celc_ex4-1





 






Exhibit
4.10


 


 


 


 


 


 


 



CELCUITY INC.


 


and


 


___________________,
as Trustee


 



INDENTURE


 


Dated
as of ___________, _______


 


 


 


 


 


 


 


 




 








 










 



TABLE OF CONTENTS


 


	
 

	


PAGE


	


ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE

	


1


	

1.1.
DEFINITIONS.

	


1


	

1.2.
OTHER DEFINITIONS.

	


4


	

1.3.
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.

	


4


	

1.4.
RULES OF CONSTRUCTION.

	


5


	


ARTICLE 2 THE SECURITIES

	


5


	

2.1.
ISSUABLE IN SERIES.

	


5


	

2.2.
ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES.

	


5


	

2.3.
EXECUTION AND AUTHENTICATION.

	


7


	

2.4.
REGISTRAR AND PAYING AGENT.

	


8


	

2.5.
PAYING AGENT TO HOLD ASSETS IN TRUST.

	


8


	

2.6.
SECURITYHOLDER LISTS.

	


8



	

2.7.
TRANSFER AND EXCHANGE.

	


9


	

2.8.
REPLACEMENT SECURITIES.

	


9


	

2.9.
OUTSTANDING SECURITIES.

	


9


	

2.10.
WHEN TREASURY SECURITIES DISREGARDED; DETERMINATION OF
HOLDERS’ ACTION.

	


10


	

2.11.
TEMPORARY SECURITIES.

	


10


	

2.12.
CANCELLATION.

	


10


	

2.13.
PAYMENT OF INTEREST; DEFAULTED INTEREST; COMPUTATION OF
INTEREST.

	


10


	

2.14.
CUSIP NUMBER.

	


11


	

2.15.
PROVISIONS FOR GLOBAL SECURITIES.

	


11


	

2.16.
PERSONS DEEMED OWNERS.

	


12


	


ARTICLE 3 REDEMPTION

	


12


	

3.1.
NOTICES TO TRUSTEE.

	


12


	

3.2.
SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.

	


12


	

3.3.
NOTICE OF REDEMPTION.

	


12


	

3.4.
EFFECT OF NOTICE OF REDEMPTION.

	


13


	

3.5.
DEPOSIT OF REDEMPTION PRICE.

	


13


	

3.6.
SECURITIES REDEEMED IN PART.

	


13


	


ARTICLE 4 COVENANTS

	


14


	

4.1.
PAYMENT OF SECURITIES.

	


14


	

4.2.
SEC REPORTS.

	


14


	

4.3.
WAIVER OF STAY, EXTENSION OR USURY LAWS.

	


14


	

4.4.
COMPLIANCE CERTIFICATE.

	


14


	

4.5.
CORPORATE EXISTENCE.

	


15


	


ARTICLE 5 SUCCESSOR CORPORATION

	


15


	

5.1.
LIMITATION ON CONSOLIDATION, MERGER AND SALE OF
ASSETS.

	


15


	

5.2.
SUCCESSOR PERSON SUBSTITUTED.

	


15







 



-i-








 



TABLE OF CONTENTS


(continued)






 


	

 

	
 
PAGE


	

ARTICLE
6 DEFAULTS AND REMEDIES

	


15


	

6.1.
EVENTS OF DEFAULT.

	


15


	

6.2.
ACCELERATION.

	


16


	

6.3.
REMEDIES.

	


17


	

6.4.
WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT.

	


17


	

6.5.
CONTROL BY MAJORITY.

	


17


	

6.6.
LIMITATION ON SUITS.

	


17


	

6.7.
RIGHTS OF HOLDERS TO RECEIVE PAYMENT.

	


18


	

6.8.
COLLECTION SUIT BY TRUSTEE.

	


18


	

6.9.
TRUSTEE MAY FILE PROOFS OF CLAIM.

	


18


	

6.10.
PRIORITIES.

	


18


	

6.11.
UNDERTAKING FOR COSTS.

	


19


	


ARTICLE 7 TRUSTEE

	


19


	

7.1.
DUTIES OF TRUSTEE.

	


19


	

7.2.
RIGHTS OF TRUSTEE.

	


20


	

7.3.
INDIVIDUAL RIGHTS OF TRUSTEE.

	


20


	

7.4.
TRUSTEE’S DISCLAIMER.

	


20


	

7.5.
NOTICE OF DEFAULT.

	


21


	

7.6.
REPORTS BY TRUSTEE TO HOLDERS.

	


21


	

7.7.
COMPENSATION AND INDEMNITY.

	


21


	

7.8.
REPLACEMENT OF TRUSTEE.

	


21


	

7.9.
SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR
CONVERSION.

	


22


	

7.10.
ELIGIBILITY; DISQUALIFICATION.

	


22


	

7.11.
PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.

	


22


	

7.12.
PAYING AGENTS.

	


22


	


ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS

	


23


	

8.1.
WITHOUT CONSENT OF HOLDERS.

	


23


	

8.2.
WITH CONSENT OF HOLDERS.

	


23


	

8.3.
COMPLIANCE WITH TRUST INDENTURE ACT.

	


24


	

8.4.
REVOCATION AND EFFECT OF CONSENTS.

	


24


	

8.5.
NOTATION ON OR EXCHANGE OF SECURITIES.

	


25


	

8.6.
TRUSTEE TO SIGN AMENDMENTS, ETC.

	


25


	


ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE

	


25


	

9.1.
DISCHARGE OF INDENTURE.

	


25


	

9.2.
LEGAL DEFEASANCE.

	


25


	

9.3.
COVENANT DEFEASANCE.

	


26


	

9.4.
CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.

	


26


	

9.5.
DEPOSITED MONEY AND U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.

	


27







 



-ii-








 



TABLE OF CONTENTS


(continued)






 


	

 

	
 
PAGE


	

9.6.
REINSTATEMENT.

	


27


	

9.7.
MONEYS HELD BY PAYING AGENT.

	


27


	

9.8.
MONEYS HELD BY TRUSTEE.

	


28


	


ARTICLE 10 MISCELLANEOUS

	


28


	

10.1.
TRUST INDENTURE ACT CONTROLS.

	


28


	

10.2.
NOTICES.

	


28


	

10.3.
COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.

	


29



	

10.4.
CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.

	


29



	

10.5.
STATEMENT REQUIRED IN CERTIFICATE AND OPINION.

	


29



	

10.6.
RULES BY TRUSTEE AND AGENTS.

	


30


	

10.7.
BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT.

	


30


	

10.8.
GOVERNING LAW.

	


30


	

10.9.
NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.

	


30


	

10.10.
NO RECOURSE AGAINST OTHERS.

	


30


	

10.11.
SUCCESSORS.

	


30


	

10.12.
MULTIPLE COUNTERPARTS.

	


30


	

10.13.
TABLE OF CONTENTS, HEADINGS, ETC.

	


30


	

10.14.
SEVERABILITY.

	


31


	

10.15.
SECURITIES IN A FOREIGN CURRENCY OR IN EUROS.

	


31


	

10.16.
JUDGMENT CURRENCY.

	


31







 


 



-iii-








 










 



CROSS-REFERENCE TABLE


 


	

TIA
SECTION




	
 

	

INDENTURE
SECTION





	

310(a)(1)(2)(5)

	
 

	

7.10


	

310(a)(3)(4)

	
 

	

Inapplicable


	

310(b)

	
 

	

7.8;
7.10


	

310(c)

	
 

	

Inapplicable


	
 

	
 

	
 


	

311(a)(b)

	
 

	

7.11


	

311(c)

	
 

	

Inapplicable


	
 

	
 

	
 


	

312(a)

	
 

	

2.6


	

312(b)(c)

	
 

	

10.3


	
 

	
 

	
 


	

313(a)(b)

	
 

	

7.6


	

313(c)

	
 

	

7.6;
10.2


	

313(d)

	
 

	

7.6


	
 

	
 

	
 


	

314(a)

	
 

	

4.2;
4.4; 10.2


	

314(b)

	
 

	

N/A


	

314(c)(1)(2)

	
 

	

10.4;
10.5


	

314(c)(3)

	
 

	

Inapplicable


	

314(d)

	
 

	

Inapplicable


	

314(e)

	
 

	

10.5


	

314(f)

	
 

	

Inapplicable


	
 

	
 

	
 


	

315(a)

	
 

	

7.1,
7.2


	

315(b)

	
 

	

7.5;
10.2


	

315(c)

	
 

	

7.1


	

315(d)

	
 

	

7.1;
7.2


	

315(e)

	
 

	

6.11


	
 

	
 

	
 


	

316(a)(last
sentence)

	
 

	

2.10


	

316(a)(1)(A)

	
 

	

6.5


	

316(a)(1)(B)

	
 

	

6.4


	

316(a)(2)

	
 

	

8.2


	

316(b)

	
 

	

6.7


	

316(c)

	
 

	

8.4


	
 

	
 

	
 


	

317(a)(1)

	
 

	

6.8


	

317(a)(2)

	
 

	

6.9


	

317(b)

	
 

	

2.5;
7.12


	

318(a)

	
 

	

10.1







 


Note:
This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the Indenture.


 



-iv-








 






 


INDENTURE, dated as
of                                                           ,           ,
by and between Celcuity Inc., a Delaware corporation, as Issuer
(the “Company”) and _____________, a
_______________________ organized under the laws of
________________, as Trustee (the
“Trustee”).

 



RECITALS OF THE COMPANY

 


The
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its
debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “Securities”), as herein
provided, up to such principal amount as may from time to time be
authorized in or pursuant to one or more resolutions of the Board
of Directors or by supplemental indenture.

 


All
things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms have been done, and the
execution and delivery thereof have been in all respects duly
authorized by the parties hereto.

 



NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 


For and
in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities of a Series
thereof, as follows:

 



ARTICLE 1


DEFINITIONS AND INCORPORATION BY
REFERENCE

 




1.1.

DEFINITIONS.





 


“Affiliate”
of any specified Person means any other Person which, directly or
indirectly through one or more intermediaries, controls, or is
controlled by or is under common control with, such specified
Person. For the purposes of this definition, “control”
(including, with correlative meanings, the terms
“controlling,” “controlled by” and
“under common control with”), as used with respect to
any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.

 


“Agent”
means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.

 


“Board of
Directors” means the Board of Directors of the Company or any
committee duly authorized to act therefor.

 


“Board
Resolution” means a copy of a resolution certified pursuant
to an Officers’ Certificate to have been duly adopted by the
Board of Directors of the Company and to be in full force and
effect on the date of such certification which has been delivered
to the Trustee.

 


“Capital
Stock” means, with respect to any Person, any and all shares
or other equivalents (however designated) of capital stock,
partnership interests or any other participation, right or other
interest in the nature of an equity interest in such Person or any
option, warrant or other security convertible into any of the
foregoing.

 


“Company”
means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article
5 of this Indenture, and thereafter means the successor and any
other primary obligor on the Securities.

