exv4w5






Exhibit 4.5




NATIONAL HEALTH INVESTORS, INC.




as Issuer,



and



[                                        ],



as Trustee



INDENTURE



Dated as of                     , 20___



Subordinated Debt Securities



 









 





CROSS-REFERENCE TABLE




	 	 	 	 	 
	TIA Section	 	Indenture Section
	310(a)
	 	 	7.10	 
	(b)
	 	 	7.10	 
	(c)
	 	 	N.A.	 
	311(a)
	 	 	7.11	 
	(b)
	 	 	7.11	 
	(c)
	 	 	N.A.	 
	312(a)
	 	 	5.01	 
	(b)
	 	 	5.02	 
	(c)
	 	 	5.02	 
	313(a)
	 	 	5.03	 
	(b)
	 	 	5.03	 
	(c)
	 	 	13.03	 
	(d)
	 	 	5.03	 
	314(a)
	 	 	4.05	 
	(b)
	 	 	N.A.	 
	(c)(1)
	 	 	13.05	 
	(c)(2)
	 	 	13.05	 
	(c)(3)
	 	 	N.A.	 
	(d)
	 	 	N.A.	 
	(e)
	 	 	13.05	 
	(f)
	 	 	N.A.	 
	315(a)
	 	 	7.01	 
	(b)
	 	 	6.07 & 13.03	 
	(c)
	 	 	7.01	 
	(d)
	 	 	7.01	 
	(e)
	 	 	6.08	 
	316(a) (last sentence)
	 	 	1.01	 
	(a)(1)(A)
	 	 	6.06	 
	(a)(1)(B)
	 	 	6.06	 
	(a)(2)
	 	 	9.01	(d)
	(b)
	 	 	6.04	 
	(c)
	 	 	5.04	 
	317(a)(1)
	 	 	6.02	 
	(a)(2)
	 	 	6.02	 
	(b)
	 	 	4.04	 
	318(a)
	 	 	13.07	 








 




			
	N.A. means Not Applicable
	 
	NOTE:	 	This Cross-Reference table shall not, for any purpose, be deemed part of this Indenture.




i









 










TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	5	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	5	 
	Section 1.04. Rules of Construction
	 	 	5	 
	 
	 	 	 	 
	ARTICLE II DEBT SECURITIES
	 	 	6	 
	Section 2.01. Forms Generally
	 	 	6	 
	Section 2.02. Form of Trustee’s Certificate of Authentication
	 	 	6	 
	Section 2.03. Principal Amount; Issuable in Series
	 	 	6	 
	Section 2.04. Execution of Debt Securities
	 	 	8	 
	Section 2.05. Authentication and Delivery of Debt Securities
	 	 	8	 
	Section 2.06. Denomination of Debt Securities
	 	 	10	 
	Section 2.07. Registration of Transfer and Exchange
	 	 	10	 
	Section 2.08. Temporary Debt Securities
	 	 	11	 
	Section 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities

	 	 	11	 
	Section 2.10. Cancellation of Surrendered Debt Securities
	 	 	12	 
	Section 2.11. Provisions of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
	 	 	12	 
	Section 2.12. Payment of Interest; Interest Rights Preserved
	 	 	12	 
	Section 2.13. Securities Denominated in Dollars
	 	 	13	 
	Section 2.14. Wire Transfers
	 	 	13	 
	Section 2.15. Securities Issuable in the Form of a Global Security
	 	 	13	 
	Section 2.16. Medium Term Securities
	 	 	15	 
	Section 2.17. Defaulted Interest
	 	 	15	 
	Section 2.18. CUSIP Numbers
	 	 	16	 
	 
	 	 	 	 
	ARTICLE III REDEMPTION OF DEBT SECURITIES
	 	 	16	 
	Section 3.01. Right of Redemption
	 	 	16	 
	Section 3.02. Notice of Redemption; Selection of Debt Securities
	 	 	16	 
	Section 3.03. Payment of Debt Securities Called for Redemption
	 	 	17	 
	Section 3.04. Mandatory and Optional Sinking Funds
	 	 	17	 
	Section 3.05. Redemption of Debt Securities for Sinking Fund
	 	 	18	 
	 
