Exhibit 4.10


 


TAKE-TWO INTERACTIVE SOFTWARE, INC.


 


ISSUER


 


TO


 


THE BANK OF NEW YORK MELLON


 


TRUSTEE


 


INDENTURE


 


DATED AS OF                    ,
2009


 

















 


CROSS REFERENCE TABLE


 


	
  TIA Section

  	
   

  	
  Indenture
  Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  7.08; 7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.07

  
	
  (b)

  	
   

  	
  12.04

  
	
  (c)

  	
   

  	
  12.04

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  7.06

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)(1)

  	
   

  	
  4.02

  
	
  (a)(2)

  	
   

  	
  12.03

  
	
  (a)(4)

  	
   

  	
  4.04

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  2.04; 7.02(b); 8.01

  
	
  (c)(1)

  	
   

  	
  12.05

  
	
  (c)(2)

  	
   

  	
  12.05

  
	
  (c)(3)

  	
   

  	
  12.05

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  4.04; 12.05

  
	
  (f)

  	
   

  	
  4.04

  
	
  315(a)(1)

  	
   

  	
  6.05; 7.01(b)(1)

  
	
  (a)(2)

  	
   

  	
  7.01(b)(2)

  
	
  (b)

  	
   

  	
  7.05; 12.03

  
	
  (c)

  	
   

  	
  7.01(a)

  
	
  (d)(1)

  	
   

  	
  7.01(b)

  
	
  (d)(2)

  	
   

  	
  7.01(c)(2)

  
	
  (d)(3)

  	
   

  	
  6.05; 7.01(c)(3)

  
	
  (e)

  	
   

  	
  6.13

  
	
  316(a)(last sentence)

  	
   

  	
  12.06

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.08

  
	
  (c)

  	
   

  	
  9.02; 9.04

  
	
  317(a)(1)

  	
   

  	
  6.03

  
	
  (a)(2)

  	
   

  	
  6.10

  
	
  (b)

  	
   

  	
  2.06

  
	
  318(a)

  	
   

  	
  1.02; 12.01

  



 






N.A. means Not
Applicable.




Note:  This cross-reference table shall not, for any
purpose, be deemed to be a part of the Indenture.


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE ONE

  	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.02.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  3

  
	
   

  	
   

  	
   

  
	
  SECTION 1.03.

  	
  Rules of Construction

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  	
  THE SECURITIES

  	
  4

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Form and Dating

  	
  4

  
	
   

  	
   

  	
   

  
	
  SECTION 2.02.

  	
  Amount Unlimited; Issuable in Series

  	
  4

  
	
   

  	
   

  	
   

  
	
  SECTION 2.03.

  	
  Denominations

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 2.04.

  	
  Execution and Authentication

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 2.05.

  	
  Registrar and Paying Agent

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 2.06.

  	
  Paying Agent to Hold Money in Trust

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 2.07.

  	
  Securityholder Lists

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 2.08.

  	
  Transfer and Exchange

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 2.09.

  	
  Replacement Securities

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 2.10.

  	
  Outstanding Securities

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 2.11.

  	
  Temporary Securities

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 2.12.

  	
  Cancellation

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 2.13.

  	
  Defaulted Interest

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 2.14.

  	
  CUSIP Numbers

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  	
  REDEMPTION

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Company’s Option to Redeem

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 3.02.

  	
  Notices to Trustee

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 3.03.

  	
  Selection of Securities to be Redeemed

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 3.04.

  	
  Notice of Redemption at the Company’s Option

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 3.05.

  	
  Effect of Notice of Redemption

  	
  9

  



 


i

















 


	
  SECTION 3.06.

  	
  Deposit of Redemption
  Price

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 3.07.

  	
  Holder’s Right to
  Require Redemption

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 3.08.

  	
  Procedure for Requiring
  Redemption

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 3.09.

  	
  Securities Redeemed in
  Part

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  	
  COVENANTS

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment of Securities

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 4.02.

  	
  Reporting

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 4.03.

  	
  Corporate Existence

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 4.04.

  	
  Compliance Certificate

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 4.05.

  	
  Further Instruments and
  Acts

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE

  	
  SUCCESSOR CORPORATION

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Company
  May Consolidate, etc., Only on Certain Terms

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 5.02.

  	
  Successor Corporation
  Substituted

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX

  	
  DEFAULTS AND REMEDIES

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events of Default

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 6.02.

  	
  Acceleration

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 6.03.

  	
  Other Remedies

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 6.04.

  	
  Waiver of Existing
  Defaults

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 6.05.

  	
  Control by Majority

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 6.06.

  	
  Payments of Securities
  on Default; Suit Therefor

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 6.07.

  	
  Limitation on Suits

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 6.08.

  	
  Rights of Holders to
  Receive Payment and to Demand Conversion

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 6.09.

  	
  Collection Suit by
  Trustee

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 6.10.

  	
  Trustee May File
  Proofs of Claim

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 6.11.

  	
  Restoration of
  Positions

  	
  17

  



 


ii

















 


	
  SECTION 6.12.

  	
  Priorities

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 6.13.

  	
  Undertaking for Costs

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 6.14.

  	
  Stay, Extension or
  Usury Laws

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 6.15.

  	
  Liability of
  Stockholders, Officers, Directors and Incorporators

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  	
  TRUSTEE

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Duties of Trustee

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 7.02.

  	
  Rights of Trustee

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 7.03.

  	
  Individual Rights of
  Trustee

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 7.04.

  	
  Trustee’s Disclaimer

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 7.05.

  	
  Notice of Defaults

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 7.06.

  	
  Reports by Trustee

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 7.07.

  	
  Compensation and
  Indemnity

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 7.08.

  	
  Replacement of Trustee

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 7.09.

  	
  Successor Trustee by
  Merger, etc.

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 7.10.

  	
  Eligibility;
  Disqualification

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 7.11.

  	
  Preferential Collection
  of Claims

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  	
  DISCHARGE OF INDENTURE

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Termination of the
  Company’s Obligations

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 8.02.

  	
  Application of Trust
  Money

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 8.03.

  	
  Repayment to the
  Company

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 8.04.

  	
  Deposited Money and
  U.S. Government Obligations to Be Held in Trust

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE

  	
  AMENDMENTS, SUPPLEMENTS
  AND WAIVERS

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Without Consent of
  Holders

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 9.02.

  	
  With Consent of Holders

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 9.03.

  	
  Compliance with Trust
  Indenture Act

  	
  27

  



 


iii

















 


	
  SECTION 9.04.

  	
  Revocation and Effect
  of Consents

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 9.05.

  	
  Notation on or Exchange
  of Securities

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 9.06.

  	
  Trustee to Sign
  Amendments, etc.

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  	
  CONVERSION OR EXCHANGE
  OF SECURITIES

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Provisions Relating to
  Conversion or Exchange of Securities

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  	
  SINKING OR PURCHASE
  FUNDS

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Provisions Relating to
  Sinking or Purchase Funds

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE

  	
  MISCELLANEOUS

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
  Trust Indenture Act
  Controls

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 12.02.

  	
  Supplemental Indentures
  Contract

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 12.03.

  	
  Notices

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 12.04.

  	
  Communication by
  Holders with Other Holders

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 12.05.

  	
  Certificate and Opinion
  as to Conditions Precedent

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 12.06.

  	
  When Treasury
  Securities Disregarded

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 12.07.

  	
  Rules by Trustee,
  Paying Agent, Registrar

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 12.08.

  	
  Legal Holidays

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 12.09.

  	
  Governing Law and
  Submission to Jurisdiction

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 12.10.

  	
  Actions by the Company

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 12.11.

  	
  No Adverse
  Interpretation of Other Agreements

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 12.12.

  	
  Successors

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 12.13.

  	
  Duplicate Originals

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 12.14.

  	
  Table of Contents,
  Headings, etc

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 12.15.

  	
  Waiver of Jury Trial

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 12.16.

  	
  Force Majeure

  	
  32

  



 


iv

















 


INDENTURE, dated as of
                            ,
2009, between Take-Two Interactive Software, Inc. (the “Company”), a
Delaware corporation having its principal office at 622 Broadway, New York, New
York 10012, and The Bank of New York Mellon (the “Trustee”), a New York banking
corporation, which has its principal corporate trust office at 101 Barclay
Street, 8W, New York, New, York 10286. Each party agrees as follows for the
benefit of each other party and for the equal and ratable benefit of the
Holders of the Company’s debentures, notes or other evidences of unsecured
indebtedness to be issued in one or more series (“Securities”):


 


ARTICLE ONE




DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.01.  Definitions.


 


“Bankruptcy Law” has the
meaning provided in Section 6.01.


 


“Board Resolution” means
a resolution by the Board of Directors or Executive Committee of the Company
certified by its Secretary or an Assistant Secretary as being duly adopted and
in full force and effect.


 


“Business Day” means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a Legal Holiday.


 


“Capital Stock” means
common or preferred stock entitled to share in the equity or profits of a
Corporation.


