endra_ex49




 





Exhibit
4.9

 

 

 

INDENTURE

 

between

 

ENDRA Life Sciences
Inc.

 

and

 

[________]

 

TRUSTEE

 

Dated
as of [________]

 

Providing for
Issuance of

 

Debt
Securities in Series

 

 

 



 






 





 

Reconciliation and
tie between Indenture, dated as of ______________, and the Trust
Indenture Act of 1939, as amended.

 


	
Trust
Indenture Act of 1939 Section

	
 

	
Indenture
Section


	
310(a)(1)

	
 

	
6.11


	
(a)(2)

	
 

	
6.11


	
(a)(3)

	
 

	
TIA


	
(a)(4)

	
 

	
Not
Applicable


	
(a)(5)

	
 

	
TIA


	
(b)

	
 

	
6.9; 6.11;
TIA


	
 

	
 

	
 


	
311(a)

	
 

	
TIA


	
(b)

	
 

	
TIA


	
 

	
 

	
 


	
312(a)

	
 

	
6.7


	
(b)

	
 

	
TIA


	
(c)

	
 

	
TIA


	
 

	
 

	
 


	
313(a)

	
 

	
6.6;
TIA


	
(b)

	
 

	
TIA


	
(c)

	
 

	
6.6;
TIA


	
(d)

	
 

	
6.6


	
 

	
 

	
 


	
314(a)

	
 

	
9.6;
TIA


	
(b)

	
 

	
Not
Applicable


	
(c)(1)

	
 

	
1.2


	
(c)(2)

	
 

	
1.2


	
(c)(3)

	
 

	
Not
Applicable


	
(d)

	
 

	
Not
Applicable


	
(e)

	
 

	
1.2


	
(f)

	
 

	
TIA


	
 

	
 

	
 


	
315(a)

	
 

	
TIA


	
(b)

	
 

	
6.5


	
(c)

	
 

	
6.1


	
(d)(1)

	
 

	
TIA


	
(d)(2)

	
 

	
TIA


	
(d)(3)

	
 

	
TIA


	
(e)

	
 

	
TIA


	
 

	
 

	
 


	
316(a)(1)(A)

	
 

	
5.8


	
(a)(1)(B)

	
 

	
5.7


	
(b)

	
 

	
5.2; 5.3;
5.10


	
(c)

	
 

	
TIA


	
 

	
 

	
 


	
317(a)(1)

	
 

	
5.3


	
(a)(2)

	
 

	
5.4


	
(b)

	
 

	
9.3


	
 

	
 

	
 


	
318(a)

	
 

	
1.11


	
(b)

	
 

	
TIA


	
(c)

	
 

	
1.11;
TIA






 

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

 



 

ii






 





 

 

TABLE
OF CONTENTS

 


	
 
 

	
Page


	
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION

	
1


	
Section 1.1.
DEFINITIONS

	
1


	
Section 1.2.
COMPLIANCE CERTIFICATES AND OPINIONS

	
8


	
Section 1.3. FORM
OF DOCUMENTS DELIVERED TO TRUSTEE

	
9


	
Section 1.4. ACTS
OF HOLDERS

	
9


	
Section 1.5.
NOTICES, ETC., TO TRUSTEE AND COMPANY

	
11


	
Section 1.6. NOTICE
TO HOLDERS; WAIVER

	
11


	
Section 1.7.
HEADINGS AND TABLE OF CONTENTS

	
12


	
Section 1.8.
SUCCESSOR AND ASSIGNS

	
12


	
Section 1.9.
SEPARABILITY

	
12


	
Section 1.10.
BENEFITS OF INDENTURE

	
12


	
Section 1.11.
GOVERNING LAW

	
12


	
Section 1.12.
WAIVER OF JURY TRIAL

	
13


	
Section 1.13. LEGAL
HOLIDAYS

	
13


	
Section 1.14. NO
RECOURSE AGAINST OTHERS

	
13


	
ARTICLE II SECURITY
FORMS

	
13


	
Section 2.1. FORMS
GENERALLY

	
13


	
Section 2.2. FORM
OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION

	
14


	
Section 2.3.
SECURITIES IN GLOBAL FORM

	
14


	
Section 2.4. FORM
OF LEGEND FOR SECURITIES IN GLOBAL FORM

	
15


	
ARTICLE III THE
SECURITIES

	
15


	
Section 3.1. AMOUNT
UNLIMITED; ISSUABLE IN SERIES

	
15


	
Section 3.2.
DENOMINATIONS

	
18


	
Section 3.3.
EXECUTION, AUTHENTICATION, DELIVERY AND DATING

	
19


	
Section 3.4.
TEMPORARY SECURITIES

	
21


	
Section 3.5.
REGISTRATION, TRANSFER AND EXCHANGE

	
22


	
Section 3.6.
REPLACEMENT SECURITIES

	
24


	
Section 3.7.
PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED

	
25


	
Section 3.8.
PERSONS DEEMED OWNERS

	
26


	
Section 3.9.
CANCELLATION

	
27


	
Section 3.10.
COMPUTATION OF INTEREST

	
27


	
Section 3.11.
CURRENCY AND MANNER OF PAYMENT IN RESPECT OF
SECURITIES

	
27


	
Section 3.12.
APPOINTMENT AND RESIGNATION OF EXCHANGE RATE AGENT

	
31


	
Section 3.13. WIRE
TRANSFERS

	
32


	
Section 3.14. CUSIP
NUMBERS AND ISINS

	
32


	
ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE

	
32


	
Section 4.1.
TERMINATION OF COMPANY’S OBLIGATIONS UNDER THE
INDENTURE

	
32


	
Section 4.2.
APPLICATION OF TRUST FUNDS

	
33


	
Section 4.3.
APPLICABILITY OF DEFEASANCE PROVISIONS; COMPANY’S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE

	
33


	
Section 4.4.
DEFEASANCE AND DISCHARGE

	
34






 



 

iii






 





 


	
Section 4.5.
COVENANT DEFEASANCE

	
34


	
Section 4.6.
CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE

	
34


	
Section 4.7.
DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST

	
36


	
Section 4.8.
REPAYMENT TO COMPANY

	
37


	
Section 4.9.
INDEMNITY FOR GOVERNMENT OBLIGATIONS

	
37


	
ARTICLE V DEFAULTS
AND REMEDIES

	
37


	
Section 5.1. EVENTS
OF DEFAULT

	
37


	
Section 5.2.
ACCELERATION; RESCISSION AND ANNULMENT

	
38


	
Section 5.3.
COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE

	
38


	
Section 5.4.
TRUSTEE MAY FILE PROOFS OF CLAIM

	
39


	
Section 5.5.
TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES

	
39


	
Section 5.6. DELAY
OR OMISSION NOT WAIVER

	
39


	
Section 5.7. WAIVER
OF PAST DEFAULTS

	
39


	
Section 5.8.
CONTROL BY MAJORITY

	
40


	
Section 5.9.
LIMITATION ON SUITS BY HOLDERS

	
40


	
Section 5.10.
RIGHTS OF HOLDERS TO RECEIVE PAYMENT

	
40


	
Section 5.11.
APPLICATION OF MONEY COLLECTED

	
41


	
Section 5.12.
RESTORATION OF RIGHTS AND REMEDIES

	
42


	
Section 5.13.
RIGHTS AND REMEDIES CUMULATIVE

	
42


	
ARTICLE VI THE
TRUSTEE

	
42


	
Section 6.1. DUTIES
AND RESPONSIBILITIES OF TRUSTEE; RELIANCE ON DOCUMENTS, OPINIONS,
ETC

	
42


	
Section 6.2.
TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR REGISTRAR MAY HOLD
SECURITIES

	
46


	
Section 6.3. MONIES
TO BE HELD IN TRUST

	
46


	
Section 6.4. NO
RESPONSIBILITIES FOR RECITALS, ETC

	
46


	
Section 6.5. NOTICE
OF DEFAULTS

	
47


	
Section 6.6.
REPORTS BY TRUSTEE TO HOLDERS

	
47


	
Section 6.7.
SECURITY HOLDER LISTS

	
47


	
Section 6.8.
COMPENSATION AND INDEMNITY

	
48


	
Section 6.9.
SEPARATE TRUSTEE; REPLACEMENT OF TRUSTEE

	
48


	
Section 6.10.
ACCEPTANCE OF APPOINTMENT BY SUCCESSOR

	
50


	
Section 6.11.
ELIGIBILITY; DISQUALIFICATION

	
51


	
Section 6.12.
MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS

	
51


	
Section 6.13.
APPOINTMENT OF AUTHENTICATING AGENT

	
51


	
ARTICLE VII
CONSOLIDATION, MERGER OR SALE BY THE COMPANY

	
53


	
Section 7.1.
CONSOLIDATION, MERGER OR SALE OF ASSETS

	
53


	
ARTICLE VIII
SUPPLEMENTAL INDENTURES

	
53


	
Section 8.1.
SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS

	
53


	
Section 8.2. WITH
CONSENT OF HOLDERS

	
54


	
Section 8.3.
COMPLIANCE WITH TRUST INDENTURE ACT

	
55


	
Section 8.4.
EXECUTION OF SUPPLEMENTAL INDENTURES

	
55






 



 

iv






 





 


	
Section 8.5. EFFECT
OF SUPPLEMENTAL INDENTURES

	
56


	
Section 8.6.
REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES

	
56


	
ARTICLE IX
COVENANTS

	
56


	
Section 9.1.
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST

	
56


	
Section 9.2.
MAINTENANCE OF OFFICE OR AGENCY

	
56


	
Section 9.3. MONEY
FOR SECURITIES TO BE HELD IN TRUST; UNCLAIMED MONEY

	
57


	
Section 9.4.
CORPORATE EXISTENCE

	
58


	
Section 9.5.
REPORTS BY THE COMPANY

	
58


	
Section 9.6. ANNUAL
REVIEW CERTIFICATE

	
58


	
ARTICLE X
REDEMPTION

	
59


	
Section 10.1.
APPLICABILITY OF ARTICLE

	
59


	
Section 10.2.
ELECTION TO REDEEM; NOTICE TO TRUSTEE

	
59


	
Section 10.3.
SELECTION OF SECURITIES TO BE REDEEMED

	
59


	
Section 10.4.
NOTICE OF REDEMPTION

	
60


	
Section 10.5.
DEPOSIT OF REDEMPTION PRICE

	
61


	
Section 10.6.
SECURITIES PAYABLE ON REDEMPTION DATE

	
61


	
Section 10.7.
SECURITIES REDEEMED IN PART

	
62


	
ARTICLE XI SINKING
FUNDS

	
62


	
Section 11.1.
APPLICABILITY OF ARTICLE

	
62


	
Section 11.2.
SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES

	
62


	
Section 11.3.
REDEMPTION OF SECURITIES FOR SINKING FUND

	
62






 

 



 

v






 





 

INDENTURE, dated as
of [●], between ENDRA Life Sciences Inc., a corporation duly
organized and existing under the laws of the State of Delaware (the
“Company”), and [●], as trustee, a national
banking association organized and existing under the laws of the
United States of America, as trustee (the
“Trustee”).

 

RECITALS

 

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 (“Securities”) to be
issued in one or more series as herein provided.

 

For and in
consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the
Securities or of any series thereof:

 

ARTICLE
I

DEFINITIONS AND
OTHER PROVISIONS

OF GENERAL
APPLICATION

 

Section
1.1. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:

 

(1) the terms defined
in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular;

 

(2) all other terms
used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to
them therein;

 

(3) all accounting
terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles;
and

 

(4) 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.

 

“Affiliate”
of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person. For purposes
of this definition, “control” when used with respect to
any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and
the terms “controlling” and “controlled”
have meanings correlative to the foregoing.

 

“Agent”
means any Paying Agent or Registrar.

 

“Authenticating
Agent” means any authenticating agent appointed by the
Trustee pursuant to Section 6.13.

 



 

1






 





 

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

 

“Board
Resolution” means a copy of one or more resolutions of the
Board of Directors, certified by the Corporate Secretary or an
Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date
of the certificate.

 

“Business
Day”, when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or particular location are
authorized or required by law to be closed, except as may otherwise
be provided in the form of Security of any particular series
pursuant to the provisions of this Indenture.

 

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

 

“Common
Stock” means the shares of common stock, $0.0001 par value
per share, of the Company.

 

“Company”
means the party named as the Company in the first paragraph of this
Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter means such
successors.

 

“Company
Order” and “Company Request” mean, respectively,
a written order or request signed in the name of the Company by the
President, the Chief Executive Officer, the Chief Financial
Officer, any Vice President, the Treasurer or the Corporate
Secretary of the Company.

 

“Corporate
Trust Office” means the corporate trust office of the Trustee
at which at any particular time this Indenture shall be principally
administered, which office at the date hereof is located at
[●].

 

“Currency
unit”, for all purposes of this Indenture, shall include any
composite currency.

 

“Default”
means any event which is, or after notice or passage of time, or
both, would be, an Event of Default.

 

“Depository”,
when used with respect to the Securities of or within any series
issuable or issued in whole or in part in global form, means the
Person designated as Depository by the Company pursuant to Section
3.1 until a successor Depository shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter shall
mean or include each Person which is then a Depository hereunder,
and if at any time there is more than one such Person, shall be a
collective reference to such Persons.

 



 

2






 





 

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

 

“Euro”
means the lawful currency of the participating member states of the
European Union that adopt a single currency in accordance with the
Treaty establishing the European Community, as amended by the
Treaty on European Union signed February 7, 1992.

 

“Foreign
Currency” shall mean any currency issued by the government or
governments of one or more countries other than the United States
or by any recognized confederation or association of such
governments and shall include the Euro.

 

“Government
Obligations” means securities which are (i) direct
obligations of the United States or, if specified as contemplated
by Section 3.1, the government which issued the currency in which
the Securities of a particular series are payable, for the payment
of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States or, if specified as
contemplated by Section 3.1, such government which issued the
foreign currency in which the Securities of such series are
payable, for the payment of which the full faith and credit of the
United States or such other government is pledged (whether by
guaranty or otherwise), which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of
a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the Government
Obligation evidenced by such depository receipt.

 

“Holder”
means a person in whose name a Registered Security is registered on
the Register.

 

“Indenture”
means this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument
and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively;
provided, however, that if at any time more than one Person is
acting as Trustee under this Indenture due to the appointment of
one or more separate Trustees for any one or more separate series
of Securities, “Indenture” shall mean, with respect to
such series of Securities for which any such Person is Trustee,
this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable
provisions hereof, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such
Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee, but to which
such Person, as such Trustee, was not a party; provided further
that in the event that this indenture is supplemented or amended by
one or more indentures supplemental hereto which are only
applicable to certain series of Securities, the term
“Indenture” for a particular series of Securities shall
only include the supplemental indentures applicable
thereto.

