ex4-5





 







Exhibit 4.5


 


 

 




 



Super League Gaming, Inc.


 


 

 




 



INDENTURE

 


Dated
as of ___________, 20___


 


 

 




 



[_________]

 


Trustee


 


 

 




 


 

 


 




 








 







TABLE OF CONTENTS


 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	

  

	

Page

	
 


	

ARTICLE
I. DEFINITIONS AND INCORPORATION BY REFERENCE

	

  

	
 

	

1

	
 


	

Section 1.1.

	
 

	

Definitions

	

  

	
 

	

1

	
 


	

Section 1.2.

	
 

	

Other
Definitions

	

  

	
 

	

4

	
 


	

Section 1.3.

	
 

	

Incorporation by
Reference of Trust Indenture Act

	

  

	
 

	

4

	
 


	

Section 1.4.

	
 

	

Rules
of Construction

	

  

	
 

	

5

	
 


	
 

	
 


	

ARTICLE
II. THE SECURITIES

	

  

	
 

	

5

	
 


	

Section 2.1.

	
 

	

Issuable in
Series

	

  

	
 

	

5

	
 


	

Section 2.2.

	
 

	

Establishment of
Terms of Series of Securities

	

  

	
 

	

6

	
 


	

Section 2.3.

	
 

	

Execution and
Authentication

	

  

	
 

	

8

	
 


	

Section 2.4.

	
 

	

Registrar and
Paying Agent

	

  

	
 

	

9

	
 


	

Section 2.5.

	
 

	

Paying
Agent to Hold Money in Trust

	

  

	
 

	

9

	
 


	

Section 2.6.

	
 

	

Securityholder
Lists

	

  

	
 

	

10

	
 


	

Section 2.7.

	
 

	

Transfer and
Exchange

	

  

	
 

	

10

	
 


	

Section 2.8.

	
 

	

Mutilated,
Destroyed, Lost and Stolen Securities

	

  

	
 

	

10

	
 


	

Section 2.9.

	
 

	

Outstanding
Securities

	

  

	
 

	

11

	
 


	

Section 2.10.

	
 

	

Treasury
Securities

	

  

	
 

	

12

	
 


	

Section 2.11.

	
 

	

Temporary
Securities

	

  

	
 

	

12

	
 


	

Section 2.12.

	
 

	

Cancellation

	

  

	
 

	

12

	
 


	

Section 2.13.

	
 

	

Defaulted
Interest

	

  

	
 

	

12

	
 


	

Section 2.14.

	
 

	

Global
Securities

	

  

	
 

	

13

	
 


	

Section 2.15.

	
 

	

CUSIP
Numbers

	

  

	
 

	

14

	
 


	
 

	
 


	

ARTICLE
III. REDEMPTION

	

  

	
 

	

14

	
 


	

Section 3.1.

	
 

	

Notice
to Trustee

	

  

	
 

	

14

	
 


	

Section 3.2.

	
 

	

Selection of
Securities to be Redeemed

	

  

	
 

	

15

	
 


	

Section 3.3.

	
 

	

Notice
of Redemption

	

  

	
 

	

15

	
 


	

Section 3.4.

	
 

	

Effect
of Notice of Redemption

	

  

	
 

	

16

	
 


	

Section 3.5.

	
 

	

Deposit
of Redemption Price

	

  

	
 

	

16

	
 


	

Section 3.6.

	
 

	

Securities Redeemed
in Part

	

  

	
 

	

16

	
 


	
 

	
 


	

ARTICLE
IV. COVENANTS

	

  

	
 

	

16

	
 


	

Section 4.1.

	
 

	

Payment
of Principal and Interest

	

  

	
 

	

16

	
 


	

Section 4.2.

	
 

	

SEC
Reports

	

  

	
 

	

17

	
 


	

Section 4.3.

	
 

	

Compliance
Certificate

	

  

	
 

	

17

	
 


	

Section 4.4.

	
 

	

Stay,
Extension and Usury Laws

	

  

	
 

	

17

	
 


	
 

	
 


	

ARTICLE
V. SUCCESSORS

	

  

	
 

	

18

	
 


	

Section 5.1.

	
 

	

When
Company May Merge, Etc.

	

  

	
 

	

18

	
 


	

Section 5.2.

	
 

	

Successor
Corporation Substituted

	

  

	
 

	

18

	
 






 


 

 




 








 






 



 


	

ARTICLE
VI. DEFAULTS AND REMEDIES

	

  

	
 

	

18

	
 


	

Section 6.1.

	
 

	

Events
of Default

	

  

	
 

	

18

	
 


	

Section 6.2.

	
 

	

Acceleration of
Maturity; Rescission and Annulment

	

  

	
 

	

20

	
 


	

Section 6.3.

	
 

	

Collection of
Indebtedness and Suits for Enforcement by Trustee

	

  

	
 

	

20

	
 


	

Section 6.4.

	
 

	

Trustee
May File Proofs of Claim

	

  

	
 

	

21

	
 


	

Section 6.5.

	
 

	

Trustee
May Enforce Claims Without Possession of Securities

	

  

	
 

	

22

	
 


	

Section 6.6.

	
 

	

Application of
Money Collected

	

  

	
 

	

22

	
 


	

Section 6.7.

	
 

	

Limitation on
Suits

	

  

	
 

	

22

	
 


	

Section 6.8.

	
 

	

Unconditional Right
of Holders to Receive Principal and Interest

	

  

	
 

	

23

	
 


	

Section 6.9.

	
 

	

Restoration of
Rights and Remedies

	

  

	
 

	

23

	
 


	

Section 6.10.

	
 

	

Rights
and Remedies Cumulative

	

  

	
 

	

23

	
 


	

Section 6.11.

	
 

	

Delay
or Omission Not Waiver

	

  

	
 

	

24

	
 


	

Section 6.12.

	
 

	

Control
by Holders

	

  

	
 

	

24

	
 


	

Section 6.13.

	
 

	

Waiver
of Past Defaults

	

  

	
 

	

24

	
 


	

Section 6.14.

	
 

	

Undertaking for
Costs

	

  

	
 

	

25

	
 


	
 

	
 


	

ARTICLE
VII. TRUSTEE

	

  

	
 

	

25

	
 


	

Section 7.1.

	
 

	

Duties
of Trustee

	

  

	
 

	

25

	
 


	

Section 7.2.

	
 

	

Rights
of Trustee

	

  

	
 

	

26

	
 


	

Section 7.3.

	
 

	

Individual Rights
of Trustee

	

  

	
 

	

27

	
 


	

Section 7.4.

	
 

	

Trustee’s
Disclaimer

	

  

	
 

	

27

	
 


	

Section 7.5.

	
 

	

Notice
of Defaults

	

  

	
 

	

28

	
 


	

Section 7.6.

	
 

	

Reports
by Trustee to Holders

	

  

	
 

	

28

	
 


	

Section 7.7.

	
 

	

Compensation and
Indemnity

	

  

	
 

	

28

	
 


	

Section 7.8.

	
 

	

Replacement of
Trustee

	

  

	
 

	

29

	
 


	

Section 7.9.

	
 

	

Successor Trustee
by Merger, Etc.

	

  

	
 

	

30

	
 


	

Section 7.10.

	
 

	

Eligibility;
Disqualification

	

  

	
 

	

30

	
 


	

Section 7.11.

	
 

	

Preferential
Collection of Claims Against Company

	

  

	
 

	

30

	
 


	
 

	
 


	

ARTICLE
VIII. SATISFACTION AND DISCHARGE; DEFEASANCE

	

  

	
 

	

30

	
 


	

Section 8.1.

	
 

	

Satisfaction and
Discharge of Indenture

	

  

	
 

	

30

	
 


	

Section 8.2.

	
 

	

Application of
Trust Funds; Indemnification

	

  

	
 

	

31

	
 


	

Section 8.3.

	
 

	

Legal
Defeasance of Securities of any Series

	

  

	
 

	

32

	
 


	

Section 8.4.

	
 

	

Covenant
Defeasance

	

  

	
 

	

33

	
 


	

Section 8.5.

	
 

	

Repayment to
Company

	

  

	
 

	

34

	
 


	

Section 8.6.

	
 

	

Reinstatement

	

  

	
 

	

35

	
 


	
 

	
 


	

ARTICLE
IX. AMENDMENTS AND WAIVERS

	

  

	
 

	

35

	
 


	

Section 9.1.

	
 

	

Without
Consent of Holders

	

  

	
 

	

35

	
 


	

Section 9.2.

	
 

	

With
Consent of Holders

	

  

	
 

	

36

	
 


	

Section 9.3.

	
 

	

Limitations

	

  

	
 

	

36

	
 


	

Section 9.4.

	
 

	

Compliance with
Trust Indenture Act

	

  

	
 

	

37

	
 


	

Section 9.5.

	
 

	

Revocation and
Effect of Consents

	

  

	
 

	

37

	
 


	

Section 9.6.

	
 

	

Notation on or
Exchange of Securities

	

  

	
 

	

37

	
 


	

Section 9.7.

	
 

	

Trustee
Protected

	

  

	
 

	

38

	
 






 


 

 




 








 





 





	

ARTICLE
X. MISCELLANEOUS

	

  

	
 

	

38

	
 


	

Section 10.1.

	
 

	

Trust
Indenture Act Controls

	

  

	
 

	

38

	
 


	

Section 10.2.

