

  
	
  SECTION 13.11

  	
  SEPARABILITY

  	
   

  
	
  SECTION 13.12

  	
  COMPLIANCE
  CERTIFICATES

  	
   

  



 


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INDENTURE


 


INDENTURE,
dated as of           ,
200  , among DEPOMED, INC., a California corporation (the “Company”),
and
                    ,
as trustee (the “Trustee”):


 


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


 


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


 


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


 


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


 


ARTICLE I

DEFINITIONS


 


SECTION 1.1                            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.


 


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


 


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


 


“Certificate”
means a certificate signed by the chairman of the Board of Directors, any
principal executive officer, any chief executive officer, any president, any
senior vice president, any vice president, any principal financial officer or
any principal accounting officer, any treasurer or any assistant treasurer, any
controller or any assistant controller, any secretary or any assistant
secretary of the Company. The Certificate need not comply with the provisions
of Section 13.7.


 

















 


“Company”
means DEPOMED, INC., a corporation duly organized and existing under the laws
of the State of California, and, subject to the provisions of Article X,
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
                  ,
                                                           ;
Attention:
                        ,
except that whenever a provision herein refers to an office or agency of the
Trustee in the Borough of Manhattan, the City of New York, such office is
located, at the date hereof, at
                  ,
Attn: Corporate Trust Services.


 


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


 


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


 


“Depositary”
means, with respect to Securities of any series for which the Company shall
determine that such Securities will be issued as a Global Security, The
Depository Trust Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Securities and Exchange Act
of 1934, as amended (the “Exchange Act”), or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.1 or 2.11.


 


“Event
of Default” means, with respect to Securities of a particular series, any event
specified in Section 6.1, continued for the period of time, if any,
therein designated.


 


“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 States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the Governmental Obligation or the specific payment
of principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.


 


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


 


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


 


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


 


“Officers’
Certificate” means a certificate signed by a chief executive officer, a
president, a senior vice president or a vice president and by the chief financial
officer or the treasurer or an assistant treasurer or the controller or an
assistant controller or the secretary or an assistant secretary of the Company
that is delivered to the Trustee in accordance with the terms hereof. Each such
certificate shall include the statements provided for in Section 13.7, if
and to the extent required by the provisions thereof.


 


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“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 13.7, 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 8.4, as of any particular time, all Securities of
that series theretofore authenticated and delivered by the Trustee under this Indenture,
except (a) Securities theretofore canceled by the Trustee or any paying
agent, or delivered to the Trustee or any paying agent for cancellation or that
have previously been canceled; (b) Securities or portions thereof for the
payment or redemption of which moneys or Governmental Obligations in the
necessary amount shall have been deposited in trust with the Trustee or with
any paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of such
Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article III provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities
in lieu of or in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.7.


 


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


 


“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 2.7 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 any officer in the
Corporate Trust Office of the Trustee, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.


 


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


 


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


 


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


 


“Trustee”
means
                                          ,
and, subject to the provisions of Article VII, 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.


 


“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.


 


3

















 


ARTICLE II

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


 


SECTION 2.1                            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 Officers’ 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;


 


(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;


 


4

















 


(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 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 6.1;


 


(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 their capital stock; redeem capital stock; place restrictions on
such Subsidiaries placing restrictions on their ability to pay dividends, make
distributions or transfer assets; make investments or other restricted
payments; sell or otherwise dispose of assets; enter into sale-leaseback
transactions; engage in transactions with stockholders and affiliates; issue or
sell stock of their 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 or asset-based
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 to
denomination and except as may otherwise be provided in or pursuant to any such
Board Resolution or in any indentures supplemental hereto.


 


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


 


5
















 


SECTION 2.3                                                                                    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 2.1(10). The Securities of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Securities of any series, as
well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America that
at the time is legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
the City and State of New York. Each Security shall be dated the date of its
authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.


 


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 3.3.


 


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


 


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


 


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


 


Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.1 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 2.1 hereof shall occur, if such Interest Payment Date is the first
day of a month, or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant to Section 
2.1 hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.


 


6

















 


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 2.4                                                                                    EXECUTION AND AUTHENTICATIONS.