 


“Common Stock” means the
common stock, par value $.01 per share, of the Company, as that stock may be
reconstituted from time to time.


 


“Company” means the
Person named as such in this Indenture until a successor replaces it and after
that means the successor.


 


“Company Order” means a
written request or order signed in the name of the Company by an officer of the
Company and delivered to the Trustee.


 


“Corporate Trust Office”
means the principal office of the Trustee at which at any particular time its
corporate trust business is principally administered (which at the date of this
Indenture is at the location set forth in the first paragraph of this
Indenture), Attention:  Corporate Trust
Administration, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as such successor
Trustee may designate from time to time by notice to the Holders and the
Company).


 


“Corporation” includes
corporations, associations, companies and business trusts.


 


“Custodian” has the
meaning provided in Section 6.01.


 


“Default” means any event
which, upon the giving of notice or passage of time, or both, would be an Event
of Default.


 


“$” means the lawful
currency of the United States.


 

















 


“Event of Default” has
the meaning provided in Section 6.01.


 


“Fiscal Year” means the
period commencing on November 1 of a year and ending on the next
October 31 or such other period (not to exceed 12 months or 53 weeks) as
the Company may from time to time adopt as its fiscal year.


 


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


 


“Indenture” means this
Indenture as amended or supplemented from time to time and will include the
form and terms of the Securities of each series established as contemplated by
Section 2.01.


 


“Interest Payment Date”
means the date on which an installment of interest on the Securities is due and
payable.


 


“Legal Holiday” has the
meaning provided in Section 12.08.


 


“Maturity Date” means the
date the principal of Securities is due and payable.


 


“Officer” means the Chief
Executive Officer, the Chief Financial Officer, the President, any Executive Vice
President, Senior Vice President or Vice President, the Treasurer, any
Assistant Treasurer, the Secretary, any Assistant Secretary or the Controller
of a Person.


 


“Officers’ Certificate”
when used with respect to the Company means a certificate signed by two
Officers.  Each such certificate will
comply with Section 314 of the TIA and include the statements described in
Section 12.05.


 


“Opinion of Counsel”
means a written opinion from legal counsel who is acceptable to the
Trustee.  That counsel may be an employee
of or counsel to the Company.  Each such
opinion will include the statements described in Section 12.05 if and to
the extent required by that Section.


 


“Paying Agent” has the
meaning provided in Section 2.05.


 


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


 


“Registrar” has the
meaning provided in Section 2.05.


 


“SEC” means the
Securities and Exchange Commission.


 


“Securities” has the
meaning set forth in the first paragraph of this Indenture.


 


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


 


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


 


2

















 


“State” means any state
of the United States or the District of Columbia.


 


“Subsidiary” means a
corporation of which a majority of the voting stock is owned by the Company, by
a Subsidiary of the Company or by the Company and one or more Subsidiaries of
the Company.


 


“Supplemental Indenture”
means an indenture between the Company and the Trustee which supplements this
Indenture.


 


“TIA” means the Trust
Indenture Act of 1939, as amended, as in effect on the date of this Indenture,
except to the extent that the Trust Indenture Act or any amendment thereto
expressly provides for application of the Trust Indenture Act as in effect on
another date.


 


“Trustee” means the
Person named as such in this Indenture and, subject to the provisions of
Article 7, any successor to that person.


 


“Trust Officer” means,
when used with respect to the Trustee, any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.


 


“United States” means the
United States of America.


 


“U.S. Government Obligations” means:


 


(1)                        direct obligations of the United States
for the payment of which its full faith and credit is pledged; or


 


(2)                        obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States.


 


SECTION 1.02.  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.  In addition, the
provisions of Sections 310 to and including 317 of the TIA that impose duties
on any person are incorporated by reference in, and form a part of, this
Indenture.  The following TIA terms mean
the following when used in this Indenture:


 


“Commission” means the
SEC;


 


“indenture securities”
means the Securities;


 


“indenture
securityholder” means a Holder or Securityholder;


 


“indenture to be
qualified” means this Indenture;


 


“indenture trustee” or
“institutional trustee” means the Trustee; and


 


“obligor” on the
indenture securities means the Company.


 


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


 


SECTION 1.03.
Rules of Construction. Unless the context otherwise requires:


 


3

















 


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


 


(2)                          an accounting term not otherwise defined
has the meaning assigned to it in accordance with generally accepted accounting
principles in the United States;


 


(3)                          “or” is not exclusive; and


 


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


 


ARTICLE TWO



THE SECURITIES


 


SECTION 2.01.  Form and Dating.  (a)  The Securities of each series will
be substantially in the form established by a Supplemental Indenture relating
to the Securities of that series.  The
Securities may have notations, legends or endorsements required by law, stock
exchange rules or usage.  The
Company will approve the form of the Securities and any notation, legend or
endorsement on them.  Each Security will
be dated the date of its authentication.


 


(b)  The Trustee’s
certificate of authentication will be substantially in the form of
Exhibit A.


 


SECTION 2.02.  Amount Unlimited; Issuable in Series.  The aggregate principal amount of the
Securities which may be authenticated and delivered under this Indenture is
unlimited.  The Securities may be issued
in one or more series.  Prior to the
issuance of Securities of a series, the Company and the Trustee will execute a
Supplemental Indenture which will set forth as to the Securities of that
series, to the extent applicable:


 


(1)                          the title of the Securities;


 


(2)                          any limit upon the aggregate principal
amount of Securities which may be issued;


 


(3)                          the date or dates on which the Securities
will mature and the amounts to be paid upon maturity of the Securities;


 


(4)                          the rate or rates (which may be fixed or
variable) at which the Securities will bear interest, if any, or contingent
interest, if any, the dates from which interest will accrue, the dates on which
interest will be payable and the record date for the interest payable on any
interest payment date;


 


(5)                          the currency or currencies in which
principal, premium, if any, and interest, if any, will be payable;


 


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


 


4














 


(7)                          any provisions regarding the right of the
Company to redeem Securities or of holders to require the Company to redeem
Securities;


 


(8)                          the right, if any, of holders of the
Securities to convert them into common stock or other securities of the Company,
including any contingent conversion provisions and any provisions intended to
prevent dilution of those conversion rights;


 


(9)                          any provisions by which the Company will
be required or permitted to make payments to a sinking fund which will be used
to redeem Securities or a purchase fund which will be used to purchase
Securities;


 


(10)                    any index or formula used to determine
the required payments of principal, premium, if any, or interest, if any;


 


(11)                    the percentage of the principal amount of
the Securities which is payable if maturity of the Securities is accelerated
because of a default;


 


(11)                    any special or modified events of default
or covenants with respect to the Securities;


 


(12)                    any other terms of the Securities.


 


SECTION 2.03. 
Denominations.  Unless otherwise
provided in the Supplemental Indenture relating to a series of Securities, the
Securities of each series will be issuable in registered form without coupons
in denominations of $1,000 and multiples of $1,000.


 


SECTION 2.04. 
Execution and Authentication.  Two
Officers will sign the Securities of each series for the Company by manual or
facsimile signature.  The Securities may,
but need not, have the corporate seal of the Company or a facsimile thereof
affixed thereto or imprinted thereon.  If
an Officer whose signature is on a Security no longer holds office at the time
the Trustee authenticates the Security, the Security will be valid
nonetheless.  A Security will not be
valid until an authorized signatory of the Trustee manually signs the certificate
of authentication on the Security.  The
signature will be conclusive evidence that the Security has been authenticated
under this Indenture.


 


SECTION 2.05. 
Registrar and Paying Agent.  The
Company will maintain an office or agency where Securities of each series may
be presented for conversion, registration of transfer or for exchange (the “Registrar”)
and an office or agency where Securities of each series may be presented for
payment (“Paying Agent”).  The Registrar
will keep a register of the Securities of each series and of their transfer and
exchange.  The Company may have one or
more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any
additional paying agent.


 


The Company will enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a party to this
Indenture which will incorporate the terms of the TIA.  The agreement will implement the provisions
of this Indenture that relate to that agent. 
The Company will notify the Trustee of the name and address of any such
agent.  If the Company 


 


5

















 


fails
to maintain a Registrar or Paying Agent, the Trustee will act as such.  The Company or any Subsidiary may act as
Paying Agent, Registrar, co-registrar or transfer agent.


 


The Company initially appoints the Trustee to act as
Registrar and Paying Agent in connection with the Securities of each series,
except in instances in which the Supplemental Indenture relating to a series of
Securities appoints a different Registrar or Paying Agent.


 


SECTION 2.06. 
Paying Agent to Hold Money in Trust. 
Prior to each due date of the principal of, premium, if any, or
interest, if any, on any Security, the Company will deposit with the Paying
Agent a sum sufficient to pay that principal, premium or interest when
due.  The Paying Agent will hold in trust
for the benefit of the Holders of the Securities of a series, and if the Paying
Agent is not the Trustee, in trust for the benefit of the Trustee, all sums
held by the Paying Agent for the payment of principal, premium or interest on
the Securities of that series and, in the case of a Paying Agent other than the
Trustee, the Paying Agent will give the Trustee notice of any default by the
Company in making any such payment.  If
the Company or a Subsidiary acts as Paying Agent, it will segregate the money
held by it as Paying Agent and hold it as a separate trust fund.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent will have no further liability for the money.


