EXHIBIT
4.8


ALLOS THERAPEUTICS, INC.,

Issuer


 


AND


 


[TRUSTEE]

Trustee






INDENTURE


 


Dated as
of [·], 200   






Subordinated Debt Securities















 


TABLE OF CONTENTS


	
   

  	
   

  	
  Page

  	
   

  
	
  ARTICLE 1 DEFINITIONS

  	
   

  	
  1

  	
   

  
	
  Section 1.01 Definitions of Terms

  	
   

  	
  5

  	
   

  
	
  ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION,
  REGISTRATION AND EXCHANGE OF SECURITIES

  	
   

  	
  5

  	
   

  
	
  Section 2.01 Designation and Terms of
  Securities

  	
   

  	
  7

  	
   

  
	
  Section 2.02 Form of Securities and
  Trustee’s Certificate

  	
   

  	
  8

  	
   

  
	
  Section 2.03 Denominations: Provisions for Payment

  	
   

  	
  9

  	
   

  
	
  Section 2.04 Execution and Authentication

  	
   

  	
  10

  	
   

  
	
  Section 2.05 Registration of Transfer and
  Exchange

  	
   

  	
  11

  	
   

  
	
  Section 2.06 Temporary Securities

  	
   

  	
  11

  	
   

  
	
  Section 2.07 Mutilated, Destroyed, Lost or
  Stolen Securities

  	
   

  	
  12

  	
   

  
	
  Section 2.08 Cancellation

  	
   

  	
  12

  	
   

  
	
  Section 2.09 Benefits of Indenture

  	
   

  	
  12

  	
   

  
	
  Section 2.10 Authenticating Agent

  	
   

  	
  13

  	
   

  
	
  Section 2.11 Global Securities

  	
   

  	
  14

  	
   

  
	
  ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND
  PROVISIONS

  	
   

  	
  14

  	
   

  
	
  Section 3.01 Redemption

  	
   

  	
  14

  	
   

  
	
  Section 3.02 Notice of Redemption

  	
   

  	
  15

  	
   

  
	
  Section 3.03 Payment Upon Redemption

  	
   

  	
  16

  	
   

  
	
  Section 3.04 Sinking Fund

  	
   

  	
  16

  	
   

  
	
  Section 3.05 Satisfaction of Sinking Fund
  Payments with Securities

  	
   

  	
  16

  	
   

  
	
  Section 3.06 Redemption of Securities for
  Sinking Fund

  	
   

  	
  17

  	
   

  
	
  ARTICLE 4 COVENANTS

  	
   

  	
  17

  	
   

  
	
  Section 4.01 Payment of Principal, Premium and
  Interest

  	
   

  	
  17

  	
   

  
	
  Section 4.02 Maintenance of Office or Agency

  	
   

  	
  17

  	
   

  
	
  Section 4.03 Paying Agents

  	
   

  	
  18

  	
   

  
	
  Section 4.04 Appointment to Fill Vacancy in
  Office of Trustee

  	
   

  	
  19

  	
   

  
	
  Section 4.05 Compliance with Consolidation
  Provisions

  	
   

  	
  19

  	
   

  



 



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  Page

  	
   

  
	
  ARTICLE 5 SECURITYHOLDERS’
  LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
   

  	
  19

  	
   

  
	
  Section 5.01 Company to
  Furnish Trustee Names and Addresses of Securityholders

  	
   

  	
  19

  	
   

  
	
  Section 5.02 Preservation Of Information;
  Communications With Securityholders

  	
   

  	
  19

  	
   

  
	
  Section 5.03 Reports by the Company

  	
   

  	
  19

  	
   

  
	
  Section 5.04 Reports by the Trustee

  	
   

  	
  20

  	
   

  
	
  ARTICLE 6 REMEDIES OF THE TRUSTEE AND
  SECURITYHOLDERS ON EVENT OF DEFAULT

  	
   

  	
  20

  	
   

  
	
  Section 6.01 Events of Default

  	
   

  	
  20

  	
   

  
	
  Section 6.02 Collection of Indebtedness and
  Suits for Enforcement by Trustee

  	
   

  	
  22

  	
   

  
	
  Section 6.03 Application of Moneys or Property
  Collected

  	
   

  	
  23

  	
   

  
	