	 	 	 	 
	ARTICLE IV PARTICULAR COVENANTS OF THE ISSUER
	 	 	19	 
	Section 4.01. Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities
	 	 	19	 
	Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
	 	 	19	 
	Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee
	 	 	19	 
	Section 4.04. Duties of Paying Agents, etc
	 	 	19	 
	Section 4.05. SEC Reports; Financial Statements
	 	 	20	 
	Section 4.06. Compliance Certificate
	 	 	21	 
	Section 4.07. Further Instruments and Acts
	 	 	21	 
	Section 4.08. Existence
	 	 	21	 
	Section 4.09. Maintenance of Properties
	 	 	22	 
	Section 4.10. Payment of Taxes and Other Claims
	 	 	22	 
	Section 4.11. Waiver of Certain Covenants
	 	 	22	 
	 
	 	 	 	 
	ARTICLE V HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
	 	 	22	 
	Section 5.01. Issuer to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information
	 	 	22	 
	Section 5.02. Communications to Holders
	 	 	22	 
	Section 5.03. Reports by Trustee
	 	 	23	 
	Section 5.04. Record Dates for Action by Holders
	 	 	23	 






 ii




 









 








	 	 	 	 	 

	ARTICLE VI REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
	 	 	23	 
	Section 6.01. Events of Default
	 	 	23	 
	Section 6.02. Collection of Debt by Trustee, etc
	 	 	25	 
	Section 6.03. Application of Moneys Collected by Trustee
	 	 	25	 
	Section 6.04. Limitation on Suits by Holders
	 	 	26	 
	Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
	 	 	26	 
	Section 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
	 	 	27	 
	Section 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
	 	 	27	 
	Section 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VII CONCERNING THE TRUSTEE
	 	 	28	 
	Section 7.01. Certain Duties and Responsibilities
	 	 	28	 
	Section 7.02. Certain Rights of Trustee
	 	 	29	 
	Section 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities
	 	 	30	 
	Section 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities
	 	 	30	 
	Section 7.05. Moneys Received by Trustee to Be Held in Trust
	 	 	30	 
	Section 7.06. Compensation and Reimbursement
	 	 	30	 
	Section 7.07. Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed
	 	 	30	 
	Section 7.08. Separate Trustee; Replacement of Trustee
	 	 	31	 
	Section 7.09. Successor Trustee by Merger
	 	 	31	 
	Section 7.10. Eligibility; Disqualification
	 	 	32	 
	Section 7.11. Preferential Collection of Claims Against Issuer
	 	 	32	 
	Section 7.12. Compliance with Tax Laws
	 	 	32	 
	 
	 	 	 	 
	ARTICLE VIII CONCERNING THE HOLDERS
	 	 	32	 
	Section 8.01. Evidence of Action by Holders
	 	 	32	 
	Section 8.02. Proof of Execution of Instruments and of Holding of Debt Securities
	 	 	32	 
	Section 8.03. Who May Be Deemed Owner of Debt Securities
	 	 	32	 
	Section 8.04. Instruments Executed by Holders Bind Future Holders
	 	 	33	 
	 
	 	 	 	 
	ARTICLE IX SUPPLEMENTAL INDENTURES
	 	 	33	 
	Section 9.01. Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders
	 	 	33	 
	Section 9.02. Modification of Indenture with Consent of Holders of Debt Securities
	 	 	35	 
	Section 9.03. Effect of Supplemental Indentures
	 	 	36	 
	Section 9.04. Debt Securities May Bear Notation of Changes by Supplemental Indentures
	 	 	36	 
	 
	 	 	 	 
	ARTICLE X CONSOLIDATION, MERGER, SALE OR CONVEYANCE
	 	 	36	 
	Section 10.01. Consolidations and Mergers of the Issuer
	 	 	36	 
	Section 10.02. Rights and Duties of Successor Issuer
	 	 	36	 
	 
	ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
	 	 	37	 
	Section 11.01. Applicability of Article
	 	 	37	 
	Section 11.02. Satisfaction and Discharge of Indenture; Defeasance
	 	 	37	 
	Section 11.03. Conditions of Defeasance
	 	 	38	 
	Section 11.04. Application of Trust Money
	 	 	39	 
	Section 11.05. Repayment to Issuer
	 	 	39	 
	Section 11.06. Indemnity for U.S. Government Obligations
	 	 	39	 
	Section 11.07. Reinstatement
	 	 	39	 
	 