 


The
Securities shall be signed on behalf of the Company by its chief executive
officer, or one of its presidents, or one of its senior vice presidents, or one
of its vice presidents, or its chief financial officer, or its chief legal
officer, or its treasurer, or one of its assistant treasurers, or its
controller or one of its assistant controllers, or its secretary, or one of its
assistant secretaries, under its corporate seal attested by its secretary or
one of its assistant secretaries. Signatures may be in the form of a manual or
facsimile signature.


 


The
Company may use the facsimile signature of any Person who shall have been a
chief executive officer, president, senior vice president or vice president
thereof, chief financial officer, chief legal officer, treasurer or assistant
treasurer, controller or assistant controller, secretary or assistant secretary
thereof, notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have ceased to be
such an officer of the Company. The seal of the Company may be in the form of a
facsimile of such seal and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication by the Trustee.


 


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


 


In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.1) shall be fully protected
in relying upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this Indenture.


 


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


 


SECTION 2.5                                                                                    REGISTRATION OF TRANSFER AND EXCHANGE.


 


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


 


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


 


7

















 


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 2.1 pursuant to a Board Resolution, and
set forth in an Officers’ 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 2.6, Section 3.3(b) and
Section 9.4 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 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 2.5 are, with respect to
any Global Security, subject to Section 2.11 hereof.


 


SECTION 2.6                                                                                    TEMPORARY SECURITIES.


 


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


 


SECTION 2.7                                                                                    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


 


8

















 


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 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 2.8                                                                                    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 2.9                                                                                    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 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.


 


9

















 


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 2.1 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 2.4,
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 2.5, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.5,
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,
this Section 2.11 shall no longer be applicable to the Securities of such
series and the Company will execute, and subject to Section 2.4, the
Trustee will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the provisions of this Section 2.11
shall no longer apply to the Securities of such series. In such event the
Company will execute and, subject to Section 2.4, the Trustee, upon
receipt of an Officers’ Certificate evidencing such determination by the
Company, will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form
without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee. Such Securities in definitive registered form issued
in exchange for the Global Security pursuant to this Section 2.11(c) shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose names such
Securities are so registered.


 


ARTICLE III


REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS


 


SECTION 3.1                                                                                    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 2.1 hereof.


 


10

















 


SECTION 3.2                                                                                    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 2.1
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
Officers’ Certificate evidencing compliance with any such restriction.


 


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


 


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


 


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


 


SECTION 3.3                                                                                    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


 


11

















 


such
date shall be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.3).


 


(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 3.4                                                                                    SINKING FUND.


 


The
provisions of Sections 3.4, 3.5 and 3.6 shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 2.1 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 3.5. 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 3.5                                                                                    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 3.6                                                                                    REDEMPTION OF SECURITIES FOR SINKING FUND.


 


Not
less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities of that series pursuant to Section 3.5
and the basis for such credit and will, together with such Officers’
Certificate, deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 3.2 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 3.2. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.3.


 


ARTICLE IV


COVENANTS


 


SECTION 4.1                                                                                    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 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


 


12

















 


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 4.2                                                                                    MAINTENANCE OF OFFICE OR AGENCY.


 


So
long as any series of the Securities remain Outstanding, the Company agrees to
maintain an office or agency in the Borough of Manhattan, the City and State of
New York, with respect to each such series and at such other location or
locations as may be designated as provided in this Section 4.2, 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 Officers’ 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
[                     ],
an affiliate of the Trustee, located in the Borough of Manhattan, the City of
New York as its paying agent with respect to the Securities.


 


SECTION 4.3                                                                                    PAYING AGENTS.


 


(a) If
the Company shall appoint one or more paying agents for all or any series of
the Securities, other than the Trustee, the Company will cause each such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section:


 


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


 


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


 


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


 


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


 


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


 


13

















 


to
such principal, premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of this action or failure
so to act.


 


(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold
sums in trust as provided in this Section is subject to the provisions of Section 11.5,
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.


 


SECTION 4.4                                                                                    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 4.5                                                                                    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 X hereof
are complied with.


 


ARTICLE V


SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE


 


SECTION 5.1                                                                                    COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF SECURITYHOLDERS.


 


The
Company will furnish or cause to be furnished to the Trustee (a) on each
regular record date (as defined in Section 2.3) 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 5.2                                                                                    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 5.1
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 5.1
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 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 5.3                                                                                    REPORTS BY THE COMPANY.