  Section 6.04 Limitation on Suits

  	
   

  	
  24

  	
   

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

  	
   

  	
  24

  	
   

  
	
  Section 6.06 Control by Securityholders

  	
   

  	
  25

  	
   

  
	
  Section 6.07 Undertaking to Pay Costs

  	
   

  	
  25

  	
   

  
	
  ARTICLE 7 CONCERNING THE TRUSTEE

  	
   

  	
  26

  	
   

  
	
  Section 7.01 Certain Duties and
  Responsibilities of Trustee

  	
   

  	
  26

  	
   

  
	
  Section 7.02 Certain Rights of Trustee

  	
   

  	
  27

  	
   

  
	
  Section 7.03 Trustee Not Responsible for
  Recitals or Issuance or Securities

  	
   

  	
  28

  	
   

  
	
  Section 7.04 May Hold Securities

  	
   

  	
  29

  	
   

  
	
  Section 7.05 Moneys Held in Trust

  	
   

  	
  29

  	
   

  
	
  Section 7.06 Compensation and Reimbursement

  	
   

  	
  29

  	
   

  
	
  Section 7.07 Reliance on Officers’ Certificate

  	
   

  	
  29

  	
   

  
	
  Section 7.08 Disqualification; Conflicting
  Interests

  	
   

  	
  30

  	
   

  
	
  Section 7.09 Corporate Trustee Required;
  Eligibility

  	
   

  	
  30

  	
   

  
	
  Section 7.10 Resignation and Removal;
  Appointment of Successor

  	
   

  	
  30

  	
   

  
	
  Section 7.11 Acceptance of Appointment By
  Successor

  	
   

  	
  31

  	
   

  
	
  Section 7.12 Merger, Conversion, Consolidation
  or Succession to Business

  	
   

  	
  33

  	
   

  
	
  Section 7.13 Preferential Collection of Claims
  Against the Company

  	
   

  	
  33

  	
   

  
	
  Section 7.14 Notice of Default

  	
   

  	
  33

  	
   

  
	
  ARTICLE 8 CONCERNING THE SECURITYHOLDERS

  	
   

  	
  34

  	
   

  
	
  Section 8.01 Evidence of Action by
  Securityholders

  	
   

  	
  34

  	
   

  



 



 ii
 






 



 


	
   

  	
   

  	
  Page

  	
   

  
	
  Section 8.02 Proof of
  Execution by Securityholders

  	
   

  	
  34

  	
   

  
	
  Section 8.03 Who May be Deemed Owners

  	
   

  	
  35

  	
   

  
	
  Section 8.04 Certain Securities Owned by
  Company Disregarded

  	
   

  	
  35

  	
   

  
	
  Section 8.05 Actions Binding on Future
  Securityholders

  	
   

  	
  35

  	
   

  
	
  ARTICLE 9 SUPPLEMENTAL INDENTURES

  	
   

  	
  36

  	
   

  
	
  Section 9.01 Supplemental Indentures Without
  the Consent of Securityholders

  	
   

  	
  36

  	
   

  
	
  Section 9.02 Supplemental Indentures With
  Consent of Securityholders

  	
   

  	
  37

  	
   

  
	
  Section 9.03 Effect of Supplemental Indentures

  	
   

  	
  37

  	
   

  
	
  Section 9.04 Securities Affected by
  Supplemental Indentures

  	
   

  	
  37

  	
   

  
	
  Section 9.05 Execution of Supplemental
  Indentures

  	
   

  	
  38

  	
   

  
	
  ARTICLE 10 SUCCESSOR ENTITY

  	
   

  	
  38

  	
   

  
	
  Section 10.01 Company May Consolidate,
  Etc.