	 	 	 	 
	ARTICLE XII CONVERSION OF SECURITIES
	 	 	39	 






 iii




 









 








	 	 	 	 	 

	Section 12.01. Right of Conversion
	 	 	39	 
	Section 12.02. Issuance of Shares on Conversion
	 	 	40	 
	Section 12.03. No Adjustment for Interest or Dividends
	 	 	40	 
	Section 12.04. Adjustment of Conversion Price
	 	 	40	 
	Section 12.05. Notice of Adjustment of Conversion Price
	 	 	42	 
	Section 12.06. Notice of Certain Corporate Action
	 	 	43	 
	Section 12.07. Taxes on Conversions
	 	 	44	 
	Section 12.08. Fractional Shares
	 	 	44	 
	Section 12.09. Cancellation of Converted Debt Securities
	 	 	44	 
	Section 12.10. Provisions in Case of Consolidation, Merger or Sale of Assets
	 	 	44	 
	Section 12.11. Disclaimer by Trustee of Responsibility for Certain Matters
	 	 	44	 
	Section 12.12. Covenant to Reserve Shares
	 	 	45	 
	 
	 	 	 	 
	ARTICLE XIII MISCELLANEOUS PROVISIONS
	 	 	45	 
	Section 13.01. Successors and Assigns of Issuer Bound by Indenture
	 	 	45	 
	Section 13.02. Acts of Board, Committee or Officer of Successor Issuer Valid
	 	 	45	 
	Section 13.03. Required Notices or Demands
	 	 	45	 
	Section 13.04. Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New York
	 	 	46	 
	Section 13.05. Officers’ Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Issuer
	 	 	46	 
	Section 13.06. Payments Due on Legal Holidays
	 	 	46	 
	Section 13.07. Provisions Required by TIA to Control
	 	 	46	 
	Section 13.08. Computation of Interest on Debt Securities
	 	 	46	 
	Section 13.09. Rules by Trustee, Paying Agent and Registrar
	 	 	47	 
	Section 13.10. Severability
	 	 	47	 
	Section 13.11. Effect of Headings
	 	 	47	 
	Section 13.12. Indenture May Be Executed in Counterparts
	 	 	47	 
	 
	 	 	 	 
	ARTICLE XIV SUBORDINATION OF DEBT SECURITIES
	 	 	47	 
	Section 14.01. Applicability of Article; Agreement to Subordinate
	 	 	47	 
	Section 14.02. Liquidation, Dissolution, Bankruptcy
	 	 	47	 
	Section 14.03. Default on Senior Indebtedness
	 	 	47	 
	Section 14.04. Acceleration of Payment of Debt Securities
	 	 	48	 
	Section 14.05. When Distribution Must Be Paid Over
	 	 	48	 
	Section 14.06. Subrogation
	 	 	48	 
	Section 14.07. Relative Rights
	 	 	48	 
	Section 14.08. Subordination May Not Be Impaired by Issuer
	 	 	48	 
	Section 14.09. Rights of Trustee and Paying Agents
	 	 	48	 
	Section 14.10. Distribution or Notice to Representative
	 	 	49	 
	Section 14.11. Article XIV Not to Prevent Defaults or Limit Right to Accelerate
	 	 	49	 
	Section 14.12. Trust Moneys Not Subordinated
	 	 	49	 
	Section 14.13. Trustee Entitled to Rely
	 	 	49	 
	Section 14.14. Trustee to Effectuate Subordination
	 	 	49	 
	Section 14.15. Trustee Not Fiduciary for Holders of Senior Indebtedness
	 	 	49	 
	Section 14.16. Reliance by Holders of Senior Indebtedness on Subordination Provisions
	 	 	50	 






 iv




 









 








     THIS
INDENTURE dated as of
                    ,
20___ is among National Health Investors,
Inc., a Maryland corporation (the “Issuer”), and [                                        ], a                                         , as
trustee (the “Trustee”).



RECITALS OF THE ISSUER




     The Issuer has duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Issuer’s subordinated debentures, notes, bonds or other evidences
of indebtedness to be issued in one or more series unlimited as to principal amount (herein called
the “Debt Securities”), as in this Indenture provided.