 


“Company
Order” means a written order signed in the name of the
Company by two Officers, one of whom must be its Chief Executive
Officer or its Chief Financial Officer.

 


“Company
Request” means any written request signed in the name of the
Company by its Chief Executive Officer, its President, any Vice
President, its Chief Financial Officer or its Treasurer and
attested to by its Secretary or any Assistant
Secretary.

 


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


 



-1-








 






 


“Default”
means any event that is, or that with the passing of time or giving
of notice or both would be, an Event of Default.

 


“Depository”
means, with respect to the Securities of any Series issuable or
issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository for such Series by
the Company, which Depository shall be a clearing agency registered
under the Exchange Act, until a successor Depository shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter “Depository” shall mean each
Person who is then a Depository hereunder, and if at any time there
is more than one such Person, such Persons.

 


“Dollars”
means the currency of the United States of America.

 


“Euro”
means the single currency of participating member states of the
economic and monetary union as contemplated in the Treaty on
European Union.

 


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

 


“Foreign
Currency” means any currency or currency unit issued by a
government other than the government of the United States of
America.

 


“Foreign
Government Obligations” means, with respect to Securities
that are denominated in a Foreign Currency, (i) direct obligations
of the government that issued or caused to be issued such currency
for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised
by, or acting as an agency or instrumentality of, such government,
the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by such government, which, in either
case under clauses (i) and (ii), are not callable or redeemable at
the option of the issuer thereof.

 


“GAAP”
means generally accepted accounting principles consistently applied
as in effect in the United States of America from time to
time.

 


“Global
Security” or “Global Securities” means a Security
or Securities, as the case may be, in the form established pursuant
to Section 2.2, evidencing all or part of a Series of Securities
issued to the Depository for such Series or its nominee, and
registered in the name of such Depository or nominee, and bearing
the legend set forth in Section 2.15(c) (or such other legend(s) as
may be applied to such Securities in accordance with Section
2.2(24)).

 


“Holder”
or “Securityholder” means the Person in whose name a
Security is registered on the Registrar’s books.

 


“Indebtedness”
means (without duplication), with respect to any Person, any
indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of
such Person or only to a portion thereof), or evidenced by bonds,
notes, debentures or similar instruments, or representing the
balance deferred and unpaid of the purchase price of any property
(excluding any balances that constitute accounts payable or trade
payables, and other accrued liabilities arising in the ordinary
course of business), if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP.

 


“Indenture”
means this Indenture as amended, restated or supplemented from time
to time.

 


“Interest
Payment Date,” when used with respect to any Security, means
the Stated Maturity of an installment of interest on such
Security.

 


“Lien”
means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement,
encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or
with respect to such property or assets (including, without
limitation, any capitalized lease obligation, conditional sales or
other title retention agreement having substantially the same
economic effect as any of the foregoing).

 


“Maturity,”
when used with respect to any Security, means the date on which the
principal of such Security, or an installment of principal, becomes
due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for
redemption, notice of option to elect payment or
otherwise.


 






-2-








 






 


“Officer”
means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer or the
Secretary of the Company, or any other officer designated by the
Board of Directors, as the case may be.

 


“Officers’
Certificate” means, with respect to any Person, a certificate
signed by the Chairman, Chief Executive Officer, President or any
Senior or Executive Vice President and the Chief Financial Officer
or any Treasurer of such Person, that shall comply with applicable
provisions of this Indenture.

 


“Opinion of
Counsel” means a written opinion from legal counsel, which
counsel is reasonably acceptable to the Trustee. The counsel may be
an employee of or counsel to the Company.

 


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

 


“Redemption
Date,” when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this
Indenture.

 


“Responsible
Officer,” when used with respect to the Trustee, means any
officer within the corporate trust department or division of the
Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers, and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular
subject.

 


“SEC”
means the United States Securities and Exchange Commission as
constituted from time to time, or any successor performing
substantially the same functions.

 


“Securities”
means the securities that are issued under this Indenture, as
amended or supplemented from time to time pursuant to this
Indenture.

 


“Securities
Act” means the Securities Act of 1933, as
amended.

 


“Series”
or “Series of Securities” means each series of
debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 and 2.2.

 


“Significant
Subsidiary” means (i) any direct or indirect Subsidiary of
the Company that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such regulation is in effect on
the date hereof, or (ii) any group of direct or indirect
Subsidiaries of the Company that, taken together as a group, would
be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act, as such regulation is in effect on the date
hereof.

 


“Stated
Maturity,” when used with respect to any Security or any
installment of principal thereof or interest thereon, means the
date specified in such Security as the fixed date on which the
principal of such Security, or such installment of principal or
interest, is due and payable, and when used with respect to any
other Indebtedness, means the date specified in the instrument
governing such Indebtedness as the fixed date on which the
principal of such Indebtedness, or any installment of interest
thereon, is due and payable.

 


“Subsidiary”
of any specified Person means any corporation, limited liability
company, partnership, joint venture, association or other business
entity, whether now existing or hereafter organized or acquired,
(i) in the case of a corporation, of which more than 50% of the
total voting power of the Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of
directors thereof is held, directly or indirectly, by such Person
or any of its Subsidiaries; or (ii) in the case of a partnership,
joint venture, association or other business entity, with respect
to which such Person or any of its Subsidiaries has the power to
direct or cause the direction of the management and policies of
such entity by contract or otherwise, or if in accordance with GAAP
such entity is consolidated with such Person for financial
statement purposes.

 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb) as in effect on the date of this Indenture (except as
provided in Section 8.3).


 






-3-








 






 


“Trustee”
means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture, and thereafter means the
successor, and if at any time there is more than one such Person,
“Trustee” as used with respect to the Securities of any
Series shall mean the Trustee with respect to Securities of that
Series.

 


“U.S.
Government Obligations” means direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full
faith and credit of the United States of America is
pledged.

 




1.2.

OTHER
DEFINITIONS.





 


The
definitions of the following terms may be found in the sections
indicated as follows:

 


	

TERM




	
 

	

DEFINED
IN SECTION





	

“Bankruptcy
Law”

	
 

	

6.1


	
 

	
 

	
 


	

“Business
Day”

	
 

	

10.7


	
 

	
 

	
 


	

“Covenant
Defeasance”

	
 

	

9.3


	
 

	
 

	
 


	

“Custodian”

	
 

	

6.1


	
 

	
 

	
 


	

“Event
of Default”

	
 

	

6.1


	
 

	
 

	
 


	

“Journal”

	
 

	

10.15


	
 

	
 

	
 


	

“Judgment
Currency”

	
 

	

10.16


	
 

	
 

	
 


	

“Legal
Defeasance”

	
 

	

9.2


	
 

	
 

	
 


	

“Legal
Holiday”

	
 

	

10.7


	
 

	
 

	
 


	

“Market
Exchange Rate”

	
 

	

10.15


	
 

	
 

	
 


	

“New
York Paying Agent”

	
 

	

2.4


	
 

	
 

	
 


	

“Paying
Agent”

	
 

	

2.4


	
 

	
 

	
 


	

“Place
of Payment”

	
 

	

10.7


	
 

	
 

	
 


	

“Registrar”

	
 

	

2.4


	
 

	
 

	
 


	

Required
Currency”

	
 

	

10.16


	
 

	
 

	
 


	

“Service
Agent”

	
 

	

2.4







 




1.3.

INCORPORATION BY
REFERENCE OF TRUST INDENTURE ACT.





 


Whenever this
Indenture refers to a provision of the TIA, the portion of such
provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by
reference in and made a part of this Indenture. The following TIA
terms used in this Indenture have the following
meanings:

 


“Commission”
means the SEC.

 


“indenture
securities” means the Securities.

 


“indenture
securityholder” means a Holder or
Securityholder.


 






-4-








 






 


“indenture to
be qualified” means this Indenture.

 


“indenture
trustee” or “institutional trustee” means the
Trustee.

 


“obligor on
the indenture securities” means the Company.

 


All
other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by
SEC rule have the meanings therein assigned to them.

 




1.4.

RULES OF
CONSTRUCTION.





 


Unless
the context otherwise requires:

 

(1) a term has the
meaning assigned to it herein, whether defined expressly or by
reference;

 

(2) an accounting term
not otherwise defined has the meaning assigned to it in accordance
with GAAP;

 

(3) “or” is
not exclusive;

 

(4) words in the
singular include the plural, and in the plural include the
singular;

 

(5) words used herein
implying any gender shall apply to each gender; and

 

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

 



ARTICLE 2



THE SECURITIES

 




2.1.

ISSUABLE IN
SERIES.





 


The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is $   , , . The
Securities may be issued in one or more Series. All Securities of a
Series shall be identical except as may be set forth in a Board
Resolution, a supplemental indenture or an Officers’
Certificate detailing the adoption of the terms thereof pursuant to
the authority granted under a Board Resolution. In the case of
Securities of a Series to be issued from time to time, the Board
Resolution, Officers’ Certificate or supplemental indenture
may provide for the method by which specified terms (such as
interest rate, Stated Maturity, record date or date from which
interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, PROVIDED, that all Series
of Securities shall be equally and ratably entitled to the benefits
of the Indenture.

 




2.2.

ESTABLISHMENT OF
TERMS OF SERIES OF SECURITIES.





 


At or
prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the
case of Subsection 2.2(1) and either as to such Securities within
the Series or as to the Series generally in the case of Subsections
2.2(2) through 2.2(24)) by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, in each case, pursuant
to authority granted under a Board Resolution:

 

(1) the title of the
Series (which shall distinguish the Securities of that particular
Series from the Securities of any other Series);

 

(2) any limit upon the
aggregate principal amount of the Securities of the Series which
may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of
the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or
8.5);

 

(3) the price or prices
(expressed as a percentage of the principal amount thereof) at
which the Securities of the Series will be issued;


 






-5-








 






 

(4) the date or dates
on which the principal of the Securities of the Series is
payable;

 

(5) the rate or rates
(which may be fixed or variable) per annum or, if applicable, the
method used to determine such rate or rates (including, but not
limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear
interest, if any, the date or dates from which such interest, if
any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for
the interest payable on any Interest Payment Date;

 

(6) the place or places
where the principal of, and interest and premium, if any, on, the
Securities of the Series shall be payable, or the method of such
payment, if by wire transfer, mail or other means;

 

(7) if applicable, the
period or periods within which, the price or prices at which and
the terms and conditions upon which the 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 the Securities of the
Series pursuant to any sinking fund or analogous provisions 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 dates, if any,
on which and the price or prices at which the Securities of the
Series will be repurchased by the Company at the option of the
Holders thereof, and other detailed terms and provisions of such
repurchase obligations;

 

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

 

(11) the
forms of the Securities of the Series in bearer (if to be issued
outside of the United States of America) or fully registered form
(and, if in fully registered form, whether the Securities will be
issuable as Global Securities);

 