 


SECTION 2.07. 
Securityholder Lists.  The Trustee
will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of the Holders of the
Securities of each series.  If the
Trustee is not the Registrar, the Company will furnish to the Trustee in
writing at least five Business Days before each Interest Payment Date and at
such other times as the Trustee may request in writing all information in the
possession or control of the Company or its Paying Agent as to the names and
addresses of Holders of the Securities of a series.


 


SECTION 2.08. 
Transfer and Exchange.  Unless
otherwise provided in the Supplemental Indenture relating to Securities of a
series, Securities which are issued in registered form will be transferred only
upon the surrender of the Securities for registration of transfer.  When a Security is presented to the Registrar
or a co-registrar with a request to register a transfer, the Registrar will
register the transfer as requested if the requirements of Article 8 of the
New York Uniform Commercial Code are met. 
When Securities are presented to the Registrar or a co-registrar with a
request to exchange them for an equal principal amount of Securities of the
same series of other denominations, the Registrar will make the exchange as
requested if the same requirements are met. 
To permit registration of transfers and exchanges, the Company will
execute and the Trustee will authenticate Securities at the Registrar’s or
co-registrar’s request.  The Company will
not charge a fee for transfers or exchanges.


 


The Company will not be required to make, and the
Registrar need not register, transfers or exchanges of (i) Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, transfers or exchanges of the portion of the Securities not to be redeemed)
or (ii) any Securities of a series for a period of 15 days before the
first mailing of a notice of the Securities of that series which are to be
redeemed.


 


6

















 


Prior to the due presentation for registration or
transfer of any Security which was issued in registered form, the Company, the
Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat
the person in whose name the Security is registered as the absolute owner of
the Security for all purposes, and none of the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar will be affected by notice to the
contrary.


 


SECTION 2.09. 
Replacement Securities.  If a
mutilated Security which had been issued in registered form is surrendered to
the Registrar or if the Holder presents evidence to the satisfaction of the
Company and the Trustee that a Security which had been issued in registered
form has been lost or destroyed, the Company will issue and the Trustee will
authenticate a replacement Security of the same series if the requirements of Section 8-405
of the New York Uniform Commercial Code are met and the Holder satisfies any
other reasonable requirements of the Trustee. 
If required by the Trustee or the Company, the replacement Security will
not be issued until the Holder furnishes an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee,
the Paying Agent and the Registrar or any co-registrar from any loss which any
of them may suffer if the Security is replaced. 
The Company may charge the Holder for its expenses in replacing a
Security.


 


Every replacement Security will be an obligation of
the Company, even if the replaced Security is subsequently found.


 


SECTION 2.10. 
Outstanding Securities.  The
Securities outstanding at any time will be all the Securities authenticated by
the Trustee, except those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.  A Security does not cease to be outstanding
because the Company or its affiliate holds the Security.


 


If a Security is replaced pursuant to Section 2.09,
it ceases to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a protected
purchaser (in which case the replaced Security will be treated as outstanding
to the extent permitted by Section 8-210 of the New York Uniform
Commercial Code).


 


If the Paying Agent (other than the Company or a
Subsidiary) segregates and holds in trust, in accordance with this Indenture,
on a redemption date or Maturity Date money sufficient to pay all principal,
premium, if any, and interest, if any, payable on that date with respect to the
Securities to be redeemed or maturing, as the case may be, then on that date
those Securities will cease to be outstanding and interest on them will cease
to accrue.


 


SECTION 2.11. 
Temporary Securities.  Until
definitive Securities of a series are ready for delivery, the Company may
prepare and the Trustee will authenticate temporary Securities of that
series.  Temporary Securities will 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 will
prepare and the Trustee will authenticate definitive Securities and deliver
them in exchange for temporary Securities.


 


SECTION 2.12. 
Cancellation.  The Company at any
time may deliver Securities of a series to the Trustee for cancellation and the
Trustee will reduce accordingly the aggregate amount of the Securities of that
series which are outstanding.  The
Registrar and the Paying 


 


7

















 


Agent
will forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange, payment, or conversion. 
The Trustee and no one else will cancel and dispose of all Securities
surrendered for registration of transfer, exchange, payment, conversion or cancellation
in accordance with its procedures for the disposition of cancelled securities
and deliver certificates of such disposition to the Company unless the Company
directs the Trustee to deliver the cancelled Securities to the Company.  Subject to Section 2.09, the Company may
not issue new Securities of a series to replace Securities of the series it has
redeemed, paid, converted or delivered to the Trustee for cancellation.


 


SECTION 2.13. 
Defaulted Interest.  If the
Company defaults in a payment of interest on the Securities of a series, it
will pay defaulted interest (plus interest on such defaulted interest to the
extent lawful) to the persons who are Holders of the Securities of that series
on a subsequent special record date, which date will be at least five Business
Days prior to the payment date.  The
Company will fix the special record date and payment date, and, at least 15
days before the special record date, the Company will mail to each Holder of
Securities of that series a notice that states the special record date, the
payment date and the amount of defaulted interest and any interest on that
defaulted interest which is to be paid. 
Notwithstanding the foregoing, the Company may pay defaulted interest in
any other lawful manner.


 


SECTION 2.14. 
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 identification numbers printed on the
Securities,  and any such redemption
shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee
in writing of any change in the “CUSIP” numbers.


 


ARTICLE THREE


 


REDEMPTION


 


SECTION 3.01. 
Company’s Option to Redeem.  The
Company will have the option to redeem Securities of a series only to the
extent, if any, and only on the terms, set forth in the Supplemental Indenture
relating to the Securities of that series. 
If the Company has the option to redeem Securities of a series, unless
otherwise provided in the Supplemental Indenture relating to the series, the
terms of the redemption will include those set forth in Sections 3.02 through
3.06.


 


SECTION 3.02. 
Notices to Trustee.  If the
Company elects to redeem Securities of a series, it will notify the Trustee of
the redemption date and the principal amount and series of Securities to be
redeemed.  The Company will give each
notice provided for in this Section at least 45 days before the redemption
date.  If fewer than all the Securities
of a series are to be redeemed, the record date for determining which
Securities of the series are to be redeemed will be selected by the Company,
which will give notice of the record date to the Trustee at least 15 days
before the record date.


 


8

















 


SECTION 3.03. 
Selection of Securities to be Redeemed. 
If fewer than all the Securities of a series are to be redeemed at the
Company’s option, the Trustee will select the Securities of that series to be
redeemed by lot or, in its sole discretion, pro-rata.  The Trustee will make the selection from
outstanding Securities of that series not previously called for
redemption.  The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than the minimum denomination in which Securities of the applicable
series may be issued.  Securities and
portions of Securities the Trustee selects will be in amounts equal to the minimum
denomination in which Securities of the applicable series may be issued and
multiples of that amount.  Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. 
The Trustee will notify the Company promptly of the Securities or
portions of Securities to be redeemed.


 


SECTION 3.04.  Notice of Redemption at the Company’s Option.  At least 30 days and not more than 60 days
before a date set for redemption at the Company’s option, the Company will mail
a notice of redemption by first-class mail to each Holder of Securities to be
redeemed in whole or in part.  The notice
will identify the principal amount and series of each Security to be redeemed
and will state:


 


(1)                         the redemption date;


 


(2)                         the redemption price plus accrued
interest, if any;


 


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


 


(4)                         that Securities called for redemption in
whole or in part must be surrendered to the Paying Agent to collect the
redemption price plus accrued interest, if any;


 


(5)                         that, unless the Company defaults in
making the redemption payment, interest on Securities (or portions of
Securities) called for redemption will cease to accrue on the redemption date
and, if applicable, that those Securities (or the portions of then called for
redemption) will cease on the redemption date (or such other date as is
provided in the Supplemental Indenture relating to the Securities) to be
convertible into, or exchangeable for, other securities or assets;


 


(6)                         if applicable, the current conversion or
exchange price; and


 


(7)                         the CUSIP, ISIN or other similar numbers,
if any, assigned to such Securities.


 


At the Company’s request delivered at least five (5) days
prior to the date such notice of redemption is to be given (unless a shorter
period shall be acceptable to the Trustee), the Trustee will give the notice of
redemption in the Company’s name and at the Company’s expense.  In such event, the Company will provide the
Trustee with the information required by clauses (1) through (3) and
(6).