	
 

	

Notices

	

  

	
 

	

38

	
 


	

Section 10.3.

	
 

	

Communication by
Holders with Other Holders

	

  

	
 

	

39

	
 


	

Section 10.4.

	
 

	

Certificate and
Opinion as to Conditions Precedent

	

  

	
 

	

39

	
 


	

Section 10.5.

	
 

	

Statements Required
in Certificate or Opinion

	

  

	
 

	

40

	
 


	

Section 10.6.

	
 

	

Rules
by Trustee and Agents

	

  

	
 

	

40

	
 


	

Section 10.7.

	
 

	

Legal
Holidays

	

  

	
 

	

40

	
 


	

Section 10.8.

	
 

	

No
Recourse Against Others

	

  

	
 

	

40

	
 


	

Section 10.9.

	
 

	

Counterparts

	

  

	
 

	

40

	
 


	

Section 10.10.

	
 

	

Governing Law;
Waiver of Jury Trial; Consent to Jurisdiction

	

  

	
 

	

41

	
 


	

Section 10.11.

	
 

	

No
Adverse Interpretation of Other Agreements

	

  

	
 

	

41

	
 


	

Section 10.12.

	
 

	

Successors

	

  

	
 

	

41

	
 


	

Section 10.13.

	
 

	

Severability

	

  

	
 

	

41

	
 


	

Section 10.14.

	
 

	

Table
of Contents, Headings, Etc.

	

  

	
 

	

42

	
 


	

Section 10.15.

	
 

	

Securities in a
Foreign Currency

	

  

	
 

	

42

	
 


	

Section 10.16.

	
 

	

Judgment
Currency

	

  

	
 

	

42

	
 


	

Section 10.17.

	
 

	

Force
Majeure

	

  

	
 

	

43

	
 


	

Section 10.18.

	
 

	

U.S.A.
Patriot Act

	

  

	
 

	

43

	
 


	
 

	
 


	

ARTICLE
XI. SINKING FUNDS

	

  

	
 

	

43

	
 


	

Section 11.1.

	
 

	

Applicability of
Article

	

  

	
 

	

43

	
 


	

Section 11.2.

	
 

	

Satisfaction of
Sinking Fund Payments with Securities

	

  

	
 

	

44

	
 


	

Section 11.3.

	
 

	

Redemption of
Securities for Sinking Fund

	

  

	
 

	

44

	
 






 


 

 


 




 








 










 



Super League Gaming, Inc.

 


Reconciliation
and tie between Trust Indenture Act of 1939 and


Indenture,
dated as of ____________, 20__


 


	
 

	
 

	
 

	
 

	
 


	

§310(a)(1)

	
 

	
 

	

  

	

7.10


	

(a)(2)

	
 

	
 

	

  

	

7.10


	

(a)(3)

	
 

	
 

	

  

	

Not Applicable


	

(a)(4)

	
 

	
 

	

  

	

Not
Applicable


	

(a)(5)

	
 

	
 

	

  

	

7.10


	

(b)

	
 

	
 

	

  

	

7.10


	

§
311(a)

	
 

	
 

	

  

	

7.11


	

(b)

	
 

	
 

	

  

	

7.11


	

(c)

	
 

	
 

	

  

	

Not
Applicable


	

§
312(a)

	
 

	
 

	

  

	

2.6


	

(b)

	
 

	
 

	

  

	

10.3


	

(c)

	
 

	
 

	

  

	

10.3


	

§
313(a)

	
 

	
 

	

  

	

7.6


	

(b)(1)

	
 

	
 

	

  

	

7.6


	

(b)(2)

	
 

	
 

	

  

	

7.6


	

(c)(1)

	
 

	
 

	

  

	

7.6


	

(d)

	
 

	
 

	

  

	

7.6


	

§
314(a)

	
 

	
 

	

  

	

4.2,
10.5


	

(b)

	
 

	
 

	

  

	

Not
Applicable


	

(c)(1)

	
 

	
 

	

  

	

10.4


	

(c)(2)

	
 

	
 

	

  

	

10.4


	

(c)(3)

	
 

	
 

	

  

	

Not
Applicable


	

(d)

	
 

	
 

	

  

	

Not
Applicable


	

(e)

	
 

	
 

	

  

	

10.5


	

(f)

	
 

	
 

	

  

	

Not
Applicable


	

§
315(a)

	
 

	
 

	

  

	

7.1


	

(b)

	
 

	
 

	

  

	

7.5


	

(c)

	
 

	
 

	

  

	

7.1


	

(d)

	
 

	
 

	

  

	

7.1


	

(e)

	
 

	
 

	

  

	

6.14


	

§
316(a)

	
 

	
 

	

  

	

2.10


	

(a)(1)(A)

	
 

	
 

	

  

	

6.12


	

(a)(1)(B)

	
 

	
 

	

  

	

6.13


	

(b)

	
 

	
 

	

  

	

6.8


	

§317(a)(1)

	
 

	
 

	

  

	

6.3


	

(a)(2)

	
 

	
 

	

  

	

6.4


	

(b)

	
 

	
 

	

  

	

2.5


	

§
318(a)

	
 

	
 

	

  

	

10.1







 

 





Note:
This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.


 


 




 








 





 





Indenture
dated as of __________, 20__ between Super League Gaming, Inc., a
company incorporated under the laws of Delaware
(“Company”),
and [______] (“Trustee”).

 


Each
party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Securities
issued under this Indenture.

 


ARTICLE
I.


DEFINITIONS
AND INCORPORATION BY REFERENCE

 


Section 1.1. Definitions.

 


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

 


“Agent”
means any Registrar, Paying Agent or Notice Agent.

 


“Board
of Directors” means the board of directors of the
Company or any duly authorized committee thereof.

 


“Board
Resolution” means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
adopted by the Board of Directors or pursuant to authorization by
the Board of Directors and to be in full force and effect on the
date of the certificate and delivered to the Trustee.

 


“Business
Day” means any day except a Saturday, Sunday or a
legal holiday in The City of New York, New York (or in connection
with any payment, the place of payment) on which banking
institutions are authorized or required by law, regulation or
executive order to close.

 


“Capital
Stock” means any and all shares, interests,
participations, rights or other equivalents (however designated) of
corporate stock.

 


“Company”
means the party named as such above until a successor replaces it
and thereafter means the successor.

 


“Company
Order” means a written order signed in the name of the
Company by an Officer.

 


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

 


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


 




 

-1-








 






 


“Depositary”
means, with respect to the Securities of any Series issuable or
issued in whole or in part in the form of one or more Global
Securities, the person designated as Depositary for such Series by
the Company, which Depositary shall be a clearing agency registered
under the Exchange Act; and if at any time there is more than one
such person, “Depositary” as used with respect to the
Securities of any Series shall mean the Depositary with respect to
the Securities of such Series.

 


“Discount
Security” means any Security that 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 6.2.

 


“Dollars”
and “$” means
the currency of The United States of America.

 


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

 


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

 


“Foreign
Government Obligations” means, with respect to
Securities of any Series that are denominated in a Foreign
Currency, direct obligations of, or obligations guaranteed by, the
government that issued or caused to be issued such currency for the
payment of which obligations its full faith and credit is pledged
and which are not callable or redeemable at the option of the
issuer thereof.

 



“GAAP” means accounting principles generally
accepted in the United States of America set forth in the opinions
and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as have been approved
by a significant segment of the accounting profession, which are in
effect as of the date of determination.

 


“Global
Security” or “Global Securities” means a
Security or Securities, as the case may be, in the form established
pursuant to Section 2.2 evidencing all or part of a Series of
Securities, issued to the Depositary for such Series or its
nominee, and registered in the name of such Depositary or
nominee.

 


“Holder”
or “Securityholder” means a person in
whose name a Security is registered.

 


“Indenture”
means this Indenture as amended or supplemented from time to time
and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.

 


“interest”
with respect to any Discount Security which by its terms bears
interest only after Maturity, means interest payable after
Maturity.


 




 

-2-








 






 


“Maturity,”
when used with respect to any Security, means the date on which the
principal of such Security 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 Chief Executive Officer, President, the Chief Financial
Officer, the Treasurer or any Assistant Treasurer, the Secretary or
any Assistant Secretary, and any Vice President of the
Company.

 


“Officer’s
Certificate” means a certificate signed by any
Officer.

 


“Opinion
of Counsel” means a written opinion of legal counsel
who is acceptable to the Trustee. The counsel may be an employee of
or counsel to the Company. The opinion may contain customary
limitations, conditions and exceptions.

 


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

 


“principal”
of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.

 


“Responsible
Officer” means any officer of the Trustee in its
Corporate Trust Office having responsibility for administration of
this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom any corporate
trust matter is referred because of his or her knowledge of and
familiarity with a particular subject.

 


“SEC”
means the Securities and Exchange Commission.

 


“Securities”
means the debentures, notes or other debt instruments of the
Company of any Series authenticated and delivered under this
Indenture.

 


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

 


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

 


“Subsidiary”
of any specified person means any corporation, association or other
business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or
indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.

 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code §§
77aaa-77bbbb) as in effect on the date of this Indenture;
provided,
however, that in
the event the Trust Indenture Act of 1939 is amended after such
date, “TIA” means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.