(12) if
other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.2;

 

(13) the
currency of denomination of the Securities of the Series, which may
be Dollars or any Foreign Currency, including, but not limited to,
the Euro, and, if such currency of denomination is a composite
currency other than the Euro, the agency or organization, if any,
responsible for overseeing such composite currency;

 

(14) the
designation of the currency, currencies or currency units in which
payment of the principal of, and interest and premium, if any, on,
the Securities of the Series will be made;

 

(15) if
payments of principal of, or interest or premium, if any, on, the
Securities of the Series are to be made in one or more currencies
or currency units other than that or those in which such Securities
are denominated, the manner in which the exchange rate with respect
to such payments will be determined;

 

(16) the
manner in which the amounts of payment of principal of, or interest
and premium, if any, on, the Securities of the Series will be
determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a
commodity, commodity index, stock exchange index or financial
index;

 

(17) the
provisions, if any, relating to any collateral provided for the
Securities of the Series;

 

(18) any
addition to or change in the covenants set forth in Articles 4 or 5
that applies to Securities of the Series;

 

(19) any
addition to or change in the Events of Default which applies to any
Securities of the Series, and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section
6.2;


 






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(20) the
terms and conditions, if any, for conversion of the Securities into
or exchange of the Securities for shares of common stock or
preferred stock of the Company that apply to Securities of the
Series;

 

(21) any
depositories, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to Securities of
such Series if other than those appointed herein;

 

(22) the
terms and conditions, if any, upon which the Securities shall be
subordinated in right of payment to other Indebtedness of the
Company;

 

(23) if
applicable, that the Securities of the Series, in whole or any
specified part, shall be defeasible pursuant to Article 9;
and

 

(24) any
other terms of the Securities of the Series (which terms shall not
be inconsistent with the provisions of this Indenture, except as
permitted by Section 8.1, but which may modify or delete any
provision of this Indenture insofar as it applies to such
Series).

 


All
Securities of any one Series need not be issued at the same time,
and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture or Officers’ Certificate
referred to above, however, the authorized principal amount of any
Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers’
Certificate.

 




2.3.

EXECUTION AND
AUTHENTICATION.





 


The
Securities shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant Secretary of
the Company. Each such signature may be either manual or facsimile.
The Company’s seal may be impressed, affixed, imprinted or
reproduced on the Securities and may be in facsimile
form.

 


If an
Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security
shall nevertheless be valid.

 


A
Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature
shall be conclusive evidence that the Security has been
authenticated under this Indenture. The Trustee shall at any time,
and from time to time, authenticate Securities for original issue
in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate, upon
receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized
agent or agents, which oral instructions shall be promptly
confirmed in writing. Each Security shall be dated the date of its
authentication.

 


The
aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate
delivered pursuant to Section 2.2, except as provided in Section
2.8.

 


Prior
to the issuance of Securities of any Series, the Trustee shall have
received and (subject to Section 7.1) shall be fully protected in
relying on: (a) the Board Resolution, supplemental indenture hereto
or Officers’ Certificate establishing the form of the
Securities of that Series or of Securities within that Series and
the terms of the Securities of that Series or of Securities within
that Series, (b) an Officers’ Certificate complying with
Section 10.4, and (c) an Opinion of Counsel complying with Section
10.4.

 


The
Trustee shall have the right to decline to authenticate and deliver
any Securities of any Series: (a) if the Trustee, being advised in
writing by outside counsel, determines that such action may not
lawfully be taken; or (b) if the Trustee in good faith by its board
of directors or trustees, executive committee or a trust committee
of directors and/or vice-presidents shall reasonably determine that
such action would expose the Trustee to personal liability, or
cause it to have a conflict of interest with respect to Holders of
any then outstanding Series of Securities.

 


The
Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Any
appointment shall be evidenced by an instrument signed by an
authorized officer of the Trustee, a copy of which shall be
furnished to the Company. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to
deal with the Company or an Affiliate of the Company.


 






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2.4.

REGISTRAR AND
PAYING AGENT.





 


The
Company shall maintain in each Place of Payment for any Series of
Securities (i) an office or agency where such Securities may be
presented for registration of transfer or for exchange
(“Registrar”), (ii) an office or agency where such
Securities may be presented for payment (“Paying
Agent”) (PROVIDED that the Company shall at all times
maintain a Paying Agent in the Borough of Manhattan, City of New
York, State of New York (the “New York Paying Agent”),
and PROVIDED, FURTHER, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the register for
the Securities maintained by the Registrar), and (iii) an office or
agency where notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served (“Service
Agent”). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents.
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required
office, or to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the address of the Trustee as set forth in Section 10.2.
If the Company acts as Paying Agent, it shall segregate the money
held by it for the payment of principal of, and interest and
premium, if any, on, the Securities and hold it as a separate trust
fund. The Company may change any Paying Agent, Registrar,
co-registrar or any other Agent without notice to any
Securityholder.

 


The
Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or
surrendered for any or all such purposes, and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of
Payment for Securities of any Series for such purposes. The Company
hereby initially designates the Corporate Trust Office of the
Trustee as such office of the Company. The Company shall give
prompt written notice to the Trustee of such designation or
rescission, and of any change in the location of any such other
office or agency.

 


The
Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or agent for service of
notices and demands, or fails to give the foregoing notice, the
Trustee shall act as such. The Company hereby appoints the Trustee
as the initial Registrar, Paying Agent and Service Agent for each
Series unless another Registrar, Paying Agent or Service Agent, as
the case may be, is appointed prior to the time Securities of that
Series are first issued. The Company designates [●], as the
New York Paying Agent, with offices at [●].

 




2.5.

PAYING AGENT TO
HOLD ASSETS IN TRUST.





 


The
Trustee as Paying Agent shall, and the Company shall require each
Paying Agent other than the Trustee to agree in writing that each
Paying Agent shall, hold in trust for the benefit of the Holders of
any Series of Securities or the Trustee all assets held by the
Paying Agent for the payment of principal of, or interest or
premium, if any, on, such Series of Securities (whether such assets
have been distributed to it by the Company or any other obligor on
such Series of Securities), and the Company and the Paying Agent
shall notify the Trustee in writing of any Default by the Company
(or any other obligor on such Series of Securities) in making any
such payment. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any
assets disbursed, and the Trustee may, at any time during the
continuance of any payment default with respect to any Series of
Securities, upon written request to a Paying Agent, require such
Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company
to the Paying Agent, the Paying Agent shall have no further
liability for such assets.

 




2.6.

SECURITYHOLDER
LISTS.





 


The
Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and
addresses of Securityholders of each Series of Securities. If the
Trustee is not the Registrar, the Company shall furnish to the
Trustee as of each regular record date for the payment of interest
on the Securities of a Series and before each related Interest
Payment Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of
each Series of Securities.


 






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2.7.

TRANSFER AND
EXCHANGE.





 


When
Securities of a Series are presented to the Registrar with a
request to register the transfer thereof, the Registrar shall
register the transfer as requested if the requirements of
applicable law are met, and when such Securities of a Series are
presented to the Registrar with a request to exchange them for an
equal principal amount of other authorized denominations of
Securities of the same Series, the Registrar shall make the
exchange as requested. To permit transfers and exchanges, upon
surrender of any Security for registration of transfer at the
office or agency maintained pursuant to Section 2.4, the Company
shall execute and the Trustee shall authenticate Securities at the
Registrar’s request.

 


If
Securities are issued as Global Securities, the provisions of
Section 2.15 shall apply.

 


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

 


Every
Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Registrar
or a co-registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Registrar or a co-registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing.

 


Any
exchange or transfer shall be without charge, except that the
Company may require payment by the Holder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to Section 2.11, 3.6 or 8.5. The
Trustee shall not be required to register transfers of Securities
of any Series, or to exchange Securities of any Series, for a
period of 15 days before the record date for selection for
redemption of such Securities. The Trustee shall not be required to
exchange or register transfers of Securities of any Series called
or being called for redemption in whole or in part, except the
unredeemed portion of such Security being redeemed in
part.

 




2.8.

REPLACEMENT
SECURITIES.





 


If a
mutilated Security is surrendered to the Trustee, or if the Holder
of a Security presents evidence to the satisfaction of the Company
and the Trustee that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security of the same Series and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding. An indemnity bond may be required by
the Company or the Trustee that is sufficient in the reasonable
judgment of the Company or the Trustee, as the case may be, to
protect the Company, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced. The Company may
charge such Holder for the Company’s out-of-pocket expenses
in replacing a Security, including the fees and expenses of the
Trustee. Every replacement Security shall constitute an original
additional obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that
Series duly issued hereunder.

 




2.9.

OUTSTANDING
SECURITIES.





 


Securities
outstanding at any time are all Securities authenticated by the
Trustee, except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.9 as not
outstanding.

 


If a
Security is replaced pursuant to Section 2.8 (other than a
mutilated Security surrendered for replacement), it ceases to be
outstanding until the Company and the Trustee receive proof
satisfactory to each of them that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.8.

 


If a
Paying Agent holds on a Redemption Date or the Stated Maturity
money sufficient to pay the principal of, premium, if any, and
accrued interest on, Securities payable on that date, and is not
prohibited from paying such money to the Holders thereof pursuant
to the terms of this Indenture (PROVIDED, that if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made), then on and after that date such
Securities cease to be outstanding and interest on them ceases to
accrue.


 






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A
Security does not cease to be outstanding solely because the
Company or an Affiliate holds the Security.

 




2.10.

WHEN TREASURY
SECURITIES DISREGARDED; DETERMINATION OF HOLDERS’
ACTION.





 


In
determining whether the Holders of the required aggregate principal
amount of the Securities of any Series have concurred in any
direction, waiver or consent, the Securities of any Series owned by
the Company or any other obligor on such Securities, or by any
Affiliate of any of them, shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities
of such Series which the Trustee actually knows are so owned shall
be so disregarded. Securities of such Series so owned which have
been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to the Securities of such Series and
that the pledgee is not the Company or any other obligor on the
Securities of such Series, or an Affiliate of any of
them.

 




2.11.

TEMPORARY
SECURITIES.





 


Until
definitive Securities are ready for delivery, the Company may
prepare and execute, and the Trustee shall authenticate, temporary
Securities. Temporary Securities shall be substantially in the
form, and shall carry all rights, of definitive Securities, but may
have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall
prepare and execute, and the Trustee shall authenticate, definitive
Securities in exchange for temporary Securities without charge to
the Holder.

 




2.12.

CANCELLATION.





 


All
Securities surrendered for payment, redemption or registration of
transfer or exchange, or for credit against any sinking fund
payment, shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation. The Company
may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar
and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee
or, at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel, and at the written request of
the Company shall dispose of, all Securities surrendered for
transfer, exchange, payment or cancellation. If the Company shall
acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness represented by
such Securities unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.12. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 2.12, except as
expressly permitted by this Indenture.

 




2.13.