 



 

3






 





 

“Indexed
Security” means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more
or less than the principal face amount thereof at original
issuance.

 

“Interest”,
when used with respect to an Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest
payable after Maturity.

 

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

 

“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 or otherwise.

 

“Officer”
means the President, Chairman of the Board, the Chief Executive
Officer, the Chief Technology Officer, the Chief Financial Officer,
any Vice President (whether or not designated by a number or
numbers or word or words added before the title “Vice
President”), the Treasurer or the Corporate Secretary of the
Company.

 

“Officer’s
Certificate” means a certificate signed by an Officer of the
Company.

 

“Opinion of
Counsel” means a written opinion of legal counsel, who may
be, without limitation, (a) an employee of the Company, or (b)
outside counsel designated by the Company.

 

“Original
Issue Discount Security” means any Security which provides
for an amount less than the stated principal amount thereof to be
due and payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.2.

 

“Outstanding”,
when used with respect to Securities of any series, means, as of
the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture,
except:

 

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

 

(ii) Securities, or
portions thereof, for whose payment or redemption money or
Government Obligations in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities, provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provisions therefor satisfactory to
the Trustee have been made;

 



 

4






 





 

(iii) Securities, except
to the extent provided in Sections 4.4 and 4.5, with respect to
which the Company has effected defeasance and/or covenant
defeasance as provided in Article IV; and

 

(iv) Securities which
have been paid pursuant to Section 3.6 or in exchange for or in
lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;

 

provided, however,
that unless otherwise provided with respect to Securities of any
series pursuant to Section 3.1, in determining whether the Holders
of the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, or whether sufficient funds are
available for redemption or for any other purpose, and for the
purpose of making the calculations required by section 313 of the
Trust Indenture Act or are present at a meeting of Holders for
quorum purposes, (w) the principal amount of any Original Issue
Discount Securities that may be counted in making such
determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a
declaration of acceleration of the maturity thereof pursuant to
Section 5.2, (x) the principal amount of any Security denominated
in one or more Foreign Currencies or currency units that may be
counted in making such determination or calculation and that shall
be deemed Outstanding for such purpose shall be equal to the Dollar
equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate
Officer’s Certificate delivered to the Trustee, of the
principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent, determined as of such date of
original issuance, of the amount determined as provided in clause
(w) above) of such Security, (y) unless otherwise provided with
respect to such Security pursuant to Section 3.1, the principal
amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, and (z) Securities
owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, or
determination as to the presence of a quorum, only Securities which
a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other
obligor.

 

“Paying
Agent” means any Person authorized by the Company to pay the
principal of, premium, if any, or interest and any other payments
on all or any of the series of Securities on behalf of the
Company.

 



 

5






 





 

“Periodic
Offering” means an offering of Securities of a series from
time to time the specific terms of which such Securities,
including, without limitation, the rate or rates of interest or
formula for determining the rate or rates of interest thereon, if
any, the Maturity thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company upon the
issuance of such Securities.

 

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

 

“Place of
Payment”, when used with respect to the Securities of or
within any series, means the place or places where the principal
of, premium, if any, and interest and any other payments on such
Securities are payable as specified as contemplated by Sections 3.1
and 9.2.

 

“Predecessor
Security” of any particular Security means every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.

 

“Preferred
Stock” as applied to the capital stock of the Company means
capital stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution
of assets upon any voluntary or involuntary liquidation or
dissolution of the Company, over shares of Common Stock of such
corporation.

 

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

 

“Redemption
Price”, when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be
redeemed pursuant to this Indenture.

 

“Registered
Security” means any Security issued hereunder and registered
as to principal and interest in the Register.

 

“Regular
Record Date” for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.1, which
date shall be, unless otherwise specified pursuant to Section 3.1,
the fifteenth day preceding such Interest Payment Date, whether or
not such day shall be a Business Day.

 

“Responsible
Officer”, when used with respect to the Trustee, shall mean
any senior vice president, vice president, any assistant vice
president or assistant secretary working in its corporate trust
department and assigned responsibility for this engagement, or any
other officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be
such officers, respectively, working in its corporate trust
department and assigned responsibility for this engagement, or to
whom any corporate trust matter relating to the Indenture or the
Securities is referred because of his knowledge of and familiarity
with a particular subject.

 



 

6






 





 

“Security”
or “Securities” has the meaning stated in the first
recital of this Indenture and more particularly means a Security or
Securities of the Company issued, authenticated and delivered under
this Indenture.

 

“Special
Record Date” for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.

 

“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.

 

“Subsidiary”
means any Person of which the Company at the time owns or controls,
directly or indirectly, more than 50% of the shares of outstanding
stock or other equity interests having general voting power under
ordinary circumstances to elect a majority of the Board of
Directors, managers or trustees, as the case may be, of such Person
(irrespective of whether or not at the time stock of any other
class or classes or other equity interests of such corporation
shall have or might have voting power by reason of the happening of
any contingency).

 

“Trust
Indenture Act” means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section
8.3.

 

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

 

“United
States” means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United
States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject
to its jurisdiction.

 

“U.S.
Person” means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, an
individual citizen or resident of the United States, a corporation
created or organized in or under the laws of the United States, any
State thereof or the District of Columbia, or a partnership, estate
or trust treated as a domestic partnership, estate or trust for
United States federal income tax purposes.

 



 

7






 





 

(a) The following terms
shall have the meanings specified in the Sections referred to
opposite such term below:

 


	
Term

	
 

	
Section


	
 

	
 

	
 


	
“Act”

	
 

	
1.4(a)


	
“Bankruptcy
Law”

	
 

	
5.1


	
“Component
Currency”

	
 

	
3.11(h)


	
“Conversion
Date”

	
 

	
3.11(d)


	
“Conversion
Event”

	
 

	
3.11(h)


	
“Custodian”

	
 

	
5.1


	
“Defaulted
Interest”

	
 

	
3.7(b)


	
“Election
Date”

	
 

	
3.11(h)


	
“Event of
Default”

	
 

	
5.1


	
“Exchange
Rate Agent”

	
 

	
3.11(h)


	
“Exchange
Rate Officer’s Certificate”

	
 

	
3.11(h)


	
“Market
Exchange Rate”

	
 

	
3.11(h)


	
“Register”

	
 

	
3.5


	
“Registrar”

	
 

	
3.5


	
“Specified
Amount”

	
 

	
3.11(h)


	
“Valuation
Date”

	
 

	
3.11(c)






 

Section
1.2. COMPLIANCE
CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officer’s Certificate stating that
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except
that in the case of any application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application
or request, no additional certificate or opinion need be
furnished.

 

Every certificate
or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Sections
2.3) shall include:

 

(1) a statement that
the individual signing such certificate or opinion has read such
condition or covenant and any definitions in this Indenture that
are used in such certificate or opinion;

 

(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 each such individual, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or
covenant has been complied with; and

 

 



 

8






 





 

(4) a statement as to
whether, in the opinion of such individual, such condition or
covenant has been complied with.

 

Section
1.3. FORM OF DOCUMENTS
DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.

 

Any certificate or
opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel
knows that the certificate or opinion or representations as to such
matters are erroneous.

 

Any certificate or
opinion of an officer of the Company or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or
counsel, as the case may be, knows that the certificate or opinions
or representations as to such accounting matters are
erroneous.

 

Where any Person is
required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.

 

Section
1.4. ACTS OF
HOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by
agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.

 

 



 

9






 





 

(a) The fact and date
of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer authorized by law
to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems
sufficient.

 

(b) The ownership of
Registered Securities shall be proved by the Register (as defined
in Section 3.5 below).

 

(c) Any request,
demand, authorization, direction, notice, consent, waiver or other
Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.

 

(d) If the Company
shall solicit from the Holders of any series any request, demand,
authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, fix in advance a record date for the
determination of Holders of such series entitled to give such
request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before
or after such record date, but only the Holders of such series of
record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities of such series
have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Outstanding Securities of such series shall be
computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless taken on or prior to the
applicable Expiration Date (as defined below) by Holders of the
requisite amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite
amount of Outstanding Securities of any series on the date such
action is taken. Promptly after any record date is set pursuant to
this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing
and to each Holder of Securities in the manner set forth in Section
1.6.

 

With respect to any
record date set pursuant to this Section 1.4, the Company may
designate any date as the “Expiration Date” and from
time to time may change the Expiration Date to any earlier or later
day; provided that no such change shall be effective unless notice
of the proposed new Expiration Date is given to the Trustee, and to
each Holder of Securities of the applicable series in the manner
set forth in Section 1.6 on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any
record date pursuant to this Section, the Company shall be deemed
to have initially designated the 180th day after such record date
as the Expiration Date with respect thereto, subject to its right
to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later
than the 180th day after the applicable record date.

 



 

10






 





 

(e) Without limiting
the foregoing, a Holder entitled hereunder to take any action
hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security
or by one or more duly appointed agents, each of which may do so
pursuant to such appointment with regard to all or any part of such
principal amount.

 

(f) The Company and the
Trustee may make reasonable rules for action by or at a meeting of
Holders.

 

Section
1.5. NOTICES, ETC., TO
TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with:

 

if to the
Company:

 

ENDRA Life Sciences
Inc.

3600 Green Court,
Suite 350,

 

Ann Arbor, MI
48105-1570

Attention: Chief
Executive Officer

 

if to the
Trustee:

 

[●]

 

Notices to the
Trustee are deemed given only upon actual receipt by the
Trustee.

 

The Company or the
Trustee by notice to the other may designate additional or
different addresses (including facsimile numbers and electronic
addresses) for subsequent notices or communications.

 

Any notice or
communication shall be in writing and delivered in person or mailed
by first-class mail (registered or certified, return receipt
requested), facsimile transmission, electronic transmission or
other similar means of unsecured electronic communication or
overnight air courier guaranteeing next day delivery.

 

Section
1.6. NOTICE TO HOLDERS;
WAIVER. Where this
Indenture provides for notice to Holders of any event, if any of
the Securities affected by such event are Registered Securities,
such notice to the Holders thereof shall be sufficiently given
(unless otherwise herein or in the terms of such Securities
expressly provided) if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at his address
as it appears in the Register, within the time prescribed for the
giving of such notice; provided that notices given to Holders of
Securities in global form may be given electronically through the
facilities of the Depository.

 

In any case where
notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities as provided
herein. In any case where notice is given to Holders by
publication, neither the failure to publish such notice, nor any
defect in any notice so published, shall affect the sufficiency of
such notice with respect to the sufficiency of any notice to
Holders of Registered Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether
or not such Holder actually receives such notice.

 



 

11






 





 

If by reason of the
suspension of regular mail service or by reason of any other cause
it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the
Trustee (such approval not to be unreasonably withheld) shall
constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the Trustee,
impracticable to give any notice by publication in the manner
herein required, then such publication in lieu thereof as shall be
made with the approval of the Trustee shall constitute a sufficient
publication of such notice.

 

Any request,
demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official
language of the country of publication.

 

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

 

Section
1.7. HEADINGS AND TABLE
OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction
hereof.

 

Section
1.8. SUCCESSOR AND
ASSIGNS. All covenants and
agreements in this Indenture by the Company shall bind its
successor and assigns, whether so expressed or not.

 

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

 

Section
1.9. SEPARABILITY.
In case any provision of this Indenture or any 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.

 

Section
1.10. BENEFITS OF
INDENTURE. Nothing in this
Indenture or in any Securities, expressed or implied, shall give to
any Person, other than the parties hereto and their successors
hereunder, any Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.

 

Section
1.11. GOVERNING
LAW. UNLESS OTHERWISE
PROVIDED WITH RESPECT TO ANY SECURITIES OF ANY SERIES PURSUANT TO
SECTION 3.1, THIS INDENTURE AND THE SECURITIES APPERTAINING THERETO
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. This Indenture is subject to the Trust
Indenture Act and if any provision hereof limits, qualifies or
conflicts with a provision included in this Indenture which is
required by the Trust Indenture Act, the latter provision shall
control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that 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,
whether or not such provision of this Indenture refers expressly to
such provision of the Trust Indenture Act.

 



 

12






 





 

Section
1.12. WAIVER OF JURY
TRIAL. EACH OF THE
COMPANY, THE TRUSTEE AND EACH HOLDER (BY ITS ACCEPTANCE OF ANY
SECURITY) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE,
THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY. EACH OF THE
COMPANY, THE TRUSTEE AND EACH HOLDER (BY ITS ACCEPTANCE OF ANY
SECURITY) HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
STATE OR U.S. FEDERAL COURT IN THE CITY OF NEW YORK AND COUNTY OF
NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THE INDENTURE AND THE SECURITIES, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.

 

Section
1.13. LEGAL
HOLIDAYS. Unless otherwise
provided with respect to any Security or Securities pursuant to
Section 3.1, in any case where any Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or
Maturity or other payment date of any Security shall not be a
Business Day at any Place of Payment, then, notwithstanding any
other provision of this Indenture or any Security, payment of
principal, premium, if any or interest or other payments need not
be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on such date; provided that no
interest shall accrue on the amount so payable for the period from
and after such Interest Payment Date, Redemption Date, sinking fund
payment date, Stated Maturity or Maturity or other payment date, as
the case may be.

 

Section
1.14. NO RECOURSE AGAINST
OTHERS. No past, present
or future director, officer, employee, agent, member, manager,
trustee or stockholder, as such, of the Company or any successor
Person shall have any liability for any obligations of the Company
or any successor Person, either directly or through the Company or
any successor Person, under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations
or their creation, whether by virtue of any rule of law, statute or
constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise. By accepting a
Security, each Holder agrees to the provisions of this Section 1.14
and waives and releases all such liability. Such waiver and release
shall be part of the consideration for the issue of the
Securities.

 

ARTICLE
II

SECURITY
FORMS

 

Section
2.1. FORMS
GENERALLY. The Securities of
each series shall be in substantially such form as shall be
established in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as the Company may
deem appropriate or as may be required to comply with any
applicable law, rule or regulation or with the rules or usage of
any securities exchange or Depository therefor or as may,
consistently herewith, be determined by the officers executing such
Securities as evidenced by their execution of the Securities. If
temporary Securities of any series are issued as permitted by
Section 3.4, the form thereof also shall be established as provided
in the preceding sentence.