 




 

-3-








 






 


“Trustee”
means the person named as the “Trustee” in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or
include each person who is then a Trustee hereunder, and if at any
time there is more than one such person, “Trustee” as
used with respect to the Securities of any Series shall mean the
Trustee with respect to Securities of that Series.

 


“U.S.
Government Obligations” means securities which are
direct obligations of, or guaranteed by, The United States of
America for the payment of which its full faith and credit is
pledged and which are not callable or redeemable at the option of
the issuer thereof, and shall also include a depositary receipt
issued by a bank or trust company as custodian with respect to any
such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. 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 depositary
receipt from any amount received by the custodian in respect of the
U.S. Government Obligation evidenced by such depositary
receipt.

 


Section 1.2. Other
Definitions.


 


	
 

	
 

	
 

	
 

	
 


	

TERM




	

  

	

DEFINED INSECTION

	
 


	


“Bankruptcy Law”

	

  

	
 

	

6.1

	
 


	


“Custodian”

	

  

	
 

	

6.1

	
 


	


“Event of Default”

	

  

	
 

	

6.1

	
 


	


“Judgment Currency”

	

  

	
 

	

10.16

	
 


	


“Legal Holiday”

	

  

	
 

	

10.7

	
 


	


“mandatory sinking fund payment”

	

  

	
 

	

11.1

	
 


	


“New York Banking Day”

	

  

	
 

	

10.16

	
 


	


“Notice Agent”

	

  

	
 

	

2.4

	
 


	


“optional sinking fund payment”

	

  

	
 

	

11.1

	
 


	


“Paying Agent”

	

  

	
 

	

2.4

	
 


	


“Registrar”

	

  

	
 

	

2.4

	
 


	


“Required Currency”

	

  

	
 

	

10.16

	
 


	


“Specified Courts”

	

  

	
 

	

10.10

	
 


	


“successor person”

	

  

	
 

	

5.1

	
 






 


Section 1.3. Incorporation
by Reference of Trust Indenture Act.

 


Whenever
this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following
meanings:

 


“Commission”
means the SEC.

 


“indenture
securities” means the Securities.

 


“indenture
security holder” means a Securityholder.


 




 

-4-








 






 


“indenture
to be qualified” means this Indenture.

 


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

 


“obligor”
on the indenture securities means the Company and any successor
obligor upon the Securities.

 


All
other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule
under the TIA and not otherwise defined herein are used herein as
so defined.

 


Section 1.4. Rules
of Construction.

 


Unless
the context otherwise requires:

 


(a) a
term has the meaning assigned to it;

 


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

 


(c)
“or” is not
exclusive;

 


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

 


(e)
provisions apply to successive events and
transactions.

 


ARTICLE
II.


THE
SECURITIES

 


Section 2.1. Issuable
in Series.

 


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


 




 

-5-








 






 


Section 2.2. Establishment
of Terms of Series of Securities.

 


At or
prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the
case of Subsection 2.2.1 and either as to such Securities within
the Series or as to the Series generally in the case of Subsections
2.2.2 through 2.2.23) by or pursuant to a Board Resolution, and set
forth or determined in the manner provided in a Board Resolution,
supplemental indenture hereto or Officer’s
Certificate:

 


2.2.1.
the title (which shall distinguish the Securities of that
particular Series from the Securities of any other Series) and
ranking (including the terms of any subordination provisions) of
the Series;

 


2.2.2.
the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be
issued;

 


2.2.3.
any limit upon the aggregate principal amount of the Securities of
the Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the Series pursuant to Section 2.7, 2.8,
2.11, 3.6 or 9.6);

 


2.2.4.
the date or dates on which the principal of the Securities of the
Series is payable;

 


2.2.5.
the rate or rates (which may be fixed or variable) per annum or, if
applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index,
stock exchange index or financial index) at which the Securities of
the Series shall bear interest, if any, the date or dates from
which such interest, if any, shall accrue, the date or dates on
which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest
payment date;

 


2.2.6.
the place or places where the principal of and interest, if any, on
the Securities of the Series shall be payable, where the Securities
of such 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 such Series and this Indenture may be
delivered, and the method of such payment, if by wire transfer,
mail or other means;

 


2.2.7.
if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which the
Securities of the Series may be redeemed, in whole or in part, at
the option of the Company;

 


2.2.8.
the obligation, if any, of the Company to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms
and conditions upon which Securities of the Series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;

 


2.2.9.
the dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the
option of the Holders thereof and other detailed terms and
provisions of such repurchase obligations;

 


2.2.10.
if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series
shall be issuable;


 




 

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2.2.11.
the forms of the Securities of the Series and whether the
Securities will be issuable as Global Securities;

 


2.2.12.
if other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.2;

 


2.2.13.
the currency of denomination of the Securities of the Series, which
may be Dollars or any Foreign Currency, and if such currency of
denomination is a composite currency, the agency or organization,
if any, responsible for overseeing such composite
currency;

 


2.2.14.
the designation of the currency, currencies or currency units in
which payment of the principal of and interest, if any, on the
Securities of the Series will be made;

 


2.2.15.
if payments of principal of or interest, if any, on the Securities
of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to
such payments will be determined;

 


2.2.16.
the manner in which the amounts of payment of principal of or
interest, if any, on the Securities of the Series will be
determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a
commodity, commodity index, stock exchange index or financial
index;

 


2.2.17.
the provisions, if any, relating to any security provided for the
Securities of the Series;

 


2.2.18.
any addition to, deletion of or change in the Events of Default
which applies to any Securities of the Series and any change in the
right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to
Section 6.2;

 


2.2.19.
any addition to, deletion of or change in the covenants set forth
in Articles IV or V which applies to Securities of the
Series;

 


2.2.20.
any Depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to Securities of
such Series if other than those appointed herein;

 


2.2.21.
the provisions, if any, relating to conversion or exchange of any
Securities of such Series, including if applicable, the conversion
or exchange price, the conversion or exchange period, provisions as
to whether conversion or exchange will be mandatory, at the option
of the Holders thereof or at the option of the Company, the events
requiring an adjustment of the conversion price or exchange price
and provisions affecting conversion or exchange if such Series of
Securities are redeemed;

 


2.2.22.
any other terms of the Series (which may supplement, modify or
delete any provision of this Indenture insofar as it applies to
such Series), including any terms that may be required under
applicable law or regulations or advisable in connection with the
marketing of Securities of that Series; and


 




 

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2.2.23.
whether any of the Company’s direct or indirect Subsidiaries
will guarantee the Securities of that Series, including the terms
of subordination, if any, of such guarantees.

 





All
Securities of any one Series need not be issued at the same time
and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture hereto or Officer’s
Certificate referred to above.

 


Section 2.3. Execution
and Authentication.

 


An
Officer shall sign the Securities for the Company by manual or
facsimile signature.

 


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

 


A
Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature
shall be conclusive evidence that the Security has been
authenticated under this Indenture.

 


The
Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in
the Board Resolution, supplemental indenture hereto or
Officer’s Certificate, upon receipt by the Trustee of a
Company Order. Each Security shall be dated the date of its
authentication.

 


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

 


Prior
to the issuance of Securities of any Series, the Trustee shall have
received and (subject to Section 7.2) shall be fully protected
in relying on: (a) the Board Resolution, supplemental
indenture hereto or Officer’s Certificate establishing the
form of the Securities of that Series or of Securities within that
Series and the terms of the Securities of that Series or of
Securities within that Series, (b) an Officer’s
Certificate complying with Section 10.4, and (c) an
Opinion of Counsel complying with Section 10.4.

 


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


 




 

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The
Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an
Affiliate of the Company.

 


Section 2.4. Registrar
and Paying Agent.

 


The
Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series
pursuant to Section 2.2, an office or agency where Securities
of such Series may be presented or surrendered for payment
(“Paying
Agent”), where Securities of such Series may be
surrendered for registration of transfer or exchange
(“Registrar”)
and where notices and demands to or upon the Company in respect of
the Securities of such Series and this Indenture may be delivered
(“Notice
Agent”). The Registrar shall keep a register with
respect to each Series of Securities and to their transfer and
exchange. The Company will give prompt written notice to the
Trustee of the name and address, and any change in the name or
address, of each Registrar, Paying Agent or Notice Agent. If at any
time the Company shall fail to maintain any such required
Registrar, Paying Agent or Notice Agent or shall fail to furnish
the Trustee with the name and 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 any appointment
of the Trustee as the Notice Agent shall exclude the appointment of
the Trustee or any office of the Trustee as an agent to receive the
service of legal process on the Company.

 


The
Company may also from time to time designate one or more
co-registrars, additional paying agents or additional notice agents
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 obligations to maintain a Registrar, Paying Agent and Notice
Agent in each place so specified pursuant to Section 2.2 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 name or address of any such
co-registrar, additional paying agent or additional notice agent.
The term “Registrar” includes any
co-registrar; the term “Paying Agent” includes any
additional paying agent; and the term “Notice Agent” includes any
additional notice agent. The Company or any of its Affiliates may
serve as Registrar or Paying Agent.

 


The
Company hereby appoints the Trustee the initial Registrar, Paying
Agent and Notice Agent for each Series unless another Registrar,
Paying Agent or Notice Agent, as the case may be, is appointed
prior to the time Securities of that Series are first
issued.

 


Section 2.5. Paying
Agent to Hold Money in Trust.