PAYMENT OF
INTEREST; DEFAULTED INTEREST; COMPUTATION OF INTEREST.





 


Except
as otherwise provided as contemplated by Section 2.2 with respect
to any Series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security is registered at the close of business on the regular
record date for such interest, as provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate
establishing the terms of such Series.

 


If the
Company defaults in a payment of interest on the Securities, it
shall pay the defaulted amounts, plus any interest payable on
defaulted amounts pursuant to Section 4.1, to the Persons who are
Securityholders on a subsequent special record date, which date
shall be the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, or the next succeeding
Business Day if such date is not a Business Day. At least 15 days
before the special record date, the Company shall mail or cause to
be mailed to each Securityholder, with a copy to the Trustee, a
notice that states the special record date, the payment date and
the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.

 


Except
as otherwise specified as contemplated by Section 2.2 for
Securities of any Series, interest on the Securities of each Series
shall be computed on the basis of a 360-day year of twelve 30-day
months.


 





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2.14.

CUSIP
NUMBER.





 


The
Company in issuing the Securities may use one or more
“CUSIP” numbers, and, if the Company does so, the
Trustee shall use the CUSIP number(s) in notices of redemption or
exchange as a convenience to Holders, PROVIDED, that any such
notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number(s) printed in the
notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities, and
that any such redemption or exchange shall not be affected by any
defect in or omission of any such numbers.

 




2.15.

PROVISIONS FOR
GLOBAL SECURITIES.





 

(a) A Board Resolution,
a supplemental indenture hereto or an Officers’ Certificate
shall establish whether the Securities of a Series shall be issued
in whole or in part in the form of one or more Global Securities,
and the Depository for such Global Securities or
Securities.

 

(b) Notwithstanding any
provisions to the contrary contained in Section 2.7 and in addition
thereto, if, and only if the Depository (i) at any time is
unwilling or unable to continue as Depository for such Global
Security or ceases to be a clearing agency registered under the
Exchange Act and (ii) a successor Depository is not appointed by
the Company within 90 days after the date the Company is so
informed in writing or becomes aware of the same, the Company
promptly will execute and deliver to the Trustee definitive
Securities, and the Trustee, upon receipt of a Company Request for
the authentication and delivery of such definitive Securities
(which the Company will promptly execute and deliver to the
Trustee) and an Officers’ Certificate to the effect that such
Global Security shall be so exchangeable, will authenticate and
deliver definitive Securities, without charge, registered in such
names and in such authorized denominations as the Depository shall
direct in writing (pursuant to instructions from its direct and
indirect participants or otherwise) in an aggregate principal
amount equal to the principal amount of the Global Security with
like tenor and terms. Upon the exchange of a Global Security for
definitive Securities, such Global Security shall be canceled by
the Trustee. Unless and until it is exchanged in whole or in part
for definitive Securities, as provided in this Section 2.15(b), a
Global Security may not be transferred except as a whole by the
Depository with respect to such Global Security to a nominee of
such Depository, by a nominee of such Depository to such Depository
or another nominee of such Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such a
successor Depository.

 

(c) Any Global Security
issued hereunder shall bear a legend in substantially the following
form:

 


“This
Security is a Global Security within the meaning of the Indenture
hereinafter referred to, and is registered in the name of the
Depository or a nominee of the Depository. This Security is
exchangeable for Securities registered in the name of a Person
other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor
Depository.”

 

(d) The Depository, as
a Holder, may appoint agents and otherwise authorize participants
to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled
to give or take under the Indenture.

 

(e) Notwithstanding the
other provisions of this Indenture, unless otherwise specified as
contemplated by Section 2.2, payment of the principal of, and
interest and premium, if any, on, any Global Security shall be made
to the Depository or its nominee in its capacity as the Holder
thereof.

 

(f) Except as provided
in Section 2.15(e) above, the Company, the Trustee and any Agent
shall treat a Person as the Holder of such principal amount of
outstanding Securities of any Series represented by a Global
Security as shall be specified in a written statement of the
Depository (which may be in the form of a participants’ list
for such Series) with respect to such Global Security, for purposes
of obtaining any consents, declarations, waivers or directions
required to be given by the Holders pursuant to this Indenture,
PROVIDED, that until the Trustee is so provided with a written
statement, it may treat the Depository or any other Person in whose
name a Global Security is registered as the owner of such Global
Security for the purpose of receiving payment of the principal of,
and any premium and (subject to Section 2.13) any interest on, such
Global Security and for all other purposes whatsoever, and none of
the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.

 



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2.16.

PERSONS DEEMED
OWNERS.





 


Prior
to due presentment of a Security for registration of transfer, the
Company, the Trustee, the Registrar and any agent of the Company,
the Registrar or the Trustee may treat the Person in whose name
such Security is registered as the owner of such Security for the
purpose of receiving payment of the principal of, and any premium
and (subject to Section 2.13) any interest on, such Security and
for all other purposes whatsoever, and none of the Company, the
Trustee, the Registrar or any agent of the Company, the Trustee or
the Registrar shall be affected by notice to the
contrary.

 



ARTICLE 3



REDEMPTION

 




3.1.

NOTICES TO
TRUSTEE.





 


The
Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities, or may covenant
to redeem and pay the Series of Securities or any part thereof,
prior to the Stated Maturity thereof at such time and on such terms
as provided for in such Securities or the related Board Resolution,
supplemental indenture or Officers’ Certificate. If a Series
of Securities is redeemable and the Company elects to redeem all or
part of such Series of Securities, it shall notify the Trustee of
the Redemption Date and the principal amount of Securities to be
redeemed at least 45 days (unless a shorter notice shall be
satisfactory to the Trustee) before the Redemption Date. Any such
notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder, and shall thereby be void
and of no effect.

 




3.2.

SELECTION BY
TRUSTEE OF SECURITIES TO BE REDEEMED.





 


Unless
otherwise indicated for a particular Series of Securities by a
Board Resolution, a supplemental indenture or an Officers’
Certificate, if fewer than all of the Securities of a Series are to
be redeemed, the Trustee shall select the Securities of a Series to
be redeemed pro rata, by lot or by any other method that the
Trustee considers fair and appropriate (unless the Company
specifically directs the Trustee otherwise) and, if such Securities
are listed on any securities exchange, by a method that complies
with the requirements of such exchange.

 


The
Trustee shall make the selection from Securities of a Series
outstanding and not previously called for redemption, and shall
promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed at
least 35 but not more than 60 days before the Redemption Date.
Securities of a Series in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions of
the principal of Securities of a Series that have denominations
larger than $1,000. Securities of a Series and portions of them it
selects shall be in amounts of $1,000 or, with respect to
Securities of any Series issuable in other denominations pursuant
to Section 2.2(10), the minimum principal denomination for each
Series and integral multiples thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to
portions of Securities called for redemption.

 




3.3.

NOTICE OF
REDEMPTION.





 


Unless
otherwise indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate, at
least 30 days, and no more than 60 days, before a Redemption Date,
the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Securities to be
redeemed at his or her last address as the same appears on the
registry books maintained by the Registrar. The notice shall
identify the Securities to be redeemed and shall
state:

 

(1) the Redemption
Date;

 

(2) the redemption
price, and that such redemption price shall become due and payable
on the Redemption Date;

 

(3) if any Security of
a Series is being redeemed in part, the portion of the principal
amount of such Security of a Series to be redeemed and that, after
the Redemption Date and upon surrender of such Security of a
Series, a new Security or Securities in principal amount equal to
the unredeemed portion will be issued;

 



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(4) the name and
address of the Paying Agent;

 

(5) that Securities of
a Series called for redemption must be surrendered to the Paying
Agent to collect the redemption price, and the place or places
where each such Security is to be surrendered for such
payment;

 

(6) that, unless the
Company defaults in making the redemption payment, interest on the
Securities of a Series called for redemption ceases to accrue on
the Redemption Date, and the only remaining right of the Holders of
such Securities is to receive payment of the redemption price upon
surrender to the Paying Agent of the Securities
redeemed;

 

(7) if fewer than all
of the Securities of a Series are to be redeemed, the
identification of the particular Securities of a Series (or portion
thereof) to be redeemed, as well as the aggregate principal amount
of Securities of a Series to be redeemed and the aggregate
principal amount of Securities of a Series to be outstanding after
such partial redemption.

 

(8) the CUSIP number,
if any, printed on the Securities being redeemed; and

 

(9) that no
representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the
Securities.

 


At the
Company’s request, the Trustee shall give the notice of
redemption in the Company’s name and at the Company’s
sole expense.

 




3.4.

EFFECT OF NOTICE OF
REDEMPTION.





 


Once
the notice of redemption described in Section 3.3 is mailed,
Securities of a Series called for redemption become due and payable
on the Redemption Date and at the redemption price, plus interest,
if any, accrued to the Redemption Date. Upon surrender to the
Trustee or Paying Agent, such Securities of a Series shall be paid
at the redemption price, plus accrued interest, if any, to the
Redemption Date; PROVIDED, that if the Redemption Date is after a
regular interest payment record date and on or prior to the next
Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Securities registered on the relevant record
date, as specified by the Company in the notice to the Trustee
pursuant to Section 3.1.

 




3.5.

DEPOSIT OF
REDEMPTION PRICE.





 


On or
prior to the Redemption Date (but no later than 11:00 A.M. Eastern
Time on such date), the Company shall deposit with the Paying Agent
money sufficient to pay the redemption price of and accrued
interest, if any, on all Securities to be redeemed on that date
other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee
for cancellation.

 


On and
after any Redemption Date, if money sufficient to pay the
redemption price of, and accrued interest on, Securities called for
redemption shall have been made available in accordance with the
preceding paragraph and the Company and the Paying Agent are not
prohibited from paying such moneys to Holders, the Securities
called for redemption will cease to accrue interest and the only
right of the Holders of such Securities will be to receive payment
of the redemption price of and, subject to the proviso in Section
3.4, accrued and unpaid interest on such Securities to the
Redemption Date. If any Security called for redemption shall not be
so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Security
and any interest or premium, if any, not paid on such unpaid
principal, in each case, at the rate and in the manner provided in
the Securities.

 




3.6.

SECURITIES REDEEMED
IN PART.





 


Upon
surrender of a Security of a Series that is redeemed in part, the
Company shall execute, and the Trustee shall authenticate, for a
Holder a new Security of the same Series equal in principal amount
to the unredeemed portion of the Security surrendered.


 



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ARTICLE 4



COVENANTS

 




4.1.

PAYMENT OF
SECURITIES.





 


The
Company shall pay the principal of, and interest and premium, if
any, on, each Series of Securities on the dates and in the manner
provided in such Securities and this Indenture.

 


An
installment of principal or interest shall be considered paid on
the date it is due if the Trustee or Paying Agent holds on that
date money designated for and sufficient to pay such installment
and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture or otherwise.