 


SECTION 3.05. 
Effect of Notice of Redemption. 
Once notice of redemption is mailed, Securities, or portions of
Securities called for redemption will become due and payable on the 


 


9

















 


redemption
date and at the redemption price.  Upon
surrender to the Paying Agent, those Securities will be paid at the redemption
price, plus accrued and unpaid interest to the redemption date.  On and after the date fixed for redemption
(unless the Company defaults in the payment of the redemption price, together
with interest accrued to the redemption date) interest on the Securities, or
portions of them, which are redeemed will cease to accrue and any right to
convert those Securities into, or exchange them for, other securities or assets
will terminate and those Securities will cease to be convertible or
exchangeable.  Failure to give notice or
any defect in the notice to any Holder will not affect the validity of the
notice to any other Holder.


 


SECTION 3.06. 
Deposit of Redemption Price.  No
later than the Business Day prior to the redemption date specified in a notice
of redemption, the Company will deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, segregate and hold in trust) money
sufficient to redeem on the redemption date all the Securities called for
redemption on that redemption date at the appropriate redemption price,
together with accrued interest to the redemption date, other than Securities or
portions of Securities called for redemption which have been delivered by the
Company to the Trustee for cancellation or Securities which have been
surrendered for conversion or exchange. 
If any Securities called for redemption are converted or exchanged, any
money deposited with the Paying Agent for redemption of those Securities will
be paid to the Company upon its request, or, if the money is held in trust by
the Company or a Subsidiary as Paying Agent, the money will be discharged from
the trust.


 


SECTION 3.07. 
Holder’s Right to Require Redemption. 
Holders of Securities of a series will have the right to require the
Company to redeem those Securities only to the extent, and only on the terms,
set forth in the Supplemental Indenture relating to the Securities of that
series.  If Holders of Securities of a
series have the right to require the Company to redeem those Securities, unless
otherwise provided in the Supplemental Indenture relating to the Securities of
that series, the terms of the redemption will include those set forth in Section 3.08.


 


SECTION 3.08. 
Procedure for Requiring Redemption. 
If a Holder has the right to require the Company to redeem Securities,
to exercise that right, the Holder must deliver the Securities to the Paying
Agent, endorsed for transfer and with the form on the reverse side entitled “Option
to Require Redemption” completed. 
Delivery of Securities to the Paying Agent as provided in this Section will
constitute an irrevocable election to cause the specified principal amount of
Securities to be redeemed.  When Securities
are delivered to the Paying Agent as provided in this Section, unless the
Company fails to make the payments due as a result of the redemption within 20
days after the Securities are delivered to the Paying Agent as provided in this
Section interest on the Securities will cease to accrue and, if the
Securities are convertible or exchangeable, the Holder’s right to convert or
exchange the Securities will terminate.


 


The Company’s determination of all questions regarding
the validity, eligibility (including time of receipt) and acceptance of any
Security for redemption will be final and binding.


 


SECTION 3.09. 
Securities Redeemed in Part.  Upon
surrender of a Security that is redeemed in part, the Company will execute and
the Trustee will authenticate and deliver to the Holder (at the Company’s
expense) a new Security equal of the same series in principal amount equal to
the unredeemed portion of the Security which was surrendered.


 


10

















 


ARTICLE FOUR


 


COVENANTS


 


SECTION 4.01. 
Payment of Securities.  The
Company will promptly pay or cause to be paid the principal of, premium, if
any, and interest, if any, on each of the Securities of a series at the places
and time and in the manner provided in the Securities and in the Supplemental
Indenture relating to the series.  An
installment of principal, premium or interest will be considered paid on the
date it is due if the Trustee or Paying Agent holds on that date in accordance
with this Indenture or the applicable Supplemental Indenture money designated
for and sufficient to pay the installment then due.


 


The Company will pay or cause to be paid interest on
overdue principal at the rate specified in the Securities; it will also pay
interest on overdue installments of interest at the same rate (or such other
rate as is provided in the applicable Supplemental Indenture), to the extent
lawful.


 


SECTION 4.02. 
Reporting.  The Company will file
with the Trustee within 15 days after filing with the SEC, copies of its 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 Securities Exchange Act of 1934 (the “Exchange Act”); provided, however, that, to the extent permitted by law, any
such document, information and other reports filed and publicly available
through the SEC’s EDGAR filing system shall be deemed to have been received by
the Trustee.  The Company also will
comply with the other provisions of TIA Section 314(a).


 


Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).  The Trustee shall have no duty to search for
or obtain any electronic or other filings that the Company makes with the SEC,
regardless of whether such filings are periodic, supplemental or otherwise.


 


SECTION 4.03. 
Corporate Existence.  Subject to Article 5,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company will not be
required to preserve any such right or franchise if the Board of Directors
determines that the preservation of the right or franchise is no longer
desirable in the conduct of the business of the Company and that its loss will
not be disadvantageous in any material respect to the Holders of Securities of
any series.


 


SECTION 4.04. 
Compliance Certificate.  The
Company will deliver to the Trustee within 120 days after the end of each
fiscal year of the Company an Officers’ Certificate stating that in the course
of the performance by the signers of their duties as Officers of the Company
they would normally have knowledge of any default by the Company and whether or
not the 


 


11

















 


signers
know of any default that occurred during the fiscal year.  If they do, the certificate will describe the
default, its status and what action the Company is taking or proposes to take
with respect thereto.  The Company also
will comply with TIA Section 314(a)(4).


 


SECTION 4.05. 
Further Instruments and Acts. 
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.


 


ARTICLE FIVE


 


SUCCESSOR CORPORATION


 


SECTION 5.01. 
Company May Consolidate, etc., Only on Certain Terms.  The Company will not consolidate with or
merge into any other corporation or convey, transfer or lease its properties
and assets substantially as an entirety to any person, unless:


 


(1)                         the corporation formed by the
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety will be a corporation organized and
existing under the laws of the United States of America, a State of the United
States of America or the District of Columbia and expressly assumes, by one or
more supplemental indentures, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of, premium, if
any, and interest, if any, on all the Securities of each series and the
performance of every covenant of this Indenture and of all Supplemental
Indentures to be performed or observed by the Company;


 


(2)                         with regard to each series of Securities,
immediately after giving effect to the transaction, no Event of Default with
respect to that series of Securities, and no event which, after notice or lapse
of time or both, would become an Event of Default with respect to that series
of Securities, will have occurred and be continuing; and


 


(3)                         the Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that the
consolidation, merger, conveyance, transfer or lease and the supplemental
indenture (or the supplemental indentures together) comply with this Article and
that all the conditions precedent relating to the transaction set forth in this
Section have been fulfilled.


 


SECTION 5.02. 
Successor Corporation Substituted. 
Upon any event described in Section 5.01, the successor corporation
will succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture and all the Supplemental Indentures
relating to outstanding series of Securities, and the predecessor corporation
will be relieved of all obligations and covenants under this Indenture and each
of those Supplemental Indentures.


 


12

















 


ARTICLE SIX


 


DEFAULTS AND REMEDIES


 


SECTION 6.01. 
Events of Default.  An “Event of
Default” occurs if:


 


(1)                         The Company defaults in the payment of
interest on any Security of any series when it becomes due and payable and the
default continues for a period of 30 days (or such other period, which may be
no period) as is specified in the Supplemental Indenture relating to the
series;


 


(2)                         The Company defaults in the payment of
the principal of, or premium, if any, on any Security of any series as and when
it becomes due and payable at its stated maturity or upon redemption,
acceleration or otherwise and, if provided in the Supplemental Indenture
relating to a series, the default continues for a period specified in the
Supplemental Indenture;


 


(3)                         The Company fails to comply with any of
its other covenants or agreements with regard to Securities of a series or this
Indenture (other than a covenant or agreement, a default in whose performance
or whose breach is dealt with specifically elsewhere in this Section) and that
failure continues for a period of 60 days after the date of the notice
specified below;


 


(4)                         the Company, pursuant to any Bankruptcy
Law applicable to the Company:


 


(A)                             commences a voluntary case;


 


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


 


(C)                               consents to the appointment of a
Custodian of it or for any substantial part of its property; or


 


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


 


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


 


(A)                             for relief in an involuntary case;


 


(B)                               appointing a Custodian of the Company or
for any substantial part of its property; or


 


(C)                               ordering its winding up or liquidation;
and the order or decree remains unstayed and in effect for 90 days.


 


Each of the occurrences described in clauses (1) through
(5) will constitute an Event of Default whatever the reason for the
occurrence and whether it is voluntary or involuntary or is 


 


13

















 


effected
by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental
body.


 


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


 


A Default under clause (3) of this Section is
not an Event of Default until the Trustee notifies the Company, or the Holders
of at least 25% in principal amount of the then outstanding Securities of a
series with regard to which the Company has failed to comply with a covenant or
agreement notify the Company and the Trustee, of the Default and the Company
does not cure the Default within 45 days after the giving of the notice.  The notice must specify the Default, demand
that it be remedied and state that the notice is a “Notice of Default.”


 


A Default under clause (1), (2) or (3) with
regard to Securities of a series will not constitute a Default with regard to
Securities of any other series except to the extent, if any, provided in the
Supplemental Indenture relating to the other series.