 


The
Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the
benefit of Securityholders of any Series of Securities, or the
Trustee, all money held by the Paying Agent for the payment of
principal of or interest on the Series of Securities, and will
notify the Trustee in writing of any default by the Company in
making any such payment. While any such default continues, the
Trustee may require


 




 

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a
Paying Agent to pay all money held by it to the Trustee. The
Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary of the
Company) shall have no further liability for the money. If the
Company or a Subsidiary of the Company acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit
of Securityholders of any Series of Securities all money held by it
as Paying Agent. Upon any bankruptcy, reorganization or similar
proceeding with respect to the Company, the Trustee shall serve as
Paying Agent for the Securities.

 


Section 2.6. Securityholder
Lists.

 


The
Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and
addresses of Securityholders of each Series of Securities and shall
otherwise comply with TIA § 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least ten
days before each interest payment date and at such other times as
the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and
addresses of Securityholders of each Series of
Securities.

 


Section 2.7. Transfer
and Exchange.

 


Where
Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange
them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No
service charge shall be made for any registration of transfer or
exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).

 


Neither
the Company nor the Registrar shall be required (a) to issue,
register the transfer of, or exchange Securities of any Series for
the period beginning at the opening of business fifteen days
immediately preceding the sending of a notice of redemption of
Securities of that Series selected for redemption and ending at the
close of business on the day such notice is sent, or (b) to
register the transfer of or exchange Securities of any Series
selected, called or being called for redemption as a whole or the
portion being redeemed of any such Securities selected, called or
being called for redemption in part.

 


Section 2.8. Mutilated,
Destroyed, Lost and Stolen Securities.

 


If any
mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.

 


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 bond
as may be required by each of them to hold itself and any of its
agents harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a
bona


 




 

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fide
purchaser, the Company shall execute and upon receipt of a Company
Order the Trustee shall authenticate and make available for
delivery, in lieu of any such destroyed, lost or stolen Security, a
new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously
outstanding.

 


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) 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 2.9. Outstanding
Securities.

 


The
Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest
on a Global Security effected by the Trustee in accordance with the
provisions hereof and those described in this Section as not
outstanding.

 


If a
Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide
purchaser.

 


If the
Paying Agent (other than the Company, a Subsidiary of the Company
or an Affiliate of the Company) holds on the Maturity of Securities
of a Series money sufficient to pay such Securities payable on that
date, then on and after that date such Securities of the Series
cease to be outstanding and interest on them ceases to
accrue.

 


The
Company may purchase or otherwise acquire the Securities, whether
by open market purchases, negotiated transactions or otherwise. A
Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security (but see
Section 2.10 below).

 


In
determining whether the Holders of the requisite principal amount
of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2.


 




 

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Section 2.10. Treasury
Securities.

 


In
determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver, Securities of
a Series owned by the Company or any Affiliate of the Company shall
be disregarded, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such request,
demand, authorization, direction, notice, consent or waiver only
Securities of a Series that a Responsible Officer of the Trustee
knows are so owned shall be so disregarded.

 


Section 2.11. Temporary
Securities.

 


Until
definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities
upon a Company Order. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee upon
receipt of a Company Order shall authenticate definitive Securities
of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the
same rights under this Indenture as the definitive
Securities.

 


Section 2.12. Cancellation.

 


The
Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all
Securities surrendered for transfer, exchange, payment, replacement
or cancellation and shall destroy such canceled Securities (subject
to the record retention requirement of the Exchange Act and the
Trustee) and deliver a certificate of such cancellation to the
Company upon written request of the Company. The Company may not
issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.

 


Section 2.13. Defaulted
Interest.

 


If the
Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the
extent permitted by law, any interest payable on the defaulted
interest, to the persons who are Securityholders of the Series on a
subsequent special record date. The Company shall fix the record
date and payment date. At least 10 days before the special record
date, the Company shall send to the Trustee and to each
Securityholder of the Series a notice that states the special
record date, the payment date and the amount of interest to be
paid. The Company may pay defaulted interest in any other lawful
manner.


 




 

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Section 2.14. Global
Securities.

 


2.14.1.
Terms of
Securities. A Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate shall establish whether
the Securities of a Series shall be issued in whole or in part in
the form of one or more Global Securities and the Depositary for
such Global Security or Securities.

 


2.14.2.
Transfer and
Exchange. Notwithstanding any provisions to the contrary
contained in Section 2.7 of the Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to
Section 2.7 of the Indenture for Securities registered in the
names of Holders other than the Depositary for such Security or its
nominee only if (i) such Depositary notifies the Company that
it is unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the
Company fails to appoint a successor Depositary registered as a
clearing agency under the Exchange Act within 90 days of such event
or (ii) the Company executes and delivers to the Trustee an
Officer’s Certificate to the effect that such Global Security
shall be so exchangeable. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as the Depositary shall direct
in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and
terms.

 


Except
as provided in this Section 2.14.2, a Global Security may not
be transferred except as a whole by the Depositary with respect to
such Global Security to a nominee of such Depositary, by a nominee
of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such a successor
Depositary.

 


2.14.3.
Legends. Any Global
Security issued hereunder shall bear a legend in substantially the
following form:

 


“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR
DEPOSITARY.”


 




 

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In
addition, so long as the Depository Trust Company
(“DTC”) is the Depositary, each Global Note registered
in the name of DTC or its nominee shall bear a legend in
substantially the following form:

 


“UNLESS
THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.”

 


2.14.4.
Acts of Holders.
The Depositary, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action
which a Holder is entitled to give or take under the
Indenture.

 


2.14.5.
Payments.
Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of
the principal of and interest, if any, on any Global Security shall
be made to the Holder thereof.

 


2.14.6.
Consents, Declaration and
Directions. The Company, the Trustee and any Agent shall
treat a person as the Holder of such principal amount of
outstanding Securities of such Series represented by a Global
Security as shall be specified in a written statement of the
Depositary or by the applicable procedures of such Depositary with
respect to such Global Security, for purposes of obtaining any
consents, declarations, waivers or directions required to be given
by the Holders pursuant to this Indenture.

 


Section 2.15. CUSIP
Numbers.

 


The
Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall
use “CUSIP” numbers in notices of redemption as a
convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in
any notice of a redemption and that reliance may be placed only on
the other elements of identification printed on the Securities, and
any such redemption shall not be affected by any defect in or
omission of such numbers.

 


ARTICLE
III.


REDEMPTION

 


Section 3.1. Notice
to Trustee.

 


The
Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to
redeem and pay the Series of Securities or any part thereof prior
to the Stated Maturity thereof at such time and on such terms as
provided for in such Securities. If a Series of Securities is
redeemable and the Company wants or is obligated to redeem prior to
the Stated Maturity thereof all or part of the Series of Securities
pursuant to the terms of such Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount
of Series of Securities to be redeemed. The Company shall give the
notice at least 15 days before the redemption date, unless a
shorter period is satisfactory to the Trustee.


 




 

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Section 3.2. Selection
of Securities to be Redeemed.

 


Unless
otherwise indicated for a particular Series by a Board Resolution,
a supplemental indenture hereto or an Officer’s Certificate,
if less than all the Securities of a Series are to be redeemed, the
Securities of the Series to be redeemed will be selected as
follows: (a) if the Securities are in the form of Global
Securities, in accordance with the procedures of the Depositary,
(b) if the Securities are listed on any national securities
exchange, in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are
listed, or (c) if not otherwise provided for under clause
(a) or (b) in the manner that the Trustee deems fair and
appropriate, including by lot or other method, unless otherwise
required by law or applicable stock exchange requirements, subject,
in the case of Global Securities, to the applicable rules and
procedures of the Depositary. The Securities to be redeemed shall
be selected from Securities of the Series outstanding not
previously called for redemption. Portions of the principal of
Securities of the Series that have denominations larger than $1,000
may be selected for redemption. Securities of the Series and
portions of them it selected for redemption shall be in amounts of
$1,000 or whole multiples of $1,000 or, with respect to Securities
of any Series issuable in other denominations pursuant to
Section 2.2.10, the minimum principal denomination for each
Series and the authorized integral multiples thereof. Provisions of
this Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series
called for redemption.

 


Section 3.3. Notice
of Redemption.

 


Unless
otherwise indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officer’s Certificate, at
least 15 days but not more than 60 days before a redemption date,
the Company shall send or cause to be sent by first-class mail or
electronically, in accordance with the procedures of the
Depositary, a notice of redemption to each Holder whose Securities
are to be redeemed.

 


The
notice shall identify the Securities of the Series to be redeemed
and shall state:

 


(a) the
redemption date;

 


(b) the
redemption price;

 


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

 


(d) if
any Securities are being redeemed in part, the portion of the
principal amount of such Securities to be redeemed and that, after
the redemption date and upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed
portion of the original Security shall be issued in the name of the
Holder thereof upon cancellation of the original
Security;

 


(e)
that Securities of the Series called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;


 




 

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(f)
that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date unless the
Company defaults in the deposit of the redemption
price;

 


(g) the
CUSIP number, if any; and

 


(h) any
other information as may be required by the terms of the particular
Series or the Securities of a Series being redeemed.

 


At the
Company’s request, the Trustee shall give the notice of
redemption in the Company’s name and at its expense,
provided, however, that the Company has delivered to the Trustee,
at least 10 days (unless a shorter time shall be acceptable to the
Trustee) prior to the notice date, an Officer’s Certificate
requesting that the Trustee give such notice and setting forth the
information to be stated in such notice.