 



 

13






 





 

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

 

Section
2.2. FORM OF
TRUSTEE’S CERTIFICATE OF AUTHENTICATION. Subject to
Section 6.13 (as applicable to any Authenticating Agent), the
Trustee’s certificate of authentication shall be in
substantially the following form:

 

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

 

 
_______________________________________________, as Trustee

Dated:

 

 




By:__________________________________________   







 

 

AUTHORIZED
SIGNATORY

 

Section
2.3. SECURITIES IN
GLOBAL FORM. If Securities of
or within a series are issuable in whole or in part in global form,
any such Security may provide that it shall represent the aggregate
or specified amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be
reduced or increased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby, shall be made in such
manner and by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to
Section 3.3 or 3.4. Subject to the provisions of Section 3.3 and,
if applicable, Section 3.4, the Trustee shall deliver and redeliver
any security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in
the applicable Company Order. Any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section
1.2 hereof and need not be accompanied by an Opinion of
Counsel.

 

The provisions of
the last paragraph of Section 3.3 shall apply to any Security in
global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee such Security in
global form together with written instructions (which need not
comply with Section 1.2 and need not be accompanied by an Opinion
of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 3.3.

 

Notwithstanding the
provisions of Section 2.1 and 3.7, unless otherwise specified as
contemplated by Section 3.1, payment of principal of, premium, if
any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.

 



 

14






 





 

Section
2.4. FORM OF LEGEND FOR
SECURITIES IN GLOBAL FORM. Unless otherwise
provided with respect to any Securities of any series pursuant to
Section 3.1 or required by the Depository, any Security of such
series in global form authenticated and delivered hereunder shall
bear a legend in substantially the following form:

 

This Security is in
global form within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depository or a
nominee of a Depository. Unless and until it is exchanged in whole
or in part for Securities in certificated form, this Security may
not be transferred except as a whole by the Depository to a nominee
of the Depository or 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 successor Depository. Every Security authenticated
and delivered upon registration of, or in exchange for, or in lieu
of, this Security will be in global form, subject to the
foregoing.

 

ARTICLE
III

THE
SECURITIES

 

Section
3.1. AMOUNT UNLIMITED;
ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated,
delivered and outstanding under this Indenture is unlimited. The
Securities may be issued from time to time in one or more
series.

 

(a) The following
matters shall be established, without the approval of any Holders,
with respect to each series of Securities issued hereunder in one
or more indentures supplemental hereto:

 

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

 

(2) any limit upon the
aggregate principal amount of the Securities of the series which
may be authenticated, delivered and outstanding under this
Indenture (which limit shall not pertain to 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 3.4, 3.5, 3.6, 8.6, or 10.7 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have
been authenticated and delivered hereunder);

 

(3) the date or dates
on which the principal of and premium, if any, on the Securities of
the series is payable or the method of determination and/or
extension of such date or dates; and the amount or amounts of such
principal and premium, if any, payments or the method of
determination thereof;

 

(4) the rate or rates
(which may be fixed or variable) at which the Securities of the
series shall bear interest, if any, or the method of calculating
and/or resetting such rate or rates of interest, the date or dates
from which such interest shall accrue or the method by which such
date or dates shall be determined, the Interest Payment Dates on
which any such interest shall be payable or the method by which
such dates will be determined, the terms of any deferral of
interest and the additional interest, if any, thereon and, with
respect to Registered Securities, the Regular Record Date, if any,
for the interest payable on any Registered Security on any Interest
Payment Date, the right, if any, of the Company to extend the
Interest Payment Dates and the Regular Record Date, if any, and the
duration of the extensions and the basis upon which interest shall
be calculated if other than upon a 360-day year of twelve 30-day
months;

 

 



 

15






 





 

(5) the place or places
where the principal of, premium, if any, and interest, if any, on
Securities of the series shall be payable;

 

(6) the period or
periods within which, the price or prices at which, the currency or
currencies (including currency units) in which, and the other terms
and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company or
otherwise, and, if other than as provided in Section 10.3, the
manner in which the particular Securities of such series (if less
than all Securities of such series are to be redeemed) are to be
selected for redemption;

 

(7) the obligation, if
any, of the Company to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous provisions or upon the
happening of a specified event or at the option of a Holder thereof
and the period or periods within which, the price or prices at
which, and the other terms and conditions upon which, Securities of
the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation and provisions for the remarketing of
such series;

 

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

 

(9) if other than
Dollars, the currency or currencies (including currency unit or
units) in which the principal of, premium, if any, and interest, if
any, or other payments, if any, on the Securities of the series
shall be payable, or in which the Securities of the series shall be
denominated, and the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of
Section 3.11;

 

(10) the terms, if any,
upon which Securities of the series may be convertible into or
exchanged for other Securities, Common Stock, Preferred Stock,
other debt securities, warrants to purchase any of the foregoing,
or other securities of any kind of the Company or any other obligor
and the terms and conditions upon which the conversion or exchange
shall be effected, including the initial conversion or exchange
price or rate, the conversion or exchange period, and any other
additional provisions;

 

(11) if the payments of
principal of, premium, if any, or interest, if any, or other
payments, if any, on the Securities of the series are to be made,
at the election of the Company or a Holder, in a currency or
currencies (including currency unit or units) other than that in
which such Securities are denominated or designated to be payable,
the currency or currencies (including currency unit or units) in
which such payments are to be made, the terms and conditions of
such payments and the manner in which the exchange rate with
respect to such payments shall be determined, and the particular
provisions applicable thereto in accordance with, in addition to,
or in lieu of the provisions of Section 3.11;

 

(12) if the amount of
payments of principal of, premium, if any, and interest, if any, or
other payments, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation,
on the price of one or more commodities, derivatives or securities;
one or more securities, derivatives or commodities exchange indices
or other indices; a currency or currencies (including currency unit
or units) other than that in which the Securities of the series are
denominated or designated to be payable; or any other variable or
the relationship between any variables or combination of
variables), the index, formula or other method by which such
amounts shall be determined;

 



 

16






 





 

(13) if other than the
principal amount thereof, the portion of the principal amount of
such Securities of the series or other amount which shall be
payable upon declaration of acceleration thereof pursuant to
Section 5.2 or provable in bankruptcy or the method by which such
portion or amount shall be determined;

 

(14) if other than as
provided in Section 3.7, the Person to whom any interest on any
Registered Security of the series shall be payable;

 

(15) if the principal
amount payable at the Maturity of any Securities of the series will
not be determinable as of one or more dates prior to Maturity, the
amount which shall be deemed to be the principal amount of such
Securities as of any such date hereunder or thereunder, or, if
other than as provided in the definition of the term
“Outstanding”, which shall be deemed to be Outstanding
as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount
shall be determined) and, if necessary, the manner of determining
the equivalent thereof in U.S. currency;

 

(16) provisions, if any,
granting special rights to the Holders of Securities of the series
upon the occurrence of such events as may be
specified;

 

(17) the applicability
of or any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the
Company set forth in Article IX pertaining to the Securities of the
series;

 

(18) under what
circumstances, if any, the Company will pay additional amounts on
the Securities of that series held by a Person who is not a U.S.
Person in respect of taxes or similar charges withheld or deducted
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts (and the terms
of any such option);

 

(19) the date as of
which any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;

 

(20) the forms of the
Securities of the series;

 

(21) any changes or
additions to the provisions provided in Article IV of this
Indenture pertaining to defeasance, including without limitation,
the exclusion of Section 4.4 or 4.5, or both, with respect to the
Securities of or within the series; or the applicability, if any,
to the Securities of or within the series of such means of
defeasance or covenant defeasance other than those provided in
Sections 4.4 and 4.5 as may be specified for the Securities of such
series, and whether, for the purpose of any defeasance or covenant
defeasance pursuant to Section 4.4 or 4.5 or otherwise, the term
“Government Obligations” shall include obligations
referred to in the definition of such term which are not
obligations of the United States or an agency or instrumentality of
the United States;

 

(22) if other than the
Trustee, the identity of the Registrar and any Paying
Agent;

 



 

17






 





 

(23) any terms which may
be related to warrants, options or other rights to purchase and
sell securities issued by the Company in connection with, or for
the purchase of, Securities of such series, including whether and
under what circumstances the Securities of any series may be used
toward the exercise price of any such warrants, options or other
rights;

 

(24) the designation of
the initial Exchange Rate Agent, if any;

 

(25) whether any of the
Securities of the series shall be issued in whole or in part in
global form, and if so (i) the Depository for such global
Securities, (ii) the form of any legend in addition to or in lieu
of that in Section 2.4 which shall be borne by such global
Securities, (iii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests
for certificated Securities of such series and of like tenor of any
authorized form and denomination, and (iv) if other than as
provided in Section 3.5, the circumstances under which any such
exchange may occur;

 

(26) the priority,
ranking or subordination, if any, of the Securities of the
series;

 

(27) if the Securities
of the series will be governed by, and the extent to which such
Securities will be governed by, any law other than the laws of the
state of New York;

 

(28) the terms, if any,
of any guarantee of the payment of principal, premium and interest
with respect to Securities of the series and any corresponding
changes to the provisions of this Indenture as then in
effect;

 

(29) the terms, if any,
of the transfer, mortgage, pledge or assignment as security for the
Securities of the series of any properties, assets, moneys,
proceeds, securities or other collateral, including whether certain
provisions in the Trust Indenture Act are applicable and any
corresponding changes to provisions of this Indenture as then in
effect; and

 

(30) any other terms of
the series, including any terms which may be required by or
advisable under United States laws or regulations or advisable (as
determined by the Company) in connection with the marketing of
Securities of the series.

 

(b) The terms
applicable to the Securities of any one series need not be
identical but may vary as may be provided in an indenture
supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series
may be reopened, without the consent of the Holders, for issuances
of additional Securities of such series.

 

(c) Except as may be
otherwise expressly provided in the applicable supplemental
indenture, as contemplated by this Section 3.1, the Securities of
any series shall rank PARI PASSU with the Securities of each other
Series.

 

Section
3.2. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 3.1, any
Securities of a series shall be issuable in denominations of $1,000
and any integral multiple thereof.

 



 

18






 





 

Section
3.3. EXECUTION,
AUTHENTICATION, DELIVERY AND DATING. Securities shall
be executed on behalf of the Company by the Chief Executive
Officer, the Chief Financial Officer, the President, or any Vice
President, the Treasurer or the Corporate Secretary of the Company.
The seal of the Company, if any, may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. The signatures of any of these
officers on the Securities may be manual or facsimile.

 

Securities bearing
the manual or facsimile signatures of individuals who were at any
time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities.

 

At any time and
from time to time, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities.

 

In authenticating
such Securities and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to section 315(a) through (d) of
the Trust Indenture Act) shall be fully protected in relying upon,
an Opinion of Counsel substantially to the effect
that,

 

(1) the form of such
Securities have been established in conformity with the provisions
of this Indenture;

 

(2) the terms of such
Securities have been, or in the case of Securities of a series
offered in a Periodic Offering will be, established in conformity
with the provisions of this Indenture, subject in the case of
Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and

 

(3) such Securities,
when authenticated and delivered by the Trustee, issued by the
Company in accordance with the provisions of this Indenture, and
delivered to and duly paid for by the purchasers thereof, and
subject to any conditions specified in such Opinion of Counsel,
will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability relating
to or affecting the enforcement of creditors’ rights and to
general equity principles and except further as enforcement thereof
may be limited by or subject to certain exceptions and
qualifications specified in such Opinion of Counsel, including in
the case of any Securities denominated in a Foreign Currency, (A)
requirements that a claim with respect to any Securities
denominated other than in Dollars (or a foreign currency or foreign
currency unit judgment in respect of such claim) be converted into
Dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments in foreign currency or
currency units or payments outside the United States.

 



 

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Such Opinion of
Counsel need express no opinion as to the enforceability of Section
6.8 or as to whether a court in the United States would render a
money judgment in a currency other than that of the United States.
Such counsel may rely on opinions of other counsel (copies of which
shall be delivered to the Trustee), and, to the extent such opinion
involves factual matters, such counsel may rely upon certificates
of officers of the Company and certificates of public
officials.

 

The Trustee shall
have the right to decline to execute any supplemental indenture
establishing the terms of or the form of such Securities if, in the
written opinion of counsel to the Trustee (which counsel may be an
employee of the Trustee), such action may not lawfully be taken, or
if the Trustee, in good faith by a Responsible Officer of the
Trustee, shall determine, in its sole discretion, that such action
would adversely affect it.

 

Notwithstanding the
provisions of Section 3.1 and of the two preceding paragraphs, if
all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officer’s
Certificate otherwise required pursuant to Section 3.1 or the
Company Order and Opinion of Counsel otherwise required pursuant to
the two preceding paragraphs in connection with the authentication
of each Security of such series if such documents, with appropriate
modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first
Security of such series to be issued.

 

With respect to
Securities of a series offered in a Periodic Offering, the Trustee
may rely, as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Sections 2.1
and 3.1 and this Section, as applicable, in connection with the
first authentication of Securities of such series.

 

If the Company
shall establish pursuant to Section 3.1 that the Securities of a
series are to be issued in whole or in part in global form, then,
unless otherwise provided with respect to such Securities pursuant
to Section 3.1, the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to
such series, authenticate and deliver one or more Securities in
global form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a
Registered Security, in the name of the Depository for such
Security or Securities in global form or the nominee of such
Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository’s instruction and
(iv) shall bear the legend set forth in Section 2.4.

 

Unless otherwise
established pursuant to Section 3.1, each Depository designated
pursuant to Section 3.1 for a Registered Security in global form
must, at the time of its designation and at all times while it
serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other
applicable statute or regulation. Neither the Company nor the
Trustee shall have any responsibility to determine if the
Depository is so registered.

 



 

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Each Depository
shall enter into an agreement with the Company and the Trustee, as
agent, governing the respective duties and rights of such
Depository, the Company and the Trustee, as agent, with regard to
Securities of a series issued in global form.

 

Each Registered
Security shall be dated the date of its authentication as
contemplated by Section 3.1.

 

No Security shall
be entitled to any benefits under this Indenture or be valid or
obligatory for any purpose until authenticated by the manual
signature of one of the authorized signatories of the Trustee or an
Authenticating Agent. Such signature upon any Security shall be
conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture.

 

Notwithstanding the
foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and
the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a written
statement (which need not comply with Section 1.2 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to
the benefits of this Indenture.