 


The Company will deliver to the Trustee, within 20
days after it occurs, written notice in the form of an Officers’ Certificate of
any event of which the Company is aware which with the giving of notice and the
lapse of time would become an Event of Default under clause (3), its status and
what action the Company is taking or proposes to take with respect to it.


 


SECTION 6.02. 
Acceleration.  If an Event of
Default as to the Securities of a series occurs and is continuing, unless the
principal of all of the Securities of the series has already become due and
payable, the Trustee by notice to the Company, or the Holders of at least 25%
in aggregate principal amount of the Securities of the series then outstanding
by notice to the Company and the Trustee, may declare the principal of and
accrued interest, if any, on all the Securities of the series to be due and
payable.  Upon such a declaration, that
principal and interest will be due and payable immediately.  If an Event of Default specified in Section 6.01(4) or
(5) occurs, the principal of, premium, if any, and accrued interest, if
any, on all the Securities will automatically become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Securityholders.  The Holders of a majority
in principal amount of the Securities of a series then outstanding, on behalf
of the Holders of all the Securities of the series, by notice to the Trustee
may rescind an acceleration and its consequences if all existing Events of
Default have been cured or waived except nonpayment of principal, premium, if
any, or interest, if any, that has become due solely because of acceleration,
and if the rescission would not conflict with any judgment or decree.  No such rescission will affect any subsequent
default or impair any consequent right.


 


SECTION 6.03. 
Other Remedies.  If an Event of
Default as to a series occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, premium, if any, and
interest, if any, on the Securities of the series or to enforce the performance
of any provision under this Indenture or any applicable Supplemental Indenture.


 


The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee or any


 


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Securityholder in exercising any right or remedy accruing upon an Event
of Default will not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default.  No
remedy is exclusive of any other remedy. 
All available remedies are cumulative.


 


SECTION 6.04.  Waiver of
Existing Defaults.  The Holders of a
majority in aggregate principal amount of the Securities of a series then
outstanding, on behalf of the Holders of all the Securities of that series, by
notice to the Trustee may consent to the waiver of any past Default with regard
to Securities of the series and its consequences except (i) a default in
the payment of interest or premium, if any, on, or the principal of, Securities
of the series, or (ii) a default in respect of a covenant or a provision
that under Section 9.02 cannot be modified or amended without the consent
of the Holders of all Securities of the series then outstanding.  The defaults described in clauses (i) and
(ii) in the previous sentence may be waived with the consent of the
Holders of all Securities of the series then outstanding.  When a Default or Event of Default is waived,
it is deemed cured and not continuing, but no waiver will extend to any
subsequent or other Default or impair any consequent right.


 


SECTION 6.05.  Control by
Majority.  The Holders of a majority in
principal amount of the Securities of a series then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee with regard to the Securities of that series or of exercising any
trust or power conferred on the Trustee with regard to the Securities of that
series.  However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or, subject
to Section 7.01, that the Trustee determines is unduly prejudicial to the
rights of other Securityholders or that would involve the Trustee in personal
liability provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction.  Prior to taking any action as a result of a
direction given under this Section, the Trustee will be entitled to
indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking that action.


 


SECTION 6.06.  Payments of
Securities on Default; Suit Therefor. 
The Company covenants that upon the occurrence of an Event of Default
described in Section 6.01(1) or (2), then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the holders of
the Securities in all series, the whole amount that will then have become due
and payable on all such Securities for principal, premium, if any, and
interest, with interest on the overdue principal and premium, if any, and (to
the extent that payment of such interest is enforceable under applicable law)
on the overdue installments of interest at the rate borne by the Securities in
all series; and, in addition, such further amount as will be sufficient to cover
the costs and expenses of collection, including a reasonable compensation to
the Trustee, its agents, attorneys and counsel, and any expenses or liabilities
incurred by the Trustee hereunder other than through its negligence or bad
faith.  Until such demand by the Trustee,
the Company may pay the principal of and premium, if any, and interest on the
Securities of all series to the registered Holders, whether or not the
Securities in that series are overdue.


 


SECTION 6.07.  Limitation on
Suits.  A Securityholder may not pursue
any remedy with respect to this Indenture unless:


 


(1)         the Holder gives to the
Trustee written notice stating that an Event of Default as to a series is
continuing;


 


15

















 


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


 


(3)         such Holder or Holders
offer to the Trustee security or indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;


 


(4)         the Trustee does not
comply with the request within 60 days after receipt of the request and the
offer of security or indemnity, and the Event of Default has not been waived;
and


 


(5)         the Trustee has received
no contrary direction from the Holders of a majority in principal amount of the
Securities of the series then outstanding during such 60-day period.


 


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


 


SECTION 6.08.  Rights of
Holders to Receive Payment and to Demand Conversion.  Notwithstanding any other provision of this
Indenture, the right of any Holder of a Security of any series to receive
payment of principal of, premium, if any, and interest, if any, on the Security
(and interest on overdue principal and interest on overdue installments of
interest, if any, as provided in Section 4.01), on or after the respective
due dates expressed in the Security or, in the case of redemption, on or after
the redemption date, or in the case of conversion or exchange, to receive the
security issuable upon conversion or exchange or to institute suit for the enforcement
of any such payment, conversion or exchange on or after the applicable due
date, redemption date or conversion or exchange date, as the case may be,
against the Company, will not be impaired or affected without the consent of
the Holder.


 


SECTION 6.09.  Collection
Suit by Trustee.  If an Event of Default
in payment of principal, premium, if any, or interest, if any, specified in
clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal, premium, if any, and
interest remaining unpaid (together with interest on that unpaid interest to
the extent lawful) and the amounts provided for in Section 7.07.


 


SECTION 6.10.  Trustee May File
Proofs of Claim.  The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of the
Securities of any or all series allowed in any judicial proceedings relative to
the Company, its creditors or its property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder
to make payments to the Trustee and, if the Trustee consents to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.07.


 


16

















 


SECTION 6.11.  Restoration
of Positions.  If a judicial proceeding
by the Trustee or a Securityholder to enforce any right or remedy under this
Indenture or any Supplemental Indenture is dismissed or decided favorably to
the Company, except as otherwise provided in the judicial proceeding, the
Company, the Trustee and the Securityholders will be restored to the positions
they would have been in if the judicial proceeding had not been instituted.


 


SECTION 6.12. 
Priorities.  If the Trustee
collects any money pursuant to this Article 6 with respect to Securities
of a series, subject to Article 11, it will pay out the money or property
in the following order:


 


FIRST:              to the Trustee for
amounts due under Section 7.07;


 


SECOND:         to Securityholders for
amounts due and unpaid on the Securities of the series for principal and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities of the series for principal and
interest, respectively; and


 


THIRD:             to the Company.


 


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


 


SECTION 6.13.  Undertaking
for Costs.  In any suit for the
enforcement of any right or remedy under this Indenture or any Supplemental
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees and expenses (whether incurred before trial, at trial or on
appeal or in any bankruptcy, arbitration or other administrative proceeding),
against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant.  This Section 6.13 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a
suit by Holders of in aggregate more than 10% in principal amount of the
Securities of a series then outstanding, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of, premium, if any,
or interest on any Security held by that Holder on or after the due date
provided in the Security or to any suit for the enforcement of the right to
convert or exchange any Security in accordance with the provisions of a
Supplemental Indenture applicable to that Security.


 


SECTION 6.14.  Stay,
Extension or Usury Laws.  The Company
agrees (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim, and will resist any
and all efforts to be compelled to take the benefit or advantage of, any stay
or extension law or any usury or other law, wherever enacted, now or at any
subsequent time in force, which would prohibit or forgive the Company from
paying all or any portion of the principal of, premium, if any, and/or interest
on any of the Securities as contemplated in this Indenture or a Supplemental
Indenture, or which may affect the covenants or performance of this Indenture,
and the Company (to the extent that it may lawfully do so) 


 


17

















 


hereby
expressly waives all benefit or advantage of any such law and agrees that it
will not hinder, delay or impede the execution of any power granted to the
Trustee in this Indenture or any Supplemental Indenture, but (to the extent
that it may lawfully do so) will suffer and permit the execution of any such
power as though no such law had been enacted.


 


SECTION 6.15.  Liability of
Stockholders, Officers, Directors and Incorporators.  No stockholder, officer, director or
incorporator, as such, past, present or future, of the Company, or any of its
successor corporations, will have any personal liability in respect of the
Company’s obligations under this Indenture or any Securities by reason of his
or its status as such stockholder, officer, director or incorporator; provided,
however, that nothing in this Indenture or in the Securities will prevent
recourse to and enforcement of the liability of any stockholder or subscriber
to Capital Stock which have not been fully paid up.


 


ARTICLE SEVEN


 


TRUSTEE


 


SECTION 7.01.  Duties of
Trustee.