 


Section 3.4. Effect
of Notice of Redemption.

 


Once
notice of redemption is sent as provided in Section 3.3,
Securities of a Series called for redemption become due and payable
on the redemption date and at the redemption price. Except as
otherwise provided in the supplemental indenture, Board Resolution
or Officer’s Certificate for a Series, a notice of redemption
may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued
interest to the redemption date.

 


Section 3.5. Deposit
of Redemption Price.

 


On or
before 11:00 a.m., New York City time, on the redemption date, the
Company shall deposit with the Paying Agent money sufficient to pay
the redemption price of and accrued interest, if any, on all
Securities to be redeemed on that date.

 


Section 3.6. Securities
Redeemed in Part.

 


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

 


ARTICLE
IV.


COVENANTS

 


Section 4.1. Payment
of Principal 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 and interest, if any, on the Securities of that Series
in accordance with the terms of such Securities and this Indenture.
On or before 11:00 a.m., New York City time, on the applicable
payment date, the Company shall deposit with the Paying Agent money
sufficient to pay the principal of and interest, if any, on the
Securities of each Series in accordance with the terms of such
Securities and this Indenture.


 




 

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Section 4.2. SEC
Reports.

 


To the
extent any Securities of a Series are outstanding, the Company
shall deliver to the Trustee within 15 days after it files them
with the SEC 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 SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company also
shall comply with the other provisions of TIA § 314(a).
Reports, information and documents filed with the SEC via the EDGAR
system will be deemed to be delivered to the Trustee as of the time
of such filing via EDGAR for purposes of this
Section 4.2.

 


Delivery
of reports, information and documents to the Trustee under this
Section 4.2 are for informational purposes only and the
Trustee’s receipt of the foregoing shall not constitute
constructive or actual notice of any information contained therein
or determinable from information contained therein, including the
Company’s compliance with any of their covenants hereunder
(as to which the Trustee is entitled to rely exclusively on
Officer’s Certificates).

 


Section 4.3. Compliance
Certificate.

 


To the
extent any Securities of a Series are outstanding, the Company
shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officer’s Certificate stating
that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his/her
knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events
of Default of which the Officer may have knowledge).

 


Section 4.4. Stay,
Extension and Usury Laws.

 


The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture or the Securities; and the Company
(to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will
not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no
such law has been enacted.


 


 




 

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ARTICLE
V.


SUCCESSORS

 


Section 5.1. When
Company May Merge, Etc.

 


The
Company shall not consolidate with or merge with or into, or
convey, transfer or lease all or substantially all of its
properties and assets to, any person (a “successor person”)
unless:

 


(a) the
Company is the surviving corporation or the successor person (if
other than the Company) is a corporation organized and validly
existing under the laws of any U.S. domestic jurisdiction and
expressly assumes the Company’s obligations on the Securities
and under this Indenture; and

 


(b)
immediately after giving effect to the transaction, no Default or
Event of Default, shall have occurred and be
continuing.

 


The
Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officer’s Certificate to the
foregoing effect and an Opinion of Counsel stating that the
proposed transaction and any supplemental indenture comply with
this Indenture.

 


Notwithstanding
the above, any Subsidiary of the Company may consolidate with,
merge into or transfer all or part of its properties to the
Company. Neither an Officer’s Certificate nor an Opinion of
Counsel shall be required to be delivered in connection
therewith.

 


Section 5.2. Successor
Corporation Substituted.

 


Upon
any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.1, the successor
corporation formed by such consolidation or into or with which the
Company is merged or to which such sale, lease, conveyance or other
disposition is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor person has been
named as the Company herein; provided, however, that the predecessor
Company in the case of a sale, conveyance or other disposition
(other than a lease) shall be released from all obligations and
covenants under this Indenture and the Securities.

 


ARTICLE
VI.


DEFAULTS
AND REMEDIES

 


Section 6.1. Events
of Default.

 


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

 


(a)
default in the payment of any interest on any Security of that
Series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of such
payment is deposited by the Company with the Trustee or with a
Paying Agent prior to 11:00 a.m., New York City time, on the
30th day of such period);
or


 




 

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(b)
default in the payment of principal of any Security of that Series
at its Maturity; or

 


(c)
default in the performance or breach of any covenant or warranty of
the Company in this Indenture (other than defaults pursuant to
paragraphs (a) or (b) above or pursuant to a covenant or
warranty that has been included in this Indenture solely for the
benefit of Series of Securities other than that Series), which
default continues uncured for a period of 60 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; or

 


(d) the
Company pursuant to or within the meaning of any Bankruptcy
Law:

 


(i)
commences a voluntary case,

 


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

 


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

 


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

 


(v)
generally is unable to pay its debts as the same become due;
or

 


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

 


(i) is
for relief against the Company in an involuntary case,

 


(ii)
appoints a Custodian of the Company or for all or substantially all
of its property, or

 


(iii)
orders the liquidation of the Company,

 


and the
order or decree remains unstayed and in effect for 60 days;
or

 


(f) any
other Event of Default provided with respect to Securities of that
Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officer’s Certificate, in accordance
with Section 2.2.18.


 




 

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

 


The
Company will provide the Trustee written notice of any Default or
Event of Default within 30 days of becoming aware of the occurrence
of such Default or Event of Default, which notice will describe in
reasonable detail the status of such Default or Event of Default
and what action the Company is taking or proposes to take in
respect thereof.

 


Section 6.2. Acceleration
of Maturity; Rescission and Annulment.

 


If an
Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of
Default referred to in Section 6.1(d) or (e)) then in every
such case the Trustee or the Holders of not less than 25% in
principal amount of the outstanding Securities of that Series may
declare the principal amount (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as
may be specified in the terms of such Securities) of and accrued
and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) and
accrued and unpaid interest, if any, shall become immediately due
and payable. If an Event of Default specified in
Section 6.1(d) or (e) shall occur, the principal amount
(or specified amount) of and accrued and unpaid interest, if any,
on all outstanding Securities shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of
the Trustee or any Holder.

 


At any
time after such a declaration of acceleration with respect to 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 principal
amount of the outstanding Securities of that Series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if all Events of Default with
respect to Securities of that Series, other than the non-payment of
the principal and interest, if any, of Securities of that Series
which have become due solely by such declaration of acceleration,
have been cured or waived as provided in
Section 6.13.

 


No such
rescission shall affect any subsequent Default or impair any right
consequent thereon.

 


Section 6.3. Collection
of Indebtedness and Suits for Enforcement by
Trustee.

 


The
Company covenants that if

 


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

 


(b)
default is made in the payment of principal of any Security at the
Maturity thereof, or


 




 

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(c)
default is made in the deposit of any sinking fund payment, if any,
when and as due by the terms of a Security,

 



then, 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 and
interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and any
overdue interest at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection,
including the compensation, reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel.

 


If the
Company fails to pay such 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 the sums so
due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other
obligor upon such Securities and collect the moneys adjudged or
deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities,
wherever situated.

 


If an
Event of Default with respect to any Securities of any Series
occurs and is continuing, the Trustee may in its discretion proceed
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 6.4. Trustee
May File Proofs of Claim.

 


In case
of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or
otherwise,

 


(a) to
file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the compensation, reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and

 


(b) to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the
same,


 




 

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and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount
due it for the compensation, reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.

 


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

 


Section 6.5. Trustee
May Enforce Claims Without Possession of
Securities.

 


All
rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision
for the payment of the compensation, reasonable expenses,
disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.

 


Section 6.6. Application
of Money Collected.

 


Any
money or property collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money or
property on account of principal or interest, upon presentation of
the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully
paid:

 


First:
To the payment of all amounts due the Trustee under
Section 7.7; and

 


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

 


Third:
To the Company.

 


Section 6.7. Limitation
on Suits.

 


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

 


(a)
such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
Series;


 




 

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(b) the
Holders of not less than 25% in principal amount of the outstanding
Securities of that Series shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;

 


(c)
such Holder or Holders have offered to the Trustee indemnity or
security satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by the Trustee in
compliance with such request;

 


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

 


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

 


it
being understood, intended and expressly covenanted by the Holder
of every Security with every other Holder and the Trustee that no
one or more of such 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 such Holders of the applicable
Series.

 


Section 6.8. Unconditional
Right of Holders to Receive Principal and
Interest.

 


Notwithstanding
any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such
Security on the Maturity of such Security, including the Stated
Maturity expressed in such Security (or, in the case of redemption,
on the redemption date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without
the consent of such Holder.

 


Section 6.9. 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 6.10. Rights
and Remedies Cumulative.

 


Except
as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in
Section 2.8, no right or remedy herein conferred upon or
reserved to the Trustee or to 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


 




 

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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, to the extent permitted by law, prevent the concurrent
assertion or employment of any other appropriate right or
remedy.

 


Section 6.11. Delay
or Omission Not Waiver.

 


No
delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.

 


Section 6.12. Control
by Holders.

 


The
Holders of a majority in principal amount of the outstanding
Securities of any Series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such
Series, provided that

 


(a)
such direction shall not be in conflict with any rule of law or
with this Indenture,

 


(b) the
Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction,

 


(c)
subject to the provisions of Section 7.1, the Trustee shall
have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer of the
Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability, and

 


(d)
prior to taking any action as directed under this
Section 6.12, the Trustee shall be entitled to indemnity
satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction.