 


The
Company covenants and agrees to provide a copy to the Trustee, within 15 days
after the Company is required to file the same with the Securities and Exchange
Commission, copies of the annual reports and of the


 


14

















 


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 may be required to file with the
Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act.


 


SECTION 5.4                                                                                    REPORTS BY THE TRUSTEE.


 


(a) On
or before May 1 in each year in which any of the Securities are
Outstanding, the Trustee shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security
Register, a brief report dated as of the preceding May 1, if and to the
extent required under 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 VI


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT


 


SECTION 6.1                                                                                    EVENTS OF DEFAULT.


 


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


 


(1) the
Company defaults in the payment of any installment of interest upon any of the
Securities of that series, as and when the same shall become due and payable,
and such default continues for a period of 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 2.1
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


 


15

















 


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, 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 7.6,
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 6.6.


 


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 6.2                                                                                    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, and such default
shall have continued for a period of 90 Business 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, 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, 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 7.6.


 


(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 sums so due and unpaid, and may prosecute any such action
or proceeding to


 


16

















 


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 7.6; 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 7.6.


 


(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 7.6,
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.


 


SECTION 6.3                                                                                    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 7.6;


 


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.


 


17
















 


SECTION 6.4                                                                                    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 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 6.5                                                                                    RIGHTS AND
REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER.


 


(a) Except
as otherwise provided in Section 2.7, 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 6.4, 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 6.6                                                                                    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 8.4,
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 7.1, 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 8.4, may on behalf of the holders of all of the


 


18

















 


Securities
of such series waive any past default in the performance of any of the
covenants contained herein or established pursuant to Section 2.1 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 6.1(c)).
Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders
of the Securities of such series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.


 


SECTION 6.7                                                                                    UNDERTAKING TO
PAY COSTS.


 


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


 


ARTICLE VII

CONCERNING THE TRUSTEE


 


SECTION 7.1                                                                                    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 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


 


19

















 


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 requirement 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 7.2                                                                                    CERTAIN RIGHTS OF
TRUSTEE.


 


Except
as otherwise provided in Section 7.1:


 


(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 any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted hereunder in good faith and
in reliance thereon;


 


(d) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with respect to a series
of the Securities (that has not been cured or waived), to exercise with respect
to Securities of that series such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their exercise, as a
prudent 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 8.4); 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


 


20

















 


reasonable
expense of every such examination shall be paid by the Company or, if paid by
the Trustee, shall be repaid by the Company upon demand; and


 


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


 


SECTION 7.3                                                                                    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 2.1, or for
the use or application of any moneys received by any paying agent other than
the Trustee.


 


SECTION 7.4                                                                                    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 7.5                                                                                    MONEYS HELD IN
TRUST.


 


Subject
to the provisions of Section 11.5, 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 7.6                                                                                    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.


 


(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.


 


21

















 


SECTION 7.7                                                                                    RELIANCE ON
OFFICERS’ CERTIFICATE.


 


Except
as otherwise provided in Section 7.1, 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 Officers’ Certificate delivered to
the Trustee and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.


 


SECTION 7.8                                                                                    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 7.9                                                                                    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 (or, in the case of a
subsidiary of a bank holding company, its bank holding company parent shall
have) 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.


 


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 7.8 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


 


22

















 


(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.9
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.


 


(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


 


23

















 


or
for the performance of the duties and obligations vested in the Trustee under
this Indenture, and each such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor trustee relates; but, on
request of the Company or any successor trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor trustee relates.


 


(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 all or substantially all of 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 7.8 and eligible under
the provisions of Section 7.9, 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 Act notice of the
Default or Event of Default within 45 days after it occurs, 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.


 


24
















 


ARTICLE VIII

CONCERNING THE SECURITYHOLDERS


 


SECTION 8.1                                                                                    EVIDENCE OF
ACTION BY SECURITYHOLDERS.


 


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


 


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


 


SECTION 8.2                                                                                    PROOF OF
EXECUTION BY SECURITYHOLDERS.


 


Subject
to the provisions of Section 7.1, proof of the execution of any instrument
by a Securityholder (such proof will not require notarization) or his agent or
proxy and proof of the holding by any Person of any of the Securities shall be
sufficient if made in the following manner:


 


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


 


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


 


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


 


SECTION 8.3                                                                                    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 2.3) 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 8.4                                                                                    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


 


25

















 


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 8.5                                                                                    ACTIONS BINDING
ON FUTURE SECURITYHOLDERS.


 


At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.1, 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 8.2, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Securities of that series.


 


ARTICLE IX

SUPPLEMENTAL INDENTURES


 


SECTION 9.1                                                                                    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 X;


 


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


 


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


 


26

















 


(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 9.2.


 


SECTION 9.2                                                                                    SUPPLEMENTAL
INDENTURES WITH CONSENT OF SECURITYHOLDERS.


 


With
the consent (evidenced as provided in Section 8.1) 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 9.1 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 9.3                                                                                    EFFECT OF
SUPPLEMENTAL INDENTURES.


 


Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or
of Section 10.1, this Indenture shall, with respect to such series, be and
be deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Securities of the
series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.


 


SECTION 9.4                                                                                    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 10.1, 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 9.5                                                                                    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


 


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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 7.1, may receive an Officers’ Certificate or 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 Officers’ 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 2.1
hereof.


 


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


 


ARTICLE X

SUCCESSOR ENTITY


 


SECTION 10.1                                                                              COMPANY MAY CONSOLIDATE,
ETC.


 


Except
as provided pursuant to Section 2.1 pursuant to a Board Resolution, and
set forth in an Officers’ 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, 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, (a) 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 2.1 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 10.2                                                                              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 10.1 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.


 


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(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 10.3                                                                              EVIDENCE OF
CONSOLIDATION, ETC. TO TRUSTEE.


 


The
Trustee, subject to the provisions of Section 7.1, may receive an Officers’
Certificate or an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and any
such assumption, comply with the provisions of this Article.


 


ARTICLE XI

SATISFACTION AND DISCHARGE


 


SECTION 11.1                                                                             
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 2.7 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 11.5); 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 2.3, 2.5, 2.7, 4.1, 4.2, 4.3 and 7.10, that shall
survive until the date of maturity or redemption date, as the case may be, and
Sections 7.6 and 11.5, that shall survive to such date and thereafter, and the
Trustee, on demand of the Company and at the cost and expense of the Company
shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.


 


SECTION 11.2                                                                              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 11.1 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 2.3, 2.5, 2.7, 4.01, 4.2, 4.03, 7.6, 7.10 and 11.5
hereof that shall survive until such Securities shall mature and be paid.


 


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Thereafter,
Sections 7.6 and 11.5 shall survive.


 


SECTION 11.3                                                                              DEPOSITED MONEYS
TO BE HELD IN TRUST.


 


All
moneys or Governmental Obligations deposited with the Trustee pursuant to
Sections 11.1 or 11.2 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 11.4                                                                              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 11.5                                                                              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.


 


ARTICLE XII

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


SECTION 12.1                                                                              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.


 


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ARTICLE XIII

MISCELLANEOUS PROVISIONS


 


SECTION 13.1                                                                              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 13.2                                                                              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 13.3                                                                              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 thereupon such power so surrendered shall terminate both as
to the Company and as to any successor corporation.


 


SECTION 13.4                                                                              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: Depomed, Inc.,
1360 O’Brien Drive, Menlo Park, California 94025, Attention: Chief Financial
Officer. 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 13.5                                                                              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 13.6                                                                              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 13.7                                                                              COMPLIANCE
CERTIFICATES AND OPINIONS.


 


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


 


(b) Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant in this
Indenture shall include (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 covenant or condition


 


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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 13.8                                                                              PAYMENTS ON
BUSINESS DAYS.


 


Except
as provided pursuant to Section 2.1 pursuant to a Board Resolution, and
set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of
interest or principal of any Security or the date of redemption of any Security
shall not be a Business Day, then payment of interest or principal (and
premium, if any) may be made on the next succeeding Business Day with the same
force and effect as if made on the nominal date of maturity or redemption, and
no interest shall accrue for the period after such nominal date.


 


SECTION 13.9                                                                              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
Officers’ 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 any of the officers 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.


 


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


 


	
   

  	
  DEPOMED,
  INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [                                                                                       ],

  	
   

  
	
   

  	
  as Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


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