 


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


 


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


 


(i)  the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and any Supplemental
Indentures and no implied covenants or obligations will be read into this
Indenture or any Supplemental Indenture against the Trustee; and


 


(ii)  the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed in them, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture in the absence of bad faith on the Trustee’s
part; provided, however, that the Trustee will examine the certificates and
opinions to determine whether or not they substantially conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


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


 


(1)         this paragraph does not
limit the effect of paragraph (b) of this Section 7.01;


 


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


 


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(3)         the Trustee will not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.05; and


 


(4)         the Trustee will not be
required to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties under this Indenture or any
Supplemental Indenture or in the exercise of any of its rights or powers, if it
has reasonable grounds to believe repayment of the funds or adequate indemnity
against the risk or liability is not reasonably assured to it.


 


(d)  Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee is subject to
the provisions of this Section 7.01 and to the provisions of the TIA.


 


(e)  The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any
loss, liability or expense.


 


(f)  The Trustee will not be liable for interest on any money
received by it except as the Trustee may agree with the Company.  Money and U.S. Government Obligations held in
trust by the Trustee need not be segregated from other funds or items except to
the extent required by law.


 


SECTION 7.02.  Rights of
Trustee.


 


(a)  The Trustee may conclusively rely and shall be protected in
acting or refraining from acting on any document 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 Officers’ Certificate or an Opinion of Counsel which conforms to Section 12.05.  The Trustee will not be liable for any action
it takes or omits to take in good faith in reliance on such an Officers’
Certificate or Opinion of Counsel.


 


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


 


(d)  The Trustee will 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, except conduct which constitutes willful misconduct,
negligence or bad faith.


 


(e)  The Trustee may consult with counsel of its selection, and
the Trustee will not be liable for any action it takes or omits in reliance on,
and in accordance with, the advice of such counsel or any Opinion of Counsel.


 


19

















 


(f)  The Trustee will not be required to investigate any facts or
matters stated in any document, but if it decides to investigate any matters or
facts, the Trustee or its agents or attorneys will be entitled to examine the
books, records and premises of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation and
any cost or liability incurred in connection with any such investigation shall
be subject to the Company’s compensation and indemnification obligations under Section 7.07.


 


(g)  Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution.


 


(h)  Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers’ Certificate.


 


(i)  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 pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.


 


(j)  In no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.


 


(k)  The Trustee shall not be deemed to have notice of any Default
or Event of Default except any Default or Event of Default occurring pursuant
to clause (1) or (2) of Section 6.01 if, at the time of the
occurrence of such Default or Event of Default, the Trustee is the Paying
Agent, unless a Trust 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 and this Indenture.


 


(l)  The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and each agent and other Person employed to act
hereunder.


 


(m)  The Trustee may request that the Company deliver a
certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture.


 


SECTION 7.03.  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 any of its affiliates with the same
rights it would have if it were not Trustee. 
Any 


 


20

















 


Paying Agent,
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.


 


SECTION 7.04.  Trustee’s
Disclaimer.  The Trustee (i) is not
responsible for and makes no representation as to the validity or adequacy of
this Indenture, (ii) will not be responsible for and will not make any
representation as to the validity or adequacy of any Supplemental Indenture, (iii) will
not be accountable for the Company’s use of the proceeds from the Securities of
any series, and (iv) will not be responsible for any statement of the
Company in this Indenture or any Supplemental Indenture, other than the Trustee’s
certificate of authentication, or in any prospectus used in the sale of any of
the Securities, other than statements, if any, provided in writing by the Trustee
for use in such a prospectus.


 


SECTION 7.05.  Notice of
Defaults.  The Trustee will give to the
Holders of the Securities of a series notice of any Default with regard to the
Securities of that series known to the Trustee, within 90 days after it occurs;
provided, that, except in the case of a Default in the payment of the principal
of, or premium, if any, or interest on any Security, the Trustee will be
protected in withholding notice of the Default if and so long as a committee of
its Trust Officers in good faith determines that the withholding of the notice
is in the interests of the Holders of the Securities of the series.


 


SECTION 7.06.  Reports by
Trustee.  Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the
Trustee will mail to each Securityholder, at the name and address which appears
on the registration books of the Company, and to each Securityholder who has,
within the two years preceding the mailing, filed that person’s name and
address with the Trustee for that purpose and each Securityholder whose name
and address have been furnished to the Trustee pursuant to Section 2.07, a
brief report dated as of that May 15 which complies with TIA Section 313(a).  The Trustee also will comply with TIA Section 313(b).


 


A copy of each report will at the time of its mailing to
Securityholders be filed with each stock exchange on which Securities are
listed and also with the SEC.  The
Company will promptly notify the Trustee when the Securities of any series are
listed on any stock exchange and of any delisting of Securities of any series.


 


SECTION 7.07.  Compensation
and Indemnity.  The Company will pay to
the Trustee from time to time such compensation for its services as the Company
and the Trustee shall from time to time agree in writing.  The Trustee’s compensation will not be
limited by any law on compensation of a trustee of an express trust.  The Company will reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its
services.  Those expenses will include
the reasonable compensation and expenses, disbursements and advances of the
Trustee’s agents, counsel, accountants and experts.  The Company will indemnify the Trustee and
its agents against any and all loss, liability or expense (including reasonable
attorneys’ fees) incurred by it in connection with the administration of the
trust created by this Indenture or any Supplemental Indenture and the
performance of its duties under this Indenture or any Supplemental Indenture,
including the costs and expenses of defending itself against any claim (whether
asserted by the Company, or any Holder or any other Person) or liability in
connection with the exercise or 


 


21

















 


performance of
any of its powers or duties hereunder, or in connection with enforcing the
provisions of this Section.  The Trustee
will notify the Company promptly of any claim for which it may seek
indemnity.  Failure by the Trustee to so
notify the Company will not relieve the Company of its obligations under this
Section.  The Company will defend the
claim and the Trustee may have separate counsel and the Company will pay the
fees and expenses of such counsel.  The
Company need not pay for any settlement made without its consent.  The Company need not reimburse any expense or
indemnify against any loss, expense or liability incurred by the Trustee to the
extent it is due to the Trustee’s own willful misconduct, negligence or bad
faith.


 


To secure the Company’s obligation to make payments to the Trustee
under this Section 7.07, the Trustee will have a lien prior to the
Securities on all money or property held or collected by the Trustee, other
than money or property held in trust to pay principal or interest on particular
Securities.  Those obligations of the
Company will survive the satisfaction and discharge of this Indenture.


 


When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (4) or (5) of Section 6.01 occurs,
the expenses and the compensation for the services of the Trustee are intended
to constitute expenses of administration under any Bankruptcy Law.


 


For purposes of this Section 7.07, “Trustee” will include any
predecessor Trustee, but the willful misconduct, negligence or bad faith of any
Trustee will not affect the rights of any other Trustee under this Section 7.07.


 


SECTION 7.08.  Replacement
of Trustee.  The Trustee may resign at any
time by so notifying the Company.  The
Holders of a majority in aggregate principal amount of the Securities of all
series then outstanding may remove the Trustee by so notifying the Trustee and
the Company and may appoint a successor Trustee.  The Company may remove the Trustee if:


 


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


 


(2)         the Trustee is adjudged
bankrupt or insolvent or an order for relief is entered with respect to the
Trustee under any bankruptcy law;


 


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


 


(4)         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 will promptly appoint a successor
Trustee.  Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate
principal amount of Securities of all series then outstanding may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.


 


No removal or appointment of a Trustee will be valid if that removal or
appointment would conflict with any law applicable to the Company.


 


22

















 


A successor Trustee will deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. 
Immediately after that, the retiring Trustee will, subject to the lien
provided for in Section 7.07, transfer all property held by it as a
Trustee to the successor Trustee, the resignation or removal of the retiring
Trustee will become effective, and the successor Trustee will have all the
rights, powers and duties of the Trustee under this Indenture and all
Supplemental Indentures.  A successor
Trustee will mail notice of its succession to each Securityholder.


 


If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, at the Company’s
expense, the Company or the Holders of a majority in aggregate principal amount
of Securities of all series then outstanding may petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.


 


Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company’s obligations under Section 7.07 will continue for
the benefit of the retiring Trustee.


 


SECTION 7.09.  Successor Trustee
by Merger, etc.  If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another Person, the resulting, surviving
or transferee Person will, without any further act, be the successor Trustee.


 


If at the time a successor by merger, conversion or consolidation to
the Trustee succeeds to the trusts created by this Indenture any of the
Securities have been authenticated but not delivered, the successor to the
Trustee may adopt the certificate of authentication of the predecessor Trustee,
and deliver the Securities which were authenticated by the predecessor Trustee;
and if at that time any of the Securities have not been authenticated, the
successor to the Trustee may authenticate those Securities either in the name
of the predecessor or in its own name as the successor to the Trustee; and in
either case the certificates of authentication will have the full force
provided in this Indenture for certificates of authentication.


 


SECTION 7.10.  Eligibility;
Disqualification.  The Trustee will at
all times satisfy the requirements of TIA Section 310(a).  The Trustee will at all times have a combined
capital and surplus of at least $50,000,000 as set forth in its most recently
published annual report of condition, which will be deemed for this paragraph
to be its combined capital and surplus. 
The Trustee will comply with TIA Section 310(b), including the
optional provision permitted by the second sentence of TIA Section 310(b)(9);
provided, however, that there shall be excluded from the
operation of TIA §310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA §310(b)(1) are met.