 

Section
3.4. TEMPORARY
SECURITIES. Pending the
preparation of definitive Securities of any series, the Company may
execute and, upon Company Order, the Trustee shall authenticate and
deliver temporary Securities of such series which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor and form,
of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, all or a
portion of such temporary Securities may be in global
form.

 

Except in the case
of temporary Securities in global form, each of which shall be
exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without
unreasonable delay. After preparation of definitive Securities of
such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office
or agency of the Company pursuant to Section 9.2 in a Place of
Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities
of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized
denominations and of like tenor. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such
series except as otherwise specified as contemplated by Section
3.1.

 

 



 

21






 





 

Section
3.5. REGISTRATION,
TRANSFER AND EXCHANGE. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee or in
any office or agency to be maintained by the Company in accordance
with Section 9.2 in a Place of Payment or in such other place or
medium as may be specified pursuant to Section 3.1 a register for
each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of
Payment being herein sometimes referred to collectively as the
“Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of
transfers of Registered Securities. The Register shall be in
written form or any other form capable of being converted into
written form within a reasonable time. Unless otherwise provided as
contemplated by Section 3.1, the Trustee is hereby appointed
“Registrar” for the purpose of registering Registered
Securities and transfers of Registered Securities, and for the
purpose of maintaining the Register in respect thereof, as herein
provided.

 

Upon surrender for
registration of transfer of any Registered Security of any series
at the office or agency maintained pursuant to Section 9.2 in a
Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and
of a like aggregate principal amount.

 

Unless otherwise
provided as contemplated by Section 3.1, at the option of the
Holder, Registered Securities of any series (except a Registered
Security in global form) may be exchanged for other Registered
Securities of the same series, of any authorized denominations and
of a like aggregate principal amount containing identical terms and
provisions, upon surrender of the Registered Securities to be
exchanged at such office or agency. Whenever any Registered
Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is
entitled to receive.

 

Unless otherwise
specified pursuant to Section 3.1 with respect to a series of
Securities or as otherwise provided below in this Section 3.5,
owners of beneficial interests in Securities of such series
represented by a Security issued in global form will not be
entitled to have Securities of such series registered in their
names, will not receive or be entitled to receive physical delivery
of Securities of such series in certificated form and will not be
considered the Holders or owners thereof for any purposes
hereunder. Notwithstanding any other provision of this Section,
unless and until it is exchanged in whole or in part for Securities
in certificated form in the circumstances described below, a
Security in global form representing all or a portion of the
Securities of a series may not be transferred or exchanged except
as a whole by the Depository for such series to a nominee of such
Depository or by a nominee of such Depository to such Depository or
another nominee of such Depository or by such Depository or any
such nominee to a successor Depository for such series or a nominee
of such successor Depository.

 



 

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If at any time the
Depository for the Securities of a series notifies the Company that
it is unwilling or unable to continue as Depository for the
Securities of such series or if at any time the Depository for the
Securities of such series notifies the Company that it shall no
longer be eligible under Section 3.3, the Company shall appoint a
successor Depository with respect to the Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, if a
successor Depository for the Securities of such series is not
appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the
Company’s election pursuant to Section 3.1(b) (25) shall no
longer be effective with respect to the Securities of such series
and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated
Securities of such series of like tenor, shall authenticate and
deliver, Securities of such series of like tenor in certificated
form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities
of such series of like tenor in global form in exchange for such
Security or Securities in global form.

 

The Company may at
any time in its sole discretion determine that Securities of a
series issued in global form shall no longer be represented by such
a Security or Securities in global form. In such event the Company
shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities of such
series of like tenor, shall authenticate and deliver, Securities of
such series of like tenor in certificated form, in authorized
denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of
like tenor in global form in exchange for such Security or
Securities in global form.

 

If specified by the
Company pursuant to Section 3.1 with respect to a series of
Securities, the Depository for such series may surrender a Security
in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are
acceptable to the Company and such Depository. Thereupon, the
Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,

 

(i) to each Person
specified by such Depository a new certificated Security or
Securities of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person’s beneficial
interest in the Security in global form; and

 

(ii) to such Depository
a new Security in global form of like tenor in a denomination equal
to the difference, if any, between the principal amount of the
surrendered Security in global form and the aggregate principal
amount of certificated Securities delivered to Holders
thereof.

 

(iii) Upon the exchange
of a Security in global form for Securities in certificated form,
such Security in global form shall be cancelled by the Trustee.
Securities in certificated form issued in exchange for a Security
in global form pursuant to this Section shall be registered in such
names and in such authorized denominations as the Depository for
such Security in global form, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.

 



 

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Whenever any
Securities are surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to
receive.

 

All Securities
issued upon any registration of transfer or upon any 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 Registered
Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by the Holder thereof or
his attorney duly authorized in writing.

 

Unless otherwise
provided as contemplated by Section 3.1, no service charge shall be
made for any registration of transfer or for any exchange of
Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4 or 10.7
not involving any transfer.

 

Unless otherwise
provided as contemplated by Section 3.1, none of the Company, the
Registrar or the Trustee shall be required (i) to issue, register
the transfer of, or exchange any Securities for a period beginning
at the opening of 15 Business Days before any selection for
redemption of Securities of like tenor and of the series of which
such Security is a part and ending at the close of business on the
earliest date on which the relevant notice of redemption is deemed
to have been given to all Holders of Securities of like tenor and
of such series to be redeemed; or (ii) to register the transfer of
or exchange any Registered Security so selected for redemption, in
whole or in part, except the unredeemed portion of any Security
being redeemed in part.

 

Section
3.6. REPLACEMENT
SECURITIES. If a mutilated
Security is surrendered to the Trustee, together with, in proper
cases, such security or indemnity as may be required by the Company
or the Trustee to save each of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a
Registered Security of the same series and date of
maturity.

 

If there shall be
delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver in lieu of
any such destroyed, lost or stolen Security a replacement
Registered Security, if such Holder’s claim appertains to a
Registered Security, of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.

 



 

24






 





 

In case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.

 

Upon the issuance
of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, its
agents and counsel) connected therewith.

 

Every new Security
of any series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original
additional contractual 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.

 

The provisions of
this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities.

 

Section
3.7. PAYMENT OF
INTEREST; INTEREST RIGHTS PRESERVED

 

(a) Unless otherwise
provided as contemplated by Section 3.1, interest, if any, on any
Registered 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 (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency maintained
for such purpose pursuant to 9.2; provided, however, that at the
option of the Company, interest on any series of Registered
Securities that bear interest may be paid (i) by check mailed to
the address of the Person entitled thereto as it shall appear on
the Register of Holders of Securities of such series or (ii) by
wire transfer to an account maintained by the Person entitled
thereto as specified in the Register of Holders of Securities of
such series.

 

(b) Unless otherwise
provided as contemplated by Section 3.1, any interest on any
Registered Security of any series which is payable, but is not
punctually paid or duly provided for, on any interest payment date
(herein called “Defaulted Interest”) shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below:

 

 



 

25






 





 

(1) The Company may
elect to make payment of any Defaulted Interest to the Persons in
whose names such Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder
of such Registered Securities of such series at his address as it
appears in the Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid to the Persons in
whose names such Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).

 

(2) The Company may
make payment of any Defaulted Interest to the Persons in whose
names such Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Registered Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to
this clause (2), such manner of payment shall be deemed practicable
by the Trustee.

 

(c) Subject to the
foregoing provisions of this Section and Section 3.5, each Security
delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.

 

Section
3.8. PERSONS DEEMED
OWNERS. Prior to due
presentment of any Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium, if any,
and (subject to Section 3.7) interest and any other payments on
such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security shall be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the
contrary.

 

 



 

26






 





 

None of the
Company, the Trustee or any agent of the Company or the Trustee
shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial
ownership interests of a Security in global form, or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. Notwithstanding the foregoing, with
respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depository (or its
nominee), as a Holder, with respect to such Security in global form
or impair, as between such Depository and owners of beneficial
interests in such Security in global form, the operation of
customary practices governing the exercise of the rights of such
Depository (or its nominee) as Holder of such Security in global
form.

 

Section
3.9. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and any Paying Agent shall forward to
the Trustee any Securities surrendered to them for replacement, for
registration of transfer, or for exchange or payment. The Trustee
shall cancel all Securities surrendered for replacement, for
registration of transfer, or for exchange, payment, redemption or
cancellation and may destroy cancelled Securities and, if so
destroyed, shall issue a certificate of destruction to the Company.
The Company may not issue new Securities to replace Securities that
it has paid or delivered to the Trustee for
cancellation.

 

Section
3.10. COMPUTATION OF
INTEREST. Except as
otherwise specified as contemplated by Section 3.1, interest on the
Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.

 

Section
3.11. CURRENCY AND MANNER
OF PAYMENT IN RESPECT OF SECURITIES. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1,
with respect to Registered Securities of any series payment of the
principal of, premium, if any, interest, if any, and other amounts,
if any, on any Registered Security of such series will be made in
the currency or currencies or currency unit or units in which such
Registered Security is payable. The provisions of this Section
3.11, including without limitation any defined terms specified
herein, may be modified or superseded in whole or in part pursuant
to Section 3.1 with respect to any Securities.

 

(a) If expressly
specified pursuant to Section 3.1, with respect to Registered
Securities of any series, Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of,
premium, if any, or interest, if any, on such Registered Securities
in any of the currencies or currency units which may be designated
for such election by delivering to the Trustee (or the applicable
Paying Agent) a written election with signature guarantees and in
the applicable form established pursuant to Section 3.1, not later
than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such
election will remain in effect for such Holder or any transferee of
such Holder until changed by such Holder or such transferee by
written notice to the Trustee (or any applicable Paying Agent) for
such series of Registered Securities (but any such change must be
made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the
payment to be made on such payment date, and no such change of
election may be made with respect to payments to be made on any
Registered Security of such series with respect to which an Event
of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article IV or with respect to which a
notice of redemption has been given by or on behalf of the
Company). Any Holder of any such Registered Security who shall not
have delivered any such election to the Trustee (or any applicable
Paying Agent) not later than the close of business on the
applicable Election Date will be paid the amount due on the
applicable payment date in the relevant currency or currency unit
as provided in Section 3.11(a). The Trustee (or the applicable
Paying Agent) shall notify the Company and the Exchange Rate Agent
as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have
made such written election.

 

 



 

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(b) If the election
referred to in paragraph (b) above has been provided for with
respect to any Registered Securities of a series pursuant to
Section 3.1, then, unless otherwise specified pursuant to Section
3.1 with respect to any such Registered Securities, not later than
the fourth Business Day after the Election Date for each payment
date for such Registered Securities, the Exchange Rate Agent will
deliver to the Company a written notice specifying, in the currency
or currencies or currency unit or units in which Registered
Securities of such series are payable, the respective aggregate
amounts of principal of, premium, if any, and interest, if any, on
such Registered Securities to be paid on such payment date, and
specifying the amounts in such currency or currencies or currency
unit or units so payable in respect of such Registered Securities
as to which the Holders of such Registered Securities denominated
in any currency or currencies or currency unit or units shall have
elected to be paid in another currency or currency unit as provided
in paragraph (b) above. If the election referred to in paragraph
(b) above has been provided for with respect to any Registered
Securities of a series pursuant to Section 3.1, and if at least one
Holder has made such election, then, unless otherwise specified
pursuant to Section 3.1, on the second Business Day preceding such
payment date the Company will deliver to the Trustee (or the
applicable Paying Agent) an Exchange Rate Officer’s
Certificate in respect of the Dollar, Foreign Currency or
Currencies or other currency unit payments to be made on such
payment date. Unless otherwise specified pursuant to Section 3.1,
the Dollar, Foreign Currency or Currencies or other currency unit
amount receivable by Holders of Registered Securities who have
elected payment in a currency or currency unit as provided in
paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the second
Business Day (the “Valuation Date”) immediately
preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest
error.

 

(c) If a Conversion
Event occurs with respect to a Foreign Currency or any other
currency unit in which Securities of any series are denominated or
payable otherwise than pursuant to an election provided for
pursuant to paragraph (b) above, then, unless otherwise specified
pursuant to Section 3.1, with respect to each date for the payment
of principal of, premium, if any, and interest, if any, on the
applicable Securities denominated or payable in such Foreign
Currency or such other currency unit occurring after the last date
on which such Foreign Currency or such other currency unit was used
(the “Conversion Date”), the Dollar shall be the
currency of payment for use on each such payment date (but such
Foreign Currency or such other currency unit that was previously
the currency of payment shall, at the Company’s election,
resume being the currency of payment on the first such payment date
preceded by 15 Business Days during which the circumstances which
gave rise to the Dollar becoming such currency of payment no longer
prevail). Unless otherwise specified pursuant to Section 3.1, the
Dollar amount to be paid by the Company to the Trustee or any
applicable Paying Agent and by the Trustee or any applicable Paying
Agent to the Holders of such Securities with respect to such
payment date shall be, in the case of a Foreign Currency other than
a currency unit, the Dollar Equivalent of the Foreign Currency or,
in the case of a Foreign Currency that is a currency unit, the
Dollar Equivalent of the Currency Unit, in each case as determined
by the Exchange Rate Agent in the manner provided in paragraph (f)
or (g) below.

 

 



 

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(d) Unless otherwise
specified pursuant to Section 3.1, if the Holder of a Registered
Security of a series denominated in any currency or currency unit
shall have elected to be paid in another currency or currency unit
or in other currencies as provided in paragraph (b) above, and (i)
a Conversion Event occurs with respect to any such elected currency
or currency unit, such Holder shall receive payment in the currency
or currency unit in which payment would have been made in the
absence of such election and (ii) if a Conversion Event occurs with
respect to the currency or currency unit in which payment would
have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this
Section 3.11 (but, subject to any contravening valid election
pursuant to paragraph (b) above, the elected payment currency or
currency unit, in the case of the circumstances described in clause
(i) above, or the payment currency or currency unit in the absence
of such election, in the case of the circumstances described in
clause (ii) above, shall, at the Company’s election, resume
being the currency or currency unit of payment with respect to
Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the
circumstances which gave rise to such currency or currency unit, in
the case of the circumstances described in clause (i) above, or the
Dollar, in the case of the circumstances described in clause (ii)
above, becoming the currency or currency unit, as applicable, of
payment, no longer prevail).

 

(e) The “Dollar
Equivalent of the Foreign Currency” shall be determined by
the Exchange Rate Agent and shall be obtained for each subsequent
payment date by the Exchange Rate Agent by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the
Conversion Date.

 

(f) The “Dollar
Equivalent of the Currency Unit” shall be determined by the
Exchange Rate Agent and, subject to the provisions of paragraph (h)
below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency (as each such term is
defined in paragraph (h) below) into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect
to each payment.