  	
   

  	
  38

  	
   

  
	
  Section 10.02 Successor Entity Substituted

  	
   

  	
  39

  	
   

  
	
  Section 10.03 Evidence of Consolidation, Etc.
  to Trustee

  	
   

  	
  39

  	
   

  
	
  ARTICLE 11 SATISFACTION AND DISCHARGE

  	
   

  	
  39

  	
   

  
	
  Section 11.01 Satisfaction and Discharge of
  Indenture

  	
   

  	
  39

  	
   

  
	
  Section 11.02 Discharge of Obligations

  	
   

  	
  40

  	
   

  
	
  Section 11.03 Deposited Moneys to be Held in
  Trust

  	
   

  	
  40

  	
   

  
	
  Section 11.04 Payment of Moneys Held by Paying
  Agents

  	
   

  	
  41

  	
   

  
	
  Section 11.05 Repayment to Company

  	
   

  	
  41

  	
   

  
	
  ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
  OFFICERS AND DIRECTORS

  	
   

  	
  41

  	
   

  
	
  Section 12.01 No Recourse

  	
   

  	
  41

  	
   

  
	
  ARTICLE 13 MISCELLANEOUS PROVISIONS

  	
   

  	
  42

  	
   

  
	
  Section 13.01 Effect on Successors and Assigns

  	
   

  	
  42

  	
   

  
	
  Section 13.02 Actions by Successor

  	
   

  	
  42

  	
   

  
	
  Section 13.03 Surrender of Company Powers

  	
   

  	
  42

  	
   

  
	
  Section 13.04 Notices

  	
   

  	
  42

  	
   

  
	
  Section 13.05 Governing Law

  	
   

  	
  42

  	
   

  
	
  Section 13.06 Treatment of Securities as Debt

  	
   

  	
  42

  	
   

  



 



 iii
 






 



 


	
   

  	
   

  	
  Page

  	
   

  
	
  Section 13.07
  Compliance Certificates and Opinions

  	
   

  	
  43

  	
   

  
	
  Section 13.08 Payments on Business Days

  	
   

  	
  43

  	
   

  
	
  Section 13.09 Conflict with Trust Indenture Act

  	
   

  	
  43

  	
   

  
	
  Section 13.10 Counterparts

  	
   

  	
  43

  	
   

  
	
  Section 13.11 Separability

  	
   

  	
  43

  	
   

  
	
  Section 13.12 Compliance Certificates

  	
   

  	
  44

  	
   

  
	
  ARTICLE 14 SUBORDINATION OF SECURITIES

  	
   

  	
  44

  	
   

  
	
  Section 14.01
  Subordination Terms

  	
   

  	
  44

  	
   

  







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



 iv














 


 


INDENTURE


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


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


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


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


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



 1














 


ARTICLE 1



DEFINITIONS


Section 1.01         Definitions
of Terms.


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


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


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


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


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


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


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


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


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


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



 2
 






 



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


“Depositary”
means, with respect to Securities of any series for which the Company shall
determine that such Securities will be issued as a Global Security, The
Depository Trust Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Securities and Exchange Act
of 1934, as amended (the “Exchange Act”), or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.11.


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


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


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


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


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


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


“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a
chief executive officer, a president, a chief financial officer, chief
operating officer, any 



 3
 






 



executive vice president, any senior vice president,
any vice president, the treasurer or any assistant treasurer, the controller or
any assistant controller or the secretary or any assistant secretary.


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


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


“Outstanding”,
when used with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all Securities of
that series theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Securities theretofore canceled by the Trustee or
any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or
portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Securities or portions
of such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.07.


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


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


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


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



 4
 






 



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


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


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


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


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


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


ARTICLE 2



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


Section 2.01   Designation and Terms of
Securities.


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


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



 5
 






 



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


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


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


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


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


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


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


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


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


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



 6
 






 



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


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


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


(15)   any
additional or different Events of Default or restrictive covenants (which may
include, among other restrictions, restrictions on the Company’s ability or the
ability of the Company’s Subsidiaries to: 
incur additional indebtedness; issue additional securities; create
liens; pay dividends or make distributions in respect of their capital stock;
redeem capital stock; place restrictions on such Subsidiaries placing
restrictions on their ability to pay dividends, make distributions or transfer
assets; make investments or other restricted payments; sell or otherwise
dispose of assets; enter into sale-leaseback transactions; engage in
transactions with stockholders and affiliates; issue or sell stock of their
Subsidiaries; or effect a consolidation or merger) or financial covenants
(which may include, among other financial covenants, financial covenants that
require the Company and its Subsidiaries to maintain specified interest
coverage, fixed charge, cash flow-based or asset-based ratios) provided for
with respect to the Securities of the series;


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


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


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


(19)   the
subordination terms of the Securities of the series.


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


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



 7
 






 



the secretary or an assistant secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers’
Certificate of the Company setting forth the terms of the series.