 


SECTION 7.11.  Preferential
Collection of Claims.  The Trustee will
comply with TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b).  A Trustee
who has resigned or been removed will be subject to TIA Section 311(a) to
the extent indicated.


 


23

















 


ARTICLE EIGHT


 


DISCHARGE OF INDENTURE


 


SECTION 8.01.  Termination
of the Company’s Obligations.  When (i) the
Company delivers to the Trustee all outstanding Securities of all series (other
than Securities replaced pursuant to Section 2.09) for cancellation or (ii) all
outstanding Securities of all series have become due and payable, or are due
and payable within one year or are to be called for redemption within one year,
under arrangements satisfactory to the Trustee for giving the notice of
redemption, and the Company irrevocably deposits in trust with the Trustee
(subject to Article Eleven) money or U.S. Government Obligations
sufficient to pay the principal, premium, if any, and interest, if any, on the
Securities of all series to maturity or redemption, as the case may be, and if,
in the case of either (i) or (ii) above the Company also pays or
causes to be paid all other sums payable by the Company under this Indenture,
then this Indenture will cease to be of further effect.


 


Notwithstanding the foregoing, the Company’s obligations to pay
principal, premium, if any, and interest, if any, on the Securities and the
Company’s obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and
in Article Ten will survive until all the Securities of all series are no
longer outstanding.  Thereafter, the
Company’s obligations in Section 7.07 will survive.


 


Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities of a series at a
future date to the extent the Securities are redeemable in accordance with Article Three
and the applicable Supplemental Indenture.


 


After a deposit pursuant to this Section 8.01 or after all
outstanding Securities of all series have been delivered to the Trustee for
cancellation, the Trustee upon request from the Company, accompanied by an
Officers’ Certificate and an Opinion of Counsel which complies with Section 12.05,
and at the cost of the Company, will acknowledge in writing the satisfaction
and discharge of the Company’s obligations under the Securities of all series
and this Indenture except for those surviving obligations specified above.


 


In order to have money available on payment dates to pay principal,
premium, if any, or interest, if any, on the Securities of a series, the U.S.
Government Obligations will be payable as to principal, premium, if any, or
interest on or before those payment dates in amounts sufficient to provide the
necessary money.  U.S. Government
Obligations used for this purpose may not be callable at the issuer’s option.


 


24














 


SECTION 8.02.  Application
of Trust Money.  Subject to Article Eleven
and Section 8.03, the Trustee will hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01.  It will apply the deposited money and the
money from the U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture and any applicable Supplemental Indentures to
the payment of principal of, premium, if any, and interest, if any, on the
Securities with regard to which the money or U.S. Government Obligations were
deposited.


 


SECTION 8.03.  Repayment to
the Company.  The Trustee and the Paying
Agent will promptly pay to the Company upon request any excess money or
securities held by them at any time.  The
Trustee and the Paying Agent will pay to the Company upon request any money
held by them for the payment of principal, premium or interest that remains
unclaimed for two years.  After such
payment, all liability of the Trustee and the Paying Agent with respect to that
money will cease.


 


SECTION 8.04.  Deposited
Money and U.S. Government Obligations to Be Held in Trust.  The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 8.01 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of outstanding
Securities.


 


ARTICLE NINE


 


AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


SECTION 9.01.  Without
Consent of Holders.  The Company and the
Trustee may amend or supplement this Indenture or the Securities without notice
to or consent of any Securityholder:


 


(1)         to cure any ambiguity,
defect, error or inconsistency;


 


(2)         to comply with Article 5;


 


(3)         to establish the form and
terms of the Securities of any series as contemplated in Article Two of
this Indenture;


 


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


 


(5)         to make any change that
does not materially adversely affect the rights of any Securityholder.


 


After an amendment under this Section becomes effective, the
Company will mail to the Securityholders a notice briefly describing the
amendment.  The failure to give such
notice to all Securityholders, or any defect in a notice, will not impair or
affect the validity of an amendment under this Section.


 


25

















 


SECTION 9.02.  With Consent
of Holders.  The Company and the Trustee
may (i) amend or supplement this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of a
majority in aggregate principal amount of the Securities of all series then
outstanding or (ii) supplement this Indenture with regard to a series of
Securities, amend or supplement a Supplemental Indenture relating to a series
of Securities, or amend the Securities of a series, without notice to any
Securityholder but with the written consent of the Holders of a majority in
aggregate principal amount of the Securities of that series then
outstanding.  The Holders of a majority
in principal amount of the Securities of all series then outstanding may waive
compliance by the Company with any provision of this Indenture or the
Securities without notice to any Securityholder.  The Holders of a majority in principal amount
of the Securities of any series then outstanding may waive compliance with any
provision of this Indenture, any Supplemental Indenture or the Securities of
that series with regard to the Securities of that series without notice to any
Securityholder.  However, without the
consent of the Holder so affected, no amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, may:


 


(1)         extend the fixed maturity
of any Security, reduce the rate or extend the time for payment of interest on
any Security, reduce the principal amount of any Security or premium, if any,
on any Security;


 


(2)         impair or affect the
right of a Holder to institute suit for the payment of interest, if any,
principal or premium, if any, on the Securities;


 


(3)         change the currency in
which the Securities are payable from that specified in the Securities or in a
Supplemental Indenture applicable to the Securities;


 


(4)         impair the right, if any,
to convert the Securities into, or exchange the Securities for, other
securities or assets;


 


(5)         reduce the percentage of
Securities required to consent to an amendment, supplement or waiver;


 


(6)         reduce the amount payable
upon the redemption of any Security or change the time at which any Security
may or will be redeemed;


 


(7)         modify the provisions of
any Supplemental Indenture with respect to subordination of the Securities of a
series in a manner adverse to the Securityholders; or


 


(8)         make any change in Section 6.04
or 6.08 or the fifth sentence of this Section.


 


It will not be necessary for the consent of the Holders under this Section to
approve the particular form of any proposed amendment, supplement or waiver,
but it will be sufficient if the consent approves the substance of the
amendment, supplement or waiver.


 


The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto.  If a record date is
fixed, the Holders on such record date, or their duly designated proxies, and
only such 


 


26

















 


Persons, shall be entitled to consent to such supplemental indenture,
whether or not such Holders remain Holders after such record date; provided,
that unless such consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the date which is 90 days after such
record date, any such consent previously given shall automatically and without
further action by any Holder be cancelled and of no further effect.


 


SECTION 9.03.  Compliance
with Trust Indenture Act.  Every
amendment or supplement to this Indenture, any Supplemental Indenture or the
Securities will comply with the TIA as then in effect.


 


SECTION 9.04.  Revocation
and Effect of Consents.  A consent to an
amendment, supplement or waiver by a Holder of a Security will bind 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 the Holder’s Security or portion of a Security.  For a revocation to be effective, the Trustee
must receive notice of the revocation before the date the amendment, supplement
or waiver becomes effective.  After an
amendment, supplement or waiver becomes effective in accordance with its terms,
it will bind every Holder of every Security of every series to which it
applies.


 


SECTION 9.05.  Notation on
or Exchange of Securities.  If an
amendment changes the terms of a series of Securities, the Trustee may require
the Holder of a Security of the series to deliver the Holder’s Security to the
Trustee, who will place an appropriate notation about the amendment, supplement
or waiver on the Security and will return it to the Holder.  Alternatively, the Company may, in exchange
for the Security, issue, and the Trustee will authenticate, a new Security that
reflects the amendment, supplement or waiver.


 


SECTION 9.06.  Trustee to
Sign Amendments, etc.  In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by Article Two or this Article Nine or the modification
thereby of the trusts created by this Indenture, the Trustee shall receive, and
shall be fully protected in relying upon, an Opinion of Counsel and an Officers’
Certificate stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture.  The
Trustee will sign any amendment, supplement or waiver authorized pursuant to Article Two
or this Article Nine if the amendment, supplement or waiver does not
adversely affect the rights, liabilities or immunities of the Trustee.  If it does adversely affect those rights,
liabilities or immunities, the Trustee may but need not sign it.  The Company may not sign an amendment or
supplement until the amendment or supplement is approved by an appropriate
Board Resolution.


 


ARTICLE TEN


 


CONVERSION OR EXCHANGE OF SECURITIES


 


SECTION 10.01.  Provisions
Relating to Conversion or Exchange of Securities.  Any rights which Holders of Securities of a
series will have to convert those Securities into other securities of the Company
or to exchange those Securities for securities of other Persons or other
assets, including but not limited to the terms of the conversion or exchange
and the 


 


27

















 


circumstances,
if any, under which those terms will be adjusted to prevent dilution or
otherwise, will be set forth in a Supplemental Indenture relating to the series
of Securities.  In the absence of
provisions in a Supplemental Indenture relating to a series of Securities
setting forth rights to convert or exchange the Securities of that series into
or for other securities or assets, Holders of the Securities of that series
will not have any such rights.