 

(g) For purposes of
this Section 3.11, the following terms shall have the following
meanings:

 

A “Component
Currency” shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency
unit.

 

“Conversion
Event” shall mean the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such
currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking
community, or (ii) any currency unit for the purposes for which it
was established.

 

“Election
Date” shall mean the Regular Record Date for the applicable
series of Registered Securities as specified pursuant to Section
3.1 by which the written election referred to in Section 3.11(b)
may be made.

 

“Exchange
Rate Agent”, when used with respect to Securities of or
within any series, shall mean, unless otherwise specified with
respect to such series of Securities pursuant to Section 3.1, a New
York Clearing House bank designated pursuant to Section 3.1 or
Section 3.12.

 

 



 

29






 





 

“Exchange
Rate Officer’s Certificate” shall mean a certificate
setting forth (i) the applicable Market Exchange Rate or the
applicable bid quotation and (ii) the Dollar or Foreign Currency
amounts of principal (and premium, if any) and interest, if any (on
an aggregate basis and on the basis of a Security having the lowest
denomination principal amount in the relevant currency or currency
unit), payable with respect to a Security of any series on the
basis of such Market Exchange Rate or the applicable bid quotation,
signed by the President, the Chief Executive Officer, the Chief
Financial Officer, any Vice President, the Treasurer, or any
Assistant Treasurer of the Company.

 

“Market
Exchange Rate” shall mean, unless otherwise specified with
respect to Securities of any series pursuant to Section 3.1, as of
any date of determination, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency
on the other, the exchange rate between the relevant currency unit
and Dollars or such Foreign Currency calculated by the method
specified pursuant to Section 3.1 for the Securities of the
relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency
for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (iii)
for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant
market at which, in accordance with normal banking procedures, the
Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion
is being made from major banks located in New York City, London or
any other principal market for Dollars or such purchased Foreign
Currency, in each case determined by the Exchange Rate Agent.
Unless otherwise specified with respect to Securities of any series
pursuant to Section 3.1, in the event of the unavailability of any
of the exchange rates provided for in the foregoing clauses (i),
(ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available
date, or quotations from one or more major banks in New York City,
London or other principal market for such currency or currency unit
in question (which may include any such bank acting as Trustee
under this Indenture), or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by
the Exchange Rate Agent, if there is more than one market for
dealing in any currency or currency unit by reason of foreign
exchange regulations or otherwise, the market to be used in respect
of such currency or currency unit shall be that upon which a
nonresident issuer of securities designated in such currency or
currency unit would purchase such currency or currency unit in
order to make payments in respect of such securities.

 

A “Specified
Amount” of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which such
Component Currency represented in the relevant currency unit on the
Conversion Date. If after the Conversion Date the official unit of
any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall
be divided or multiplied in the same proportion. If after the
Conversion Date two or more Component Currencies are consolidated
into a single currency, the respective Specified Amounts of such
Component Currencies shall be replaced by an amount in such single
currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount
and such single currency shall thereafter be a Component Currency.
If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by specified amounts of such
two or more currencies, the sum of which, at the Market Exchange
Rate of such two or more currencies on the date of such
replacement, shall be equal to the Specified Amount of such former
Component Currency and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency
unit, a Conversion Event (other than any event referred to above in
this definition of “Specified Amount”) occurs with
respect to any Component Currency of such currency unit and is
continuing on the applicable Valuation Date, the Specified Amount
of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars
at the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.

 

 



 

30






 





 

All decisions and
determinations of the Exchange Rate Agent regarding the Dollar
Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the
Specified Amounts as specified above with respect to Securities of
any series shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company, the Trustee (and any
applicable Paying Agent) and all Holders of Securities of such
series denominated or payable in the relevant currency, currencies
or currency units. The Exchange Rate Agent shall promptly give
written notice to the Company and the Trustee of any such decision
or determination.

 

In the event that
the Company determines in good faith that a Conversion Event has
occurred with respect to a Foreign Currency, the Company will
promptly give written notice thereof to the Trustee (or any
applicable Paying Agent) and to the Exchange Rate Agent (and the
Trustee (or such Paying Agent) will promptly thereafter give notice
in the manner provided in Section 1.6 to the affected Holders)
specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to any
currency unit in which Securities of a series are denominated or
payable, the Company will promptly give written notice thereof to
the Trustee (or any applicable Paying Agent) and to the Exchange
Rate Agent (and the Trustee (or such Paying Agent) will promptly
thereafter give notice in the manner provided in Section 1.6 to the
affected Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the
event the Company determines in good faith that any subsequent
change in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee (or any applicable Paying Agent)
and to the Exchange Rate Agent.

 

The Trustee of the
appropriate series of Securities shall be fully justified and
protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not
otherwise have any duty or obligation to determine the accuracy or
validity of such information independent of the Company or the
Exchange Rate Agent.

 

Section
3.12. APPOINTMENT AND
RESIGNATION OF EXCHANGE RATE AGENT. Unless otherwise
specified pursuant to Section 3.1, if and so long as the Securities
of any series (i) are denominated in a currency or currency unit
other than Dollars or (ii) may be payable in a currency or currency
unit other than Dollars, or so long as it is required under any
other provision of this Indenture, then the Company will maintain
with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the
Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to
Section 3.11 for the purpose of determining the applicable rate of
exchange and, if applicable, for the purpose of converting the
issued currency or currencies or currency unit or units into the
applicable payment currency or currency unit for the payment of
principal, premium, if any, and interest, if any, pursuant to
Section 3.11.

 

(a) No resignation of
the Exchange Rate Agent and no appointment of a successor Exchange
Rate Agent pursuant to this Section shall become effective until
the acceptance of appointment by the successor Exchange Rate Agent
as evidenced by a written instrument delivered to the Company and
the Trustee of the appropriate series of Securities accepting such
appointment executed by the successor Exchange Rate
Agent.

 

 



 

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(b) If the Exchange
Rate Agent shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of the Exchange Rate
Agent for any cause, with respect to the Securities of one or more
series, the Company shall promptly appoint a successor Exchange
Rate Agent or Exchange Rate Agents with respect to the Securities
of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the
Securities of one or more or all of such series and that, unless
otherwise specified pursuant to Section 3.1, at any time there
shall only be one Exchange Rate Agent with respect to the
Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated
and/or payable in the same currency or currencies or currency unit
or units).

 

Section
3.13. WIRE
TRANSFERS. Notwithstanding
any other provisions to the contrary in this Indenture, the Company
may make any payment of monies required to be deposited with the
Trustee on account of principal of, or premium, if any, or interest
on, Securities of any series (whether pursuant to optional or
mandatory redemption payments, interest payment or otherwise) by
wire transfer and immediately available funds to an account
designated by the Trustee on or before the date and time such
monies are to be paid to the Holders of the Security of such series
in accordance with the terms hereof.

 

Section
3.14. CUSIP NUMBERS AND
ISINS. The Company in
issuing Securities may use “CUSIP” numbers or
“ISINs”, and if so, the Trustee may use the CUSIP
numbers or ISINs in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may
state that no representation is made as to the correctness or
accuracy of the CUSIP number or ISIN printed in the notice or on
the Securities, that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption or exchange shall not be affected by any defect or
omission of such CUSIP numbers or ISINs. The Company will promptly
notify the Trustee of any change in CUSIP numbers or ISINs known to
an Officer of the Company.

 

ARTICLE
IV

SATISFACTION,
DISCHARGE AND DEFEASANCE

 

Section
4.1. TERMINATION OF
COMPANY’S OBLIGATIONS UNDER THE INDENTURE. (a) This
Indenture shall upon Company Request cease to be of further effect
with respect to Securities of or within any series (except as to
any surviving rights of registration of transfer or exchange of
such Securities and replacement of such Securities which may have
been lost, stolen or mutilated as herein expressly provided for)
and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities when

 

(1) either

 

(A) all such Securities
previously authenticated and delivered (other than (i) such
Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6 and (ii) such
Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 9.3) have been delivered to the Trustee for
cancellation; or

 

 



 

32






 





 

(B) all Securities of
such series not theretofore delivered to the Trustee for
cancellation

 

(i) have become due and
payable, or

 

(ii) will become due and
payable at their Stated Maturity within one year, or

 

(iii) if redeemable at
the option of the Company, are to be called for redemption within
one year under arrangements satisfactory to the Trustee for giving
of notice of redemption, and the Company, in the case of (i), (ii)
or (iii) above, has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount
in the currency or currencies or currency unit or units in which
the Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, with respect thereto, to
the date of such deposit (in the case of any such Securities which
have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;

 

(2) the Company has
paid or caused to be paid all other sums then payable hereunder by
the Company; and

 

(3) the Company has
delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied
with.

 

Notwithstanding the
satisfaction and discharge of this Indenture, the obligation of the
Company to the Trustee and any predecessor Trustee under Section
6.8 and the obligations of the Company to any Authenticating Agent
under Section 6.13 shall survive until the Securities of the
discharged series have been paid in full, and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of clause
(1) of this Section, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 9.3 shall survive in
accordance with the terms of such Sections.

 

Section
4.2. APPLICATION OF
TRUST FUNDS. Subject to the
provisions of the last paragraph of Section 9.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal, premium, if any and any interest for
whose payment such money has been deposited with or received by the
Trustee, but such money need not be segregated from other funds
except to the extent required by law.

 

Section
4.3. APPLICABILITY OF
DEFEASANCE PROVISIONS; COMPANY’S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE. Unless pursuant
to Section 3.1 provision is made to exclude with respect to the
Securities of a particular series either or both of (i) defeasance
of the Securities of or within such series under Section 4.4 or
(ii) covenant defeasance of the Securities of or within such series
under Section 4.5, then, in addition to the rights of the Company
pursuant to Section 4.1 above, the provisions of such Section or
Sections, as the case may be, together with the provisions of
Sections 4.6 through 4.9 inclusive, with such modifications thereto
as may be specified pursuant to Section 3.1 with respect to any
Securities of such series, shall be applicable to such Securities
and the Company may at its option, at any time, with respect to
such Securities elect to have Section 4.4 (if applicable) or
Section 4.5 (if applicable) be applied to such Outstanding
Securities upon compliance with the conditions set forth below in
this Article.

 

 



 

33






 





 

Section
4.4. DEFEASANCE AND
DISCHARGE. Upon the
Company’s exercise of the option specified in Section 4.3
applicable to this Section with respect to the Securities of or
within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities on
the date the conditions set forth in Section 4.6 are satisfied
(hereinafter, a “defeasance”). For this purpose, such
defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities
which Securities shall thereafter be deemed to be
“Outstanding” only for the purposes of Section 4.7 and
the other Sections of this Indenture referred to in clause (ii) of
this Section, 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 on
Company Order execute proper instruments acknowledging the same),
except the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of such
Securities to receive, solely from the trust funds described in
Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and
interest, if any, on such Securities when such payments are due;
(ii) the Company’s obligations with respect to such
Securities under Sections 3.5, 3.6, 9.2 and 9.3 and with respect to
the payment of additional amounts, if any, payable with respect to
such Securities as specified pursuant to Section 3.1(b) (18); (iii)
the rights, powers, trusts, duties, immunities and indemnities of
the Trustee hereunder and (iv) this Article IV. Subject to
compliance with this Article IV, the Company may exercise its
option under this Section notwithstanding the prior exercise of its
option under Section 4.5 with respect to such Securities. Following
a defeasance, payment of such Securities may not be accelerated
because of an Event of Default.

 

Section
4.5. COVENANT
DEFEASANCE. Upon the
Company’s exercise of the option specified in Section 4.3
applicable to this Section with respect to any Securities of or
within a series, the Company shall be released from its obligations
under Sections 7.1, 9.4 and 9.5, and, if specified pursuant to
Section 3.1, its obligations under any other covenant, with respect
to such Securities on and after the date the conditions set forth
in Section 4.6 are satisfied (hereinafter, “covenant
defeasance”), and such Securities shall thereafter be deemed
to be not “Outstanding” for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 7.1,
9.4 and 9.5, or such other specified covenant, and the operation of
Sections 5.1(3) and 5.1(6), but shall continue to be deemed
“Outstanding” for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to
such Securities, 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 Section or such other covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any
such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section
5.1(3) or 5.1(6) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.

 

Section
4.6. CONDITIONS TO
DEFEASANCE OR COVENANT DEFEASANCE. The following
shall be the conditions to application of Section 4.4 or Section
4.5 to any Securities of or within a series:

 

 



 

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(a) The Company shall
have deposited or caused to be deposited irrevocably with the
Trustee (or another trustee satisfying the requirements of Section
6.11 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Sections 4.3 through 4.9 inclusive
and the last paragraph of Section 9.3 applicable to the Trustee,
for purposes of such Sections also a “Trustee”) as
trust funds in trust for the purpose of making the payments
referred to in clauses (x) and (y) of this Section 4.6(a), with
instructions to the Trustee as to the application thereof, (A)
money in an amount (in such currency, currencies or currency unit
in which such Securities are then specified as payable at
Maturity), or (B) Government Obligations which through the payment
of interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment referred to in clause (x) or (y) of this
Section 4.6(a), money in an amount or (C) a combination thereof in
an amount, sufficient, in the determination of a nationally
recognized independent accounting or investment banking firm
expressed in a written certification thereof delivered to the
Trustee in the case of clauses (B) or (C), to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, (x)
the principal of, premium, if any, and interest, if any, on such
Securities on the Maturity of such principal or installment of
principal or interest and (y) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are
due and payable in accordance with the terms of this Indenture and
such Securities.

 

Before such a
deposit, the Company may make arrangements satisfactory to the
Trustee for the redemption of such Securities at a future date or
dates in accordance with Article X which shall be given effect in
applying the foregoing.

 

(b) The deposit
pursuant to subsection (a) above shall not result in or constitute
a Default or Event of Default under this Indenture or result in a
breach or violation of, or constitute a default under, any other
material agreement or instrument to which the Company is a party or
by which it is bound.

 

(c) In the case of an
election under Section 4.4, no Default or Event of Default under
Section 5.1(4) or 5.1(5) with respect to such Securities shall have
occurred and be continuing during the period commencing on the date
of such deposit and ending on the 91st day after such date (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).

 

(d) In the case of an
election under Section 4.4, the Company shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel to
the effect that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii)
since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amounts and
in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not
occurred.

 



 

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(e) In the case of an
election under Section 4.5, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of
such Securities 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.