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


Section 2.02   Form of Securities
and Trustee’s Certificate.


The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution, and set forth in an
Officers’ Certificate, and they may have such letters, numbers or other marks
of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which
Securities of that series may be listed, or to conform to usage.


Section 2.03   Denominations: Provisions
for Payment.


The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, subject to Section 2.01(a)(10). The
Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. Subject to Section 2.01(a)(16),
the principal of and the interest on the Securities of any series, as well as
any premium thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the United States of America that at the
time is legal tender for public and private debt, at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, the City
and State of New York. Each Security shall be dated the date of its
authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.


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


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



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


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


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


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


Section 2.04   Execution and
Authentication.


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



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


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


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


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


Section 2.05   Registration of Transfer
and Exchange.


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


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



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


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


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


(d)   The
Company shall not be required (i) to issue, exchange or register the
transfer of any Securities during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of less than
all the Outstanding Securities of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register the transfer of
or exchange any Securities of any series or portions thereof called for
redemption, other than the unredeemed portion of any such Securities being
redeemed in part. The provisions of this Section 2.05 are, with respect to
any Global Security, subject to Section 2.11 hereof.


Section 2.06   Temporary Securities.


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



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Section 2.07         Mutilated,
Destroyed, Lost or Stolen Securities.


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


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


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


Section 2.08         Cancellation.


All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be cancelled by it, and no Securities
shall be issued in lieu thereof except as expressly required or permitted by
any of the provisions of this Indenture. In the absence of such request the
Trustee may dispose of canceled Securities in accordance with its standard
procedures and deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Securities, however, such 



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acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.


Section 2.09         Benefits
of Indenture.


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


Section 2.10         Authenticating
Agent.


So long as any of the Securities of any series remain
Outstanding there may be an Authenticating Agent for any or all such series of
Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by federal or state authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.


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


Section 2.11         Global
Securities.


(a)           If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to be
issued as a Global Security, then the Company shall execute and 



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


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


(c)           If at any time the Depositary for a
series of the Securities notifies the Company that it is unwilling or unable to
continue as Depositary for such series or if at any time the Depositary for
such series shall no longer be registered or in good standing under the
Exchange Act, or other applicable statute or regulation, and a successor
Depositary for such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, as the
case may be, or if an Event of Default has occurred and is continuing and the
Company has received a request from the Depositary, this Section 2.11 shall
no longer be applicable to the Securities of such series and the Company will
execute, and subject to Section 2.04, the Trustee will authenticate and
deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange
for such Global Security. In addition, the Company may at any time determine
that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer
apply to the Securities of such series. In such event the Company will execute
and, subject to Section 2.04, the Trustee, upon receipt of an Officers’
Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the Global Security for such
Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.



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ARTICLE 3



REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS


Section 3.01         Redemption.


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


Section 3.02         Notice
of Redemption.


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


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


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


(b)           If less than all the Securities of a
series are to be redeemed, the Company shall give the Trustee at least 45 days’
notice (unless a shorter notice shall be satisfactory to the Trustee) in
advance of the date fixed for redemption as to the aggregate principal amount
of 



 15
 






 



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


Section 3.03         Payment
Upon Redemption.


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


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


Section 3.04         Sinking
Fund.


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


The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as
a “mandatory sinking fund payment,” and any payment in excess of such minimum
amount provided for by the terms of Securities of any series 



 16
 






 



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


Section 3.05         Satisfaction
of Sinking Fund Payments with Securities.


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


Section 3.06         Redemption
of Securities for Sinking Fund.


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


ARTICLE 4



COVENANTS


Section 4.01         Payment
of Principal, Premium and Interest.


The Company will duly and punctually pay or cause to
be paid the principal of (and premium, if any) and interest on the Securities
of that series at the time and place and in the manner provided herein and
established with respect to such Securities.


Section 4.02         Maintenance
of Office or Agency.


So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency in the Borough
of Manhattan, the City and State of New York, with 



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


Section 4.03         Paying
Agents.


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


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


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


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


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


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



 18
 






 



due date of the principal of (and premium, if any) or interest on any
Securities of that series, deposit with the paying agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of this action or failure so to act.


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


Section 4.04         Appointment
to Fill Vacancy in Office of Trustee.