 


ARTICLE ELEVEN


 


SINKING OR PURCHASE FUNDS


 


SECTION 11.01.  Provisions
Relating to Sinking or Purchase Funds. 
Any requirements that the Company make, or rights of the Company to make
at its option, payments prior to maturity of the Securities of a series which
will be used as a fund with which to redeem or to purchase Securities of that
series, including but not limited to provisions regarding the amount of the
payments, when the Company will be required, or will have the option, to make
the payments and when the payments will be applied, will be set forth in a
Supplemental Indenture relating to the series of Securities.  In the absence of provisions in a
Supplemental Indenture relating to a series of Securities setting forth
requirements that the Company make, or rights of the Company to make at its option,
payments to be used as a fund with which to redeem or purchase Securities of
the series, the Company will not be subject to any such requirements and will
not have any such rights.  However,
unless otherwise specifically provided in a Supplemental Indenture relating to
a series of Securities, the Company will at all times have the right to
purchase Securities from Holders in market transactions or otherwise.


 


ARTICLE TWELVE


 


MISCELLANEOUS


 


SECTION 12.01.  Trust
Indenture Act Controls.  If any provision
of this Indenture or any Supplemental Indenture limits, qualifies or conflicts
with the duties imposed by Section 310 through 317 of the TIA, the imposed
duties will control.


 


SECTION 12.02.  Supplemental
Indentures Contract.  If any provision of
a Supplemental Indenture relating to a series of Securities is inconsistent
with any provision of this Indenture, the provision of the Supplemental
Indenture will control with regard to the Securities of the series to which it
relates.


 


SECTION 12.03. 
Notices.  Any notice or
communication under or relating to this Indenture or any Supplemental Indenture
will be sufficiently given if in writing and delivered by facsimile
transmission, in person or mailed by first-class mail, certified or registered,
return receipt requested, addressed as follows:


 


	
  if to the
  Company:

  	
  Take-Two
  Interactive Software, Inc.

  622 Broadway

  New York,
  New York 10012

  Attention:
  General Counsel

  Facsimile:
  (646) 536-2923

  



 


28

















 


	
  with a copy
  (which shall not constitute notice) to:

  	
   

  
	
   

  	
   

  
	
   

  	
  Willkie
  Farr & Gallagher LLP

  787 Seventh
  Avenue

  New York,
  New York 10019

  Attention:
  Adam M. Turteltaub and Cristopher Greer

  Facsimile:
  (212) 728-8111

  
	
   

  	
   

  
	
  if to the
  Trustee:

  	
  The Bank of
  New York Mellon

  101 Barclay
  Street, 8W

  New York,
  New York 10286

  Attention:
  Corporate Trust Administration

  Facsimile:
  (212) 815-5704

  



 


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


 


Any notice or communication mailed to a Securityholder will be mailed
to the Securityholder at the Securityholder’s address as it appears on the
registration books of the Registrar and will be sufficiently given to the
Securityholder if so mailed within the time prescribed.


 


Failure to mail a notice or communication to a Securityholder or any
defect in it will not affect its sufficiency with respect to other
Securityholders.  If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.


 


If by reason of the suspension of regular mail service, or by reason of
any other cause, it is impossible to mail any notice as required by this
Indenture or any Supplemental Indenture, then any method of notification which
is approved by the Trustee will constitute a sufficient mailing of the notice.


 


The Company may set a record date for purposes of determining the
identity of Securityholders entitled to vote or consent to any action by vote
or consent authorized or permitted by Sections 6.04 and 6.05.  The record date will be the later of 30 days
prior to the first solicitation of consents or the date of the most recent list
of Holders furnished to the Trustee pursuant to Section 2.07 prior to the
solicitation.


 


SECTION 12.04. 
Communication by Holders with Other Holders.  Securityholders may communicate pursuant to
TIA Section 312(b) with other Securityholders with respect to their
rights under this Indenture or the Securities. 
Each of the Company, the Trustee, the Registrar and anyone else will
have the protection of TIA Section 312(c).


 


SECTION 12.05.  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 or any Supplemental Indenture, the Company will
furnish to the Trustee:


 


29

















 


(1)         an Officers’ Certificate
stating that, in the opinion of the signer, all conditions precedent, if any,
provided for in this Indenture or any Supplemental Indenture relating to the
proposed action have been complied with;


 


(2)         an Opinion of Counsel
stating that, in the opinion of such counsel, all those conditions precedent
have been complied with; and


 


(3)         such other opinions and
certificates as may be required by applicable provisions of this Indenture or
the Supplemental Indenture.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture or a Supplemental Indenture will include:


 


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


 


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


 


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


 


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


 


Nothing in this Section 12.05 will be construed as requiring that
the Company furnish to the Trustee any evidence of compliance with the
conditions and covenants provided for in this Indenture or any Supplemental
Indenture other than the evidence specified in this Section 12.05 except
as may be required by any other provision of this Indenture.


 


SECTION 12.06.  When Treasury
Securities Disregarded.  In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company,
or anyone under direct or indirect control or under direct or indirect common
control with the Company will be disregarded and deemed not to be outstanding,
except that for the purposes of determining whether the Trustee will be
protected in relying on any such direction, waiver or consent, only Securities
which a Trust Officer of the Trustee actually knows are so owned will be so
disregarded.  Securities so owned which
have been pledged in good faith will not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right to act with
respect to the Securities and that the pledgee is not the Company or a person
directly or indirectly controlling or controlled by, or under common control
with, the Company.  Nothing in this Section 12.06
will be construed as requiring that the Company furnish to the Trustee any
evidence of compliance with the conditions and covenants provided for in the
Indenture other than the evidence specified in this Section 12.06.


 


30

















 


SECTION 12.07.  Rules by
Trustee, Paying Agent, Registrar.  The
Trustee may make reasonable rules for action by or at a meeting of
Securityholders.  The Paying Agent or
Registrar may make reasonable rules for its functions.


 


SECTION 12.08.  Legal
Holidays.  A “Legal Holiday” is a
Saturday, a Sunday, or a day on which banking institutions are not required to
be open in the State of New York.  If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest on the sum being paid will accrue for the intervening period.


 


SECTION 12.09.  Governing
Law and Submission to Jurisdiction.  The
laws of the State of New York will govern this Indenture, each Supplemental
Indenture and the Securities.  The
Company submits to the jurisdiction of the courts of the State of New York
sitting in the Borough of Manhattan, The City of New York, and of the United
States District Court for the Southern District of New York, in any action or
proceeding to enforce any of its obligations under this Indenture or any
Supplemental Indenture or with regard to the Securities, and agrees not to seek
a transfer of any such action or proceeding on the basis of inconvenience of
the forum or otherwise (but the Company will not be prevented from removing any
such action or proceeding from a state court to the United States District
Court for the Southern District of New York). 
The Company agrees that process in any such action or proceeding may be
served upon it by registered mail or in any other manner permitted by the rules of
the court in which the action or proceeding is brought.


 


SECTION 12.10.  Actions by
the Company.  Any action or proceeding
brought by the Company to enforce any right, assert any claim or obtain any
relief in connection with this Indenture, any Supplemental Indenture or the
Securities will be brought by the Company exclusively in the courts of the
State of New York sitting in the Borough of Manhattan, The City of New York or
in the United States District Court for the Southern District of New York.


 


SECTION 12.11.  No Adverse
Interpretation of Other Agreements. 
Neither this Indenture nor any Supplemental Indenture may be used to
interpret another indenture, loan or debt agreement of the Company or any
Subsidiary.  No such indenture, loan or
debt agreement may be used to interpret this Indenture or any Supplemental
Indenture.


 


SECTION 12.12. 
Successors.  All agreements of the
Company in this Indenture, any Supplemental Indentures and the Securities will
bind its successors.  All agreements of
the Trustee in this Indenture and any Supplemental Indentures will bind its
successors.


 


SECTION 12.13.  Duplicate
Originals.  The parties may sign any
number of copies of this Indenture or any Supplemental Indenture.  Each signed copy will be an original, but all
of them together will represent the same agreement.


 


SECTION 12.14.  Table of
Contents, Headings, etc.  The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only.  They are not to be considered a part of this
Indenture, and will in no way modify or restrict any of the terms or provisions
of this Indenture.


 


31

















 


SECTION 12.15.  Waiver of
Jury Trial.  EACH OF THE COMPANY AND THE
TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.


 


SECTION 12.16.  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.


 


32

















 


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


 


	
   

  	
  TAKE-TWO INTERACTIVE SOFTWARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON,

  
	
   

  	
   

  	
  as trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT A


 


[FORM OF TRUSTEE’S CERTIFICATE OF
AUTHENTICATION]


 


This is one of the Securities of the series described in the
within-mentioned Indenture and Supplemental Indenture.


 


Dated:


 


	
  THE BANK OF NEW YORK MELLON

  
	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory