Indenture

 

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

 

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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

 

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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

 

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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

 

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INDENTURE, dated as of June 3, 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.

 

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“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:

 

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(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;

 

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(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

 

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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.

 

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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

 

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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.

 

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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

 

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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.

 

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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

 

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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