 

(f) The Company shall
have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent to
the defeasance under Section 4.4 or the covenant defeasance under
Section 4.5 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a
deposit pursuant to subsection (a) above and the related exercise
of the Company’s option under Section 4.4 or Section 4.5 (as
the case may be), registration is not required under the Investment
Company Act of 1940, as amended, by the Company, with respect to
the trust funds representing such deposit or by the trustee for
such trust funds or (ii) all necessary registrations under said act
have been effected.

 

(g) Such defeasance or
covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may
be imposed on the Company in connection therewith as contemplated
by Section 3.1.

 

Section
4.7. DEPOSITED MONEY AND
GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST. Subject to the
provisions of the last paragraph of Section 9.3, all money and
Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited
with the Trustee pursuant to Section 4.6 in respect of any
Securities of any series 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 (including the Company acting as its own 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,
premium, if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by
law.

 

If specified with
respect to a Security of any series pursuant to Section 3.1, if,
after a deposit referred to in Section 4.6(a) has been made, (i)
the Holder of such Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 3.11(b) or
the terms of such Security to receive payment in a currency or
currency unit other than that in which the deposit pursuant to
Section 4.6(a) has been made in respect of such Security, or (ii) a
Conversion Event occurs as contemplated in Section 3.11(d) or
3.11(e) or by the terms of the Security in respect of which the
deposit pursuant to Section 4.6(a) has been made, the indebtedness
represented by such Security shall be deemed to have been, and will
be, fully discharged and satisfied through the payment of the
principal of, premium, if any, and interest, if any, on such
Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of
such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion
Event based on the applicable Market Exchange Rate for such
currency or currency unit in effect on the second Business Day
prior to each payment date, except, with respect to a Conversion
Event, for such currency or currency unit in effect (as nearly as
feasible) at the time of the Conversion Event.

 



 

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Section
4.8. REPAYMENT TO
COMPANY. The Trustee (and
any Paying Agent) shall promptly pay to the Company upon Company
Request any excess money or securities held by them at any
time.

 

Section
4.9. INDEMNITY FOR
GOVERNMENT OBLIGATIONS. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other
charge imposed on or assessed against Government Obligations
deposited pursuant to this Article or the principal and interest
received on such Government Obligations, other than any such tax,
fee or other charge that by law is for the account of the Holders
of the Securities subject to defeasance or covenant defeasance
pursuant to this Article.

 

ARTICLE
V

DEFAULTS
AND REMEDIES

 

Section
5.1. EVENTS OF
DEFAULT. An “Event
of Default” occurs with respect to the Securities of any
series, except to the extent such event is specifically deleted or
modified by the applicable Board Resolutions or supplemental
indenture as contemplated by Section 3.1 for the Securities of such
series, if (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):

 

(1) the Company
defaults in the payment of interest on any Security of that series
or any additional amount payable with respect to any Security of
that series as specified pursuant to Section 3.1(b)(17) when the
same becomes due and payable and such default continues for a
period of 30 days;

 

(2) the Company
defaults in the payment of the principal of or any premium on any
Security of that series when the same becomes due and payable at
its Maturity or on redemption or otherwise, or in the payment of a
mandatory sinking fund payment when and as due by the terms of the
Securities of that series;

 

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

 

(4) the Company,
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, or (D) makes a general assignment for the benefit of
its creditors;

 



 

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

 

(6) any other Event of
Default provided as contemplated by Section 3.1 with respect to
Securities of that series.

 

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.

 

Section
5.2. ACCELERATION;
RESCISSION AND ANNULMENT. If an Event of
Default with respect to the Securities of any series at the time
Outstanding occurs and is continuing, the Trustee or the Holders of
at least 25% in aggregate principal amount of all of the
Outstanding Securities of that series, by written notice to the
Company (and, if given by the Holders, to the Trustee), may declare
the principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of
the principal amount or other amount as may be specified in the
terms of that series) of all the Securities of that series to be
due and payable and upon any such declaration such principal (or,
in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall be immediately due and
payable.

 

At any time after
such a declaration of acceleration with respect to Securities of
any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series, by written notice to the Trustee, may rescind and annul
such declaration and its consequences if all existing Defaults and
Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.7. Upon any such
rescission, the parties hereto shall be restored respectively to
their several positions and rights hereunder, and all rights,
remedies and powers of the parties hereto shall continue as though
no acceleration had occurred.

 

Section
5.3. COLLECTION OF
INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:

 

(1) default is made in
the payment of any interest on any Security of any series, when
such interest becomes due and payable and such default continues
for a period of 30 days, or

 

(2) default is made in
the payment of the principal of (or premium, if any, on) any
Security of any series at the Maturity thereof and such default
continues for a period of 10 days, the Company will, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such
Securities for principal, premium, if any, and interest and, to the
extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium, if any, and on any
overdue interest, at the rate or rates prescribed therefor in such
Securities.

 



 

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If the Company
fails to pay such principal, premium, if any, and interest amounts
forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding
for the collection of such principal, premium, if any, and interest
amounts so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the
Company.

 

In addition, if an
Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed, in
its own name and as trustee of an express trust, to protect and
enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.

 

Section
5.4. TRUSTEE MAY FILE
PROOFS OF CLAIM. The Trustee may
file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
and the Holders of Securities of each series allowed in any
judicial proceedings relating to the Company, its creditors or its
property.

 

Section
5.5. TRUSTEE MAY ENFORCE
CLAIMS WITHOUT POSSESSION OF SECURITIES. All rights of
action and claims under this Indenture or the Securities of any
series may be prosecuted and enforced by the Trustee, in its own
name and as trustee of an express trust, without the possession of
any of the Securities of such series or the production thereof in
any proceeding relating thereto.

 

Section
5.6. DELAY OR OMISSION
NOT WAIVER. No delay or
omission by the Trustee or any Holder of any Securities to exercise
any right or remedy accruing upon an Event of Default shall impair
any such right or remedy or constitute a waiver of or acquiescence
in any such Event of Default.

 

Section
5.7. WAIVER OF PAST
DEFAULTS. The Holders of a
majority in aggregate principal amount of Outstanding Securities of
any series by notice to the Trustee may waive on behalf of the
Holders of all Securities of such series a past Default or Event of
Default with respect to that series and its consequences except a
Default or Event of Default (i) in the payment of the principal of,
premium, if any, or interest on any Security of such series or (ii)
in respect of a covenant or provision hereof which pursuant to
Section 8.2 cannot be amended or modified without the consent of
the Holder of each Outstanding Security of such series adversely
affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default 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 thereon. In case of any such waiver,
the Company, the Trustee and the Holders shall be restored to their
former positions and rights hereunder and under the Securities of
such series, respectively.

 



 

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Section
5.8. CONTROL BY
MAJORITY. The Holders of a
majority in aggregate principal amount of the Outstanding
Securities of each series affected (with each such series voting as
a class) shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it with
respect to Securities of that series; provided, however, that (i)
the Trustee may refuse to follow any direction that conflicts with
law or this Indenture, (ii) the Trustee may refuse to follow any
direction that is unduly prejudicial to the rights of the Holders
of Securities of such series not consenting, or that would in the
good faith judgment of the Trustee have a substantial likelihood of
involving the Trustee in personal liability and (iii) the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.

 

Section
5.9. LIMITATION ON SUITS
BY HOLDERS. No Holder of any
Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:

 

(1) the Holder has
previously given written notice to the Trustee 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 Outstanding
Securities of that series have made a written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;

 

(3) such Holder or
Holders have offered to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense to be, or which may
be, incurred by the Trustee in pursuing the remedy;

 

(4) the Trustee for 60
days after its receipt of such notice, request and the offer of
indemnity has failed to institute any such proceedings;
and

 

(5) during such 60 day
period, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of that series have not given to the
Trustee a direction inconsistent with such written
request.

 

No one or more
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.

 

Section
5.10. RIGHTS OF HOLDERS
TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, but subject to Section 9.2,
the right of any Holder of a Security to receive payment of
principal of, premium, if any, and, subject to Sections 3.5 and
3.7, interest on the Security of such Holder, on or after the
respective due dates expressed in the Security of such Holder (or,
in case of redemption, on the redemption dates), or to bring suit
for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
such Holder.

 

 



 

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Section
5.11. APPLICATION OF
MONEY COLLECTED. If the Trustee
collects any money pursuant to this Article with respect to a
particular series of Securities, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities
of the applicable series and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully
paid:

 

First: to the
Trustee for amounts due under Section 6.8 in connection with such
series of Securities in respect of which money or other property is
collected;

 

Second: Subject to
the terms of any subordination entered into as contemplated by
Section 3.1(b) (27) hereof, to Holders of Securities of such series
in respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for
principal of, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Securities for principal, premium, if any, and
interest, respectively; and

 

Third: The balance,
if any, to the Company.

 

The Trustee may fix
a record date and payment date for any payment to Holders pursuant
to this Section 5.11. At least 15 days before such record date, the
Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be
paid.

 

Unless otherwise
specified in a supplemental indenture with respect to a series of
Securities, in any case where Securities of a series are
outstanding which are denominated in more than one currency, or in
a composite currency and at least one other currency, and the
Trustee is directed to make ratable payments under this Section to
Holders of Securities of such series, the Trustee shall calculate
the amount of such payments as follows: as of the day the Trustee
collects an amount under this Article, the Trustee shall, (i) as to
each Holder of a Security of such series to whom an amount is due
and payable under this Section which is denominated in a foreign
currency or a composite currency, determine that amount of Dollars
that would be obtained for the amount owing such Holder, using the
rate of exchange at which in accordance with normal banking
procedures the Trustee could purchase in Dollars as of such day
with such amount owing, (ii) calculate the sum of all Dollar
amounts determined under (i) and add thereto any amounts due and
payable in Dollars; and (iii) using the individual amounts
determined in (i) or any individual amounts due and payable in
Dollars, as the case may be, as a numerator and the sum calculated
in (ii) as a denominator, calculate as to each Holder of a Security
of such series to whom an amount is owed under this Section the
fraction of the amount collected under this Article payable to such
Holder. Any expenses incurred by the Trustee in actually converting
amounts owing Holders of Securities of a series denominated in a
currency or composite currency other than that in which any amount
is collected under this Article shall be likewise (in accordance
with this paragraph) be borne ratably by all Holders of Securities
of such series to whom amounts are payable under this
Section.

 

 



 

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Unless otherwise
specified in the supplemental indenture with respect to a series of
Securities, to the fullest extent allowed under applicable law, if
for the purpose of obtaining judgment against the Company in any
court it is necessary to convert the sum due in respect of the
principal of, or any premium or interest on the Securities of any
series (the “Required Currency”) into a currency in
which judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with
the Judgment Currency on the New York Business Day preceding that
on which final judgment is given. The Company shall not be liable
for any shortfall in payments to Holders of Securities of a series
under this Section caused by a change in exchange rates between the
time the amount of a judgment against it is calculated as above and
the time the Trustee converts the Judgment Currency into the
Required Currency to make payments under this Section to Holders of
such Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such
judgment.

 

Section
5.12. RESTORATION OF
RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.

 

Section
5.13. RIGHTS AND REMEDIES
CUMULATIVE. Except as
otherwise provided in Section 5.9 or with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or
remedy.

 

ARTICLE
VI

THE
TRUSTEE

 

Section
6.1. DUTIES AND
RESPONSIBILITIES OF TRUSTEE; RELIANCE ON DOCUMENTS, OPINIONS,
ETC. (a) The Trustee,
prior to the occurrence of an Event of Default and after the curing
or waiver of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In the event 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 its exercise, as a prudent
person would exercise or use under the circumstances in the conduct
of such person’s own affairs; provided that if an Event of
Default occurs and is continuing, the Trustee will be under no
obligation to exercise any of the rights or powers under this
Indenture at the request or direction of any of the Holders unless
such Holders have offered to the Trustee indemnity or security
satisfactory to it in its reasonable discretion against any loss,
liability or expense that might be incurred by it in compliance
with such request or direction.

 

 



 

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

 

(1) prior to the
occurrence of an Event of Default and after the curing or waiving
of all Events of Default that may have occurred:

 

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

 

(3) in the absence of
bad faith and willful misconduct on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but, in the case of any such
certificates or opinions that by any provisions 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 (but need
not confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein);

 

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

 

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

 

(6) whether or not
therein provided, every provision of this Indenture relating to the
conduct or affecting the liability of, or affording protection to,
the Trustee shall be subject to the provisions of this clause (a)
and clause (b) below;

 

(7) the Trustee shall
not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to
payment) or notice effected by the Company or any Paying Agent or
any records maintained by any co- Registrar with respect to the
Securities;

 

(8) if any party fails
to deliver a notice relating to an event the fact of which,
pursuant to this Indenture, requires notice to be sent to the
Trustee, the Trustee may conclusively rely on its failure to
receive such notice as reason to act as if no such event occurred,
unless a Responsible Officer of the Trustee had actual knowledge of
such event;

 

 



 

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(9) in the absence of
written investment direction from the Company, all cash received by
the Trustee shall be placed in a non-interest bearing trust
account, and in no event shall the Trustee be liable for the
selection of investments or for investment losses incurred thereon
or for losses incurred as a result of the liquidation of any such
investment prior to its maturity date or the failure of the party
directing such investments prior to its maturity date or the
failure of the party directing such investment to provide timely
written investment direction, and the Trustee shall have no
obligation to invest or reinvest any amounts held hereunder in the
absence of such written investment direction from the Company;
and

 

(10) in the event that
the Trustee is also acting as custodian, Registrar, Paying Agent,
Conversion Agent or transfer agent hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VI
shall also be afforded to such custodian, Registrar, Paying Agent,
Conversion Agent or transfer agent.

 

None of the
provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal or
financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers. The Trustee shall not
be required to give any bond or surety in respect of the
performance of its powers or duties hereunder. The Trustee will be
under no obligation to exercise any of its rights and powers under
this Indenture at the request or direction of the Holders unless
such Holder has offered to the Trustee security or indemnity
satisfactory to it in its reasonable discretion against any loss,
liability or expense.