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


Section 4.05         Compliance
with Consolidation Provisions.


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


ARTICLE 5



SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE


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


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



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Section 5.02         Preservation
Of Information; Communications With Securityholders.


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


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


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


Section 5.03         Reports
by the Company.


The Company covenants and agrees to provide a copy to
the Trustee, after the Company files the same with the Securities and Exchange
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Securities and Exchange Commission may from time to time by rules and
regulations prescribe) that the Company files with the Securities and Exchange
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; provided, however, the Company shall not be required to deliver
to the Trustee any materials for which the Company has sought and received
confidential treatment by the SEC. The Company shall also comply with the
requirements of Section 314 of the Trust Indenture Act, but only to the extent
then applicable to the Company.


Section 5.04         Reports
by the Trustee.


(a)           On or before July 1 in each year in
which any of the Securities are Outstanding, the Trustee shall transmit by
mail, first class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register, a brief report dated as of the
preceding May 1, if and to the extent required under Section 313(a) of
the Trust Indenture Act.


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


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



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ARTICLE 6



REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT


Section 6.01         Events
of Default.


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


(1)           the Company defaults in the payment of
any installment of interest upon any of the Securities of that series, as and
when the same shall become due and payable, and such default continues for a
period of 90 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of interest
for this purpose;


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


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


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


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



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


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


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


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


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


(a)           The Company covenants that (i) in
case it shall default in the payment of any installment of interest on any of
the Securities of a series, or in any payment required by any sinking or
analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a
period of 90 Business Days, or (ii) in case it shall default in the
payment of the principal of (or premium, if any, on) any of the 



 22
 






 



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


(b)           If the Company shall fail to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee
of an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Securities of that series and collect the moneys
adjudged or decreed to be payable in the manner provided by law or equity out
of the property of the Company or other obligor upon the Securities of that
series, wherever situated.


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


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


In case of an Event of Default hereunder, the Trustee
may in its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, 



 23
 






 



either at law or in equity or in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in the Indenture or in aid of the exercise of any power granted in
this Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.


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


Section 6.03         Application
of Moneys or Property Collected.


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


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


SECOND:  To the
payment of all indebtedness of the Company to which such series of Securities
is subordinated to the extent required by Section 7.06 and Article Fourteen;


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


FOURTH: To the payment of the remainder, if any, to
the Company or any other Person lawfully entitled thereto, as requested by the
Company.


Section 6.04         Limitation
on Suits.


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



 24
 






 



indemnity, shall have failed to institute any such
action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give
the Trustee a direction inconsistent with the request.


Notwithstanding anything contained herein to the
contrary or any other provisions of this Indenture, the right of any holder of
any Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker and holder
and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.


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


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


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


Section 6.06         Control
by Securityholders.


The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in
accordance with Section 8.04, shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee with respect
to such series; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or officers of the 



 25
 






 



Trustee, determine that the proceeding so directed,
subject to the Trustee’s duties under the Trust Indenture Act, would involve
the Trustee in personal liability or might be unduly prejudicial to the
Securityholders not involved in the proceeding. The holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding affected thereby, determined in accordance with Section 8.04,
may on behalf of the holders of all of the Securities of such series waive any
past default in the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series and its
consequences, except a default in the payment of the principal of, or premium,
if any, or interest on, any of the Securities of that series as and when the
same shall become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)). Upon any
such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.


Section 6.07         Undertaking
to Pay Costs.


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


ARTICLE 7



CONCERNING THE TRUSTEE


Section 7.01         Certain
Duties and Responsibilities of Trustee.


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



 26
 






 



exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.


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


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


(A)          the duties and
obligations of the Trustee shall with respect to the Securities of such series
be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the Securities of such series
except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and


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


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


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


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



 27
 






 



Section 7.02         Certain
Rights of Trustee.


Except as otherwise
provided in Section 7.01:


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


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


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


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


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


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



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


In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (1) any Event of
Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01
hereof or (2) any Default or Event of Default of which the Trustee shall
have received written notification in the manner set forth in this Indenture or
a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery
of reports, information and documents to the Trustee under Section 5.03 is
for informational purposes only and the information and the Trustee’s receipt
of the foregoing shall not constitute constructive notice of any information
contained therein, or determinable from information contained therein including
the Company’s compliance with any of their covenants thereunder (as to which
the Trustee is entitled to rely conclusively on an Officers’ Certificate).