 


The
Company shall pay interest on overdue principal, and overdue
interest, to the extent lawful, at the rate specified in the Series
of Securities.

 




4.2.

SEC
REPORTS.





 


The
Company will deliver to the Trustee within 15 days after the filing
of the same with the SEC, copies of the quarterly and annual
reports and of the information, documents and other reports, if
any, which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act; PROVIDED, HOWEVER, that
each such report or document will be deemed to be so delivered to
the Trustee if the Company files such report or document with the
SEC through the SEC’s EDGAR database no later than the time
such report or document is required to be filed with the SEC
pursuant to the Exchange Act. Notwithstanding that the Company may
not be subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Company will file with the SEC, to the
extent permitted, and provide the Trustee with, such quarterly and
annual reports and such information, documents and other reports
specified in Sections 13 and 15(d) of the Exchange Act. The Company
will also comply with the other provisions of TIA Section
314(a).

 




4.3.

WAIVER OF STAY,
EXTENSION OR USURY LAWS.





 


The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension, usury or other law which would
prohibit or forgive the Company from paying all or any portion of
the principal of, and/or interest and premium, if any, on, the
Securities as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and the Company hereby expressly
waives (to the extent that they may lawfully do so) all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.

 




4.4.

COMPLIANCE
CERTIFICATE.





 

(a) The Company shall
deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officers’ Certificate which
complies with TIA Section 314(a)(4) stating that a review of the
activities of the Company and its Subsidiaries during such fiscal
year has been made under the supervision of the signing Officers
with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate,
that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained
in this Indenture and that there is no default in the performance
or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his
or her knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of, or
interest or premium, if any, on, the Securities is prohibited, or
if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect
thereto.

 

(b) (i) If any Default
or Event of Default has occurred and is continuing or (ii) if any
Holder seeks to exercise any remedy hereunder with respect to a
claimed Default under this Indenture or the Securities, within five
Business Days after the Company becoming aware of such occurrence
the Company shall deliver to the Trustee an Officers’
Certificate specifying such event, notice or other action and what
action the Company is taking or proposes to take with respect
thereto.

 



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4.5.

CORPORATE
EXISTENCE.





 


Subject
to Article 5, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence, in accordance with the organizational
documents (as the same may be amended from time to time) of the
Company and the rights (charter and statutory), licenses and
franchises of the Company; PROVIDED, HOWEVER, that the Company
shall not be required to preserve any such right, license or
franchise, or its corporate existence, if the Board of Directors
shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that
the loss thereof is not adverse in any material respect to the
Holders.

 



ARTICLE 5



SUCCESSOR CORPORATION

 




5.1.

LIMITATION ON
CONSOLIDATION, MERGER AND SALE OF ASSETS.





 

(a) The Company will
not, in any transaction or series of transactions, merge or
consolidate with or into, or sell, assign, convey, transfer, lease
or otherwise dispose of all or substantially all of its properties
and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions), to any Person or
Persons, unless at the time of and after giving effect thereto (i)
either (A) if the transaction or series of transactions is a merger
or consolidation, the Company shall be the surviving Person of such
merger or consolidation, or (B) the Person formed by such
consolidation or into which the Company is merged or to which the
properties and assets of the Company are transferred (any such
surviving Person or transferee Person being the “Surviving
Entity”) shall be a corporation organized and existing under
the laws of the United States of America, any state thereof or the
District of Columbia, or a corporation or comparable legal entity
organized under the laws of a foreign jurisdiction and shall
expressly assume by a supplemental indenture executed and delivered
to the Trustee, in form reasonably satisfactory to the Trustee, all
of the obligations of the Company (including, without limitation,
the obligation to pay the principal of, and premium and interest,
if any, on, the Securities and the performance of the other
covenants) under the Securities of each Series and this Indenture,
and in each case, this Indenture shall remain in full force and
effect; and (ii) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro forma
basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), no Default or Event of
Default shall have occurred and be continuing.

 

(b) In connection with
any consolidation, merger or transfer of assets contemplated by
this Section 5.1, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or
transfer, and the supplemental indenture in respect thereto, comply
with this Section 5.1, and that all conditions precedent herein
provided for relating to such transaction or transactions have been
complied with.

 




5.2.

SUCCESSOR PERSON
SUBSTITUTED.





 


Upon
any consolidation, merger or transfer of all or substantially all
of the assets of the Company in accordance with Section 5.1 above,
the successor corporation formed by such consolidation, or into
which the Company is merged or to which such transfer is made,
shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same
effect as if such successor corporation had been named as the
Company herein, and thereafter (except with respect to any such
transfer which is a lease) the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and
the Securities.

 



ARTICLE 6



DEFAULTS AND REMEDIES

 




6.1.

EVENTS OF
DEFAULT.





 


“Events of
Default,” wherever used herein with respect to Securities of
any Series, means any one of the following events, unless in the
establishing Board Resolution, supplemental indenture or
Officers’ Certificate, it is provided that such Series shall
not have the benefit of said Event of Default:

 



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(1) there is a default
in the payment of any principal of, or premium, if any, on, the
Securities when the same becomes due and payable at Maturity, upon
acceleration, redemption or otherwise;

 

(2) there is a default
in the payment of any interest on any Security of a Series when the
same becomes due and payable, and the Default continues for a
period of 30 days;

 

(3) the Company
defaults in the observance or performance of any other covenant in
the Securities of a Series or in this Indenture for 60 days after
written notice from the Trustee or the Holders of not less than 25%
in the aggregate principal amount of the Securities of such Series
then outstanding, which notice must specify the Default, demand
that it be remedied and state that the notice is a “Notice of
Default”;

 

(4) the Company or any
Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:

 




(A)

commences a
voluntary case,





 




(B)

consents to the
entry of an order for relief against it in an involuntary
case,





 




(C)

consents to the
appointment of a Custodian of it or for all or substantially all of
its property,





 




(D)

makes a general
assignment for the benefit of its creditors, or





 




(E)

generally is not
paying its debts as they become due;





 

(5) a court of
competent jurisdiction enters an order or decree under any
Bankruptcy Law that:

 




(A)

is for relief
against the Company or any Significant Subsidiary in an involuntary
case;





 




(B)

appoints a
Custodian of the Company or any Significant Subsidiary, or for all
or substantially all of the property of the Company or any
Significant Subsidiary; or





 




(C)

orders the
liquidation of the Company or any Significant Subsidiary, and the
order or decree remains unstayed and in effect for 90 consecutive
days; or





 

(6) any other Event of
Default provided with respect to Securities of that Series, which
is specified in a Board Resolution, a supplemental indenture hereto
or an Officers’ Certificate, in accordance with Section
2.2(19).

 


The
term “Bankruptcy Law” means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors. The term
“Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy
Law.

 


The
Trustee may withhold notice of any Default (except in the payment
of the principal of, or interest or premium, if any, on, the
Securities) to the Holders of the Securities of any Series in
accordance with Section 7.5. When a Default is cured, it ceases to
exist.

 




6.2.

ACCELERATION.





 


If an
Event of Default with respect to Securities of any Series at the
time outstanding (other than an Event of Default arising under
Section 6.1(4) or (5)) occurs and is continuing, the Trustee by
written notice to the Company, or the Holders of not less than 25%
in aggregate principal amount of the Securities of that Series then
outstanding by written notice to the Company and the Trustee, may
declare that the entire principal amount of all the Securities of
that Series then outstanding plus accrued and unpaid interest to
the date of acceleration are immediately due and payable, in which
case such amounts shall become immediately due and payable;
PROVIDED, HOWEVER, that after such acceleration but before a
judgment or decree based on such acceleration is obtained by the
Trustee, the Holders of a majority in aggregate principal amount of
the outstanding Securities of that Series may rescind and annul
such acceleration and its consequences if (i) all existing Events
of Default, other than the nonpayment of accelerated principal,
interest or premium, if any, that has become due solely because of
the acceleration, have been cured or waived, (ii) to the extent the
payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been
paid and (iii) the rescission would not conflict with any judgment
or decree. No such rescission shall affect any subsequent Default
or impair any right consequent thereto. In case an Event of Default
specified in Section 6.1(4) or (5) with respect to the Company
occurs, such principal, premium, if any, and interest amount with
respect to all of the Securities of that Series shall be due and
payable immediately without any declaration or other act on the
part of the Trustee or the Holders of the Securities of that
Series.

 



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6.3.

REMEDIES.





 


If an
Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect
the payment of the principal of, or interest and premium, if any,
on, the Securities of that Series, or to enforce the performance of
any provision of the Securities of that Series or this
Indenture.

 


The
Trustee may maintain a proceeding even if it does not possess any
of the Securities of that Series or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute
a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.

 




6.4.

WAIVER OF PAST
DEFAULTS AND EVENTS OF DEFAULT.





 


Subject
to Sections 6.2, 6.7 and 8.2, the Holders of a majority in
principal amount of the Securities of any Series then outstanding
have the right to waive any existing Default or Event of Default
with respect to such Series or compliance with any provision of
this Indenture (with respect to such Series) or the Securities of
such Series. Upon any such waiver, such Default with respect to
such Series shall cease to exist, and any Event of Default with
respect to such Series arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto. This Section 6.4 shall be
in lieu of TIA Section 316(a)(1)(B), and TIA Section 316(a)(1)(B)
is hereby expressly excluded from this Indenture and Section as
permitted by the TIA.

 




6.5.

CONTROL BY
MAJORITY.





 


Subject
to Sections 6.2, 6.7 and 8.2, the Holders of a majority in
principal amount of the Securities of any Series then outstanding
may 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 by this Indenture with respect to
such Series. The Trustee, however, may refuse to follow any
direction that conflicts with law or this Indenture, or that the
Trustee determines may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal
liability; PROVIDED, that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such
direction. This Section 6.5 shall be in lieu of TIA Section
316(a)(1)(A), and TIA Section 316(a)(1)(A) is hereby expressly
excluded from this Indenture and Section as permitted by the
TIA.

 




6.6.

LIMITATION ON
SUITS.





 


Subject
to Section 6.7, a Securityholder may not institute any proceeding
or pursue any remedy with respect to this Indenture or the
Securities of a Series unless:

 

(1) the Holder gives to
the Trustee written notice of a continuing Event of Default with
respect to the Securities of that Series;

 

(2) the Holders of at
least 25% in aggregate principal amount of the Securities of such
Series then outstanding make a written request to the Trustee to
pursue the remedy;

 

(3) such Holder or
Holders offer to the Trustee indemnity reasonably satisfactory to
the Trustee against any loss, liability or expense to be incurred
in compliance with such request;

 

(4) the Trustee does
not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and

 

(5) no direction
inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Securities of such Series then
outstanding.

 


A
Securityholder may not use this Indenture to prejudice the rights
of another Securityholder, or to obtain a preference or priority
over another Securityholder.

 



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6.7.

RIGHTS OF HOLDERS
TO RECEIVE PAYMENT.





 


Notwithstanding any
other provision of this Indenture, the right of any Holder of a
Security of a Series to receive payment of the principal of, and
interest and premium, if any, on, the Security of such Series on or
after the respective due dates expressed in the Security of such
Series, or to bring suit for the enforcement of any such payment on
or after such respective dates, is absolute and unconditional, and
shall not be impaired or affected without the consent of the
Holder.

 




6.8.

COLLECTION SUIT BY
TRUSTEE.





 


If an
Event of Default in payment of principal, interest or premium, if
any, specified in Section 6.1(1) or (2) with respect to Securities
of any Series at the time outstanding occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an
express trust against the Company (or any other obligor on the
Securities of that Series) for the whole amount of unpaid principal
and premium, if any, and accrued interest remaining unpaid,
together with interest on overdue principal and premium, if any,
and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the
rate then borne by the Securities of that Series, and such further
amounts as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
as set forth in Section 7.7.

 




6.9.

TRUSTEE MAY FILE
PROOFS OF CLAIM.





 


The
Trustee may file such proofs of claim and other papers or
documents, and take other actions (including sitting on a committee
of creditors), as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Securityholders allowed in any
judicial proceedings relative to the Company (or any other obligor
on the Securities), any of their respective creditors or any of
their respective property, and the Trustee shall be entitled and
empowered to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute the
same after deduction of its charges and expenses to the extent that
any such charges and expenses are not paid out of the estate in any
such proceedings, and any custodian in any such judicial proceeding
is hereby authorized by each Securityholder to make such payments
to the Trustee, and in the event that the Trustee shall consent to
the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under
Section 7.7.

 


Nothing
herein contained 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 a 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
proceedings.

 




6.10.

PRIORITIES.





 


If the
Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:

 


FIRST:
to the Trustee for amounts due under Section 7.7;

 


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

 


THIRD:
to the Company.

 


The
Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Trustee shall mail to each
Securityholder a notice that states the record date, the payment
date and amount to be paid.

 



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6.11.

UNDERTAKING FOR
COSTS.





 


In any
suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by
Holders of more than 10% in principal amount of the Securities of a
Series then outstanding.

 



ARTICLE 7



TRUSTEE

 




7.1.

DUTIES OF
TRUSTEE.





 

(a) If an Event of
Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the same circumstances
in the conduct of his own affairs.

 

(b) Except during the
continuance of an Event of Default:

 

(1) The Trustee need
perform only those duties that are specifically set forth in this
Indenture, and no covenants or obligations shall be implied in this
Indenture against the Trustee.

 

(2) In the absence of
bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon 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 which by any
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.

 

(c) The Trustee may not
be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except
that:

 

(1) This paragraph does
not limit the effect of paragraph (b) of this Section
7.1.

 

(2) The Trustee shall
not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.

 

(3) The Trustee shall
not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it
pursuant to Sections 6.2 and 6.5.

 

(d) No provision of
this Indenture shall require the Trustee to expend or risk its own
funds, or otherwise incur any financial liability, in the
performance of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.

 

(e) Whether or not
therein expressly so provided, paragraphs (a), (b), (c) and (d) of
this Section 7.1 shall govern every provision of this Indenture
that in any way relates to the Trustee.

 

(f) The Trustee and
Paying Agent shall not be liable for interest on any money received
by either of them, except as the Trustee and Paying Agent may agree
in writing with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent
required by the law.

 

(g) The Paying Agent,
the Registrar and any authenticating agent shall be entitled to the
protections, immunities and standard of care set forth in
paragraphs (a), (b), (c), (d) and (f) of this Section 7.1 and in
Section 7.2 with respect to the Trustee.

 



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7.2.

RIGHTS OF
TRUSTEE.





 

(a) Subject to Section
7.1:

 

(1) The Trustee may
rely on, and shall be protected in acting or refraining from acting
upon, any document reasonably believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the
document.

 

(2) Before the Trustee
acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, or both, which shall conform
to the provisions of Section 10.5. The Trustee shall be protected
and shall not be liable for any action it takes or omits to take in
good faith in reliance on such certificate or opinion.

 

(3) The Trustee may act
through agents and attorneys, and shall not be responsible for the
misconduct or negligence of any agent appointed by it with due
care.

 

(4) The Trustee shall
not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its
rights or powers.

 

(5) The Trustee may
consult with counsel reasonably acceptable to the Trustee, which
may be counsel to the Company, and the advice or opinion of such
counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and
in accordance with the advice or opinion of such
counsel.

 

(6) 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 Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby.

 

(7) The Trustee shall
not be deemed to have knowledge of any fact or matter (including,
without limitation, a Default or Event of Default) unless such fact
or matter is known to a Responsible Officer of the
Trustee.

 

(8) Unless otherwise
expressly provided herein or in the Securities of a Series or the
related Board Resolution, supplemental indenture or Officers’
Certificate, the Trustee shall not have any responsibility with
respect to reports, notices, certificates or other documents filed
with it hereunder, except to make them available for inspection, at
reasonable times, by Securityholders, it being understood that
delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee’s receipt
of such shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the Company’s compliance with any of its
covenants hereunder (except as set forth in Section
4.4).

 




7.3.

INDIVIDUAL RIGHTS
OF TRUSTEE.





 


The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities, and may make loans to, accept
deposits from, perform services for or otherwise deal with the
Company, or any Affiliate thereof, with the same rights it would
have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11.

 




7.4.

TRUSTEE’S
DISCLAIMER.





 


The
Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities (except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture and authenticate the Securities and perform its
obligations hereunder), and the Trustee shall not be accountable
for the Company’s use of the proceeds from the sale of
Securities or any money paid to the Company pursuant to the terms
of this Indenture, and the Trustee shall not be responsible for any
statement in the Securities other than its certificates of
authentication.

 



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7.5.

NOTICE OF
DEFAULT.





 


If a
Default or an Event of Default occurs and is continuing with
respect to the Securities of any Series, and if it is known to the
Trustee, the Trustee shall mail to each Securityholder of the
Securities of that Series notice of the Default or the Event of
Default, as the case may be, within 90 days after it occurs or, if
later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default (except if such Default or Event
of Default has been validly cured or waived before the giving of
such notice). Except in the case of a Default or an Event of
Default in payment of the principal of, or interest or premium, if
any, on, any Security of any Series, the Trustee may withhold the
notice if and so long as the Board of Directors of the Trustee, the
executive committee or any trust committee of such board and/or its
Responsible Officers in good faith determine(s) that withholding
the notice is in the interests of the Securityholders of that
Series.

 




7.6.

REPORTS BY TRUSTEE
TO HOLDERS.





 


If and
to the extent required by the TIA, within 60 days after April 1 of
each year, commencing the April 1 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such April 1 that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).

 


A copy
of each report at the time of its mailing to Securityholders shall
be filed with the SEC and any stock exchange on which the
Securities of that Series are listed. The Company shall promptly
notify the Trustee when the Securities of any Series are listed on
any stock exchange or any delisting thereof, and the Trustee shall
comply with TIA Section 313(d).

 




7.7.

COMPENSATION AND
INDEMNITY.





 


The
Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee’s compensation
shall not be limited by any provision of law on compensation of a
trustee of an express trust. The Company shall reimburse the
Trustee within 45 days after receipt of request for all reasonable
out-of-pocket disbursements and expenses incurred or made by it in
connection with its duties under this Indenture, including the
reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.

 


The
Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss or liability incurred by it in connection
with the acceptance or performance of its duties under this
Indenture including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity.

 


The
failure by the Trustee to so notify the Company shall not however
relieve the Company of its obligations. Notwithstanding the
foregoing, the Company need not reimburse the Trustee for any
expense or indemnify it against any loss or liability incurred by
the Trustee through its negligence or bad faith. To secure the
payment obligations of the Company in this Section 7.7, the Trustee
shall have a lien prior to the Securities of any Series on all
money or property held or collected by the Trustee except such
money or property held in trust to pay the principal of, interest
and premium, if any, on particular Securities of that
Series.

 


When
the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.

 


For
purposes of this Section 7.7, the term “Trustee” shall
include any trustee appointed pursuant to this
Article 7.

 




7.8.

REPLACEMENT OF
TRUSTEE.





 


The
Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company in writing at least 90 days in
advance of such resignation.

 


The
Holders of a majority in principal amount of the outstanding
Securities of any Series may remove the Trustee with respect to
that Series by notifying the removed Trustee in writing and may
appoint a successor Trustee with respect to that Series with the
consent of the Company, which consent shall not be unreasonably
withheld. The Company may remove the Trustee with respect to that
Series at its election if:


 



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(1) the Trustee fails
to comply with, or ceases to be eligible under, Section
7.10;

 

(2) the Trustee is
adjudged a bankrupt or an insolvent, or an order for relief is
entered with respect to the Trustee, under any Bankruptcy
Law;

 

(3) a Custodian or
other public officer takes charge of the Trustee or its property;
or

 

(4) the Trustee
otherwise becomes incapable of acting.

 

(5) If the Trustee
resigns or is removed, or if a vacancy exists in the office of
Trustee, with respect to any Series of Securities for any reason,
the Company shall promptly appoint, by Board Resolution, a
successor Trustee.

 


If a
successor Trustee with respect to the Securities of one or more
Series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding
Securities of the applicable Series may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.

 


If the
Trustee with respect to the Securities of one or more Series fails
to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
Trustee.

 


A
successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
following such delivery, (i) the retiring Trustee with respect to
one or more Series shall, subject to its rights under Section 7.7,
transfer all property held by it as Trustee with respect to such
Series to the successor Trustee, (ii) the resignation or removal of
the retiring Trustee shall become effective and (iii) the successor
Trustee with respect to such Series shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor
Trustee with respect to the Securities of one or more Series shall
mail notice of its succession to each Securityholder of such
Series.

 




7.9.

SUCCESSOR TRUSTEE
BY CONSOLIDATION, MERGER OR CONVERSION.





 


If the
Trustee, or any Agent, consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust assets
to, another corporation, subject to Section 7.10, the successor
corporation without any further act shall be the successor Trustee
or Agent, as the case may be.

 




7.10.

ELIGIBILITY;
DISQUALIFICATION.





 


This
Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5) in every
respect. The Trustee (or in the case of a Trustee that is a Person
included in a bank holding company system, the related bank holding
company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section
310(b), including the provision in Section 310(b)(1). In addition,
if the Trustee is a Person included in a bank holding company
system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA Section 310(a)(2). If at
any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 7.10, it shall resign immediately in
the manner and with the effect specified in this Article
7.

 




7.11.

PREFERENTIAL
COLLECTION OF CLAIMS AGAINST COMPANY.





 


The
Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who
has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated therein.

 




7.12.

PAYING
AGENTS.





 


The
Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions
of this Section 7.12:

 



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

 

(2) that it will at any
time during the continuance of any Event of Default, upon written
request from the Trustee, deliver to the Trustee all sums so held
in trust by it together with a full accounting thereof;
and

 

(3) that it will give
the Trustee written notice within three Business Days after any
failure of the Company (or by any obligor on the Securities) in the
payment of any installment of the principal of, or interest or
premium, if any, on, the Securities when the same shall be due and
payable.

 



ARTICLE 8



AMENDMENTS, SUPPLEMENTS AND WAIVERS

 




8.1.

WITHOUT CONSENT OF
HOLDERS.









The
Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities of one or more
Series without notice to or consent of any
Securityholder:

 

(1) to comply with
Section 5.1;

 

(2) to provide for
certificated Securities in addition to uncertificated
Securities;

 

(3) to comply with any
requirements of the SEC under the TIA;

 

(4) to cure any
ambiguity, defect or inconsistency, or to make any other change
herein or in the Securities that does not materially and adversely
affect the rights of any Securityholder;

 

(5) to provide for the
issuance of, and establish the form and terms and conditions of,
Securities of any Series as permitted by this Indenture;
or

 

(6) to evidence and
provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more Series, and
to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee.

 


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

 




8.2.

WITH CONSENT OF
HOLDERS.





 

(a) The Company, when
authorized by a Board Resolution, and the Trustee may amend or
supplement this Indenture or the Securities of one or more Series
with the written consent of the Holders of not less than a majority
in aggregate principal amount of the outstanding Securities of such
Series affected by such amendment or supplement without notice to
any Securityholder. The Holders of not less than a majority in
aggregate principal amount of the outstanding Securities of each
such Series affected by such amendment or supplement may waive
compliance by the Company in a particular instance with any
provision of this Indenture or the Securities of such Series
without notice to any Securityholder. Subject to Section 8.4,
without the consent of each Securityholder affected, however, an
amendment, supplement or waiver may not:

 

(1) reduce the amount
of Securities whose Holders must consent to an amendment,
supplement or waiver to this Indenture or the
Securities;

 

(2) reduce the rate of,
or change the time for payment of, interest on any
Security;

 

(3) reduce the
principal, or change the Stated Maturity, of any Security, or
reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation;

 



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(4) make any Security
payable in money other than that stated in the
Security;

 

(5) change the amount
or time of any payment required by the Securities, or reduce the
premium payable upon any redemption of the Securities, or change
the time before which no such redemption may be made;

 

(6) waive a Default or
Event of Default in the payment of the principal of, or interest or
premium, if any, on, any Security (except a rescission of
acceleration of the Securities of any Series by the Holders of at
least a majority in principal amount of the outstanding Securities
of such Series and a waiver of the payment default that resulted
from such acceleration);

 

(7) waive a redemption
payment with respect to any Security, or change any of the
provisions with respect to the redemption of any
Securities;

 

(8) make any changes in
Section 6.6 or this Section 8.2, except to increase any percentage
of Securities the Holders of which must consent to any matter;
or

 

(9) take any other
action otherwise prohibited by this Indenture to be taken without
the consent of each Holder affected thereby.

 

(b) Upon the request of
the Company, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the receipt
by the Trustee of evidence reasonably satisfactory to the Trustee
of the consent of the Securityholders as aforesaid and of the
documents described in Section 8.6, 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, in which case the
Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.

 

(c) It shall not be
necessary for the consent of the Holders under this section to
approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the
substance thereof.

 


After
an amendment or supplement under this Section becomes effective,
the Company shall mail to Securityholders a notice briefly
describing the amendment or supplement. Any failure of the Company
to mail any such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any supplemental
indenture.

 




8.3.

COMPLIANCE WITH
TRUST INDENTURE ACT.





 


Every
amendment to, or supplement of, this Indenture or the Securities
shall comply with the TIA as then in effect.

 




8.4.

REVOCATION AND
EFFECT OF CONSENTS.





 


Until
an amendment, supplement, waiver or other action becomes effective,
a consent to it by a Holder of a Security is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder
of the same Security or portion thereof, and of any Security issued
upon the transfer thereof or in exchange therefor or in place
thereof, even if notation of the consent is not made on any such
Security. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Security or portion of a Security, if the
Trustee receives the notice of revocation before the date the
amendment, supplement, waiver or other action becomes
effective.

 


The
Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at
least 30 days prior to the first solicitation of such consent. If a
record date is fixed, then, notwithstanding the preceding
paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement or waiver, or to
revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date.

 



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After
an amendment, supplement, waiver or other action becomes effective,
it shall bind every Securityholder, unless it makes a change
described in any of clauses (1) through (9) of Section 8.2. In that
case, the amendment, supplement, waiver or other action shall bind
each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security;
PROVIDED, that any such waiver shall not impair or affect the right
of any Holder to receive payment of the principal of, and interest
and premium, if any, on, a Security, on or after the respective due
dates expressed in such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates
without the consent of such Holder.

 




8.5.

NOTATION ON OR
EXCHANGE OF SECURITIES.





 


If an
amendment, supplement or waiver changes the terms of a Security of
any Series, the Trustee may request the Holder of such Security to
deliver it to the Trustee. In such case, the Trustee shall place an
appropriate notation on such Security about the changed terms and
return it to the Holder. Alternatively, the Company, in exchange
for such Security, may issue, and the Trustee shall authenticate, a
new security that reflects the changed terms. Failure to make the
appropriate notation or issue a new Security shall not affect the
validity and effect of such amendment, supplement or
waiver.

 




8.6.

TRUSTEE TO SIGN
AMENDMENTS, ETC.





 


The
Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need
not, sign it. In signing or refusing to sign such amendment,
supplement or waiver the Trustee shall be entitled to receive and,
subject to Section 7.1, shall be fully protected in relying upon an
Officers’ Certificate and an Opinion of Counsel stating that
such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company may not sign an amendment or supplement
until the Board of Directors of the Company approves
it.

 



ARTICLE 9



DISCHARGE OF INDENTURE; DEFEASANCE

 




9.1.

DISCHARGE OF
INDENTURE.





 


The
Company may terminate its obligations under the Securities of any
Series and this Indenture with respect to such Series, except the
obligations referred to in the last paragraph of this Section 9.1,
if there shall have been canceled by the Trustee, or delivered to
the Trustee for cancellation, all Securities of such Series
theretofore authenticated and delivered (other than any Securities
of such Series that are asserted to have been destroyed, lost or
stolen and that shall have been replaced as provided in Section
2.8) and the Company has paid all sums payable by it hereunder or
deposited all required sums with the Trustee.

 


After
such delivery the Trustee upon request shall acknowledge in a
writing prepared by or on behalf of the Company the discharge of
the Company’s obligations under the Securities of such Series
and this Indenture, except for those surviving obligations
specified below.

 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Company in Sections 7.7, 9.5 and 9.6 shall
survive.

 




9.2.

LEGAL
DEFEASANCE.





 


The
Company may at its option, by Board Resolution, be discharged from
its obligations with respect to the Securities of any Series on the
date upon which the conditions set forth in Section 9.4 below are
satisfied (hereinafter, “Legal Defeasance”). For this
purpose, such Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness
represented by the Securities of such Series and to have satisfied
all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall, subject to Section 9.6, execute
proper instruments acknowledging the same, as are delivered to it
by the Company), except for the following, which shall survive
until otherwise terminated or discharged hereunder: (A) the rights
of Holders of outstanding Securities of such Series to receive
solely from the trust funds described in Section 9.4 and as more
fully set forth in such section, payments in respect of the
principal of, and interest and premium, if any, on, the Securities
of such Series when such payments are due, (B) the Company’s
obligations with respect to the Securities of such Series under
Sections 2.4, 2.5, 2.6, 2.7, 2.8 and 2.9, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder (including
claims of, or payments to, the Trustee under or pursuant to Section
7.7) and (D) this Article 9. Subject to compliance with this
Article 9, the Company may exercise its option under this Section
9.2 with respect to the Securities of any Series notwithstanding
the prior exercise of its option under Section 9.3 below with
respect to the Securities of such Series.

 



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9.3.

COVENANT
DEFEASANCE.





 


At the
option of the Company, pursuant to a Board Resolution, the Company
shall be released from its obligations with respect to the
outstanding Securities of any Series under Sections 4.2 through
4.5, inclusive, and Section 5.1, with respect to the outstanding
Securities of such Series, on and after the date the conditions set
forth in Section 9.4 are satisfied (hereinafter, “Covenant
Defeasance”). For this purpose, such Covenant Defeasance
means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth
in any such specified section or portion thereof, whether directly
or indirectly by reason of any reference elsewhere herein to any
such specified Section or portion thereof or by reason of any
reference in any such specified section or portion thereof to any
other provision herein or in any other document, but the remainder
of this Indenture and the Securities of any Series shall be
unaffected thereby.

 




9.4.

CONDITIONS TO LEGAL
DEFEASANCE OR COVENANT DEFEASANCE.





 


The
following shall be the conditions to application of Section 9.2 or
Section 9.3 to the outstanding Securities of a Series:

 

(1) the Company shall
irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section
7.10 who shall agree to comply with the provisions of this Article
9 applicable to it) as funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities,
(A) money in an amount, or (B) U.S. Government Obligations or
Foreign Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any
payment, money in an amount, or (C) 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 and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to
pay and discharge, the principal of, and accrued interest and
premium, if any, on, the outstanding Securities of such Series at
the Stated Maturity of such principal, interest or premium, if any,
or on dates for payment and redemption of such principal, interest
and premium, if any, selected in accordance with the terms of this
Indenture and of the Securities of such Series;

 

(2) no Event of Default
or Default with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit, or shall
have occurred and be continuing at any time during the period
ending on the 91st day after the date of such deposit or, if
longer, ending on the day following the expiration of the longest
preference period under any Bankruptcy Law applicable to the
Company in respect of such deposit as specified in the Opinion of
Counsel identified in paragraph (8) below (it being understood that
this condition shall not be deemed satisfied until the expiration
of such period);

 

(3) such Legal
Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest for purposes of the TIA with respect to
any securities of the Company;

 

(4) such Legal
Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute default under, any other agreement or
instrument to which the Company is a party or by which it is
bound;

 

(5) the Company shall
have delivered to the Trustee an Opinion of Counsel stating that,
as a result of such Legal Defeasance or Covenant Defeasance,
neither the trust nor the Trustee will be required to register as
an investment company under the Investment Company Act of 1940, as
amended;

 

(6) in the case of an
election under Section 9.2, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling to the effect that or (ii) there has been a change
in any applicable Federal income tax law with the effect that, and
such opinion shall confirm that, the Holders of the outstanding
Securities of such Series or Persons in their positions will not
recognize income, gain or loss for Federal income tax purposes
solely as a result of such Legal Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would
have been the case if such Legal Defeasance had not
occurred;

 



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(7) in the case of an
election under Section 9.3, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of the
outstanding Securities of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such
Covenant Defeasance, and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not
occurred;

 

(8) the Company shall
have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent
provided for in this Article 9 relating to either the Legal
Defeasance under Section 9.2 or the Covenant Defeasance under
Section 9.3 (as the case may be) have been complied
with;

 

(9) the Company shall
have delivered to the Trustee an Officers’ Certificate
stating that the deposit under clause (1) was not made by the
Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and

 

(10) the
Company shall have paid, or duly provided for payment under terms
mutually satisfactory to the Company and the Trustee, all amounts
then due to the Trustee pursuant to Section 7.7.

