Exhibit
4.8

      


      


      
        

        

      

       

      


      


      


      E*TRADE
FINANCIAL CORPORATION

      


      and

      


      ________

      


      Trustee

      


      


      


      INDENTURE

      


      Dated as
of _______________

      


      


      


      SUBORDINATED
DEBT SECURITIES

      


      


      


      


      


      


      
        

        

      

       

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      


      


      


      


      


      


      


      TABLE
OF CONTENTS

      ___________________

       

      


      


      PAGE

      


      
        	
                ARTICLE
      1

              
	
                DEFINITIONS

              
	 
      	 
      	 
      
	
                Section 1.01.

              	
                Certain
      Terms Defined

              	
                1

              
	 
      	 
      	 
      
	
                ARTICLE
      2

              
	
                SECURITIES

              
	 
      	 
      	 
      
	
                Section 2.01.

              	
                Forms
      Generally

              	
                7

              
	
                Section 2.02.

              	
                Form
      of Trustee’s Certificate of Authentication

              	
                7

              
	
                Section 2.03.

              	
                Amount
      Unlimited; Issuable
      in Series

              	
                7

              
	
                Section 2.04.

              	
                Authentication
      and Delivery of Securities

              	
                10

              
	
                Section
      2.05.

              	
                Execution
      of Securities

              	
                12

              
	
                Section
      2.06.

              	
                Certificate
      of Authentication

              	
                12

              
	
                Section
      2.07.

              	
                Denomination
      and Date of Securities; Payments of Interest

              	
                12

              
	
                Section
      2.08.

              	
                Registration,
      Transfer and Exchange

              	
                13

              
	
                Section 2.09.

              	
                Mutilated,
      Defaced, Destroyed, Lost and Stolen Securities

              	
                16

              
	
                Section 2.10.

              	
                Cancellation
      of Securities; Destruction Thereof

              	
                17

              
	
                Section 2.11.

              	
                Temporary
      Securities

              	
                17

              
	 
      	 
      	 
      
	
                ARTICLE
      3

              
	
                COVENANTS
      OF THE ISSUER

              
	 
      	 
      	 
      
	
                Section 3.01.

              	
                Payment
      of Principal and Interest

              	
                18

              
	
                Section 3.02.

              	
                Offices
      for Payments, Etc.

              	
                18

              
	
                Section 3.03.

              	
                Appointment
      to Fill a Vacancy in Office of Trustee

              	
                19

              
	
                Section 3.04.

              	
                Paying
      Agents

              	
                19

              
	
                Section 3.05.

              	
                Written
      Statement to Trustee

              	
                20

              
	 
      	 
      	 
      
	
                ARTICLE
      4

              
	
                SECURITYHOLDERS LISTS
      AND REPORTS
      BY THE ISSUER
      AND THE TRUSTEE

              
	 
	
                Section 4.01.

              	
                Issuer
      to Furnish Trustee Information as to Names and Addresses
      of Securityholders

              	
                20

              
	
                Section 4.02.

              	
                Reports
      by the Issuer

              	
                21

              
	
                Section 4.03.

              	
                Reports
      by the Trustee

              	
                21

              


      

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      


       

      
        	
                ARTICLE
      5

              
	
                REMEDIES
      OF THE TRUSTEE
      AND SECURITYHOLDERS
      ON EVENT
      OF DEFAULT

              
	 
      	 
      	 
      
	
                Section 5.01.

              	
                Event
      of Default Defined; Acceleration of Maturity; Waiver of Default

              	
                21

              
	
                Section 5.02.

              	
                Collection
      of Debt by Trustee; Trustee May Prove Debt

              	
                24

              
	
                Section 5.03.

              	
                Application
      of Proceeds

              	
                26

              
	
                Section
      5.04.

              	
                Suits
      for Enforcement

              	
                27

              
	
                Section
      5.05.

              	
                Restoration
      of Rights on Abandonment of Proceedings

              	
                27

              
	
                Section
      5.06.

              	
                Limitations
      on Suits by Securityholders

              	
                27

              
	
                Section
      5.07.

              	
                Unconditional
      Right of Securityholders to Institute Certain Suits

              	
                28

              
	
                Section
      5.08.

              	
                Powers
      and Remedies Cumulative; Delay or Omission Not Waiver
      of Default

              	
                28

              
	
                Section
      5.09.

              	
                Control
      by Holders of Securities

              	
                29

              
	
                Section
      5.10.

              	
                Waiver
      of Past Defaults

              	
                29

              
	
                Section
      5.11.

              	
                Trustee
      to Give Notice of Default

              	
                30

              
	
                Section
      5.12.

              	
                Right
      of Court to Require Filing of Undertaking to Pay Costs

              	
                30

              
	 
      	 
      	 
      
	
                ARTICLE
      6

              
	
                CONCERNING
      THE TRUSTEE

              
	 
      	 
      	 
      
	
                Section
      6.01.

              	
                Duties
      and Responsibilities of the Trustee; During Default; Prior
      to Default

              	
                31

              
	
                Section 6.02.

              	
                Certain
      Rights of the Trustee

              	
                31

              
	
                Section 6.03.

              	
                Trustee
      Not Responsible for Recitals, Disposition of Securities or
      Application of Proceeds Thereof

              	
                33

              
	
                Section 6.04.

              	
                Trustee
      and Agents May Hold Securities; Collections, Etc.

              	
                33

              
	
                Section 6.05.

              	
                Moneys
      Held by Trustee

              	
                33

              
	
                Section 6.06.

              	
                Compensation
      and Indemnification of Trustee and Its Prior Claim

              	
                34

              
	
                Section 6.07.

              	
                Right
      of Trustee to Rely on Officer’s Certificate, Etc.

              	
                34

              
	
                Section 6.08.

              	
                Indentures
      Creating Potential Conflicting Interests for the Trustee

              	
                 35

              
	
                Section 6.09.

              	
                Persons
      Eligible for Appointment as Trustee

              	
                35

              
	
                Section 6.10.

              	
                Resignation
      and Removal; Appointment of Successor Trustee

              	
                35

              
	
                Section 6.11.

              	
                Acceptance
      of Appointment by Successor Trustee

              	
                36

              
	
                Section 6.12.

              	
                Merger,
      Conversion, Consolidation or Succession to Business of
      Trustee

              	
                37

              
	 
      	 
      	 
      
	
                ARTICLE
      7

              
	
                CONCERNING
      THE SECURITYHOLDERS

              
	 
      	 
      	 
      
	
                Section 7.01.

              	
                Evidence
      of Action Taken by Securityholders

              	
                38

              
	
                Section 7.02.

              	
                Proof
      of Execution of Instruments and of Holding of Securities

              	
                38

              


      

       

       

       

      
        
          ii

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      


       

      
        	
                Section 7.03.

              	
                Holders
      to Be Treated as Owners

              	
                39

              
	
                Section 7.04.

              	
                Securities
      Owned by Issuer Deemed Not Outstanding

              	
                39

              
	
                Section 7.05.

              	
                Right
      of Revocation of Action Taken

              	
                40

              
	 
      	 
      	 
      
	
                ARTICLE
      8

              
	
                SUPPLEMENTAL
      INDENTURES

              
	 
      	 
      	 
      
	
                Section 8.01.

              	
                Supplemental
      Indentures Without Consent of Securityholders

              	
                40

              
	
                Section 8.02.

              	
                Supplemental
      Indentures With Consent of Securityholders

              	
                42

              
	
                Section 8.03.

              	
                Effect
      of Supplemental Indenture

              	
                43

              
	
                Section 8.04.

              	
                Documents
      to Be Given to Trustee

              	
                43

              
	
                Section 8.05.

              	
                Notation
      on Securities in Respect of Supplemental Indentures

              	
                44

              
	 
      	 
      	 
      
	
                ARTICLE
      9

              
	
                CONSOLIDATION,
      MERGER,
      SALE
      OR CONVEYANCE

              
	 
      	 
      	 
      
	
                Section 9.01.

              	
                Issuer
      May Consolidate, Etc., on Certain Terms

              	
                44

              
	
                Section 9.02.

              	
                Successor
      Issuer Substituted

              	
                45

              
	 
      	 
      	 
      
	
                ARTICLE
      10

              
	
                SATISFACTION
      AND DISCHARGE
      OF INDENTURE;
      UNCLAIMED
      MONEYS

              
	 
      	 
      	 
      
	
                Section 10.01.

              	
                Satisfaction
      and Discharge of Indenture

              	
                45

              
	
                Section 10.02.

              	
                Application
      by Trustee of Funds Deposited for Payment of Securities

              	
                 
      48

              
	
                Section 10.03.

              	
                Repayment
      of Moneys Held by Paying Agent

              	
                48

              
	
                Section 10.04.

              	
                Return
      of Moneys Held by Trustee and Paying Agent Unclaimed
      for Two Years

              	
                49

              
	
                Section 10.05.

              	
                Indemnity
      for U.S. Government Obligations

              	
                49

              
	 
      	 
      	 
      
	
                ARTICLE
      11

              
	
                MISCELLANEOUS
      PROVISIONS

              
	 
      	 
      	 
      
	
                Section 11.01.

              	
                Incorporators,
      Stockholders, Officers and Directors of Issuer Exempt
      from Individual Liability

              	
                49

              
	
                Section 11.02.

              	
                Provisions
      of Indenture for the Sole Benefit of Parties and Holders
      of Securities

              	
                50

              
	
                Section 11.03.

              	
                Successors
      and Assigns of Issuer Bound by Indenture

              	
                50

              
	
                Section 11.04.

              	
                Notices
      and Demands on Issuer, Trustee and Holders of Securities

              	
                50

              
	
                Section 11.05.

              	
                Officer’s
      Certificates and Opinions of Counsel; Statements to Be
      Contained Therein

              	
                51

              
	
                Section 11.06.

              	
                Payments
      Due on Saturdays, Sundays and Holidays

              	
                52

              
	
                Section 11.07.

              	
                Conflict
      of Any Provision of Indenture With Trust Indenture Act
      of 1939

              	
                52

              


      

       

       

       

      
        
          iii

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      


       

      
        	
                Section 11.08.

              	
                New
      York Law to Govern

              	
                52

              
	
                Section 11.09.

              	
                Counterparts

              	
                52

              
	
                Section 11.10.

              	
                Effect
      of Headings

              	
                52

              
	
                Section 11.11.

              	
                Securities
      in a Foreign Currency

              	
                53

              
	
                Section 11.12.

              	
                Judgment
      Currency

              	
                53

              
	 
      	 
      	 
      
	
                ARTICLE
      12

              
	
                REDEMPTION
      OF SECURITIES
      AND SINKING
      FUNDS

              
	 
      	 
      	 
      
	
                Section 12.01.

              	
                Applicability
      of Article

              	
                54

              
	
                Section 12.02.

              	
                Notice
      of Redemption; Partial Redemptions

              	
                54

              
	
                Section 12.03.

              	
                Payment
      of Securities Called for Redemption

              	
                56

              
	
                Section 12.04.

              	
                Exclusion
      of Certain Securities from Eligibility for Selection for
      Redemption

              	
                56

              
	
                Section 12.05.

              	
                Mandatory
      and Optional Sinking Funds

              	
                57

              
	 
      	 
      	 
      
	
                ARTICLE
      13

              
	
                SUBORDINATION
      OF SECURITIES

              
	 
      	 
      	 
      
	
                Section
      13.01.

              	
                Agreement
      of Subordination

              	
                59

              
	
                Section
      13.02.

              	
                Payments
      to Securityholders

              	
                60

              
	
                Section 13.03.

              	
                Subrogation
      of Securities

              	
                62

              
	
                Section
      13.04.

              	
                Authorization
      by Securityholders

              	
                63

              
	
                Section
      13.05.

              	
                Notice
      to Trustee

              	
                63

              
	
                Section
      13.06.

              	
                Trustee’s
      Relation to Senior Indebtedness

              	
                64

              
	
                Section
      13.07.

              	
                No
      Impairment of Subordination

              	
                64

              
	
                Section
      13.08.