     All things necessary to make this Indenture a valid agreement of the Issuer, in accordance
with its terms, have been done.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH



     That in order to declare the terms and conditions upon which the Debt Securities are
authenticated, issued and delivered, and in consideration of the premises, and of the purchase and
acceptance of the Debt Securities by the holders thereof, the Issuer and the Trustee covenant and
agree with each other, for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof, as follows:



ARTICLE I




DEFINITIONS AND INCORPORATION BY REFERENCE



     Section 1.01. Definitions.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing. The Trustee may request and may
conclusively rely upon an Officers’ Certificate to determine whether any Person is an Affiliate of
any specified Person.



     “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.



     “Board of Directors” means the Board of Directors of the Issuer or any authorized committee of
the Board of Directors of the Issuer or any directors and/or officers of the Issuer to whom such
Board of Directors or such committee shall have duly delegated its authority to act hereunder. All
references in the Indenture to “Board of Directors” shall be deemed to refer to the Board of
Directors of the Issuer, unless otherwise expressly indicated or the context otherwise requires.



     “Business Day” means any day other than a Legal Holiday.



     “capital stock” of any Person means and includes any and all shares, rights to purchase,
warrants or options (whether or not currently exercisable), participations or other equivalents of
or interests in (however designated) the equity (which includes, but is not limited to, common
stock, preferred stock and partnership and joint venture interests) of such Person (excluding any
debt securities that are convertible into, or exchangeable for, such equity).



     “Charter” means the Issuer’s Articles of Incorporation, as amended.



     “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.



 









 





     “Debt” of any Person at any date means any obligation created or assumed by such Person for
the repayment of borrowed money and any guarantee thereof.



     “Debt Security” or “Debt Securities” has the meaning stated in the first recital of this
Indenture and more particularly means any debt security or debt securities, as the case may be, of
any series authenticated and delivered under this Indenture.



     “Default” means any event, act or condition that is, or after notice or the passage of time or
both would be, an Event of Default (as defined in Section 6.01).



     “Depositary” means, unless otherwise specified by the Issuer pursuant to either Sections 2.03
or 2.15, with respect to Debt Securities of any series issuable or issued in whole or in part in
the form of one or more Global Securities, The Depository Trust Company, New York, New York, or any
successor thereto registered as a clearing agency under the Exchange Act or other applicable
statute or regulations.



     “Designated Senior Indebtedness” means, as to any series of Debt Securities, any Senior
Indebtedness identified as Designated Senior Indebtedness in the Board Resolution or supplemental
Indenture setting forth the terms of such series.



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



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor
statute.



     “Floating Rate Security” means a Debt Security that provides for the payment of interest at a
variable rate determined periodically by reference to an interest rate index specified pursuant to
Section 2.03.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, as in effect from time to time.



     “Global Security” means with respect to any series of Debt Securities issued hereunder, a Debt
Security which is executed by the Issuer and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture and
any Indentures supplemental hereto, or resolution of the Board of Directors and set forth in an
Officers’ Certificate, which shall be registered in the name of the Depositary or its nominee and
which shall represent, and shall be denominated in an amount equal to the aggregate principal
amount of, all the Outstanding Debt Securities of such series or any portion thereof, in either
case having the same terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining interest.



     “guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt or other obligation of any other Person and any obligation, direct
or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial statement conditions or
otherwise) or (b) entered into for purposes of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term “guarantee” shall not include
endorsements for collection or deposit in the ordinary course of business. The term “guarantee”
used as a verb has a corresponding meaning.



     “Holder,” “Holder of Debt Securities” or other similar terms means, a Person in whose name a
Debt Security is registered in the Debt Security Register (as defined in Section 2.07(a)).



2









 





     “Indenture” means this instrument as originally executed, or, if amended or supplemented as
herein provided, as so amended or supplemented and shall include the form and terms of particular
series of Debt Securities as contemplated hereunder, whether or not a supplemental Indenture is
entered into with respect thereto.



     “Issuer Order” means a written request or order signed in the name of the Issuer, with respect
to the Issuer, by the Chairman of the Board, the President or a Vice President of the Issuer, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Issuer, in each case delivered to the Trustee.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York, New York or at a Place of Payment (as defined in Section 2.03(e)) are authorized by
law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.