 

(a) Except as otherwise
provided in ‎the foregoing clause (a) of this Section
6.1:

 

(1) the Trustee may
conclusively rely and shall be fully protected in acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, note, coupon or other paper
or document believed by it in good faith to be genuine and to have
been signed or presented by the proper party or
parties;

 

(2) any request,
direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless
other evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the Corporate Secretary or
an Assistant Secretary of the Company;

 

(3) the Trustee may
consult with counsel of its own selection and require an Opinion of
Counsel and any advice of such counsel or Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;

 

(4) the Trustee shall
not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the expense of the
Company and shall incur no liability of any kind by reason of such
inquiry or investigation;

 



 

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(5) the Trustee may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through a co-trustee, agents,
custodians, nominees or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent, custodian, nominee or attorney appointed by it with due care
hereunder;

 

(6) the permissive
rights of the Trustee enumerated herein shall not be construed as
duties;

 

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

 

(8) the Trustee shall
not be responsible for monitoring the performance of other persons
or for the failure of others to perform their duties;

 

(9) the Holders will
not direct the Trustee to take action contrary to this Indenture,
the Securities or applicable law, and the Trustee is not obligated
to follow any instruction of the Holders that is contrary to this
Indenture, the Securities or applicable law;

 

(10) the Trustee may
request that the Company deliver an Officer’s Certificate
setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this
Indenture, which Officers’ Certificate may be signed by any
Person authorized to sign an Officers’ Certificate, including
any Person specified as so authorized in any such certificate
previously delivered and not superseded;

 

(11) the Trustee shall
not be required to give any bond or surety in respect of the
execution of the trusts and powers under this
Indenture;

 

(12) in no event shall
the Trustee be liable for any special, punitive, indirect or
consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Trustee has been advised
of the likelihood of such loss or damage and regardless of the form
of action;

 

(13) the Trustee shall
not be charged with knowledge of any Default or Event of Default
with respect to the Securities, unless either (1) a Responsible
Officer shall have actual knowledge of such Default or Event of
Default or (2) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or actually
received by a Responsible Officer at the Corporate Trust Office of
the Trustee from the Company, a Paying Agent, any Holder or any
agent of any Holder, referencing this Indenture;

 

(14) the Trustee shall
not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of
or caused, directly or indirectly, by circumstances beyond its
reasonable control, including, without limitation, acts of God;
earthquakes; fire; flood; terrorism; wars and other military
disturbances; sabotage; epidemics; riots; interruptions; loss or
malfunction of utilities, computer (hardware or soft-ware) or
communication services; accidents; labor disputes; and acts of
civil or military authorities and governmental action;
and

 



 

45






 





 

(15) neither the Trustee
nor any of its directors, officers, employees, agents or affiliates
shall be responsible for nor have any duty to monitor the
performance or any action of the Company, or any of their
respective directors, members, officers, agents, affiliates or
employee, nor shall it have any liability in connection with the
malfeasance or nonfeasance by such party, nor shall the Trustee be
responsible for any inaccuracy in the information obtained from the
Company or for any inaccuracy or omission in the records which may
result from such information or any failure by the Trustee to
perform its duties as set forth herein as a result of any
inaccuracy or incompleteness.

 

Section
6.2. TRUSTEE, PAYING
AGENTS, CONVERSION AGENTS OR REGISTRAR MAY HOLD
SECURITIES. The Trustee, any
Paying Agent, any Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 310(b) and 311 of
the Trust Indenture Act, may otherwise deal with the Company, an
Affiliate or Subsidiary with the same rights it would have if it
were not Trustee, Paying Agent, Registrar or such other
agent.

 

Section
6.3. MONIES TO BE HELD
IN TRUST. Subject to the
provisions of Section 4.8 and the last paragraph of Section 9.3,
all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no
liability for investment of or interest on any money received by it
hereunder except as otherwise agreed with the Company. Except for
amounts deposited pursuant to Article IV, so long as no Event of
Default shall have occurred and be continuing, all interest allowed
on any such moneys shall be paid from time to time to the Company
upon a Company Order. The Trustee shall not be obligated to take
possession of any Common Stock, whether upon conversion or in
connection with any discharge of this Indenture pursuant
hereto.

 

Section
6.4. NO RESPONSIBILITIES
FOR RECITALS, ETC. The recitals
contained herein and in the Securities (except in the
Trustee’s certificate of authentication) shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes
no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents
and warrants that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations
hereunder and thereunder; that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied or
to be supplied to the Company in connection with the registration
of any Securities are and at the time of delivery will be true and
accurate; and that such Statement complies and at the time of
delivery will comply with the requirements of the Trust Indenture
Act and the Securities Act, in each case, applicable to such
Statement. The Trustee shall not be accountable for the use or
application by the Company of any Securities or the proceeds of any
Securities authenticated and delivered by the Trustee in conformity
with the provisions of this Indenture.

 

 



 

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Section
6.5. NOTICE OF
DEFAULTS. If a Default
occurs and is continuing with respect to the Securities of any
series and if it is known to a Responsible Officer of the Trustee,
the Trustee shall, within 90 days after it occurs, transmit, in the
manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, notice of all uncured Defaults known to it;
provided, however, that, except in the case of a Default in payment
on the Securities of any series, the Trustee may withhold the
notice if and so long as a trust committee of Responsible Officers
in good faith determines that withholding such notice is in the
interests of Holders of Securities of that series; provided,
further, that in the case of any default or breach of the character
specified in Section 5.1(3) with respect to the Securities of such
series, no such notice to Holders shall be given until at least 90
days after the occurrence thereof.

 

Section
6.6. REPORTS BY TRUSTEE
TO HOLDERS. Within 60 days
after each May 15 of each year commencing with the first May 15
after the first issuance of Securities of any series pursuant to
this Indenture, the Trustee shall transmit by mail to all Holders
of Securities of such series as provided in Section 313(c) of the
Trust Indenture Act a brief report dated as of such May 15 if
required by and in compliance with Section 313(a) of the Trust
Indenture Act. A copy of each report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities of any series are
listed, with the Commission and with the Company. The Company will
promptly notify the Trustee when the Securities of any series are
listed on any stock exchange and of any delisting
thereof.

 

(a) The Trustee shall
from time to time transmit by mail to all Holders of Securities as
provided in Section 313(c) of the Trust Indenture Act, such reports
as are required to be filed pursuant to Section 313(b) of the Trust
Indenture Act.

 

Section
6.7. SECURITY HOLDER
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 Holders
of Securities of each series. If the Trustee is not the Registrar,
the Company shall furnish to the Trustee semiannually on or before
the last day of June and December in each year, 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,
containing all the information in the possession or control of the
Registrar, the Company or any of its Paying Agents other than the
Trustee as to the names and addresses of Holders of Securities of
each such series.

 

 



 

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Section
6.8. COMPENSATION AND
INDEMNITY. The Company
covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to, compensation as agreed in writing
between the Company and the Trustee for all services rendered by it
hereunder in any capacity (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) as mutually agreed to in writing between the Trustee
and the Company, and the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance
with any of the provisions of this Indenture in any capacity
thereunder (including the reasonable compensation and the expenses
and disbursements of its agents and counsel and of all Persons not
regularly in its employ and including reasonable attorneys' fees in
connection with enforcement of its rights to indemnity herein)
except any such expense, disbursement or advance as shall have been
caused by its gross negligence, willful misconduct or bad faith.
The Company also covenants to indemnify the Trustee in any capacity
under this Indenture and any other document or transaction entered
into in connection herewith and its agents and any authenticating
agent for, and to hold them harmless against, any loss, claim,
damage, liability, fee, cost, loss, tax, claim, action or expense
incurred without gross negligence, willful misconduct or bad faith
on the part of the Trustee, its officers, directors, agents or
employees, or such agent or authenticating agent, as the case may
be, and arising out of or in connection with the acceptance or
administration of this Indenture or in any other capacity
hereunder, including third-party claims and claims involving the
Company, and including the costs and expenses of defending
themselves against any claim of liability in the premises or
enforcing this indemnity. The obligations of the Company under this
Section 6.8 to compensate or indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances
shall be secured by a senior claim to which the Securities of the
applicable series are hereby made subordinate on all money or
property held or collected by the Trustee, except, subject to the
effect of Section 5.11, funds held in trust herewith for the
benefit of the Holders of particular Securities. The Trustee's
right to receive payment of any amounts due under this Section 6.8
shall not be subordinate to any other liability or indebtedness of
the Company. The obligation of the Company under this Section 6.8
shall survive the satisfaction and discharge of this Indenture and
the earlier resignation or removal of the Trustee. The Company need
not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. The indemnification provided in
this Section 6.8 shall extend to the officers, directors, agents
and employees of the Trustee.

 

Without prejudice
to any other rights available to the Trustee under applicable law,
when the Trustee and its agents and any Authenticating Agent incur
expenses or render services after an Event of Default specified in
Section 5.1(4) or Section 5.1(5) occurs, the expenses and the
compensation for the services are intended to constitute expenses
of administration under any bankruptcy, insolvency or similar
laws.

 

Section
6.9. SEPARATE TRUSTEE;
REPLACEMENT OF TRUSTEE. The Company may,
but need not, appoint a separate Trustee for any one or more series
of Securities. The resignation or removal of the Trustee and the
appointment of a successor Trustee shall become effective only upon
the successor Trustee’s acceptance of appointment as provided
in Section 6.10. In the event of an appointment of a separate
Trustee for any one or more series of Securities, the allocation of
responsibilities between the separate Trustees shall be determined
at that time.

 

 



 

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(a) The Trustee may
resign at any time with respect to the Securities of any one or
more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section
6.10 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning
Trustee may (at the Company’s expense) petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.

 

(b) The Holders of a
majority in aggregate principal amount of the Outstanding
Securities of any series may remove the Trustee with respect to any
one or more series by so notifying the Trustee and the Company in
writing and may appoint a successor Trustee for such series with
the Company’s consent.

 

If an instrument of
acceptance by a successor Trustee required by Section 6.10 shall
not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee being removed may
petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such
series.

 

(c) If at any
time:

 

(1) the Trustee fails
to comply with Section 310(b) of the Trust Indenture Act after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months,
or

 

(2) the Trustee shall
cease to be eligible under Section 6.11 hereof or Section 310(a) of
the Trust Indenture Act and shall fail to resign after written
request therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six months;
or

 

(3) the Trustee becomes
incapable of acting, is adjudged a bankrupt or an insolvent or a
receiver or public officer takes charge of the Trustee or its
property or affairs for the purpose of rehabilitation, conservation
or liquidation, then, in any such case, (i) the Company may remove
the Trustee with respect to all Securities, or (ii) subject to
Section 315(e) of the Trust Indenture Act, any Holder who has been
a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with
respect to Securities of the series held by such Holder and the
appointment of a successor Trustee or Trustees.

 

(d) If the Trustee
resigns or is removed or becomes incapable of acting or if a
vacancy exists in the office of Trustee for any reason, with
respect to Securities of one or more series, the Company shall
promptly appoint a successor Trustee with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable
requirements of Section 6.10. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 6.10, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in
the manner required by Section 6.10, then, subject to Section
315(e) of the Trust Indenture Act, any Holder who has been a bona
fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such
series.

 

 



 

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

 

(a) In case of the
appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein such successor
Trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, such successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates, (ii) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (iii) shall add to or change
any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.

 

(b) No successor
Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.

 

(c) The Company shall
give, or cause to be given, notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series in the manner provided for notices to the
Holders of Securities in Section 1.6. Each notice shall include the
name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust
Office.

 

 



 

50






 





 

Section
6.11. ELIGIBILITY;
DISQUALIFICATION. There shall at
all times be a Trustee hereunder with respect to each series of
Securities (which need not be the same Trustee for all series).
Each Trustee hereunder shall be eligible to act as trustee under
Section 310(a)(1) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $100,000,000. If such
corporation publishes reports of condition at least annually,
pursuant to law or the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified
in this Article.

 

If the Trustee has
or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this
Indenture.

 

Section
6.12. MERGER, CONVERSION,
CONSOLIDATION OR SUCCESSION TO BUSINESS. Any corporation
into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to or acquiring all or substantially
all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to, or by
succession to or acquisition of all or substantially all of the
corporate trust business of, such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Securities.

 

Section
6.13. APPOINTMENT OF
AUTHENTICATING AGENT. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series
issued upon original issue exchange, registration of transfer or
partial redemption thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument
in writing signed by a Responsible Officer of the Trustee, a copy
of which instrument shall be promptly furnished to the Company.
Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and, except
as may otherwise be provided pursuant to Section 3.1, shall at all
times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States
of America or of any State or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $1,500,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least
annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case
at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect
specified in this Section.

 

 



 

51






 





 

Any corporation
into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to or acquiring the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the
Authenticating Agent.

 

An Authenticating
Agent for any series of Securities may at any time resign by giving
written notice of resignation to the Trustee for such series and to
the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to
the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee for such series may appoint a
successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating
Agent will serve in the manner set forth in Section 1.6. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.

 

The Company agrees
to pay to each Authenticating Agent from time to time such
reasonable compensation as the Company and such Authenticating
Agent agree in writing from time to time including reimbursement of
its reasonable expenses for its services under this
Section.

 

If an appointment
with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon,
in addition to or in lieu of the Trustee’s certificate of
authentication, an alternate certificate of authentication
substantially in the following form:

 

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

 

[________],
as Trustee

 




By                                                                            



as
Authenticating Agent




By                                                                            



Authorized
Signatory

 



 

52






 





 

ARTICLE
VII

CONSOLIDATION,
MERGER OR SALE BY THE COMPANY

 

Section
7.1. CONSOLIDATION,
MERGER OR SALE OF ASSETS. The Company may
not merge or consolidate with or into any other Person, in a
transaction in which it is not the surviving corporation, or sell,
convey, transfer or otherwise dispose of all or substantially all
of its assets to any Person, unless (i) surviving or transferee
Person is organized and existing under the laws of the United
States or a State thereof and such Person expressly assumes by
supplemental indenture all the obligations of the Company under
each series of Securities and under this Indenture, (ii)
immediately thereafter, giving effect to such merger or
consolidation, or such sale, conveyance, transfer or other
disposition, no Default or Event of Default shall have occurred and
be continuing and (iii) the Company shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel
each stating that such merger, consolidation, sale, conveyance,
transfer or other disposition complies with this Article and that
all conditions precedent herein provided for relating to such
transaction have been complied with. In the event of the assumption
by a successor Person of the obligations of the Company, such
successor Person shall succeed to and be substituted for the
Company hereunder and under each series of Securities and all such
obligations of the Company shall terminate.