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


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


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


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


Section 7.04         May Hold
Securities.


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


Section 7.05         Moneys
Held in Trust.


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



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Section 7.06         Compensation
and Reimbursement.


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


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


Section 7.07         Reliance
on Officers’ Certificate.


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


Section 7.08         Disqualification;
Conflicting Interests.


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



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Section 7.09         Corporate
Trustee Required; Eligibility.


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


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


Section 7.10         Resignation
and Removal; Appointment of Successor.


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


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


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


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



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


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


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


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


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


Section 7.11         Acceptance
of Appointment By Successor.


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


(b)           In case of the appointment hereunder of
a successor trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor trustee shall accept such
appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm



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


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


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


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


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


Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of



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Section 7.09, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.


Section 7.13         Preferential
Collection of Claims Against the Company.


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


Section 7.14         Notice of Default


If any Default or any Event of Default occurs and is
continuing and if such Default or Event of Default is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Securityholder in the
manner and to the extent provided in Section 313(c) of the Trust
Indenture Act notice of the Default or Event of Default within 45 days after it
occurs and becomes known to the Trustee, unless such Default or Event of
Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Securityholders.


ARTICLE 8



CONCERNING THE SECURITYHOLDERS


Section 8.01         Evidence
of Action by Securityholders.


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


If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an
Officers’ Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,



 34
 






 



waiver or other action may be given before or after
the record date, but only the Securityholders of record at the close of
business on the record date shall be deemed to be Securityholders for the
purposes of determining whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


Section 8.02         Proof
of Execution by Securityholders.


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


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


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


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


Section 8.03         Who
May be Deemed Owners.


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


Section 8.04         Certain
Securities Owned by Company Disregarded.


In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred
in any direction, consent or waiver under this Indenture, the Securities of
that series that are owned by the Company or any other obligor on the
Securities of that series or by any Person directly or indirectly controlling
or controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected



 35
 






 



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


Section 8.05         Actions
Binding on Future Securityholders.


At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by
the holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the
evidence to be included in the Securities the holders of which have consented
to such action may, by filing written notice with the Trustee, and upon proof
of holding as provided in Section 8.02, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the holder
of any Security shall be conclusive and binding upon such holder and upon all
future holders and owners of such Security, and of any Security issued in
exchange therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Security. Any action taken by the holders of the majority or percentage in
aggregate principal amount of the Securities of a particular series specified
in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Securities of that
series.


ARTICLE 9



SUPPLEMENTAL INDENTURES


Section 9.01         Supplemental
Indentures Without the Consent of Securityholders.


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


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


(b)           to comply with Article Ten;


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



 36
 






 



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


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


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


(g)           to provide for the issuance of and
establish the form and terms and conditions of the Securities of any series as
provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of
Securities;


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


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


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


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


Section 9.02         Supplemental
Indentures With Consent of Securityholders.


With the consent (evidenced as provided in Section 8.01)
of the holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or indentures
at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the



 37
 






 



Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the holders of each Security then Outstanding and affected thereby, (a) extend
the fixed maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof or (b) reduce
the aforesaid percentage of Securities, the holders of which are required to
consent to any such supplemental indenture.


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


Section 9.03         Effect
of Supplemental Indentures.


Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this
Indenture shall, with respect to such series, be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.


Section 9.04         Securities
Affected by Supplemental Indentures.


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


Section 9.05         Execution
of Supplemental Indentures.


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



 38
 






 



that such Officers’ Certificate or Opinion of Counsel
need not be provided in connection with the execution of a supplemental
indenture that establishes the terms of a series of Securities pursuant to Section 2.01
hereof.


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


ARTICLE 10



SUCCESSOR ENTITY


Section 10.01       Company
May Consolidate, Etc.


Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental to this Indenture, nothing
contained in this Indenture shall prevent any consolidation or merger of the
Company with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however,
the Company hereby covenants and agrees that, upon any such consolidation or
merger (in each case, if the Company is not the survivor of such transaction),
sale, conveyance, transfer or other disposition, the due and punctual payment
of the principal of (premium, if any) and interest on all of the Securities of
all series in accordance with the terms of each series, according to their
tenor, and the due and punctual performance and observance of all the covenants
and conditions of this Indenture with respect to each series or established
with respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act, as then in
effect) reasonably satisfactory in form to the Trustee executed and delivered
to the Trustee by the entity formed by such consolidation, or into which the
Company shall have been merged, or by the entity which shall have acquired such
property.