              	
                Rights
      of Trustee

              	
                64

              


      

       

       

       

       

       

      
        
          iv

        

        
          
          

          
            

          

        

        
          
          

        

      

      


       

      THIS
INDENTURE, dated as of _________ between E*TRADE FINANCIAL CORPORATION, a
Delaware corporation (the “Issuer”),
and ________,
a _______ (the “Trustee”),

       

      W I T N E
S S E T H :

       

      WHEREAS,
the Issuer may from time to time duly authorize the issue of its unsecured
subordinated debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “Securities”)
up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture;

       

      WHEREAS,
the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration
of the Securities; and

       

      WHEREAS,
all things necessary to make this Indenture a valid indenture and agreement
according to its terms have been done;

       

      NOW,
THEREFORE:

       

      In
consideration of the premises and the purchases of the Securities by the holders
thereof, the Issuer and the Trustee mutually covenant and agree for the equal
and proportionate benefit of the respective holders from time to time of the
Securities as follows:

       

       

      ARTICLE
1

      DEFINITIONS

       

      Section
1.01.
Certain Terms Defined. The following terms (except as otherwise expressly
provided or unless the context otherwise clearly requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939 or the definitions
of which in the Securities Act of 1933 are referred to in the Trust Indenture
Act of 1939, including terms defined therein by reference to the Securities Act
of 1933 (except as herein otherwise expressly provided or unless the context
otherwise clearly 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
this Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term “generally
accepted accounting principles” means such accounting principles as are
generally accepted at the time of any computation. The words “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. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular.

       

      “Board
of Directors” means either the Board of Directors of the Issuer or any
committee of such Board duly authorized to act on its behalf.

       

      “Board
Resolution” means a copy of one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted by
the Board of Directors and to be in full force and effect, and delivered to the
Trustee.

       

      “Business
Day” means, with respect to any Security, a day that in the city (or in
any of the cities, if more than one) in which amounts are payable, as specified
in the form of such Security, is not a day on which banking institutions are
authorized or required by law or regulation to close.

       

      “Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if at any time after the
execution and delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act of 1939,
then the body performing such duties on such date.

       

      “Common
Stock” means shares of common stock, par value $0.01 per share, of the
Issuer as the same exists at the date of execution and delivery of this
Indenture or as such stock may be reconstituted from time to time.

       

      “Corporate
Trust Office” means the office of the Trustee at which the corporate
trust business of the Trustee shall, at any particular time, be principally
administered, which office is, at the date as of which this Indenture is dated,
located at __________.

       

      “Debt”
of any Person means any debt for money borrowed which is created, assumed,
incurred or guaranteed in any manner by such Person or for which such Person is
otherwise responsible or liable, and shall expressly include any such guaranty
thereof by such Person. For the purpose of computing the amount of the Debt of
any Person there shall be excluded all Debt of such Person for the payment or
redemption or satisfaction of which money or securities (or evidences of such
Debt, if permitted under the terms of the instrument creating such Debt) in the
necessary amount shall have been deposited in trust with the proper depositary,
whether upon or prior to the maturity or the date fixed for redemption of such
Debt; and, in any instance where Debt is so excluded, for the purpose of
computing the assets of such Person there shall be excluded the money,
securities or evidences of Debt deposited by such Person in trust for the
purpose of paying or satisfying such Debt.

       

       

      


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      “Depositary”
means, with respect to the Securities of any series issuable or issued in the
form of one or more Global Securities, the Person designated as Depositary by
the Issuer pursuant to Section 2.04 until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Depositary”
shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, “Depositary”
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Global Securities of that series.

       

      “Dollar”
means the currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.

       

      “Event
of Default” means any event or condition specified as such in Section
5.01.

       

      “Foreign
Currency” means a currency issued by the government of a country other
than the United States.

       

      “Global
Security”, means a Security evidencing all or a part of a series of
Securities, issued to the Depositary for such series in accordance with Section
2.04, and bearing the legend prescribed in Section 2.04.

       

      “Holder”,
“holder
of Securities”, “Securityholder”
or other similar terms mean the Person in whose name such Security is registered
in the Security register kept by the Issuer for that purpose in accordance with
the terms hereof.

       

      “Indenture”
means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, and
shall include the forms and terms of particular series of Securities established
as contemplated hereunder.

       

      “interest”,
unless the context otherwise requires, refers to interest, and when used with
respect to non-interest bearing Securities, refers to interest payable after
maturity, if any.

       

      “Issuer”
means E*TRADE Financial Corporation and, subject to Article 9, its successors
and assigns.

       

      “Issuer
Order” means a written statement, request or order of the Issuer signed
in its name by the chairman of the Board of Directors, the president or any vice
president of the Issuer.

       

      “Market
Exchange Rate” has the meaning set forth in Section
11.11.

       

      “Officer’s
Certificate” means a certificate signed by the chairman of the Board of
Directors, the president, any vice president, the treasurer, the
secretary

       

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

      


       

      or any
assistant secretary of the Issuer and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
shall include the statements provided for in Section 11.05.

       

      “Opinion
of Counsel” means an opinion in writing signed by the general corporate
counsel or such other legal counsel who may be an employee of or counsel to the
Issuer and who shall be satisfactory to the Trustee. Each such opinion shall
comply with Section 314 of the Trust Indenture Act of 1939 and shall include the
statements provided for in Section 11.05, if and to the extent required
hereby.

       

      “original
issue date” of any Security (or portion thereof) means the earlier of (a)
the date of such Security or (b) the date of any Security (or portion thereof)
for which such Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.

       

      “Original
Issue Discount Security” means any Security that provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.01.

       

      “Outstanding”,
when used with reference to Securities, shall, subject to the provisions of
Section 7.04, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except

       

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

       

      (b)           Securities,
or portions thereof, for the payment or redemption of which moneys or U.S.
Government Obligations (as provided for in Section 10.01) in the necessary
amount shall have been deposited in trust with the Trustee or with any paying
agent (other than the Issuer) or shall have been set aside, segregated and held
in trust by the Issuer for the Holders of such Securities (if the Issuer shall
act as its own paying agent); provided,
that if such Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and

       

      (c)           Securities
in substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of Section 2.09
(except with respect to any such Security as to which proof satisfactory to the
Trustee is presented that such Security is held by a Person in whose hands such
Security is a legal, valid and binding obligation of the Issuer), Securities
converted into Common

       

       

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

      


       

      Stock
pursuant hereto and Securities not deemed outstanding pursuant to Section
12.02.

       

      In
determining whether the Holders of the requisite principal amount of Outstanding
Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.01.

       

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

       

      “principal”
whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any”.

       

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

       

      “Security”
or “Securities”
has the meaning stated in the first recital of this Indenture, or, as the case
may be, Securities that have been authenticated and delivered under this
Indenture.

       

      “Senior
Indebtedness” of the Issuer means the principal of, premium, if any,
interest on, and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred or created:

       

      (a) all of
the indebtedness of that person for money borrowed, including any indebtedness
secured by a mortgage or other lien which is (1) given to secure all or part of
the purchase price of property subject to the mortgage or lien, whether given to
the vendor of that property or to another lender, or (2) existing on property at
the time that person acquires it;

       

       

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      


       

      (b) all
of the indebtedness of that person evidenced by notes, debentures, bonds or
other securities sold by that person for money;

       

      (c) all
of the lease obligations which are capitalized on the books of that person in
accordance with generally accepted accounting principles;

       

      (d) all
indebtedness of others of the kinds described in either of the preceding clauses
(a) or (b) above and all lease obligations of others of the kind described in
the preceding clause (c) above that the person, in any manner, assumes or
guarantees or that the person in effect guarantees through an agreement to
purchase, whether that agreement is contingent or otherwise; and

       

      (e) all
renewals, extensions or refundings of indebtedness of the kinds described in any
of the preceding clauses (a), (b) and (d) and all renewals or extensions of
leases of the kinds described in either of the preceding clauses (c) or
(d)
above;

       

      unless,
in the case of any particular indebtedness, lease, renewal, extension or refunding,
the instrument or lease creating or evidencing it or the assumption or guarantee
relating to it expressly provides that such indebtedness, lease, renewal,
extension or refunding is not superior in right of payment to the
Securities.

       

      “Subsidiary”
means a corporation of which stock having a majority of the voting power under
ordinary circumstances is owned, directly or indirectly, by the Issuer or by one
or more subsidiaries of the Issuer, or by the Issuer and one or more
subsidiaries of the Issuer.

       

      “Trust
Indenture Act of 1939” (except as otherwise provided in Sections 8.01 and
8.02) means the Trust Indenture Act of 1939 as in force at the date as of which
this Indenture was originally executed.

       

      “Trustee”
means the Person identified as “Trustee”
in the first paragraph hereof and, subject to the provisions of Article 6, shall
also include any successor trustee. “Trustee”
shall also mean or include each Person who is then a trustee hereunder and if at
any time there is more than one such Person, “Trustee”
as used with respect to the Securities of any series shall mean the trustee with
respect to the Securities of such series.

       

      “U.S.
Government Obligations” shall have the meaning set forth in Section
10.01(a).

       

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

       

       

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

      


       

      “Yield
to Maturity” means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.

       

       

      ARTICLE
2

      SECURITIES

       

      Section
2.01.
Forms Generally. The Securities of each series shall be substantially in
such form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to (rather than set forth in) a Board
Resolution, an Officer’s Certificate detailing such establishment) or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities as evidenced by their execution of such
Securities.

       

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

       

      Section
2.02.
Form of Trustee’s Certificate of Authentication. The Trustee’s
certificate of authentication on all Securities shall be in substantially the
following form:

       

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

       

       

      
        	 	 	 ,
	 
      	
                as
      Trustee

              	 
	 
      	 
      	 
	 
      	
                By:

              	 
      	 
	 	 	Authorized
      Officer	 


      

       

       

      Section
2.03.
Amount Unlimited; Issuable
in Series. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.

       

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

      


       

      The
Securities may be issued in one or more series. The terms of a series of
Securities shall be established prior to the initial issuance thereof in or
pursuant to one or more Board Resolutions of the Board of Directors and set
forth in a Board Resolution, or, to the extent established pursuant to (rather
than set forth in) a Board Resolution, in an Officer’s Certificate detailing
such establishment and/or established in one or more indentures supplemental
hereto. The terms of such series reflected in such Board Resolution, Officer’s
Certificate, or supplemental indenture may include the following or any
additional or different terms:

       

      (a)          the
designation of the Securities of the series (which may be part of a series of
Securities previously issued);

       

      (b)          the
terms and conditions, if applicable, upon which conversion or exchange of the
Securities into Common Stock will be effected, including the initial conversion
or exchange price or rate and any adjustments thereto, the conversion or
exchange period and other provisions in addition to or in lieu of those
described herein;

       

      (c)          any
limit upon the aggregate principal amount of the Securities of the 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 the series pursuant to Section 2.08,
2.09, 2.11, 8.05 or 12.03);

       

      (d)          if
other than Dollars, the Foreign Currency in which the Securities of that series
are denominated;

       

      
        (e)        
 any date
on which the principal of the Securities of the series is payable;

      

       

      (f)          the
rate or rates at which the Securities of the series shall bear interest, if any,
the record date or dates for the determination of holders to whom interest is
payable, the date or dates from which such interest shall accrue and on which
such interest shall be payable and/or the method by which such rate or rates or
date or dates shall be determined;

       

      (g)          the
place or places where the principal of and any interest on Securities of the
series shall be payable (if other than as provided in Section
3.02);

       

      (h)          the
price or prices at which, the period or periods within 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 Issuer, pursuant to any sinking fund or
otherwise;

       

       

       

      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      

      


       

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

       

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

       

      (k)        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;

       

      (l)         if
other than the currency in which the Securities of that series are denominated,
the currency in which payment of the principal of or interest on the Securities
of such series shall be payable;

       

      (m)       if
the principal of or interest on the Securities of the series is to be payable,
at the election of the Issuer or a Holder thereof, in a currency other than that
in which the Securities are denominated, the period or periods within which, and
the terms and conditions upon which, such election may be made;

       

      (n)        if
the amount of payments of principal of and interest on the Securities of the
series may be determined with reference to an index based on a currency other
than that in which the Securities of the series are denominated, the manner in
which such amounts shall be determined;

       

      
        (o)      
 whether
and upon what terms the Securities may be defeased;

      

       

      (p)        whether
and under what circumstances the Issuer will pay additional amounts on the
Securities of any series in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Issuer will have the option
to redeem such Securities rather than pay such additional amounts;

       

      (q)        if
the Securities of such series are to be issuable in definitive form (whether
upon original issue or upon exchange of a temporary Security of such series)
only upon receipt of certain certificates or other documents or satisfaction of
other conditions, then the form and terms of such certificates, documents or
conditions;

       

      (r)         any
trustees, authenticating or paying agents, transfer agents or registrars or any
other agents with respect to the Securities of such series;

       

       

       

       

      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

      


       

      (s)   
     any other events of default or covenants with
respect to the Securities of such series in addition to or in lieu of those
contained in this Indenture;

       

      (t)         if
the Securities of the series may be issued in exchange for surrendered
Securities of another series, or for other securities of the Issuer, pursuant to
the terms of such Securities or securities or of any agreement entered into by
the Issuer, the ratio of the principal amount of the Securities of the series to
be issued to the principal amount of the Securities or securities to be
surrendered in exchange, and any other material terms of the
exchange;

       

      (u)        the
extent to which payments on the Securities will be subordinated to the payment
of Senior Indebtedness of the Issuer; and

       

      
        (v)       
any
other terms of the series.

      

       

      The Issuer
may from time to time, without notice to or the consent of the holders of any
series of Securities, create and issue further Securities of any such series
ranking equally with the Securities of such series in all respects (or in all
respects other than the payment of interest accruing prior to the issue date of
such further Securities or except for the first payment of interest following
the issue date of such further Securities). Such further Securities may be
consolidated and form a single series with the Securities of such series and
have the same terms as to status, redemption or otherwise as the Securities of
such series.

       

      Section
2.04.
Authentication and Delivery of Securities. The Issuer may deliver
Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section) or pursuant to such procedures acceptable to
the Trustee and to such recipients as may be specified from time to time by an
Issuer Order. The maturity date, original issue date, interest rate and any
other terms of the Securities of such series shall be determined by or pursuant
to such Issuer Order and procedures. If provided for in such procedures, such
Issuer Order may authorize authentication and delivery pursuant to oral
instructions from the Issuer or its duly authorized agent, which instructions
shall be promptly confirmed in writing. 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 6.01) shall be fully protected in relying upon:

       

      (a)       
 an Issuer Order requesting such authentication and setting forth delivery
instructions if the Securities are not to be delivered to the
Issuer;

       

       

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

      


       

      (b)        any
Board Resolution, Officer’s Certificate and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and
terms of the Securities were established;

       

      (c)        an
Officer’s Certificate setting forth the form or forms and terms of the
Securities stating that the form or forms and terms of the Securities have been
established pursuant to Sections 2.01 and 2.03 and comply with this Indenture,
and covering such other matters as the Trustee may reasonably request;
and

       

      
        (d)      
 an Opinion
of Counsel to the effect that:

      

       

      (i)         the
form or forms and terms of such Securities have been established pursuant to
Sections 2.01 and 2.03 and comply with this Indenture,

       

      (ii)        the
authentication and delivery of such Securities by the Trustee are authorized
under the provisions of this Indenture,

       

      (iii)        such
Securities when authenticated and delivered by the Trustee and issued by the
Issuer in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the Issuer,
and

       

      (iv)         all
laws and requirements in respect of the execution and delivery by the Issuer of
the Securities have been complied with,

       

      and
covering such other matters as the Trustee may reasonably request.

       

      The
Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee’s own rights, duties or
immunities under the Securities, this Indenture or otherwise.

       

      The Issuer
shall execute and the Trustee shall, in accordance with this Section with
respect to the Securities of a series, authenticate and deliver one or more
Global Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such series
issued and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary’s instructions and (iv) shall bear a legend
substantially to the

       

      

      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      

       

      following
effect: “Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.”

       

      Each
Depositary designated pursuant to this Section must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation.

       

      Section
2.05. Execution
of Securities. The Securities shall be signed on behalf of the Issuer by
the chairman of its Board of Directors, any vice chairman of its Board of
Directors, its chief executive officer, its principal financial officer, its
president, any vice president or its treasurer. Such signatures may be the
manual or facsimile signatures of the present or any future such officers.
Typographical and other minor errors or defects in any such reproduction of any
such signature shall not affect the validity or enforceability of any Security
that has been duly authenticated and delivered by the Trustee.

       

      In case
any officer of the Issuer who shall have signed any of the Securities shall
cease to be such officer before the Security so signed shall be authenticated
and delivered by the Trustee or disposed of by the Issuer, such Security
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Security had not ceased to be such officer of the Issuer;
and any Security may be signed on behalf of the Issuer by such persons as, at
the actual date of the execution of such Security, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.

       

      Section
2.06. Certificate
of Authentication. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
executed by the Trustee by the manual signature of one of its authorized
officers, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. The execution of such certificate by the Trustee
upon any Security executed by the Issuer 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.

       

      Section
2.07. Denomination
and Date of Securities; Payments of Interest. The Securities of each
series shall be issuable in denominations established as contemplated by Section
2.03 or, if not so established, in denominations of $1,000 and any integral
multiple thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such

       

       

       

      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

      

      


       

      plan as
the officers of the Issuer executing the same may determine with the approval of
the Trustee, as evidenced by the execution and authentication thereof. Unless
otherwise indicated in a Board Resolution, Officer’s Certificate or supplemental
indenture for a particular series, interest will be calculated on the basis of a
360-day year of twelve 30-day months.

       

      Each
Security shall be dated the date of its authentication. The Securities of each
series shall bear interest, if any, from the date, and such interest shall be
payable on the dates, established as contemplated by Section 2.03.

       

      The Person
in whose name any Security of any series is registered at the close of business
on any record date applicable to a particular series with respect to any
interest payment date for such series shall be entitled to receive the interest,
if any, payable on such interest payment date notwithstanding any transfer,
exchange or conversion of such Security subsequent to the record date and prior
to such interest payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest payment date for
such series, in which case such defaulted interest shall be paid to the Persons
in whose names Outstanding Securities for such series are registered at the
close of business on a subsequent record date (which shall be not less than five
Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Securities not less than 15 days preceding such subsequent record date. The
term “record date” as used with respect to any interest payment date (except a
date for payment of defaulted interest) for the Securities of any series shall
mean the date specified as such in the terms of the Securities of such series
established as contemplated by Section 2.03, or, if no such date is so
established, if such interest payment date is the first day of a calendar month,
the 15th day of the next preceding calendar month or, if such interest payment
date is the 15th day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.

       

      Section
2.08. Registration,
Transfer and Exchange. The Issuer will keep at each office or agency to
be maintained for the purpose as provided in Section 3.02 for each series of
Securities a register or registers in which, subject to such reasonable
regulations as it may prescribe, it will provide for the registration of
Securities of such series and the registration of transfer of Securities of such
series. Such register shall be in written form in the English language or in any
other form capable of being converted into such form within a reasonable time.
At all reasonable times such register or registers shall be open for inspection
by the Trustee.

       

      Upon due
presentation for registration of transfer of any Security of any series at any
such office or agency to be maintained for the purpose as provided in Section
3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Security or Securities
of

       

       

       

      
        
          
          

        

        
          13

          
            

          

        

        
          
          

        

      

      


       

      the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.

       

      At the
option of the Holder thereof, Securities of any series (except a Global
Security) may be exchanged for a Security or Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender
of such Securities to be exchanged at the agency of the Issuer that shall be
maintained for such purpose in accordance with Section 3.02 and upon payment, if
the Issuer shall so require, of the charges hereinafter provided. Whenever any
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. All Securities surrendered upon any
exchange or transfer provided for in this Indenture shall be promptly cancelled
and disposed of by the Trustee and the Trustee will deliver a certificate of
disposition thereof to the Issuer.

       

      All
Securities presented for registration of transfer, exchange, redemption or
payment shall (if so required by the Issuer or the Trustee) be duly endorsed by,
or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder or his
or her attorney duly authorized in writing.

       

      The Issuer
may require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.

       

      The Issuer
shall not be required to exchange or register a transfer of (a) any Securities
of any series for a period of 15 days next preceding the first mailing of notice
of redemption of Securities of such series to be redeemed or (b) any Securities
selected, called or being called for redemption, in whole or in part, except, in
the case of any Security to be redeemed in part, the portion thereof not so to
be redeemed.

       

      Notwithstanding
any other provision of this Section 2.08, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Global Security
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.

       

      If at any
time the Depositary for the Securities of a series notifies the Issuer that it
is unwilling or unable to continue as Depositary for the Securities
of

       

       

       

      
        
          
          

        

        
          14

          
            

          

        

        
          
          

        

      

      


       

      such
series or if at any time the Depositary for the Securities of a series shall no
longer be eligible under Section 2.04, the Issuer shall appoint a successor
Depositary with respect to the Securities of such series. If a successor
Depositary for the Securities of such series is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer’s election pursuant to Section 2.03 that the
Securities of such series be represented by a Global Security shall no longer be
effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer’s Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing the Securities of such series, in exchange for such
Global Security or Securities.

       

      The Issuer
may at any time and in its sole discretion determine that the Securities of any
series issued in the form of one or more Global Securities shall no longer be
represented by a Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officer’s Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form, in any authorized denominations, in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
series, in exchange for such Global Security or Securities.

       

      The
Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,

       

      (i)         to
the Person specified by such Depositary a new Security or Securities of the same
series, of any authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such Person’s beneficial
interest in the Global Security; and

       

      (ii)          to
such Depositary a new Global Security in a denomination equal to the difference,
if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities authenticated and delivered pursuant to
clause (i) above.

       

      Upon the
exchange of a Global Security for Securities in definitive registered form, in
authorized denominations, such Global Security shall be cancelled by the
Trustee. Securities in definitive registered form issued in exchange for a
Global Security pursuant to this Section 2.08 shall be registered in such names
and in such authorized denominations as the Depositary for such

       

       

       

       

      
        
          
          

        

        
          15

          
            

          

        

        
          
          

        

      

      


       

      Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities
to or as directed by the Persons in whose names such Securities are so
registered.

       

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

       

      Section 2.09.  Mutilated,
Defaced, Destroyed, Lost and Stolen Securities. In case
any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver a new Security of the same series, maturity date, interest rate and
original issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof and in the case of mutilation or
defacement shall surrender the Security to the Trustee.

       

      Upon the
issuance of any substitute Security, the Issuer 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 which has matured or is about
to mature or has been called for redemption in full, or is being surrendered for
conversion in full, shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may, instead of issuing a substitute Security (with the
Holder’s consent, in the case of convertible Securities), pay or authorize the
payment of the same or convert, or authorize conversion of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if the
applicant for such payment shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Issuer and the Trustee
and any agent of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership
thereof.

       

      Every
substitute Security of any series issued pursuant to the provisions of this
Section by virtue of the fact that any such Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Issuer,
whether or not

       

       

       

       

      
        
          
          

        

        
          16

          
            

          

        

        
          
          

        

      

      


       

      the
destroyed, lost or stolen Security shall be at any time enforceable by anyone
and shall be entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Securities of such series duly authenticated and
delivered hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment or conversion of mutilated,
defaced or destroyed, lost or stolen Securities and shall preclude 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
2.10.
Cancellation of Securities; Destruction Thereof. All Securities
surrendered for exchange for Securities of the same series or for payment,
redemption, registration of transfer, conversion or for credit against any
payment in respect of a sinking or analogous fund, if surrendered to the Issuer
or any agent of the Issuer or the Trustee, shall 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 permitted by any
of the provisions of this Indenture. The Trustee shall dispose of cancelled
Securities held by it and deliver a certificate of disposition to the Issuer. If
the Issuer shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the Debt represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.

       

      Section
2.11.
Temporary Securities. Pending the preparation of definitive Securities
for any series, the Issuer may execute and the Trustee shall authenticate and
deliver temporary Securities for such series (printed, lithographed, typewritten
or otherwise reproduced, in each case in form satisfactory to the Trustee).
Temporary Securities of any series shall be issuable in any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and authentication
thereof. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Securities
of such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to
Section 3.02 and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations. Until
so exchanged, the temporary

       

      
        
          
          

        

        
          17

          
            

          

        

        
          
          

        

      

      


       

      Securities
of any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless the benefits of the temporary
Securities are limited pursuant to Section 2.03.

       

       

      ARTICLE
3

      COVENANTS
OF THE ISSUER

       

      Section
3.01.
Payment of Principal and Interest. The Issuer covenants and agrees for
the benefit of each series of Securities that it will duly and punctually pay or
cause to be paid the principal of, and interest on, each of the Securities of
such series (together with any additional amounts payable pursuant to the terms
of such Securities) at the place or places, at the respective times and in the
manner provided in such Securities and in this Indenture. The interest on
Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only to or upon the written order of the
Holders thereof and at the option of the Issuer may be paid by mailing checks
for such interest payable to or upon the written order of such Holders at their
last addresses as they appear on the Security register of the
Issuer.

       

      Section
3.02.  Offices
for Payments, Etc.  The Issuer will maintain (i) in
_______,
an agency where the Securities of each series may be presented for payment, an
agency where the Securities of each series may be presented for exchange and
conversion, if applicable, as provided in this Indenture and an agency where the
Securities of each series may be presented for registration of transfer as in
this Indenture provided and (ii) such further agencies in such places as may be
determined for the Securities of such series pursuant to Section
2.03.

       

      The Issuer
will maintain in __________, an agency where notices and demands to or upon the
Issuer in respect of the Securities of any series or this Indenture may be
served.

       

      The Issuer
will give to the Trustee written notice of the location of each such agency and
of any change of location thereof. In case the Issuer shall fail to maintain any
agency required by this Section to be located in __________, or shall fail to
give such notice of the location or of any change in the location of any of the
above agencies, presentations and demands may be made and notices may be served
at the Corporate Trust Office of the Trustee.

       

      The Issuer
may from time to time designate one or more additional agencies where the
Securities of a series may be presented for payment, where the Securities of
that series may be presented for exchange or conversion, if applicable, as
provided in this Indenture and pursuant to Section 2.03 and where the Securities
of that series may be presented for registration of transfer as in this
Indenture provided, and the Issuer may from time to time rescind any
such

       

       

      
        
          
          

        

        
          18

          
            

          

        

        
          
          

        

      

      


       

      designation,
as the Issuer may deem desirable or expedient; provided,
however,
that no such designation or rescission shall in any manner relieve the Issuer of
its obligation to maintain the agencies provided for in this Section. The Issuer
will give to the Trustee prompt written notice of any such designation or
rescission thereof.

       

      Section
3.03.
Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 6.10, a Trustee, so that there shall at all times
be a Trustee with respect to each series of Securities hereunder.

       

      Section
3.04.
Paying Agents. Whenever the Issuer shall appoint a paying agent other
than the Trustee with respect to the Securities of any series, it will cause
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,

       

      (a)          that
it will hold all sums received by it as such agent for the payment of the
principal of or interest on the Securities of such series (whether such sums
have been paid to it by the Issuer or by any other obligor on the Securities of
such series) in trust for the benefit of the Holders of the Securities of such
series or of the Trustee,

       

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

       

      (c)          that
at any time during the continuance of any such failure, upon the written request
of the Trustee, it will forthwith pay to the Trustee all sums so held in trust
by such paying agent.

       

      The Issuer
will, on or prior to each due date of the principal of or interest on the
Securities of such series, deposit with the paying agent a sum sufficient to pay
such principal or interest so becoming due, and (unless such paying agent is the
Trustee) the Issuer will promptly notify the Trustee of any failure to take such
action.

       

      If the
Issuer shall act as its own paying agent with respect to the Securities of any
series, it will, on or before each due date of the principal of or interest on
the Securities of such series, set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series a sum sufficient to pay
such principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.

       

       

      
        
          
          

        

        
          19

          
            

          

        

        
          
          

        

      

      


       

      Anything
in this Section to the contrary notwithstanding, but subject to Section 10.01,
the Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series by the Issuer or any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.

       

      Anything
in this Section to the contrary notwithstanding, the agreement to hold sums in
trust as provided in this Section is subject to the provisions of Sections 10.03
and 10.04.

       

      Section
3.05.
Written Statement to Trustee. So long as any Securities are Outstanding
hereunder, the Issuer will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Issuer ending after the date hereof, a written
statement covering the previous fiscal year, signed by two of its officers
(which need not comply with Section 11.05), stating that in the course of the
performance of their duties as officers of the Issuer they would normally have
knowledge of any default by the Issuer in the performance or fulfillment of any
covenant, agreement or condition contained in this Indenture, stating whether or
not they have knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature thereof.

       

       

      ARTICLE
4

      SECURITYHOLDERS
LISTS
AND REPORTS BY
THE ISSUER AND
THE TRUSTEE

       

      Section
4.01.
Issuer to Furnish Trustee Information as to Names and Addresses
of Securityholders. The Issuer covenants and agrees that it will
furnish or
cause to be furnished to the Trustee a list in such form as the Trustee may
reasonably require of the names and addresses of the Holders of the Securities
of each series pursuant to Section 312 of the Trust Indenture Act of
1939:

       

      (a)          semiannually
and not more than 15 days after each record date for the payment of interest on
such Securities, as hereinabove specified, as of such record date and on dates
to be determined pursuant to Section 2.03 for non-interest bearing Securities in
each year, and

       

      (b)          at
such other times as the Trustee may request in writing, within 30 days after
receipt by the Issuer of any such request as of a date not more than 15 days
prior to the time such information is furnished, provided,
that, if and so long as the Trustee shall be the Security registrar for such
series, such list shall not be required to be furnished.

       

       

       

      
        
          
          

        

        
          20

          
            

          

        

        
          
          

        

      

       

      


       

      Section
4.02.
Reports by the Issuer. The Issuer covenants to comply with Section 314(a)
of the Trust Indenture Act insofar as it relates to information, documentations,
and other reports which the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act.

       

      Section
4.03.
Reports by the Trustee. Any Trustee’s report required under Section
313(a) of the Trust Indenture Act of 1939 shall be transmitted on or before
______ in each year following the date hereof, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
but no more than 60 nor less than 45 days prior thereto.

       

       

      ARTICLE
5

      REMEDIES OF
THE TRUSTEE
AND SECURITYHOLDERS
ON EVENT
OF DEFAULT

       

      Section
5.01.
Event of Default Defined; Acceleration of Maturity; Waiver of
Default. “Event
of Default”, with respect to Securities of any series wherever used
herein, means each one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):

       

      (a)          default
in the payment of any installment of interest upon any of the Securities of such
series as and when the same shall become due and payable, and continuance of
such default for a period of 60 days (or such other period as may be established
for the Securities of such series as contemplated by Section 2.03);
or

       

      (b)          default
in the payment of all or any part of the principal on any of the Securities of
such series as and when the same shall become due and payable either at
maturity, upon redemption, by declaration or otherwise, and the continuance of
such default for five days (or such other period as may be established for the
Securities of such series as contemplated by Section 2.03); or

       

      (c)          default
in the performance, or breach, of any covenant or warranty of the Issuer in
respect of the Securities of such series (other than a covenant or warranty in
respect of the Securities of such series a default in the performance or breach
of which is elsewhere in this Section specifically dealt with), and continuance
of such default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the Issuer and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice
of Default” hereunder; or

       

       

       

      
        
          
          

        

        
          21

          
            

          

        

        
          
          

        

      

      


       

      (d)          a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Issuer in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Issuer or for all or substantially all of its
property and assets or ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or

       

      (e)          the
Issuer shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such law, or
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the Issuer
or for any substantial part of its property and assets, or make any general
assignment for the benefit of creditors; or

       

      
        (f)        
 any other
Event of Default provided for in such series of Securities.

      

       

      (g)          Notwithstanding
any other provisions in this Indenture, if the terms of any Securities so
provide, at the election of the Issuer, the sole remedy for an Event of Default
relating to the failure to comply with Section 4.02 of this Indenture or Section
314(a)(1) of the Trust Indenture Act of 1939, will, for the period specified for
the Securities of such series, consist exclusively of the right to receive
additional interest on the Securities accruing at a rate specified for the
Securities of such series. Such additional interest will accrue on all
outstanding Securities of such series from and including the date on which an
Event of Default relating to a failure to comply with the reporting obligations
in the Indenture first occurs to, but not including, the date on which such
Event of Default is cured or waived. The foregoing provisions in this Section
5.01(g) will not affect the rights of Securityholders in the event of the
occurrence of any other Event of Default. In the event the Issuer does not elect
to pay such additional interest specified upon an Event of Default in accordance
with this Section 5.01(g), the Securities will be subject to acceleration as
provided below.

       

      If an
Event of Default described in clauses (a), (b), (c) or (f) occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such 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 such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an

       

       

      
        
          
          

        

        
          22

          
            

          

        

        
          
          

        

      

      


       

      Event of
Default described in clause (d) or (e) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of all the Securities then Outstanding
hereunder (treated as one class), by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.

       

      The
foregoing provisions, however, are subject to the condition that if, at any time
after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the case
may be) 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 Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series (or of all the Securities, as the case may be) and the
principal of any and all Securities of such series (or of all the Securities, as
the case may be) which shall have become due otherwise than by acceleration
(with interest upon such principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series, (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein--then and in every such case the Holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a
separate class, (or of all the Securities, as the case may be, voting as a
single class) then Outstanding, by written notice to the Issuer and to the
Trustee, may waive all defaults with respect to such series (or with respect to
all the Securities, as the case may be) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.

       

      For all
purposes under this Indenture, if a portion of the principal of any Original
Issue Discount Securities shall have been accelerated and declared due and
payable pursuant to the provisions hereof, then, from and after
such

       

      
        
          
          

        

        
          23

          
            

          

        

        
          
          

        

      

      


       

      declaration,
unless such declaration has been rescinded and annulled, the principal amount of
such Original Issue Discount Securities shall be deemed, for all purposes
hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the
principal thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount
Securities.

       

      Section 5.02.  Collection
of Debt by Trustee; Trustee May Prove Debt. The Issuer
covenants that (a) in case default shall be made in the payment of any
installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, and such default shall
have continued for a period of five days, whether upon maturity of the
Securities of such series or upon any redemption or by declaration or
otherwise--then, upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor trustee except as a result of its negligence or
bad faith.

       

      In case
the Issuer shall fail forthwith to pay such amounts 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
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Issuer or other obligor upon such Securities and
collect in the manner provided by law out of the property of the Issuer or other
obligor upon such Securities, wherever situated, the moneys adjudged or decreed
to be payable.

       

      In case
there shall be pending proceedings relative to the Issuer or any other obligor
upon the Securities under Title 11 of the United States Code or any other
applicable Federal or state bankruptcy, insolvency or other similar law, or in
case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator,

       

      


      
        
          
          

        

        
          24

          
            

          

        

        
          
          

        

      

       

      sequestrator
or similar official shall have been appointed for or taken possession of the
Issuer or its property or such other obligor or its property, or in case of any
other comparable judicial proceedings relative to the Issuer or other obligor
upon the Securities of any series, or to the creditors or property of the Issuer
or such other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:

       

      (i)         to
file and prove a claim or claims for the whole amount of principal and interest
(or, if the Securities of any series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Securities of any series, and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for reasonable compensation to
the Trustee and each predecessor trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in any
judicial proceedings relative to the Issuer or other obligor upon the Securities
of any series, or to the creditors or property of the Issuer or such other
obligor,

       

      (ii)          unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of the Securities of any series in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in comparable
proceedings, and

       

      (iii)           to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims
of the Securityholders and of the Trustee on their behalf; and any trustee,
receiver, or liquidator, custodian or other similar official is hereby
authorized by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments directly
to the Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each predecessor
trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor trustee except as a result of negligence or bad faith and all
other amounts due to the Trustee or any predecessor trustee pursuant to Section
6.06.

       

      
      

      
        
          
          

        

        
          25

          
            

          

        

        
          
          

        

      

      Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or vote for or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any 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 except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.

       

      All rights
of action and of asserting claims under this Indenture, or under any of the
Securities of any series, may be enforced by the Trustee without the possession
of any of the Securities of such series or the production thereof on any trial
or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities in respect of which such action was
taken.

       

      In any
proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be
a party), the Trustee shall be held to represent all the Holders of the
Securities in respect to which such action was taken, and it shall not be
necessary to make any Holders of such Securities parties to any such
proceedings.

       

      Section
5.03.
Application of Proceeds. Any moneys collected by the Trustee pursuant to
this Article in respect of any series 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 interest, upon presentation of the several
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully
paid:

       

      FIRST: To
the payment of all amounts due to the Trustee or any predecessor trustee
pursuant to Section 6.06;

       

      SECOND: In
case the principal of the Securities of such series in respect of which moneys
have been collected shall not have become and be then due and payable, to the
payment of interest on the Securities of such series in default in the order of
the maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in such
Securities, such

       

      
      

      
        
          
          

        

        
          26

          
            

          

        

        
          
          

        

      

      payments
to be made ratably to the Persons entitled thereto, without discrimination or
preference;

       

      THIRD: In
case the principal of the Securities of such series in respect of which moneys
have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of
such series for principal and interest, with interest upon the overdue
principal, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and interest or
Yield to Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and

       

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

       

      Section
5.04. Suits
for Enforcement. In case an Event of Default has occurred, has not been
waived and is continuing, 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 such rights, either at law or in equity or in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.

       

      Section
5.05. Restoration
of Rights on Abandonment of Proceedings. In case the Trustee shall have
proceeded to enforce any right under this Indenture and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case the Issuer and
the Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Issuer, the Trustee and
the Securityholders shall continue as though no such proceedings had been
taken.

       

      Section
5.06. Limitations
on Suits by Securityholders. 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 action or proceeding at law or in equity

       

       

      
        
          
          

        

        
          27

          
            

          

        

        
          
          

        

      

      


       

      or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also 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 or proceedings in its own name as trustee hereunder and 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 and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.09; it being understood and intended, and being
expressly covenanted by the Holder of every Security with every other Holder and
the Trustee, that no one or more Holders of Securities of any series shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other such
Holder of 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 the applicable 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
5.07. Unconditional
Right of Securityholders to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Security, the right of any Holder of any Security to receive payment of the
principal of and interest on such Security on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates, or for the enforcement of such
conversion right, shall not be impaired or affected without the consent of such
Holder.

       

      Section
5.08. Powers
and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 5.06, no right or remedy
herein conferred
upon or reserved to the Trustee or to the Holders of Securities is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.

       

       

      
        
          
          

        

        
          28

          
            

          

        

        
          
          

        

      

      


       

      No delay
or omission of the Trustee or of any Holder of 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 Event of Default or an acquiescence therein; and, subject to
Section 5.06, every power and remedy given by this Indenture or by law to the
Trustee or to the Holders of Securities may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the Holders of
Securities.

       

      Section
5.09. Control
by Holders of Securities. The Holders of a majority in aggregate
principal amount of the Securities of each series affected (with each series
voting as a separate class) at the time Outstanding shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series by this Indenture; provided,
that such direction shall not be otherwise than in accordance with law and the
provisions of this Indenture and provided, further, that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.01) the Trustee shall have no duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders.

       

      Nothing in
this Indenture shall impair the right of the Trustee in its discretion to take
any action deemed proper by the Trustee and which is not inconsistent with such
direction or directions by Securityholders.

       

      Section
5.10. Waiver
of Past Defaults. Prior to the declaration of the acceleration of the
maturity of the Securities of any series as provided in Section 5.01, the
Holders of a majority in aggregate principal amount of the Securities of such
series at the time Outstanding may on behalf of the Holders of all the
Securities of such series waive any past default or Event of Default described
in clause Section 5.01(c) or Section 5.01(f) of Section 5.01 (or, in the case of
an event specified in clause Section 5.01(c) or Section 5.01(f) of Section 5.01
which relates to less than all series of Securities then Outstanding, the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding affected thereby (each series voting as a separate class) may waive
any such default or Event of Default, or, in the case of an event specified in
clause Section 5.01(c) or

       

      


      
        
          
          

        

        
          29

          
            

          

        

        
          
          

        

      

       

      Section
5.01(f) (if the Event of Default under clause Section 5.01(c) or Section 5.01(f)
relates to all series of Securities then Outstanding), Section 5.01(d) or
Section 5.01(e) of Section 5.01 the Holders of Securities of a majority in
principal amount of all the Securities then Outstanding (voting as one class)
may waive any such default or Event of Default), and its consequences except a
default in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Security affected. In the case
of any such waiver, the Issuer, 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.

       

      Upon any
such waiver, such default shall cease to exist and be deemed to have been cured
and not to have occurred, and any Event of Default arising therefrom shall be
deemed to have been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.

       

      Section
5.11. Trustee
to Give Notice of Default. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee to all
Holders of Securities of such series in the manner and to the extent provided in
Section 4.03, unless in each case such defaults shall have been cured before the
mailing or publication of such notice (the term “defaults”
for the purpose of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided, that, except in the case of default in the payment
of the principal of or interest on any of the Securities of such series, or in
the payment of any sinking fund installment on such series, 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 or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.

       

      Section
5.12. Right
of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security by his or
her 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, suffered
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

       

      


      
        
          
          

        

        
          30

          
            

          

        

        
          
          

        

      

       

      Securityholder
or group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the case
of any suit relating to or arising under clause Section 5.01(c) or Section
5.01(f) of Section 5.01 (if the suit relates to Securities of more than one but
less than all series), 10% in aggregate principal amount of Securities then
Outstanding and affected thereby, or in the case of any suit relating to or
arising under Section 5.01(c) or Section 5.01(f) (if the suit under Section
5.01(c) or Section 5.01(f) relates to all the Securities then Outstanding),
Section 5.01(d) or Section 5.01(e) of Section 5.01, 10% in aggregate principal
amount of all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption or for the enforcement of a right to convert any
Security in accordance with the terms thereof.

       

       

      ARTICLE
6

      CONCERNING
THE TRUSTEE

       

      Section
6.01. Duties
and Responsibilities of the Trustee; During Default; Prior
to Default. With respect to the Holders of any series of Securities
issued hereunder,
the Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of a particular series and after the curing or waiving of all Events
of Default which may have occurred with respect to such series, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a
series has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.

       

      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.

       

      Section
6.02.
Certain Rights of the Trustee. In furtherance of and subject to the Trust
Indenture Act of 1939 and subject to Section 6.01:

       

      (a)        
 in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but, in the case of any such statements, certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee,
the

       

       

      
        
          
          

        

        
          31

          
            

          

        

        
          
          

        

      

      


       

      Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;

       

      (b)          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;

       

      (c)          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
pursuant to Section 5.09 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;

       

      (d)          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 shall be reasonable ground for believing that the repayment of
such funds or adequate indemnity against such liability is not reasonably
assured to it;

       

      (e)          the
Trustee may rely and shall be protected in acting or refraining from acting upon
any resolution, Officer’s Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
note, 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;

       

      (f)          any
request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officer’s Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution of the
Board of Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer;

       

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

       

      (h)          the
Trustee shall be under no obligation to exercise any of the trusts 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 which might be incurred
therein or thereby;

       

       

       

       

      
        
          
          

        

        
          32

          
            

          

        

        
          
          

        

      

      


       

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

       

      (j) 
        prior to the occurrence of an
Event of Default hereunder and after the curing or waiving of all Events of
Default, 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, appraisal, bond,
debenture, note, security, or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then Outstanding;
provided,
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 expenses or liabilities as
a condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand; and

       

      (k)          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 not regularly in
its employ and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care by
it hereunder.

       

      Section
6.03.
Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Thereof. The recitals contained herein
and in
the Securities, except the Trustee’s certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.

       

      Section 6.04.  Trustee
and Agents May Hold Securities; Collections, Etc. The
Trustee or any agent of the Issuer or the Trustee, 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 the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.

       

      Section
6.05.
Moneys Held by Trustee. Subject to the provisions of Section 10.04
hereof, 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

       

       

      
        
          
          

        

        
          33

          
            

          

        

        
          
          

        

      

      


       

      received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.

       

      Section
6.06.
Compensation and Indemnification of Trustee and Its Prior Claim.
The Issuer covenants and agrees to pay to the Trustee from time to
time, and
the Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it 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 agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and
each predecessor trustee and to pay or reimburse the Trustee and each
predecessor trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a senior
claim 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, and the Securities are hereby subordinated to such
senior claim.

       

      Section 6.07.  Right
of Trustee to Rely on Officer’s Certificate, Etc. Subject to
Sections 6.01 and 6.02, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer’s Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.

       

       

      
        
          
          

        

        
          34

          
            

          

        

        
          
          

        

      

      


       

      Section
6.08.
Indentures Creating Potential Conflicting Interests for the Trustee.
No indentures are hereby specifically described for the purposes of Section
310(b)(1) of the Trust Indenture Act of 1939.

       

      Section
6.09.
Persons Eligible for Appointment as Trustee. The Trustee for each series
of Securities hereunder shall at all times be a corporation having a combined
capital and surplus of at least $50,000,000 and shall be eligible in accordance
with the provisions of Section 310(a) of the Trust Indenture Act of 1939. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of a Federal, State or District of Columbia
supervising or examining authority, then, for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published.

       

      Section
6.10.
Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer and by mailing notice of such
resignation to the Holders of then Outstanding Securities of each series
affected at their addresses as they shall appear on the Security register. Upon
receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series 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, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of himself or herself 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 of the following shall
  occur:

              


      

       

      (i)         the
Trustee shall fail to comply with the provisions of Section 310(b) of the Trust
Indenture Act of 1939 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months;
or

       

      (ii)         the
Trustee shall cease to be eligible in accordance with the provisions of Section
310(a) of the Trust Indenture Act of 1939 and shall

       

       

      
        
          
          

        

        
          35

          
            

          

        

        
          
          

        

      

      


       

      fail to
resign after written request therefor by the Issuer or by any Securityholder;
or

       

      (iii)         
 the Trustee shall become incapable of acting with respect to any series of
Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;

       

      then, in
any such case, the Issuer may remove the Trustee with respect to the applicable
series of Securities and appoint a successor trustee for such series by written
instrument, in duplicate, executed by order of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself or herself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. 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 each
series at the time Outstanding may at any time remove the Trustee with respect
to Securities of such series and appoint a successor trustee with respect to the
Securities of such series by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 7.01 of the action in that regard taken by the
Securityholders.

       

      (d)          Any
resignation or removal of the Trustee with respect to any series and any
appointment of a successor trustee with respect to such series pursuant to any
of the provisions of this Section 6.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.11.

       

      Section
6.11.
Acceptance of Appointment by Successor Trustee. Any successor trustee
appointed as provided in Section 6.10 shall execute and deliver to the Issuer
and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
trustee for such series hereunder; but, nevertheless, on the written request of
the

       

      


      
        
          
          

        

        
          36

          
            

          

        

        
          
          

        

      

       

      Issuer or
of the successor trustee, upon payment of its charges then unpaid, the trustee
ceasing to act shall, subject to Section 10.04, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee, the
Issuer shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.06.

       

      If a
successor trustee is appointed with respect to the Securities of one or more
(but not all) series, the Issuer, the predecessor trustee and each successor
trustee with respect to the Securities of any applicable series shall execute
and deliver an indenture supplemental hereto which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.

       

      No
successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 310(a) of the Trust Indenture Act of 1939.

       

      Upon
acceptance of appointment by any successor trustee as provided in this Section
6.11, the Issuer shall mail notice thereof to the Holders of Securities of each
series affected, by mailing such notice to such Holders at their addresses as
they shall appear on the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to mail such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.

       

      Section
6.12.
Merger, Conversion, Consolidation or Succession to Business
of Trustee. 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

       

      
        
          
          

        

        
          37

          
            

          

        

        
          
          

        

      

      


       

      any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder; provided,
that such corporation shall be qualified under the provisions of Section 310(b)
of the Trust Indenture Act of 1939 and eligible under the provisions of Section
310(a) of the Trust Indenture Act of 1939, 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,
at the time such successor to the Trustee shall succeed to the trusts created by
this Indenture, any of the Securities of any series shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities of
any series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities of such series
or in this Indenture provided that the certificate of the Trustee shall have;
provided,
that the right to adopt the certificate of authentication of any predecessor
trustee or to authenticate Securities of any series in the name of any
predecessor trustee shall apply only to its successor or successors by merger,
conversion or consolidation.

       

       

      ARTICLE
7

      CONCERNING
THE SECURITYHOLDERS

       

      Section
7.01.
Evidence of Action Taken by Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal
amount of the Securityholders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.

       

      Section
7.02.
Proof of Execution of Instruments and of Holding of Securities.
Subject to Sections 6.01 and 6.02, the execution of any instrument
by a
Holder or his agent or proxy may be proved in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in such manner as
shall be satisfactory to the Trustee. The holding of Securities shall be proved
by the Register or by a certificate of the registrar thereof. The Issuer may set
a record date for purposes of determining the identity of Holders of any series
entitled to

       

      


      
        
          
          

        

        
          38

          
            

          

        

        
          
          

        

      

       

      vote or
consent to any action referred to in Section 7.01, which record date may be set
at any time or from time to time by notice to the Trustee, for any date or dates
(in the case of any adjournment or reconsideration) not more than 60 days nor
less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, only Holders of such
series of record on such record date shall be entitled to so vote or give such
consent or revoke such vote or consent. Notice of such record date may be given
before or after any request for any action referred to in Section 7.01 is made
by the Issuer.

       

      Section
7.03.
Holders to Be Treated as Owners. The Issuer, the Trustee and any agent of
the Issuer or the Trustee may deem and treat the Person in whose name any
Security shall be registered upon the Security register for such series as the
absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of, and, subject
to the provisions of this Indenture, interest on, such Security and for all
other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such Person, or upon his or her order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable.

       

      Section
7.04.
Securities Owned by Issuer Deemed Not Outstanding. In determining whether
the Holders of the requisite aggregate principal amount of Outstanding
Securities of any or all series have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Issuer or any
other obligor on the Securities with respect to which such determination is
being made or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuer or any other obligor
on the Securities with respect to which such determination is being made 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 which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officer’s Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or

       

       

      
        
          
          

        

        
          39

          
            

          

        

        
          
          

        

      

      


       

      for the
account of any of the above-described Persons; and, subject to Sections 6.01 and
6.02, the Trustee shall be entitled to accept such Officer’s Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.

       

      Section
7.05.
Right of Revocation of Action Taken. At any time prior to (but not after)
the evidencing to the Trustee, as provided in Section 7.01, of the taking of any
action by the Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in this Indenture
in connection with such action, any Holder of a Security the serial number of
which is shown by the evidence to be included among the serial numbers of the
Securities the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, 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 Securities issued in exchange or substitution
therefor or on registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any action taken
by the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such
action.

       

       

      ARTICLE
8

      SUPPLEMENTAL
INDENTURES

       

      Section
8.01.
Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto in form satisfactory to the Trustee for one or
more of the following purposes:

       

      (a)          to
convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;

       

      (b)          to
evidence the succession of another corporation to the Issuer, or successive
successions, and the assumption by the successor corporation of the covenants,
agreements and obligations of the Issuer pursuant to Article 9;

       

      (c)          to
add to the covenants of the Issuer such further covenants, restrictions,
conditions or provisions as its Board of Directors and the Trustee shall
consider to be for the protection of the Holders of Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any
such

       

       

      
        
          
          

        

        
          40

          
            

          

        

        
          
          

        

      

      


       

      additional
covenants, restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this Indenture
as herein set forth; provided,
that in respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the Trustee upon
such an Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive such an
Event of Default;

       

      (d)          to
cure any ambiguity or to correct or supplement any provision contained herein or
in any supplemental indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture, or to conform
this Indenture or any supplemental indenture to the description of the
Securities set forth in any prospectus or prospectus supplement related to such
series of Securities;

       

      
        (e)        
 to provide
for or add guarantors for the Securities of one or more series;

      

       

      (f)          to
establish the form or terms of Securities of any series as permitted by Sections
2.01 and 2.03;

       

      (g)          to
evidence and provide for the acceptance of appointment hereunder by a successor
trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 6.11;

       

      (h)          to
make any other change that is necessary or desirable; provided,
that no such action shall adversely affect the interests of the Holders of the
Securities in any material respect;

       

      (i)         to
make any change to the Securities of any series so long as no Securities of such
series are Outstanding; and

       

      (j)         to
make any other change to the Securities of any series that does not adversely
affect the rights of any Holder.

       

      The
Trustee is hereby authorized to join with the Issuer in the execution of any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which

       

       

      


      
        
          
          

        

        
          41

          
            

          

        

        
          
          

        

      

       

      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 without the consent of the Holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 8.02.

       

      Section 8.02.  Supplemental
Indentures With Consent of Securityholders. With the
consent (evidenced as provided in Article 7) of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
of all series affected by such supplemental indenture (voting as one class), the
Issuer, when authorized by a resolution of its Board of Directors, and the
Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided,
that no such supplemental indenture shall, without the consent of the Holder of
each Security so affected, (a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof,
or make the principal thereof (including any amount in respect of original issue
discount) or interest thereon payable in any currency other than that provided
in the Securities or in accordance with the terms thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 5.01 or
the amount thereof provable in bankruptcy pursuant to Section 5.02, or alter the
provisions of Section 11.11 or 11.12, or impair or affect the right of any
Securityholder to institute suit for the payment or conversion thereof or, in
the case of convertible or exchangeable Securities, materially and adversely
affect the right to convert or exchange the Securities in accordance with their
terms or, if the Securities provide therefor, any right of repayment at the
option of the Securityholder, or modify any of the provisions of this paragraph
except to increase any required percentage or to provide that certain other
provisions cannot be modified or waived without the consent of the Holder of
each Security so affected; provided,
that no consent of any Holder of any Security shall be necessary under this
Section 8.02 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Section 8.01(e) of this Indenture, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture.

       

      A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Holders of Securities of such series with respect to such covenant or
provision,

       

       

      
        
          
          

        

        
          42

          
            

          

        

        
          
          

        

      

      


       

      shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.

       

      Upon the
request of the Issuer, accompanied by a copy of a resolution of the Board of
Directors certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid and other documents, if any, required by Section 7.01, the Trustee
shall join with the Issuer 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.

       

      It shall
not be necessary for the consent of the Securityholders 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.

       

      Promptly
after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall give a notice
thereof to the Holders of then Outstanding Securities of each series affected
thereby, by mailing a notice thereof by first-class mail to such Holders at
their addresses as they shall appear on the Security register, and in each case
such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.

       

      Section
8.03.
Effect of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall 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 Issuer and the Holders of Securities of each
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
8.04.
Documents to Be Given to Trustee. The Trustee, subject to the provisions
of Sections 6.01 and 6.02, may receive an Officer’s Certificate and an Opinion
of Counsel as conclusive evidence that any supplemental indenture executed
pursuant to this Article 8 complies with the applicable provisions of this
Indenture.

       

       

      
        
          
          

        

        
          43

          
            

          

        

        
          
          

        

      

      


       

      Section
8.05.
Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article may
bear a notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.

       

       

      ARTICLE
9

      CONSOLIDATION,
MERGER,
SALE
OR CONVEYANCE

       

      Section
9.01.
Issuer May Consolidate, Etc., on Certain Terms. The Issuer shall not
consolidate with or merge into any other Person (in a transaction in which the
Issuer is not the surviving corporation) or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, unless (a) the
Person formed by such consolidation or into which the Issuer is merged or the
Person which acquires by conveyance or transfer, or which leases, the properties
and assets of the Issuer substantially as an entirety shall be (i) a
corporation, limited liability company, partnership or trust, (ii) shall be
organized and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and (iii) shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Issuer to be
performed, by supplemental indenture satisfactory in form to the Trustee,
executed and delivered to the Trustee, by the Person (if other than the Issuer)
formed by such consolidation or into which the Issuer shall have been merged or
by the Person which shall have acquired the Issuer’s assets; (b) immediately
after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Issuer or any Subsidiary as a result of such
transaction as having been incurred by the Issuer or such Subsidiary at the time
of such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have happened and
be continuing; and (c) the Issuer has delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.

       

       

      
        
          
          

        

        
          44

          
            

          

        

        
          
          

        

      

       

      


       

      The
conditions of (a)(ii) above shall not apply in the case of a corporation or
entity not organized under the laws of the United States of America, any State
thereof or the District of Columbia which shall agree, in form satisfactory to
the Trustee, (i) to subject itself to the jurisdiction of the United States
district court for the Southern District of New York and (ii) to indemnify and
hold harmless the holders of all Securities against (A) any tax, assessment or
governmental charge imposed on such holders by a jurisdiction other than the
United States or any political subdivision or taxing authority thereof or
therein with respect to, and withheld on the making of, any payment of principal
or interest on such Securities and which would not have been so imposed and
withheld had such consolidation, merger, sale or conveyance not been made and
(B) any tax, assessment or governmental charge imposed on or relating to, and
any costs or expenses involved in, such consolidation, merger, sale or
conveyance.

       

      The
restrictions in this Section 9.01 shall not apply to (i) the merger or
consolidation of the Issuer with one of its affiliates, if the Board of
Directors determines in good faith that the purpose of such transaction is
principally to change the Issuer’s State of incorporation or convert the
Issuer’s form of organization to another form, or (ii) the merger of the Issuer
with or into a single direct or indirect wholly owned Subsidiary pursuant to
Section 251(g) (or any successor provision) of the General Corporation Law of
the State of Delaware.

       

      Section
9.02.
Successor Issuer Substituted. Upon any consolidation of the Issuer with,
or merger of the Issuer into, any other Person or any conveyance, transfer or
lease of the properties and assets of the Issuer substantially as an entirety in
accordance with Section 9.01, the successor Person formed by such consolidation
or into which the Issuer is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture with the same effect as if
such successor Person had been named as the Issuer herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.

       

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

       

       

      ARTICLE
10

      SATISFACTION
AND DISCHARGE
OF INDENTURE;
UNCLAIMED
MONEYS

       

      Section
10.01.
Satisfaction and Discharge of Indenture. (a) If at any time (i) the
Issuer shall have paid or caused to be paid the principal of and interest on all
the Securities of any series Outstanding hereunder (other than Securities of
such series which have been destroyed, lost or stolen and which have
been

       

       

      
        
          
          

        

        
          45

          
            

          

        

        
          
          

        

      

      


       

      replaced
or paid as provided in Section 2.09) as and when the same shall have become due
and payable, or (ii) the Issuer shall have delivered to the Trustee for
cancellation all Securities of any series theretofore authenticated (other than
any Securities of such series which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.09) or (iii)
in the case of any series of Securities the exact amount (including the currency
of payment) of principal of and interest due on which on the dates referred to
in clause (B) below can be determined at the time of making the deposit referred
to in such clause, (A) all the Securities of such 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 (B) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds
the entire amount in cash (other than moneys repaid by the Trustee or any paying
agent to the Issuer in accordance with Section 10.04) or, in the case of any
series of Securities the payments on which may only be made in Dollars, direct
obligations of the United States of America, backed by its full faith and credit
(“U.S.
Government Obligations”), maturing as to principal and interest in such
amounts and at such times as will insure the availability of cash sufficient to
pay on any subsequent interest payment date all interest due on such interest
payment date on the Securities of such series and to pay at maturity or upon
redemption all Securities of such series (in each case other than any Securities
of such series which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.09) not theretofore
delivered to the Trustee for cancellation, including principal and interest due
or to become due to such date of maturity, as the case may be, and if, in any
such case, the Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer, including amounts due the Trustee pursuant to Section
6.06, with respect to Securities of such series, then this Indenture shall cease
to be of further effect with respect to Securities of such series (except as to
(1) rights of registration of transfer, conversion and exchange of Securities of
such series and the Issuer’s right of optional redemption, (2) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of Holders
of Securities to receive payments of principal thereof and interest thereon upon
the original stated due dates therefor (but not upon acceleration) and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (4)
the rights (including the Trustee’s rights under Section 10.05) and immunities
of the Trustee hereunder and the Trustee’s obligations under Sections 10.02 and
10.04, (5) the rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them and (6) the obligations of the Issuer under
Section 3.02), and the Trustee, on demand of the Issuer accompanied by an
Officer’s Certificate and an Opinion of Counsel which complies with Section
11.05 and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and

       

       

       

      
        
          
          

        

        
          46

          
            

          

        

        
          
          

        

      

      


       

      discharging
this Indenture with respect to such series; provided,
that the rights of Holders of the Securities to receive amounts in respect of
principal of and interest on the Securities held by them shall not be delayed
longer than required by then- applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The Issuer agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.

       

      (b) The
following provisions shall apply to the Securities of each series unless
specifically otherwise provided in a Board Resolution, Officer’s Certificate or
indenture supplemental hereto provided pursuant to Section 2.03. In addition to
discharge of the Indenture pursuant to the next preceding paragraph, in the case
of any series of Securities the exact amounts (including the currency of
payment) of principal of and interest subsequently due on which can be
determined at the time of making the deposit referred to in clause (vi)(A)(1)
below, the Issuer shall be deemed to have paid and discharged the entire Debt on
all the Securities of such a series on the 121st day after the date of the
deposit referred to in subparagraph (vi)(A)(1) below, and the provisions of this
Indenture with respect to the Securities of such series shall no longer be in
effect (except as to (i) rights of registration of transfer, conversion and
exchange of Securities of such series, (ii) substitution of apparently
mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Holders of Securities to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon acceleration)
and remaining rights of the Holders to receive sinking fund payments, if any,
(iv) the rights (including the Trustee’s rights under Section 10.05) and
immunities of the Trustee hereunder and the Trustee’s obligations with respect
to the Securities of such series under Sections 10.02 and 10.04, (v) the rights
of the Holders of Securities of such series as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.02) and the Trustee, at the
expense of the Issuer, shall at the Issuer’s request, execute proper instruments
acknowledging the same, if

       

      (A) 
        with reference to this provision the
Issuer has irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series
(1) cash in an amount, or (2) in the case of any series of Securities the
payments on which may only be made in Dollars, U.S. Government Obligations,
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash or (3) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification

       

       

       

      
        
          
          

        

        
          47

          
            

          

        

        
          
          

        

      

      


       

      thereof
delivered to the Trustee, to pay (x) the principal and interest on all
Securities of such series on the date that such principal or interest is due and
payable and (y) any mandatory sinking fund payments on the day on which such
payments are due and payable in accordance with the terms of the Indenture and
the Securities of such series;

       

      (B)           such
deposit will not result in a breach or violation of, or constitute a default
under, any agreement or instrument to which the Issuer is a party or by which it
is bound;

       

      (C)           the
Issuer has delivered to the Trustee an Officer’s Certificate and an opinion of
independent legal counsel satisfactory to the Trustee to the effect that the
Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred; and

       

      (D)           the
Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the
defeasance contemplated by this provision have been complied with, and the
Opinion of Counsel shall also state that such deposit does not violate
applicable law.

       

      Section
10.02.
Application by Trustee of Funds Deposited for Payment of Securities.
Subject to Section 10.04, all moneys deposited with the Trustee (or other
trustee) pursuant to Section 10.01 shall be held in trust and applied by it to
the payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities of
such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.

       

      Section
10.03.
Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any
series, all moneys then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon demand of the
Issuer, be repaid to it or paid to the Trustee and thereupon such

       

       

      
        
          
          

        

        
          48

          
            

          

        

        
          
          

        

      

      


       

      paying
agent shall be released from all further liability with respect to such
moneys.

       

      Section
10.04.
Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any Security of
any series and not applied but remaining unclaimed for two years after the date
upon which such principal or interest shall have become due and payable, shall,
upon the written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Issuer by the Trustee for such series or such paying
agent, and the Holder of the Securities of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease; provided,
however,
that the Trustee or such paying agent, before being required to make any such
repayment with respect to moneys deposited with it for any payment in respect of
Securities of any series, shall at the expense of the Issuer mail by first-class
mail to Holders of such Securities at their addresses as they shall appear on
the Security register notice that such moneys remain and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing or publication, any unclaimed balance of such money then remaining will
be repaid to the Issuer.

       

      Section
10.05.
Indemnity for U.S. Government Obligations. The Issuer shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
10.01 or the principal or interest received in respect of such
obligations.

       

       

      ARTICLE
11

      MISCELLANEOUS
PROVISIONS

       

      Section
11.01.
Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities.

       

       

      
        
          
          

        

        
          49

          
            

          

        

        
          
          

        

      

      


       

      Section
11.02.
Provisions of Indenture for the Sole Benefit of Parties and Holders
of Securities. Nothing in this Indenture or in the Securities, expressed
or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the Holders of the Securities
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.

       

      Section
11.03.
Successors and Assigns of Issuer Bound by Indenture. All the covenants,
stipulations, promises and agreements contained in this Indenture by or on
behalf of the Issuer shall bind its successors and assigns, whether so expressed
or not.

       

      Section
11.04.
Notices and Demands on Issuer, Trustee and Holders of Securities.
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Issuer is filed by the Issuer with the
Trustee) to E*TRADE Financial Corporation, 135 East 57th
Street, New York, New York 10022, Attn: General Counsel. Any notice, direction,
request or demand by the Issuer or any Holder of Securities to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at _______, ________, Attn: _______.

       

      Where this
Indenture provides for notice to Holders of Securities, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
or her last address as it appears in the Security register. In any case where
notice to such Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other
Holders.

       

      In case,
by reason of the suspension of or irregularities in regular mail service, it
shall be impracticable to mail notice to the Issuer when such notice is required
to be given pursuant to any provision of this Indenture, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.

       

      In case,
by reason of the suspension of or irregularities in regular mail service, it
shall be impracticable to mail notice of any event to Holders of Securities when
said notice is required to be given pursuant to any provision of this Indenture
or of the Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of
such

       

       

      
        
          
          

        

        
          50

          
            

          

        

        
          
          

        

      

      


       

      notice.
Neither the failure to give notice, nor any defect in any notice so given, to
any particular Holder of a Security shall affect the sufficiency of such notice
with respect to other Holders of Securities given as provided
above.

       

      Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.

       

      Section
11.05.
Officer’s Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Issuer to
the Trustee
to take any action under any of the provisions of this Indenture, the Issuer
shall furnish to the Trustee an Officer’s 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.

       

      Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.

       

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

       

       

      
        
          
          

        

        
          51

          
            

          

        

        
          
          

        

      

      


       

      statement
or opinion or representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are
erroneous.

       

      Any
certificate, statement or opinion of an officer of the Issuer or of counsel may
be based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of accountants in the
employ of the Issuer, unless such officer or counsel, as the case may be, knows
that the certificate or opinion or representations with respect to the
accounting matters upon which his or her certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.

       

      Any
certificate or opinion of any independent firm of public accountants filed with
and directed to the Trustee shall contain a statement that such firm is
independent.

       

      Section
11.06.
Payments Due on Saturdays, Sundays and Holidays. If the date of maturity
of interest on or principal of the Securities of any series or the date fixed
for redemption or repayment of any such Security, or the last day on which a
Holder has the right to convert any Security, shall not be a Business Day, then
payment of interest or principal, or any conversion, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption
or on such last day for conversion, and no interest shall accrue for the period
after such date.

       

      Section
11.07.
Conflict of Any Provision of Indenture With Trust Indenture
Act of 1939. If and to the extent that any provision of this
Indenture limits,
qualifies or conflicts with another provision included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939,
such incorporated provision shall control.

       

      Section
11.08.
New York Law to Govern. This Indenture and each Security shall be deemed
to be a contract under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of such State, except as may
otherwise be required by mandatory provisions of law.

       

      Section
11.09.
Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.

       

      Section
11.10.
Effect of Headings. The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the construction
hereof.

       

       

       

      
        
          
          

        

        
          52

          
            

          

        

        
          
          

        

      

      


       

      Section
11.11.
Securities in a Foreign Currency. Unless otherwise specified in an
Officer’s Certificate delivered pursuant to Section 2.03 of this Indenture with
respect to a particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified percentage in
aggregate principal amount of Securities of all series or all series affected by
a particular action at the time Outstanding and, at such time, there are
Outstanding Securities of any series which are denominated in a currency other
than Dollars, then the principal amount of Securities of such series which shall
be deemed to be Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the Market Exchange
Rate. For purposes of this Section 11.11, “Market
Exchange Rate” shall mean the noon Dollar buying rate for that currency
for cable transfers quoted in The City of New York as certified for customs
purposes by the Federal Reserve Bank of New York. If such Market Exchange Rate
is not available for any reason with respect to such currency, the Trustee shall
use, in its sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in The City of New York or in the
country of issue of the currency in question, or such other quotations as the
Trustee shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a series
denominated in a currency other than Dollars in connection with any action taken
by Holders of Securities pursuant to the terms of this Indenture.

       

      All
decisions and determinations of the Trustee regarding the Market Exchange Rate
or any alternative determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Issuer and all
Holders.

       

      Section
11.12.
Judgment Currency. The Issuer agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of the
principal of or interest on the Securities of any series (the “Required
Currency”) into a currency in which a judgment will be rendered (the
“Judgment
Currency”), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding that on which final unappealable judgment is given and (b)
its obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, or any recovery pursuant
to any judgment (whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the full
amount of the Required Currency expressed to be payable in respect
of

       

       

       

       

      
        
          
          

        

        
          53

          
            

          

        

        
          
          

        

      

      


       

      such
payments, (ii) shall be enforceable as an alternative or additional cause of
action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii)shall not be affected by
judgment being obtained for any other sum due under this Indenture. For purposes
of the foregoing, “New
York Banking Day” means any day except a Saturday, Sunday or legal
holiday in The City of New York or a day on which banking institutions in The
City of New York are authorized or required by law or executive order to
close.

       

       

      ARTICLE
12

      REDEMPTION
OF SECURITIES
AND SINKING
FUNDS

       

      Section
12.01.
Applicability of Article. The provisions of this Article shall be
applicable to the Securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of Securities of a series,
except as otherwise specified, as contemplated by Section 2.03 for Securities of
such series.

       

      Section
12.02.
Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Securities of any series to be redeemed as a whole or in part at the
option of the Issuer shall be given by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such Holders of Securities of such
series at their last addresses as they shall appear upon the Security register.
Any notice which is given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the notice.
Failure to give notice or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.

       

      The notice
of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue and shall
also specify, if applicable, the conversion price then in effect and the date on
which the right to convert such Securities or the portions thereof to be
redeemed will expire. In case any Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of

       

       

      
        
          
          

        

        
          54

          
            

          

        

        
          
          

        

      

      


       

      such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.

       

      The notice
of redemption of Securities of any series to be redeemed at the option of the
Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee
in the name and at the expense of the Issuer.

       

      On or
before the redemption date specified in the notice of redemption given as
provided in this Section, the Issuer will deposit with the Trustee or with one
or more paying agents (or, if the Issuer is acting as its own paying agent, set
aside, segregate and hold in trust as provided in Section 3.04) an amount of
money sufficient to redeem on the redemption date all the Securities of such
series so called for redemption (other than those theretofore surrendered for
conversion into Common Stock) at the appropriate redemption price, together with
accrued interest to the date fixed for redemption. If any Security called for
redemption is converted pursuant hereto, any money deposited with the Trustee or
any paying agent or so segregated and held in trust for the redemption of such
Security shall be paid to the Issuer upon the Issuer’s request, or, if then held
by the Issuer, shall be discharged from such trust. The Issuer will deliver to
the Trustee at least 70 days prior to the date fixed for redemption (unless a
shorter time period shall be acceptable to the Trustee) an Officer’s Certificate
(which need not comply with Section 11.05) stating the aggregate principal
amount of Securities to be redeemed. In case of a redemption at the election of
the Issuer prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officer’s Certificate stating
that such restriction has been complied with.

       

      If less
than all the Securities of a series are to be redeemed, the Trustee shall
select, in such manner as it shall deem appropriate and fair, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify the Issuer in
writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities of any series shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed. If any Security selected for
partial redemption is surrendered for conversion after such selection, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. Upon any redemption of less than all the
Securities, the Issuer and the Trustee may treat as Outstanding Securities
surrendered for conversion during the period of 15 days next preceding the
mailing of a notice of redemption, and need not treat as

       

       

       

      
        
          
          

        

        
          55

          
            

          

        

        
          
          

        

      

      


       

      Outstanding
any Security authenticated and delivered during such period in exchange for the
unconverted portion of any Security converted in part during such
period.

       

      Section
12.03.
Payment of Securities Called for Redemption. If notice of redemption has
been given as above provided, the Securities or portions of Securities 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 on and after said date (unless the
Issuer shall default in the payment of such Securities at the redemption price,
together with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue, and,
except as provided in Sections 6.05 and 10.04, such Securities shall cease from
and after the date fixed for redemption to be convertible into Common Stock, if
applicable, and to be entitled to any benefit or security under this Indenture,
and the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest to the
date fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
redemption price, together with interest accrued thereon to the date fixed for
redemption; provided,
that payment of interest becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of such Securities registered as such
on the relevant record date subject to the terms and provisions of Sections 2.03
and 2.07 hereof.

       

      If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest
from the date fixed for redemption at the rate of interest or Yield to Maturity
(in the case of an Original Issue Discount Security) borne by such Security and,
if applicable, such Security shall remain convertible into Common Stock until
the principal of such Security shall have been paid or duly provided
for.

       

      Upon
presentation of any Security redeemed in part only, the Issuer shall execute and
the Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Issuer, a new Security or Securities of such
series, of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented.

       

      Section
12.04.
Exclusion of Certain Securities from Eligibility for Selection
for Redemption. Securities shall be excluded from eligibility for selection
for redemption if they are identified by registration and certificate number in
an Officer’s Certificate delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a)
the

       

       

      
        
          
          

        

        
          56

          
            

          

        

        
          
          

        

      

      


       

      Issuer or
(b) an entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.

       

      Section
12.05.
Mandatory and Optional Sinking Funds. The minimum amount of any sinking
fund payment provided for by the terms of the 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 the Securities of any series is herein referred to
as an “optional
sinking fund payment”.
The date on which a sinking fund payment is to be made is herein referred
to as the “sinking
fund payment date”.

       

      In lieu of
making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Issuer may at its option (a) deliver to the
Trustee Securities of such series theretofore purchased or otherwise acquired
(except upon redemption pursuant to the mandatory sinking fund) by the Issuer or
receive credit for Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer
and delivered to the Trustee for cancellation pursuant to Section 2.10 and, if
applicable, receive credit for Securities (not previously so credited) converted
into Common Stock and so delivered to the Trustee for cancellation, (b) receive
credit for optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Securities of such series
(not previously so credited) redeemed by the Issuer through any optional
redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.

       

      On or
before the 60th day next preceding each sinking fund payment date for any
series, the Issuer will deliver to the Trustee an Officer’s Certificate (which
need not contain the statements required by Section 11.05) (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of cash
and the portion to be satisfied by credit of Securities of such series and the
basis for such credit, (b) stating that none of the Securities of such series
has theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such series have occurred (which
have not been waived or cured) and are continuing and (d) stating whether or not
the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officer’s Certificate (or reasonably promptly
thereafter if acceptable to the

       

       

      


      
        
          
          

        

        
          57

          
            

          

        

        
          
          

        

      

       

      Trustee).
Such Officer’s Certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such 60th day, to deliver such Officer’s Certificate and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.

       

      If the
sinking fund payment or payments (mandatory or optional or both) to be made in
cash on the next succeeding sinking fund payment date plus any unused balance of
any preceding sinking fund payments made in cash shall exceed $50,000 (or the
equivalent thereof in any Foreign Currency or a lesser sum in Dollars or in any
Foreign Currency if the Issuer shall so request) with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 (or the equivalent thereof in
any Foreign Currency) or less and the Issuer makes no such request then it shall
be carried over until a sum in excess of $50,000 (or the equivalent thereof in
any Foreign Currency) is available. The Trustee shall select, in the manner
provided in Section 12.02, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. Securities shall be excluded from eligibility for
redemption under this Section if they are identified by registration and
certificate number in an Officer’s Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b)
an entity specifically identified in such Officer’s Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing), shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.02 (and with the effect provided
in Section 12.03) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities
of

       

       

      
        
          
          

        

        
          58

          
            

          

        

        
          
          

        

      

      


       

      any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series,
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity. The Issuer’s obligation to make a mandatory or optional
sinking fund payment shall automatically be reduced by an amount equal to the
sinking fund redemption price allocable to any Securities or portions thereof
called for redemption pursuant to the preceding paragraph on any sinking fund
payment date and converted into Common Stock; provided,
that,
if the Trustee is not the conversion agent for the Securities, the Issuer or
such conversion agent shall give the Trustee written notice prior to the date
fixed for redemption of the principal amount of Securities or portions thereof
so converted.

       

      On or
before each sinking fund payment date, the Issuer shall pay to the Trustee in
cash or shall otherwise provide for the payment of all interest accrued to the
date fixed for redemption on Securities to be redeemed on the next following
sinking fund payment date.

       

      The
Trustee shall not redeem or cause to be redeemed any Securities of a series with
sinking fund moneys or give any notice of redemption of Securities for such
series by operation of the sinking fund during the continuance of a default in
payment of interest on such Securities or of any Event of Default except that,
where the mailing of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 5 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.10,
or the default cured on or before the 60th day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.

       

       

      ARTICLE
13

      SUBORDINATION
OF SECURITIES

       

      Section
13.01. Agreement
of Subordination. The Issuer covenants and agrees, and each holder of
Securities issued hereunder by his acceptance thereof likewise covenants and
agrees, that all Securities shall be issued subject to the provisions of this
Article 13; and each Securityholder, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions.

       

       

      
        
          
          

        

        
          59

          
            

          

        

        
          
          

        

      

      


       

      The
payment of the principal of, premium, if any, and interest on all Securities
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and subject in right of payment to the prior payment in full of
all Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred.

       

      The
provisions of this Article 13 define the subordination of the Securities, as
obligations of the Issuer, with respect to Senior Indebtedness of the Issuer, as
defined for the Issuer.

       

      No
provision of this Article 13 shall prevent the occurrence of any default or
Event of Default hereunder.

       

      Section
13.02. Payments
to Securityholders. In the event and during the continuation of any
default in the payment of principal, premium, interest or any other payment due
on any Senior Indebtedness of the Issuer continuing beyond the period of grace,
if any, specified in the instrument or lease evidencing such Senior Indebtedness
of the Issuer, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment shall be made by the Issuer
with respect to the principal of, or premium, if any, or interest on the
Securities, except sinking fund payments made by the acquisition of Securities
under Section 12.05 prior to the happening of such default and payments made
pursuant to Article 10 hereof from monies deposited with the Trustee pursuant
thereto prior to the happening of such default.

       

      Upon any
payment by the Issuer, or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Issuer,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due or to become due upon all Senior Indebtedness
of the Issuer shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made on account of the
principal (and premium, if any) or interest on the Securities (except payments
made pursuant to Article 10 hereof from monies deposited with the Trustee
pursuant thereto prior to the happening of such dissolution, winding-up,
liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Issuer, or distribution of
assets of the Issuer of any kind or character, whether in cash, property or
securities, to which the holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article 13, shall (except as
aforesaid) be paid by the Issuer or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Issuer (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness of the Issuer held by such holders, as

       

       

      
        
          
          

        

        
          60

          
            

          

        

        
          
          

        

      

      


       

      calculated
by the Issuer) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness of the Issuer may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness of
the Issuer in full, in money or money’s worth, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness
of the Issuer, before any payment or distribution is made to the holders of the
Securities or to the Trustee.

       

      In the
event that, notwithstanding the foregoing, any payment or distribution of assets
of the Issuer of any kind or character, whether in cash, property or securities,
prohibited by the foregoing, shall be received by the Trustee or the holders of
the Securities before all Senior Indebtedness of the Issuer is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of Senior Indebtedness of the Issuer or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
of the Issuer may have been issued, as their respective interests may appear, as
calculated by the Issuer, for application to the payment of all Senior
Indebtedness of the Issuer remaining unpaid to the extent necessary to pay all
Senior Indebtedness of the Issuer in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness.

       

      For
purposes of this Article 13, the words, “cash, property or securities” shall not
be deemed to include shares of stock of the Issuer as reorganized or readjusted,
or securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least to
the extent provided in this Article 13 with respect to the Securities to the
payment of all Senior Indebtedness of the Issuer which may at the time be
outstanding; provided that (i) the Senior Indebtedness of the Issuer is assumed
by the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Indebtedness of
the Issuer (other than leases) and of leases which are assumed are not, without
the consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Issuer with, or the merger of the Issuer into, another
corporation or the liquidation or dissolution of the Issuer following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article 9 hereof shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 13.02 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article 9 hereof. Nothing in this Section 13.02
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.06.

       

       

       

       

      
        
          
          

        

        
          61

          
            

          

        

        
          
          

        

      

      


       

      Section
13.03.
Subrogation of Securities. Subject to the payment in full of all Senior
Indebtedness of the Issuer, the rights of the holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness of the Issuer to
receive payments or distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness of the Issuer until the principal of (and
premium, if any) and interest on the Securities shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of the Issuer of any cash, property or securities to
which the holders of the Securities or the Trustee would be entitled except for
the provisions of this Article 13 to or for the benefit of the holders of Senior
Indebtedness of the Issuer by holders of the Securities or the Trustee, shall,
as between the Issuer, its creditors other than holders of Senior Indebtedness
of the Issuer, and the holders of the Securities, be deemed to be a payment by
the Issuer to or on account of the Senior Indebtedness of the Issuer. It is
understood that the provisions of this Article 13 are and are intended solely
for the purpose of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness of the
Issuer, on the other hand.

       

      Nothing
contained in this Article 13 or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as between the Issuer, its creditors other than
the holders of its Senior Indebtedness, and the holders of the Securities, the
obligation of the Issuer, which is absolute and unconditional, to pay to the
holders of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
holders of the Securities and creditors of the Issuer other than the holders of
its Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 13 of the holders of Senior Indebtedness of
the Issuer in respect of cash, property or securities of the Issuer received
upon the exercise of any such remedy.

       

      Upon any
payment or distribution of assets of the Issuer referred to in this Article 13,
the Trustee, subject to the provisions of Section 6.01, and the holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the holders of the
Securities, for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article 13.

       

       

       

       

      
        
          
          

        

        
          62

          
            

          

        

        
          
          

        

      

      


       

      Section
13.04. Authorization
by Securityholders. Each holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article 13 appoints the Trustee his attorney-in-fact for any and all such
purposes.

       

      Section
13.05. Notice
to Trustee. The Issuer shall give promptly written notice to a
Responsible Officer of the Trustee of any fact known to the Issuer which would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article 13. Notwithstanding
the provisions of this Article 13 or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article 13, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof at the Corporate Trust Office of the Trustee from the Issuer or a
holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.01, shall be entitled in all respects to assume that no
such facts exist; provided
that if on a date not fewer than [three] Business Days prior to the
date upon
which by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Security) the Trustee shall not have received, with
respect to such monies, the notice provided for in this Section 13.05, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior date.
Notwithstanding anything to the contrary hereinbefore set forth, nothing shall
prevent any payment by the Issuer or the Trustee to the Securityholders of
monies in connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article 12 or Section 10.01 hereof prior
to the receipt by the Trustee of written notice as aforesaid, and (ii) such
notice of redemption is given not earlier than 60 days before the redemption
date.

       

      The
Trustee conclusively shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Issuer (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of Senior Indebtedness of the Issuer
or a trustee on behalf of any such holder or holders. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness of the Issuer to
participate in any payment or distribution pursuant to this Article 13, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of the
Issuer held by such Person, the extent to

       

       

       

       

      
        
          
          

        

        
          63

          
            

          

        

        
          
          

        

      

      


       

      which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article 13, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.

       

      Section
13.06. Trustee’s
Relation to Senior Indebtedness. The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article 13 in respect of
any Senior Indebtedness of the Issuer at any time held by it, to the same extent
as any other holder of Senior Indebtedness of the Issuer and nothing elsewhere
in this Indenture shall deprive the Trustee of any of its rights as such
holder.

       

      With
respect to the holders of Senior Indebtedness of the Issuer, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 13, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness of the Issuer
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the
Issuer and the Trustee shall not be liable to any holder of Senior Indebtedness
of the Issuer if it shall pay over or deliver to holders of Securities, the
Issuer or any other Person money or assets to which any holder of Senior
Indebtedness of the Issuer shall be entitled by virtue of this Article 13 or
otherwise.

       

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

       

      Section
13.08. Rights
of Trustee. Nothing in this Article 13 shall apply to claims of or
payments to, the Trustee pursuant to Section 6.06.

       

       

       

       

       

      
        
          
          

        

        
          64

          
            

          

        

        
          
          

        

      

      


       

      IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
_____________.

       

      
        	 
      	
                E*TRADE
      FINANCIAL CORPORATION

              	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	
                By:

              	 
      	 
	 
      	
                Title:

              	 
	 
      	 
      	 
	 
      	
                Attest:

              	 
	 
      	 
      	 
	 
      	
                By:

              	 
      	 
	 
      	
                Title:

              	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	
                ____________,
      Trustee

              	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	
                By:

              	 
      	 
	 
      	
                Title:

              	 


      

       

       

       

       

       

       

       

      
        65