 

ARTICLE
VIII

SUPPLEMENTAL
INDENTURES

 

Section
8.1. SUPPLEMENTAL
INDENTURES WITHOUT CONSENT OF HOLDERS. Without the
consent of any Holders, the Company and the Trustee, at any time
and from time to time, may enter into indentures supplemental
hereto for any of the following purposes:

 

(1) to evidence the
succession of another Person to the Company and the assumption by
any such successor of the covenants and obligations of the Company
herein and in Securities (with such changes herein and therein as
may be necessary or advisable to reflect such Person’s legal
status, if such Person is not a corporation); or

 

(2) to add to the
covenants of the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred
upon the Company or to comply with any requirement of the
Commission or otherwise in connection with the qualification of
this Indenture under the Trust Indenture Act or otherwise;
or

 

(3) to add any
additional Events of Default with respect to all or any series of
Securities; or

 

(4) to add to or change
any of the provisions of this Indenture to such extent as shall be
necessary to facilitate or provide for the issuance of Securities
in global form in addition to or in place of Securities in
certificated form; or

 

(5) to change or
eliminate any of the provisions of this Indenture, provided that
any such change or elimination shall become effective only with
respect to Securities which have not been issued as of the
execution of such supplemental indenture or when there is no
Security Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of
such provision; or

 



 

53






 





 

(6) to add guarantees
with respect to all or any series of Securities; or

 

(7) to convey,
transfer, assign, mortgage or pledge any property to or with the
Trustee; or

 

(8) to supplement any
of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of
any series of Securities pursuant to Sections 4.1, 4.4, and 4.5;
provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series or any other
series of Securities in any material respect; or

 

(9) to establish the
form or terms of Securities of any series as permitted by Sections
2.1 and 3.1; or

 

(10) to provide for the
delivery of indentures supplemental hereto or the Securities of any
series in or by means of any computerized, electronic or other
medium, including without limitation by computer diskette;
or

 

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

 

(12) to correct or
supplement any provision herein which may be inconsistent with any
other provision herein or to cure any ambiguity or omission or to
correct any mistake; or

 

(13) to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any
material respect.

 

Section
8.2. WITH CONSENT OF
HOLDERS. Without prior
notice to any Holder but with the written consent of the Holders of
a majority of the aggregate principal amount of the Outstanding
Securities of each series adversely affected by such supplemental
indenture (with the Securities of each series voting as a class),
the Company and the Trustee may enter into an indenture or
indentures supplemental hereto to add any provisions to or to
change or eliminate any provisions of this Indenture or of any
other indenture supplemental hereto or to modify the rights of the
Holders of Securities of each such series; provided, however, that
without the consent of the Holder of each Outstanding Security of
such series adversely affected thereby, a supplemental indenture
under this Section may not:

 

(1) change the Stated
Maturity of the principal of, or any installment of principal of or
interest on, any Security of such series, or reduce the principal
amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or Indexed
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or
change any Place of Payment where, or the coin or currency in which
any Securities of such series or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date);

 

 



 

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(2) reduce the
percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences
provided for in this Indenture;

 

(3) except to the
extent provided in Section 8.1(11), make any change in Section 5.7
or this 8.2 except to increase any percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived except with the consent of the Holders of each Outstanding
Security of such series affected thereby, provided, however, that
this clause shall not be deemed to require the consent of any
Holders with respect to changes in the references to the
“Trustee” and concomitant changes in this Section, in
accordance with the requirements of Sections 6.10(b) and 8.1(11);
or

 

(4) modify the ranking
or priority of the Securities of such series.

 

For the purposes of
this Section 8.2, if the Securities of any series are issuable upon
the exercise of warrants, any holder of an unexercised and
unexpired warrant with respect to such series shall not be deemed
to be a Holder of Outstanding Securities of such series in the
amount issuable upon the exercise of such warrants.

 

A supplemental
indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other
series.

 

It is not necessary
under this Section 8.2 for the Holders to consent to the particular
form of any proposed supplemental indenture, but it is sufficient
if they consent to the substance thereof.

 

Section
8.3. COMPLIANCE WITH
TRUST INDENTURE ACT. Every amendment
to this Indenture or the Securities of one or more series shall be
set forth in a supplemental indenture that complies with the Trust
Indenture Act as then in effect.

 

Section
8.4. EXECUTION OF
SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon an
Officer’s Certificate and Opinion of Counsel stating that all
conditions precedent to the execution of such supplemental
indenture have been satisfied and an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that such supplemental indenture is
the legal, valid and binding obligation of the Company. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which adversely affects the Trustee. The
Trustee shall enter into any such supplemental indenture presented
to it by the Company in compliance with this Article VIII if such
supplemental indenture does not adversely affect the Trustee, as
determined in its sole discretion. In formulating its opinion on
such matters the Trustee shall be entitled to rely on such evidence
as it deems appropriate, which may be or include, without
limitation, reliance solely on an opinion or advice of its
counsel.

 

 



 

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Section
8.5. EFFECT OF
SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities of the applicable series
theretofore or thereafter authenticated and delivered hereunder and
shall be bound thereby; provided that if such supplemental
indenture makes any of the changes described in clauses (1) through
(4) of the first proviso to Section 8.2, such supplemental
indenture shall bind each Holder of a Security of the applicable
series who has consented to it and every subsequent Holder of such
Security or any part thereof.

 

Section
8.6. REFERENCE IN
SECURITIES TO SUPPLEMENTAL INDENTURES. Securities of any
series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such
series.

 

ARTICLE
IX

COVENANTS

 

Section
9.1. PAYMENT OF
PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The Company
covenants and agrees for the benefit of the Holders of each series
of Securities that it will duly and punctually pay the principal
of, premium, if any, and interest on the Securities of that series
in accordance with the terms of the Securities of such series, and
this Indenture. An installment of principal, premium, if any, 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 the installment.

 

Section
9.2. MAINTENANCE OF
OFFICE OR AGENCY. If Securities of
a series are issued as Registered Securities, the Company will
maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands
(provided, however, that the foregoing appointment shall not impose
or imply any obligation on the part of the Trustee to maintain any
office for any such purposes other than the Corporate Trust
Office.)

 

 



 

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Subject to the
preceding paragraphs, the Company may also from time to time
designate one or more other offices or agencies where the
Securities of one or more series 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 will
give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other
office or agency.

 

Unless otherwise
specified as contemplated by Section 3.1, the Trustee shall
initially serve as Paying Agent. The Paying Agent may make
reasonable rules not inconsistent herewith for the performance of
its functions.

 

Section
9.3. MONEY FOR
SECURITIES TO BE HELD IN TRUST; UNCLAIMED MONEY. If the Company
shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the
principal of, premium, if any, or interest on any of the Securities
of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal,
premium, if any, or interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee in writing of any failure so
to act.

 

Whenever the
Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal
of or any premium or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of any failure so to act.

 

If the Company is
not acting as its own Paying Agent, the Company will cause each
Paying Agent for any series of Securities other than the Trustee to
execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent
will:

 

(1) hold all sums held
by it for the payment of the principal of, premium, if any, or
interest on Securities of that series in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;

 

(2) give the Trustee
notice of any Default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment of
principal, premium, if any, or interest on the Securities of that
series; and

 

(3) at any time during
the continuance of any such Default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.

 

Notwithstanding
anything in this Section 9.3 to the contrary, the Company may at
any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture, or with respect to one or more series
of Securities, or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such
money.

 

 



 

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Subject to
applicable abandoned property laws, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust
for the payment of any principal, premium or interest or other
amounts on any Security of any series and remaining unclaimed for
two years after such principal, premium, if any, or interest or
other amounts has become due and payable shall be paid to the
Company (including interest income on such funds, if any), or (if
then held by the Company) shall be discharged from such trust; and
the Holder of such Security, shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.

 

Section
9.4. CORPORATE
EXISTENCE. Subject to
Article VII, the Company will at all times do or cause to be done
all things necessary to preserve and keep in full force and effect
its corporate existence.

 

Section
9.5. REPORTS BY THE
COMPANY. The Company
covenants, at any time at which there are Outstanding Securities of
any series issued under this Indenture:

 

(a) to file with the
Trustee, within 30 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934, as amended;
or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed
and registered on a national securities exchange as may be
prescribed from time to time in such rules and
regulations;

 

(b) to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants
provided for in this Indenture, as may be required from time to
time by such rules and regulations; and

 

(c) to transmit to all
Holders of Securities within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in section
313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 9.5, as
may be required by rules and regulations prescribed from time to
time by the Commission.

 

Section
9.6. ANNUAL REVIEW
CERTIFICATE. At any time at
which there are Outstanding Securities of any series issued under
this Indenture, the Company covenants and agrees to deliver to the
Trustee, within 120 days after the end of each fiscal year of the
Company, a brief certificate from the principal executive officer,
principal financial officer, or principal accounting officer as to
his or her knowledge of whether the Company is in Default under
this Indenture. For purposes of this Section 9.6, such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.

 

 



 

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ARTICLE
X

REDEMPTION

 

Section
10.1. APPLICABILITY OF
ARTICLE. Securities of or
within any series which are redeemable in whole or in part before
their Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified in the applicable Board
Resolution or supplemental indenture with respect to such series of
Securities, as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.

 

Section
10.2. ELECTION TO REDEEM;
NOTICE TO TRUSTEE. The election of
the Company to redeem any Securities shall be evidenced by a Board
Resolution. In the case of any redemption at the election of the
Company of less than all the Securities of any series of the same
tenor, the Company shall, at least 60 days (45 days in the case of
redemption of all Securities of any series or of any series with
the same (i) Stated Maturity, (ii) period or periods within which,
price or prices at which and terms and conditions upon which such
Securities may or shall be redeemed or purchased, in whole or in
part, at the option of the Company or pursuant to any sinking fund
or analogous provision or repayable at the option of the Holder and
(iii) rate or rates at which such Securities bear interest, if any,
or formula pursuant to which such rate or rates accrue
(collectively, the “Equivalent Principal Terms”)) prior
to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of such
Securities to be redeemed. In the case of any redemption of
Securities of a series (i) prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (ii) pursuant to an
election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the
Trustee with an Officer’s Certificate evidencing compliance
with such restriction or condition.

 

Section
10.3. SELECTION OF
SECURITIES TO BE REDEEMED. If less than all
the Securities with Equivalent Principal Terms of any series are to
be redeemed (unless all of the Securities of such series and of a
specified tenor are to be redeemed), the particular Securities to
be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series with
Equivalent Principal Terms or any integral multiple thereof) of the
principal amount of Securities of such series with Equivalent
Principal Terms of a denomination larger than the minimum
authorized denomination for Securities of that series. Unless
otherwise provided in the terms of a particular series of
Securities, the portions of the principal of Securities so selected
for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains
outstanding shall not be less than the minimum authorized
denomination for Securities of such series.

 

 



 

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The Trustee shall
promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed. If
the Securities of a series having different issue dates, interest
rates and maturities (whether or not originally issued in a
Periodic Offering) are to be redeemed, the Company in its
discretion may select the particular Securities or portions thereof
to be redeemed and shall notify the Trustee thereof by such time
prior to the relevant redemption date or dates as the Company and
the Trustee may agree.

 

For purposes of
this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.

 

Section
10.4. NOTICE OF
REDEMPTION. Unless otherwise
specified as contemplated by Section 3.1, notice of redemption
shall be given by first-class mail, postage prepaid, mailed not
less than 30 days nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be
redeemed, to each Holder of the Securities to be
redeemed.

 

All notices of
redemption shall state:

 

(1) the Redemption
Date;

 

(2) the Redemption
Price and the amount of accrued interest, if any, to be
paid;

 

(3) if less than all
the Outstanding Securities of a series are to be redeemed, the
identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Security or
Securities to be redeemed;

 

(4) in case any
Security is to be redeemed in part only, the notice which relates
to such Security shall state that on and after the Redemption Date,
upon surrender of such Security, the Holder of such Security will
receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed;

 

(5) the Place or Places
of Payment where such Securities are to be surrendered for payment
for the Redemption Price;

 

(6) that Securities of
the series called for redemption appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption
Price;

 

(7) that, on the
Redemption Date, the Redemption Price will become due and payable
upon each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on
and after said date;

 

(8) that the redemption
is for a sinking fund, if such is the case;

 



 

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(9) the CUSIP number
and/or ISIN, if any, of such Securities.

 

Notice of
redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the
Company (provided that the Company prepare and provide to the
Trustee the form of such notice, or, if acceptable to the Trustee,
provides sufficient information to enable the Trustee to prepare
such notice, in each case on a timely basis.)

 

Section
10.5. DEPOSIT OF
REDEMPTION PRICE. On or prior to
any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 9.3) an
amount of money in the currency or currencies (including currency
units or composite currencies) in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay on
the Redemption Date the Redemption Price of, and (unless the
Redemption Date shall be an Interest Payment Date) interest accrued
to the Redemption Date on, all Securities or portions thereof which
are to be redeemed on that date.

 

Unless any Security
by its terms prohibits any sinking fund payment obligation from
being satisfied by delivering and crediting Securities (including
Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting
against such payment obligation in accordance with the terms of
such Securities and this Indenture.

 

Section
10.6. SECURITIES PAYABLE
ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease
to bear interest and such Securities shall cease from and after the
Redemption Date to be entitled to any benefit or security under
this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the
Redemption Price thereof and unpaid interest to the Redemption
Date. Except as provided in the next succeeding paragraph, upon
surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest
on Registered Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section
3.7.

 

If any Security
called for redemption shall not be so paid upon surrender thereof
for redemption, the principal (and premium, if any) shall, until
paid, bear interest from the Redemption Date at the rate prescribed
therefor in such Security.

 

 



 

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Section
10.7. SECURITIES REDEEMED
IN PART. Upon surrender of
a Security that is redeemed only in part at any Place of Payment
therefor (with, if the Company or the Trustee so require, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and
deliver to the Holder of that Security, without service charge, a
new Security or Securities of the same series, having the same
form, terms and Stated Maturity, in any authorized denomination
equal in aggregate principal amount to the unredeemed portion of
the principal amount of the Security surrendered.

 

ARTICLE
XI

SINKING
FUNDS

 

Section
11.1. APPLICABILITY OF
ARTICLE. The provisions of
this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.1 for Securities of such
series.

 

The minimum amount
of any sinking fund payment provided for by the terms of Securities
of any series is herein referred to as a “mandatory sinking
fund payment,” and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund
payment.” If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 11.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such
series.

 

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

 

Section
11.3. REDEMPTION OF
SECURITIES FOR SINKING FUND. Not less than 60
days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an
Officer’s Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 11.2 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 10.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 10.4. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 10.6 and
10.7.

 

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

 



 

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

 

ENDRA
LIFE SCIENCES INC.

 

 





By:                                                                            





Name:
____________________________________




Title:                                                                            





 

 

 

[●],
as Trustee

 

 





By:                                                                            





Name:
____________________________________




Title:                                                                            





 



 

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