 




9.5.

DEPOSITED MONEY AND
U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS.





 


All
money, U.S. Government Obligations and Foreign Government
Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 9.4 in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of
principal, accrued interest and premium, if any, but such money
need not be segregated from other funds except to the extent
required by law.

 


The
Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government
Obligations and Foreign Government Obligations deposited pursuant
to Section 9.4 or the principal, interest and premium, if any,
received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the
outstanding Securities.

 


Anything in this
Article 9 to the contrary notwithstanding, but subject to payment
of any of its outstanding fees and expenses, the Trustee shall
deliver or pay to the Company from time to time upon Company
Request any money, U.S. Government Obligations or Foreign
Government Obligations held by the Trustee as provided in Section
9.4 which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.

 




9.6.

REINSTATEMENT.





 


If the
Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Foreign Government Obligations in
accordance with Section 9.1, 9.2, 9.3 or 9.4 by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s obligations under
this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply all
such money, U.S. Government Obligations or Foreign Government
Obligations, as the case may be, in accordance with Section 9.1,
9.2, 9.3 or 9.4; PROVIDED, HOWEVER, that if the Company has made
any payment of principal of, or accrued interest or premium, if
any, on, any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money,
U.S. Government Obligations or Foreign Government Obligations held
by the Trustee or Paying Agent.

 




9.7.

MONEYS HELD BY
PAYING AGENT.





 


In
connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the
Trustee, or, if sufficient moneys have been deposited pursuant to
Section 9.1, to the Company, and thereupon such Paying Agent shall
be released from all further liability with respect to such
moneys.

 



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9.8.

MONEYS HELD BY
TRUSTEE.





 


Any
moneys deposited with the Trustee or any Paying Agent or then held
by the Company in trust for the payment of the principal of, or
interest or premium, if any, on, any Security that are not applied
but remain unclaimed by the Holder of such Security for two years
after the date upon which the principal of, or interest or premium,
if any, on, such Security shall have respectively become due and
payable shall be repaid to the Company upon Company Request, or if
such moneys are then held by the Company in trust, such moneys
shall be released from such trust; and the Holder of such Security
entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof,
and all liability of the Trustee or such Paying Agent with respect
to such trust money shall thereupon cease; PROVIDED, HOWEVER, that
the Trustee or any such Paying Agent, before being required to make
any such repayment, may, at the expense of the Company, either mail
to each Securityholder affected, at the address shown in the
register of the Securities maintained by the Registrar, or cause to
be published once a week for two successive weeks, in a newspaper
published in the English language, customarily published each
Business Day and of general circulation in the City of New York,
New York, a notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30
days from the date of such mailing or publication, any unclaimed
balance of such moneys then remaining will be repaid to the
Company. After payment to the Company or the release of any money
held in trust by the Company, Securityholders entitled to the money
must look only to the Company for payment as general creditors,
unless applicable abandoned property law designates another
Person.

 



ARTICLE 10



MISCELLANEOUS

 




10.1.

TRUST INDENTURE ACT
CONTROLS.





 


If any
provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this
Indenture by the TIA, the required provision shall control. If any
provision of this Indenture modifies or excludes any provision of
the TIA which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.

 




10.2.

NOTICES.





 


Any
notice or communication shall be given in writing and delivered in
Person, sent by facsimile (and receipt confirmed by telephone or
electronic transmission report), delivered by commercial courier
service or mailed by first-class mail, postage prepaid, addressed
as follows:

 


If to
the Company:


Celcuity
Inc.


16305
36th Avenue N., Suite 100


Minneapolis, MN
55446


Fax:
(763) ___-____


Attention:
Secretary


 


Copy
to:


Fredrikson &
Byron, P.A.


200
South Sixth Street, Suite 4000


Minneapolis, MN
55402


Fax:
(612) 492-7077


Attention: Eric O.
Madson, Esq.


 


If to
the Trustee:


 


 


 


 


 



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The
Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or
communications. Any notice or communication to the Company or the
Trustee shall be deemed to have been given or made as of the date
so delivered if personally delivered; when receipt is confirmed by
telephone or electronic transmission report, if sent by facsimile;
and three Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually
received by the addressee).

 


Any
notice or communication mailed to a Securityholder shall be mailed
to such Securityholder by first-class mail, postage prepaid, at
such Securityholder’s address shown on the register kept by
the Registrar.

 


Failure
to mail, or any defect in, a notice or communication to a
Securityholder shall not affect its sufficiency with respect to
other Securityholders. If a notice or communication to a
Securityholder is mailed in the manner provided above, it shall be
deemed duly given, three Business Days after such mailing, whether
or not the addressee receives it.

 


In case
by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as
shall be made with the approval of the Trustee shall constitute a
sufficient mailing of such notice.

 


In the
case of Global Securities, notices or communications to be given to
Securityholders shall be given to the Depository, in accordance
with its applicable policies as in effect from time to
time.

 


In
addition to the manner provided for in the foregoing provisions,
notices or communications to Securityholders shall be given by the
Company by release made to Reuters Economic Services and Bloomberg
Business News.

 




10.3.

COMMUNICATIONS BY
HOLDERS WITH OTHER HOLDERS.





 


Securityholders of
any Series may communicate pursuant to TIA Section 312(b) with
other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of
that Series or any other Series. The Company, the Trustee, the
Registrar and any other Person shall have the protection of TIA
Section 312(c).

 




10.4.

CERTIFICATE AND
OPINION AS TO CONDITIONS PRECEDENT.





 


Upon
any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the
Trustee:

 

(1) an Officers’
Certificate (which shall include the statements set forth in
Section 10.5 below) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with;
and

 

(2) an Opinion of
Counsel (which shall include the statements set forth in Section
10.5 below) stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.

 




10.5.

STATEMENT REQUIRED
IN CERTIFICATE AND OPINION.





 


Each
certificate and opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than pursuant to
Section 4.4) shall include:

 

(1) a statement that
the Person making such certificate or opinion has read such
covenant or condition;

 

(2) a brief statement
as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based;

 

(3) a statement that,
in the opinion of such Person, it or he has made such examination
or investigation as is necessary to enable it or him to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and


 



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

 




10.6.

RULES BY TRUSTEE
AND AGENTS.





 


The
Trustee may make reasonable rules for action by or at meetings of
Securityholders. The Registrar and Paying Agent may make reasonable
rules for their functions.

 




10.7.

BUSINESS DAYS;
LEGAL HOLIDAYS; PLACE OF PAYMENT.





 


A
“Business Day” is a day that is not a Legal Holiday. A
“Legal Holiday” is a Saturday, a Sunday, a
federally-recognized holiday or a day on which banking institutions
are not authorized or required by law, regulation or executive
order to be open in the State of New York.

 


If a
payment date is a Legal Holiday at a Place of Payment, payment may
be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening
period. “Place of Payment” means the place or places
where the principal of, and interest and premium, if any, on, the
Securities of a Series are payable as specified as contemplated by
Section 2.2. If the regular record date is a Legal Holiday, the
record date shall not be affected.

 




10.8.

GOVERNING
LAW.





 


THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.

 




10.9.

NO ADVERSE
INTERPRETATION OF OTHER AGREEMENTS.





 


This
Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary
thereof. No such indenture, loan, security or debt agreement may be
used to interpret this Indenture.

 




10.10.

NO RECOURSE AGAINST
OTHERS.





 


A
director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of
the Company under the Securities or the Indenture. Each
Securityholder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration
for the issuance of the Securities.

 




10.11.

SUCCESSORS.





 


All
covenants and agreements of the Company in this Indenture and the
Securities shall bind the Company’s successors and assigns,
whether so expressed or not. All agreements of the Trustee, any
additional trustee and any Paying Agents in this Indenture shall
bind their respective successors and assigns.

 




10.12.

MULTIPLE
COUNTERPARTS.





 


The
parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them
together represent one and the same agreement.

 




10.13.

TABLE OF CONTENTS,
HEADINGS, ETC.





 


The
table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.


 



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10.14.

SEVERABILITY.





 


Each
provision of this Indenture shall be considered separable, and if
for any reason any provision which is not essential to the
effectuation of the basic purpose of this Indenture or the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby, and a Holder
shall have no claim therefor against any party hereto.

 




10.15.

SECURITIES IN A
FOREIGN CURRENCY OR IN EUROS.





 


Unless
otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate delivered pursuant to
Section 2.2 with respect to a particular Series of Securities,
whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount
of Securities of all Series or all Series affected by a particular
action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a
coin or currency other than Dollars (including Euros), then the
principal amount of Securities of such Series which shall be deemed
to be outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at
the Market Exchange Rate at such time. For purposes of this Section
10.15, “Market Exchange Rate” shall mean the noon
Dollar buying rate in New York City for cable transfers of that
currency as published by the Federal Reserve Bank of New York;
PROVIDED, HOWEVER, in the case of Euros, Market Exchange Rate shall
mean the rate of exchange determined by the Commission of the
European Union (or any successor thereto) as published in the
Official Journal of the European Union (such publication or any
successor publication, the “Journal”). If such Market
Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank
of New York or, in the case of Euros, the rate of exchange as
published in the Journal, as of the most recent available date, or
quotations or, in the case of Euros, rates of exchange from one or
more major banks in New York City or in the country of issue of the
currency in question or, in the case of Euros, in Luxembourg or
such other quotations or, in the case of Euros, rates of exchange
as the Trustee, upon consultation with the Company, shall deem
appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of
Securities of a Series denominated in currency other than Dollars
in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture.

 


All
decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in the Trustee’s sole
discretion, and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.

 




10.16.

JUDGMENT
CURRENCY.





 


The
Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in
respect of the principal of, or interest or premium, if any, or
other amount on, the Securities of any Series (the “Required
Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of
exchange used shall be the rate at which, in accordance with normal
banking procedures, the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is
not a Business Day, in which instance, the rate of exchange used
shall be the rate at which, in accordance with normal banking
procedures, the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day
preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in
the Required Currency (i) shall not be discharged or satisfied by
any tender or any recovery pursuant to any judgment (whether or not
entered in accordance with subsection (a)) in any currency other
than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of
the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under
this Indenture.

 



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IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first
above written.


 


	
 

	


CELCUITY
INC.


 



By:                                                                 







Name:                                                             









Title:                                                               








 


 


[Name
of Trustee]









By:                                                                 







Name:                                                             









Title:                                                               







 














By:                                                                 







Name:                                                             









Title:                                                               







 






 









 

 


 



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