Section 10.02       Successor
Entity Substituted.


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



 39
 






 



named as the Company herein, and thereupon the
predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.


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


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


Section 10.03       Evidence of Consolidation, Etc. to
Trustee.


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


ARTICLE 11



SATISFACTION AND DISCHARGE


Section 11.01       Satisfaction
and Discharge of Indenture.


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



 40
 






 



execute proper instruments acknowledging satisfaction
of and discharging this Indenture with respect to such series.


Section 11.02       Discharge
of Obligations.


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


Thereafter, Sections 7.06 and 11.05 shall survive.


Section 11.03       Deposited
Moneys to be Held in Trust.


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


Section 11.04       Payment
of Moneys Held by Paying Agents.


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


Section 11.05       Repayment
to Company.


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



 41
 






 



agent and the Trustee shall be released from all
further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall
thereafter, as a general creditor, look only to the Company for the payment
thereof.


ARTICLE 12



IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


Section 12.01       No
Recourse.


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


ARTICLE 13



MISCELLANEOUS PROVISIONS


Section 13.01       Effect
on Successors and Assigns.


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


Section 13.02       Actions
by Successor.


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



 42
 






 



Section 13.03       Surrender
of Company Powers.


The Company by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company and as to any successor
corporation.


Section 13.04       Notices.


Except as otherwise expressly provided herein, any
notice, request or demand that by any provision of this Indenture is required
or permitted to be given, made or served by the Trustee or by the holders of
Securities or by any other Person pursuant to this Indenture to or on the
Company may be given or served by being deposited in first class mail, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Trustee), as follows: 2100 Powell Street, Emeryville, CA 94608. Any
notice, election, request or demand by the Company or any Securityholder or by
any other Person pursuant to this Indenture to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.


Section 13.05       Governing
Law.


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


Section 13.06       Treatment
of Securities as Debt.


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


Section 13.07       Certificates
and Opinions as to Conditions Precedent.


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


(b)           Each certificate or opinion provided for
in this Indenture and delivered to the Trustee with respect to compliance with
a condition or covenant in this Indenture shall include (i) a statement
that the Person making such certificate or opinion has read such covenant or
condition; (ii) a brief statement as to the nature and scope of the
examination or investigation



 43
 






 



upon which the statements or opinions contained in
such certificate or opinion are based; (iii) a statement that, in the
opinion of such Person, he has made such examination or investigation as is
reasonably necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and (iv) a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.


Section 13.08       Payments
on Business Days.


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


Section 13.09       Conflict
with Trust Indenture Act.


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


Section 13.10       Counterparts.


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


Section 13.11       Separability.


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


Section 13.12       Compliance Certificates.


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



 44
 






 



signing such certificate has knowledge of such a
Default or Event of Default, the certificate shall describe any such Default or
Event of Default and its status.


ARTICLE 14



SUBORDINATION OF SECURITIES


Section 14.01       Subordination Terms.


The payment by the Company of the principal of,
premium, if any, and interest on any series of securities issued hereunder
shall be subordinated to the extent set forth in an indenture supplemental
hereto relating to such Securities.



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


 


	
  

  	
  ALLOS THERAPEUTICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [TRUSTEE], as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 



 46
 






 



CROSS-REFERENCE
TABLE (1)


	
  Section of
  Trust Indenture Act Of 1939, as Amended

  	
   

  	
  Section of Indenture

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13

  
	
  311(b)

  	
   

  	
  7.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.01

  
	
   

  	
   

  	
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(c)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a)

  
	
   

  	
   

  	
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  
	
   

  	
   

  	
  13.12

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.07(a)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.07(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a)

  
	
   

  	
   

  	
  7.01(b)

  
	
  315(b)

  	
   

  	
  7.14

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
  315(e)

  	
   

  	
  6.07

  
	
  316(a)

  	
   

  	
  6.06

  
	
   

  	
   

  	
  8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  13.09

  



_________________


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



 47