 


Section 6.13. Waiver
of Past Defaults.

 


The
Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders
of all the Securities of such Series, by written notice to the
Trustee and the Company, waive any past Default hereunder with
respect to such Series and its consequences, except a Default in
the payment of the principal of or interest on any Security of such
Series (provided, however, that the Holders of a majority in
principal amount of the outstanding Securities of any Series may
rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). 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 impair any right consequent
thereon.


 




 

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Section 6.14. Undertaking
for Costs.

 


All
parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to
any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10%
in principal amount of the outstanding Securities of any Series, or
to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after
the Maturity of such Security, including the Stated Maturity
expressed in such Security (or, in the case of redemption, on the
redemption date).

 


ARTICLE
VII.


TRUSTEE

 


Section 7.1. Duties
of Trustee.

 


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

 


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

 


(i) The
Trustee need perform only those duties that are specifically set
forth in this Indenture and no others.

 


(ii) In
the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officer’s Certificates or
Opinions of Counsel furnished to the Trustee and conforming to the
requirements of this Indenture; however, in the case of any
such Officer’s Certificates or Opinions of Counsel which by
any provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine such Officer’s
Certificates and Opinions of Counsel to determine whether or not
they conform to the form requirements of this
Indenture.

 


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

 


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


 




 

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

 


(iii)
The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Securities of
any Series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the outstanding
Securities of such Series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such Series in
accordance with Section 6.12.

 


(d)
Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b) and (c) of this
Section.

 


(e) The
Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
performing such duty or exercising such right or
power.

 


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

 


(g) No
provision of this Indenture shall require the Trustee to risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties, or in the exercise of any of its
rights or powers, if adequate indemnity against such risk is not
assured to the Trustee in its satisfaction.

 


(h) The
Paying Agent, the Registrar and any authenticating agent shall be
entitled to the protections and immunities as are set forth in
paragraphs (e), (f) and (g) of this Section and in
Section 7.2, each with respect to the Trustee.

 


Section 7.2. Rights
of Trustee.

 


(a) The
Trustee may rely on and shall be protected in acting or refraining
from acting upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.

 


(b)
Before the Trustee acts or refrains from acting, it may require an
Officer’s Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officer’s Certificate
or Opinion of Counsel.

 


(c) The
Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care. No
Depositary shall be deemed an agent of the Trustee and the Trustee
shall not be responsible for any act or omission by any
Depositary.


 




 

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(d) The
Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its
rights or powers, provided that the Trustee’s conduct does
not constitute willful misconduct or negligence.

 


(e) The
Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder without willful misconduct or negligence, and in
reliance thereon.

 


(f) The
Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities unless such Holders
shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction.

 


(g) 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, note, other evidence of indebtedness 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.

 


(h) The
Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the
Securities generally or the Securities of a particular Series and
this Indenture.

 


(i) In
no event shall the Trustee be liable to any person for special,
punitive, indirect, consequential or incidental 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.

 


(j) The
permissive right of the Trustee to take the actions permitted by
this Indenture shall not be construed as an obligation or duty to
do so.

 


Section 7.3. Individual
Rights of Trustee.

 


The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee. Any Agent may do the same with
like rights. The Trustee is also subject to Sections 7.10 and
7.11.

 


Section 7.4. Trustee’s
Disclaimer.

 


The
Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities, and it
shall not be responsible for any statement in the Securities other
than its authentication.


 




 

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Section 7.5. Notice
of Defaults.

 


If a
Default or Event of 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 send to each
Securityholder of the Securities of that Series notice of a Default
or Event of Default within 90 days after it occurs or, if later,
after a Responsible Officer of the Trustee has knowledge of such
Default or Event of Default. Except in the case of a Default or
Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and
so long as its corporate trust committee or a committee of its
Responsible Officers in good faith determines that withholding the
notice is in the interests of Securityholders of that
Series.

 


Section 7.6. Reports
by Trustee to Holders.

 


Within
60 days after each [ ] commencing [ ], [ ], the Trustee shall
transmit by mail to all Securityholders, as their names and
addresses appear on the register kept by the Registrar, a brief
report dated as of such anniversary date, in accordance with, and
to the extent required under, TIA § 313.

 


A copy
of each report at the time of its mailing to Securityholders of any
Series shall be filed with the SEC and each national securities
exchange on which the Securities of that Series are listed. The
Company shall promptly notify the Trustee in writing when
Securities of any Series are listed on any national securities
exchange.

 


Section 7.7. Compensation
and Indemnity.

 


The
Company shall pay to the Trustee from time to time compensation for
its services as the Company and the Trustee shall from time to time
agree upon in writing. The Trustee’s compensation shall not
be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all
reasonable out of pocket expenses incurred by it. Such expenses
shall include the reasonable compensation and expenses of the
Trustee’s agents and counsel.

 


The
Company shall indemnify each of the Trustee and any predecessor
Trustee (including for the cost of defending itself) against any
cost, expense or liability, including taxes (other than taxes based
upon, measured by or determined by the income of the Trustee)
incurred by it except as set forth in the next paragraph in the
performance of its duties under this Indenture as Trustee or Agent.
The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations
hereunder, unless and to the extent that the Company is materially
prejudiced thereby. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have one
separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent will not be
unreasonably withheld. This indemnification shall apply to
officers, directors, employees, shareholders and agents of the
Trustee.

 


The
Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or by any officer,
director, employee, shareholder or agent of the Trustee through
willful misconduct or negligence.


 




 

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To
secure the Company’s payment obligations in this Section, the
Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee, except that
held in trust to pay principal of and interest on particular
Securities of that Series.

 


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

 


The
provisions of this Section shall survive the termination of this
Indenture.

 


Section 7.8. Replacement
of Trustee.

 


A
resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this
Section.

 


The
Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company at least 30 days prior to the
date of the proposed resignation. The Holders of a majority in
principal amount of the Securities of any Series may remove the
Trustee with respect to that Series by so notifying the Trustee and
the Company. The Company may remove the Trustee with respect to
Securities of one or more Series if:

 


(a) the
Trustee fails to comply with Section 7.10;

 


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

 


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

 


(d) the
Trustee becomes incapable of acting.

 


If the
Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of the
then outstanding Securities may appoint a successor Trustee to
replace the successor Trustee appointed by the
Company.

 


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

 


A
successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
after that, the retiring Trustee shall transfer all property held
by it as Trustee to the successor Trustee subject to the lien
provided for in Section 7.7, the resignation or removal of the
retiring Trustee shall become effective, and the
successor


 




 

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Trustee
shall have all the rights, powers and duties of the Trustee with
respect to each Series of Securities for which it is acting as
Trustee under this Indenture. A successor Trustee shall mail a
notice of its succession to each Securityholder of each such
Series. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company’s obligations under
Section 7.7 hereof shall continue for the benefit of the
retiring Trustee with respect to expenses and liabilities incurred
by it for actions taken or omitted to be taken in accordance with
its rights, powers and duties under this Indenture prior to such
replacement.

 


Section 7.9. Successor
Trustee by Merger, Etc.

 


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

 


Section 7.10. Eligibility;
Disqualification.

 


This
Indenture shall always have a Trustee who satisfies the
requirements of TIA § 310(a)(1), (2) and (5). The Trustee
shall always have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report
of condition. The Trustee shall comply with TIA §
310(b).

 


Section 7.11. Preferential
Collection of Claims Against Company.

 


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

 


ARTICLE
VIII.


SATISFACTION
AND DISCHARGE; DEFEASANCE

 


Section 8.1. Satisfaction
and Discharge of Indenture.

 


This
Indenture shall upon Company Order be discharged with respect to
the Securities of any Series and cease to be of further effect as
to all Securities of such Series (except as hereinafter provided in
this Section 8.1), and the Trustee, at the expense of the
Company, shall execute instruments acknowledging satisfaction and
discharge of this Indenture, when

 


(a)
either

 


(i) all
Securities of such Series theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or stolen and
that have been replaced or paid) have been delivered to the Trustee
for cancellation; or

 


(ii)
all such Securities of such Series not theretofore delivered to the
Trustee for cancellation

 


(1)
have become due and payable by reason of sending a notice of
redemption or otherwise, or


 




 

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(2)
will become due and payable at their Stated Maturity within one
year, or

 


(3)
have been called for redemption or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, or

 


(4) are
deemed paid and discharged pursuant to Section 8.3, as
applicable;

 


and the
Company, in the case of (1), (2) or (3) above, shall have
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust an amount of money or U.S. Government
Obligations, which amount shall be sufficient for the purpose of
paying and discharging each installment of principal (including
mandatory sinking fund or analogous payments) of and interest on
all the Securities of such Series on the dates such installments of
principal or interest are due;

 


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

 


(c) the
Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the satisfaction and
discharge contemplated by this Section have been complied
with.

 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations
of the Company to the Trustee under Section 7.7, and, if money
shall have been deposited with the Trustee pursuant to clause
(a) of this Section, the provisions of Sections 2.4, 2.7, 2.8,
8.2 and 8.5 shall survive.

 


Section 8.2. Application
of Trust Funds; Indemnification.

 


(a)
Subject to the provisions of Section 8.5, all money and U.S.
Government Obligations or Foreign Government Obligations deposited
with the Trustee pursuant to Section 8.1, 8.3 or 8.4 and all
money received by the Trustee in respect of U.S. Government
Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 8.3 or 8.4, 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 and interest for whose payment such money
has been deposited with or received by the Trustee or to make
mandatory sinking fund payments or analogous payments as
contemplated by Sections 8.1, 8.3 or 8.4.

 


(b) The
Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations deposited pursuant to
Sections 8.1, 8.3 or 8.4 or the interest and principal received in
respect of such obligations other than any payable by or on behalf
of Holders.


 




 

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(c) The
Trustee shall deliver or pay to the Company from time to time upon
Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4
which, in the opinion of a nationally recognized firm of
independent certified public accountants or investment bank
expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such
U.S. Government Obligations or Foreign Government Obligations or
money were deposited or received. This provision shall not
authorize the sale by the Trustee of any U.S. Government
Obligations or Foreign Government Obligations held under this
Indenture.

 


Section 8.3. Legal
Defeasance of Securities of any Series.

 


Unless
this Section 8.3 is otherwise specified, pursuant to
Section 2.2, to be inapplicable to Securities of any Series,
the Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of any Series on the
91st day after the date of the deposit referred to in subparagraph
(d) hereof, and the provisions of this Indenture, as it
relates to such outstanding Securities of such Series, shall no
longer be in effect (and the Trustee, at the expense of the
Company, shall, upon receipt of a Company Order, execute
instruments acknowledging the same), except as to:

 


(a) the
rights of Holders of Securities of such Series to receive, from the
trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and
interest on the outstanding Securities of such Series on the
Maturity of such principal or installment of principal or interest
and (ii) the benefit of any mandatory sinking fund payments
applicable to the Securities of such Series on the day on which
such payments are due and payable in accordance with the terms of
this Indenture and the Securities of such Series;

 


(b) the
provisions of Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and
8.6; and

 


(c) the
rights, powers, trusts and immunities of the Trustee hereunder and
the Company’s obligations in connection
therewith;

 


provided
that, the following conditions shall have been
satisfied:

 


(d) the
Company shall have irrevocably deposited or caused to be deposited
(except as provided in Section 8.2(c)) with the Trustee as
trust funds specifically pledged as security for and dedicated
solely to the benefit of the Holders of such Securities (i) in
the case of Securities of such Series denominated in Dollars, cash
in Dollars and/or U.S. Government Obligations, or (ii) in the
case of Securities of such Series denominated in a Foreign Currency
(other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in
respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed
on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of
a nationally recognized firm of independent public accountants or
investment bank expressed in a written


 




 

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certification
thereof delivered to the Trustee, to pay and discharge each
installment of principal of and interest, on and any mandatory
sinking fund payments in respect of all the Securities of such
Series on the dates such installments of principal or interest and
such sinking fund payments are due;

 


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

 


(f) no
Default or Event of Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such
date;

 


(g) 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 of Counsel shall confirm that,
the Holders of the Securities of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit,
defeasance and discharge had not occurred;

 


(h) the
Company shall have delivered to the Trustee an Officer’s
Certificate stating that the deposit was not made by the Company
with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company; and

 


(i) the
Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this Section have been complied with.

 


Section 8.4. Covenant
Defeasance.

 


Unless
this Section 8.4 is otherwise specified pursuant to
Section 2.2 to be inapplicable to Securities of any Series,
the Company may omit to comply with respect to the Securities of
any Series with any term, provision or condition set forth under
Sections 4.2, 4.3, 4.4 and 5.1 and, unless otherwise specified
therein, any additional covenants specified in a supplemental
indenture for such Series of Securities or a Board Resolution or an
Officer’s Certificate delivered pursuant to Section 2.2
(and the failure to comply with any such covenants shall not
constitute a Default or Event of Default with respect to such
Series under Section 6.1) and the occurrence of any event
specified in a supplemental indenture for such Series of Securities
or a Board Resolution or an Officer’s Certificate delivered
pursuant to Section 2.2 and designated as an Event of Default
shall not constitute a Default or Event of Default hereunder, with
respect to the Securities of such Series, but, except as specified
above, the remainder of this Indenture and such Securities will be
unaffected thereby; provided that the following conditions shall
have been satisfied:


 




 

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(a)
with reference to this Section 8.4, the Company has
irrevocably deposited or caused to be irrevocably deposited (except
as provided in Section 8.2(c)) with the Trustee as trust funds
in trust for the purpose of making the following payments
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities (i) in the case of
Securities of such Series denominated in Dollars, cash in Dollars
and/or U.S. Government Obligations, or (ii) in the case of
Securities of such Series denominated in a Foreign Currency (other
than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in
respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed
on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of
a nationally recognized firm of independent certified public
accountants or investment bank expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each
installment of principal (including mandatory sinking fund or
analogous payments) of and interest on all the Securities of such
Series on the dates such installments of principal or interest are
due;

 


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

 


(c) no
Default or Event of Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such
deposit;

 


(d) the
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel to the effect that the
Holders of the Securities of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to Federal
income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and covenant
defeasance had not occurred;

 


(e) The
Company shall have delivered to the Trustee an Officer’s
Certificate stating the deposit was not made by the Company with
the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company; and

 


(f) The
Company shall have 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 covenant
defeasance contemplated by this Section have been complied
with.

 


Section 8.5. Repayment
to Company.

 


Subject
to applicable abandoned property law, the Trustee and the Paying
Agent shall pay to the Company upon request any money held by them
for the payment of principal and interest that remains unclaimed
for two years. After that, Securityholders entitled to the money
must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another
person.


 




 

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Section 8.6. Reinstatement.

 


If the
Trustee or the Paying Agent is unable to apply any money deposited
with respect to Securities of any Series in accordance with
Section 8.1 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application,
the obligations of the Company under this Indenture with respect to
the Securities of such Series and under the Securities of such
Series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.1 until such time as the
Trustee or the Paying Agent is permitted to apply all such money in
accordance with Section 8.1; provided, however, that if the Company
has made any payment of principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent after payment in full to the
Holders.

 


ARTICLE
IX.


AMENDMENTS
AND WAIVERS

 


Section 9.1. Without
Consent of Holders.

 


The
Company and the Trustee may amend or supplement this Indenture or
the Securities of one or more Series without the consent of any
Securityholder:

 


(a) to
cure any ambiguity, defect or inconsistency;

 


(b) to
comply with Article V;

 


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

 


(d) to
add guarantees with respect to Securities of any Series or secure
Securities of any Series;

 


(e) to
surrender any of the Company’s rights or powers under this
Indenture;

 


(f) to
add covenants or events of default for the benefit of the holders
of Securities of any Series;

 


(g) to
comply with the applicable procedures of the applicable
depositary;

 


(h) to
make any change that does not adversely affect the rights of any
Securityholder;

 


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

 


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


 




 

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(k) to
comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.

 


Section 9.2. With
Consent of Holders.

 


The
Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series
affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange offer for
the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Securityholders of each
such Series. Except as provided in Section 6.13, the Holders
of at least a majority in principal amount of the outstanding
Securities of any Series by notice to the Trustee (including
consents obtained in connection with a tender offer or exchange
offer for the Securities of such Series) may waive compliance by
the Company with any provision of this Indenture or the Securities
with respect to such Series.

 


It
shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any
proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. After a
supplemental indenture or waiver under this section becomes
effective, the Company shall send to the Holders of Securities
affected thereby, a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or
waiver.

 


Section 9.3. Limitations.

 


Without
the consent of each Securityholder affected, an amendment or waiver
may not:

 


(a)
reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;

 


(b)
reduce the rate of or extend the time for payment of interest
(including default interest) on any Security;

 


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

 


(d)
reduce the principal amount of Discount Securities payable upon
acceleration of the maturity thereof;

 


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


 




 

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(f)
make the principal of or interest, if any, on any Security payable
in any currency other than that stated in the
Security;

 


(g)
make any change in Sections 6.8, 6.13 or 9.3 (this sentence);
or

 


(h)
waive a redemption payment with respect to any Security, provided
that such redemption is made at the Company’s
option.

 


Section 9.4. 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 hereto that complies
with the TIA as then in effect.

 


Section 9.5. Revocation
and Effect of Consents.

 


Until
an amendment is set forth in a supplemental indenture or a waiver
becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security, even if notation of the
consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives the notice of
revocation before the date of the supplemental indenture or the
date the waiver becomes effective.

 


Any
amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of
the type described in any of clauses (a) through (h) of
Section 9.3. In that case, the amendment or waiver shall bind
each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s
Security.

 


The
Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or
permitted to be taken pursuant to this Indenture. If a record date
is fixed, then notwithstanding the second immediately preceding
paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those persons, shall be
entitled to give such consent or to revoke any consent previously
given or take any such action, whether or not such Persons continue
to be Holders after such record date. No such consent shall be
valid or effective for more than 120 days after such record
date.

 


Section 9.6. Notation
on or Exchange of Securities.

 


The
Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that
Series may issue and the Trustee shall authenticate upon receipt of
a Company Order in accordance with Section 2.3 new Securities
of that Series that reflect the amendment or waiver.


 




 

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Section 9.7. Trustee
Protected.

 


In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to
Section 7.1) shall be fully protected in relying upon, an
Officer’s Certificate or an Opinion of Counsel or both
complying with Section 10.4. The Trustee shall sign all
supplemental indentures upon delivery of such an Officer’s
Certificate or Opinion of Counsel or both, except that the Trustee
need not sign any supplemental indenture that adversely affects its
rights, duties, liabilities or immunities under this
Indenture.

 


ARTICLE
X.


MISCELLANEOUS

 


Section 10.1. Trust
Indenture Act Controls.

 


If any
provision of this Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in
this Indenture by the TIA, such required or deemed provision shall
control.

 


Section 10.2. Notices.

 


Any
notice or communication by the Company or the Trustee to the other,
or by a Holder to the Company or the Trustee, is duly given if in
writing and delivered in person or mailed by first-class mail
(registered or certified, return receipt requested), facsimile
transmission, email or overnight air courier guaranteeing next day
delivery, to the others’ address:

 


if to
the Company:

 


Super
League Gaming, Inc.


2906
Colorado Avenue


Santa
Monica, California 90404


Attention:
President and Chief Executive Officer

 


with a
copy to:

 


Disclosure
Law Group, a Professional Corporation


655
West Broadway, Suite 870


San
Diego, California 92101


Attention:
Jessica R. Sudweeks

 


if to
the Trustee:

 


[_____]


Attention:
[____]


Telephone:
[____]


 




 

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with a
copy to:

 


[_____]


Attention:
[____]


Telephone:
[____]

 


The
Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or
communications.

 


Any
notice or communication to a Securityholder shall be sent
electronically or by first-class mail to his, her or its address
shown on the register kept by the Registrar, in accordance with the
procedures of the Depositary. Failure to send a notice or
communication to a Securityholder of any Series or any defect in it
shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.

 


If a
notice or communication is sent or published in the manner provided
above, within the time prescribed, it is duly given, whether or not
the Securityholder receives it.

 


If the
Company sends a notice or communication to Securityholders, it
shall send a copy to the Trustee and each Agent at the same
time.

 


Notwithstanding
any other provision of this Indenture or any Security, where this
Indenture or any Security provides for notice of any event
(including any notice of redemption) to a Holder of a Global
Security (whether by mail or otherwise), such notice shall be
sufficiently given to the Depositary for such Security (or its
designee) pursuant to the customary procedures of such
Depositary.

 


Section 10.3. Communication
by Holders with Other Holders.

 


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

 


Section 10.4. Certificate
and Opinion as to Conditions Precedent.

 


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

 


(a) an
Officer’s Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and

 


(b) an
Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.


 




 

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Section 10.5. Statements
Required in Certificate or Opinion.

 


Each
certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall
include:

 


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

 


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

 


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

 


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

 


Section 10.6. Rules
by Trustee and Agents.

 


The
Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make
reasonable rules and set reasonable requirements for its
functions.

 


Section 10.7. Legal
Holidays.

 


A
“Legal Holiday”
is any day that is not a Business Day. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.

 


Section 10.8. No
Recourse Against Others.

 


A
director, officer, employee or stockholder (past or present), as
such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or
for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the
Securities.

 


Section 10.9. Counterparts.

 


This
Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. The exchange
of copies of this Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery
of this Indenture as to the parties hereto and may be used in lieu
of the original Indenture for all purposes. Signatures of the
parties hereto transmitted by facsimile or PDF shall be deemed to
be their original signatures for all purposes.


 




 

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Section 10.10. Governing
Law; Waiver of Jury Trial; Consent to
Jurisdiction.

 



THIS INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR
CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE
SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.

 



THE COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF
THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, 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 NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.

 


Any
legal suit, action or proceeding arising out of or based upon this
Indenture or the transactions contemplated hereby may be instituted
in the federal courts of the United States of America located in
the City of New York or the courts of the State of New York in each
case located in the City of New York (collectively, the
“Specified
Courts”), and each party irrevocably submits to the
non exclusive jurisdiction of such courts in any such suit, action
or proceeding. Service of any process, summons, notice or document
by mail (to the extent allowed under any applicable statute or rule
of court) to such party’s address set forth above shall be
effective service of process for any suit, action or other
proceeding brought in any such court. The Company, the Trustee and
the Holders (by their acceptance of the Securities) each hereby
irrevocably and unconditionally waive any objection to the laying
of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to
plead or claim any such suit, action or other proceeding has been
brought in an inconvenient forum.

 


Section 10.11. No
Adverse Interpretation of Other Agreements.

 


This
Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary of the Company. Any
such indenture, loan or debt agreement may not be used to interpret
this Indenture.

 


Section 10.12. Successors.

 


All
agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.

 


Section 10.13. Severability.

 


In case
any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 




 

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Section 10.14. Table
of Contents, Headings, Etc.

 


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

 


Section 10.15. Securities
in a Foreign Currency.

 


Unless
otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate delivered pursuant to
Section 2.2 of this Indenture with respect to a particular
Series of Securities, whenever for purposes of this Indenture any
action may be taken by the Holders of a specified percentage in
aggregate principal amount of Securities of all Series or all
Series affected by a particular action at the time outstanding and,
at such time, there are outstanding Securities of any Series which
are denominated in more than one currency, then the principal
amount of Securities of such Series which shall be deemed to be
outstanding for the purpose of taking such action shall be
determined by converting any such other currency into a currency
that is designated upon issuance of any particular Series of
Securities. Unless otherwise specified in a Board Resolution, a
supplemental indenture hereto or an Officer’s Certificate
delivered pursuant to Section 2.2 of this Indenture with
respect to a particular Series of Securities, such conversion shall
be at the spot rate for the purchase of the designated currency as
published in The Financial Times in the “Currency
Rates” section (or, if The Financial Times is no longer
published, or if such information is no longer available in The
Financial Times, such source as may be selected in good faith by
the Company) on any date of determination. The provisions of this
paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency
other than Dollars in connection with any action taken by Holders
of Securities pursuant to the terms of this Indenture.

 


All
decisions and determinations provided for in the preceding
paragraph shall, in the absence of manifest error, to the extent
permitted by law, be conclusive for all purposes and irrevocably
binding upon the Trustee and all Holders.

 


Section 10.16. Judgment
Currency.

 


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


 




 

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

 


Section 10.17. Force
Majeure.

 


In no
event shall the Trustee be responsible or liable for any failure or
delay in the performance of its obligations hereunder arising out
of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear
or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and
hardware) services, it being understood that the Trustee shall use
reasonable best efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as
practicable under the circumstances.

 


Section 10.18. U.S.A.
Patriot Act.

 


The
parties hereto acknowledge that in accordance with Section 326
of the U.S.A. Patriot Act, the Trustee is required to obtain,
verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for
the Trustee to satisfy the requirements of the U.S.A. Patriot
Act.

 


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 the Securities of a Series if so provided by
the terms of such Securities pursuant to Section 2.2 and
except as otherwise permitted or required by any form of Security
of such Series issued pursuant to this Indenture.

 


The
minimum amount of any sinking fund payment provided for by the
terms of the Securities of any Series is herein referred to as a
“mandatory sinking fund
payment” and any other amount provided for by the
terms of Securities of such 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 the Securities of such
Series.


 




 

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Section 11.2. Satisfaction
of Sinking Fund Payments with Securities.

 


The
Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any Series to be made
pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund
payment is applicable (other than any of such Securities previously
called for mandatory sinking fund redemption) and (2) apply as
credit Securities of such Series to which such sinking fund payment
is applicable and which have been repurchased by the Company or
redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted
optional sinking fund payments or other optional redemptions
pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities
shall be received by the Trustee, together with an Officer’s
Certificate with respect thereto, not later than 15 days prior to
the date on which the Trustee begins the process of selecting
Securities for redemption, and shall be credited for such purpose
by the Trustee at the 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. If as a
result of the delivery or credit of Securities in lieu of cash
payments pursuant to this Section 11.2, the principal amount
of Securities of such Series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such Series for redemption, except upon
receipt of a Company Order that such action be taken, and such cash
payment shall be held by the Trustee or a Paying Agent and applied
to the next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall from time to time upon receipt of a Company
Order pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Securities of that Series purchased by
the Company having an unpaid principal amount equal to the cash
payment required to be released to the Company.

 


Section 11.3. Redemption
of Securities for Sinking Fund.

 


Not
less than 45 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officer’s
Certificate in respect of a particular Series of Securities) 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 mandatory 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 of Securities of that Series pursuant to
Section 11.2, and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein
specified. Not less than 30 days (unless otherwise indicated in the
Board Resolution, Officer’s Certificate or supplemental
indenture in respect of a particular Series of Securities) before
each such sinking fund payment date the Securities to be redeemed
upon such sinking fund payment date will be selected in the manner
specified in Section 3.2 and the Company shall send or cause
to be sent a notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in
and in accordance with Section 3.3. Such notice having been
duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 3.4, 3.5 and
3.6.


 




 

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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.


 


	
 

	
 

	
 


	

SUPER
LEAGUE GAMING, INC.


	
 

	
 


	

By:

	
 

	
 


	
 

	
 

	

Name:


	
 

	
 

	

Its:







 


	
 

	
 

	
 


	

[_____],
as Trustee


	
 

	
 


	

By:

	
 

	
 


	
 

	
 

	

Name:


	
 

	
 

	

Its:







 


 




 

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