     “Lien” means, with respect to any asset, any mortgage, lien, security interest, pledge, charge
or other encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law.



     “Officer” means, with respect to a Person, the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, Controller, Secretary, Assistant Secretary or
any Assistant Vice President of such Person.



     “Officers’ Certificate” means a certificate signed by two Officers of the Issuer. One of the
Officers signing the Officers’ Certificate must be the Issuer’s chief executive officer, chief
financial officer or chief accounting officer.



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



     “Original Issue Discount Debt Security” means any Debt Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of
the maturity thereof pursuant to Section 6.01.



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




	 	(a)	 	Debt Securities of that series theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
	 
	 	(b)	 	Debt Securities of that series for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any paying agent
(other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if
the Issuer shall act as its own paying agent) for the Holders of such Debt Securities;
provided, that, if such Debt Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
	 
	 	(c)	 	Debt Securities of that series which have been paid pursuant to Section 2.09 or
in exchange for or in lieu of which other Debt Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Debt Securities in respect of
which there shall have been presented to the Trustee proof satisfactory to it that such
Debt Securities are held by a bona fide purchaser in whose hands such Debt Securities
are valid obligations of the Issuer; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Debt Securities of any
series have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Debt Securities owned by the Issuer or any other obligor upon the
Debt Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which an officer of the
Trustee actually knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Debt Securities and that the pledgee is not the Issuer or any
other obligor upon the Debt




3









 






	 	 	 	Securities or an Affiliate of the Issuer or of such other
obligor. In determining whether the Holders of the requisite principal amount of
Outstanding Debt Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue Discount
Debt Security that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.01.





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



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



     “Representative” means the trustee, agent or representative (if any) for an issue of Senior
Indebtedness and, in the absence of any trustee, agent or representative, it means the holder or
holders of such issue.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended, and any successor statute.



     “Senior Indebtedness” means, as to any series of Debt Securities, the indebtedness of the
Issuer identified as Senior Indebtedness in the Board Resolution or supplemental Indenture setting
forth the terms of such series.



     “Stated Maturity” means, with respect to any security, the date specified in such security as
the fixed date on which the payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the Issuer unless such contingency has occurred).



     “Subsidiary” of any Person means:




	 	(a)	 	any corporation, association or other business entity of which more than 50% of
the total voting power of equity interests entitled, without regard to the occurrence
of any contingency, to vote in the election of directors, managers, trustees or
equivalent Persons thereof is at the time of determination owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries of such
Person or combination thereof; or
	 
	 	(b)	 	in the case of a partnership, more than 50% of the partners’ equity interests,
considering all partners’ equity interests as a single class, is at such time of
determination owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of such Person or combination thereof.





     “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§77aaa-77bbbb), as in
effect on the date of this Indenture as originally executed and, to the extent required by law, as
amended.



     “Trustee” initially means [                                        ] and any other Person or Persons appointed as
such from time to time pursuant to Section 7.08, and, subject to the provisions of Article VII,
includes its or their



4









 







successors and assigns. If at any time there is more than one such Person,
“Trustee” as used with respect to the Debt Securities of any series shall mean the Trustee with
respect to the Debt Securities of that series.



     “Trust Officer” means any officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.



     “United States” means the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its jurisdiction.



     “U.S. Government Obligations” means direct obligations of the United States of America,
obligations on which the payment of principal and interest is fully guaranteed by the United States
of America or obligations or guarantees for the payment of which the full faith and credit of the
United States of America is pledged.



     “Yield to Maturity” means the yield to maturity, calculated at the time of issuance of a
series of Debt Securities, or, if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.



     Section 1.02.Other Definitions.



	 	 	 	 	 
	Term
	 	Defined in Section
	“Blockage Notice”
	 	 	14.03	 
	“Debt Security Register”
	 	 	2.07	 
	“Defaulted Interest”
	 	 	2.17	 
	“Event of Default”
	 	 	6.01	 
	“Payment Blockage Period”
	 	 	14.03	 
	“Place of Payment”
	 	 	2.03	 
	“Registrar”
	 	 	2.07	 
	“REIT
	 	 	3.01	 
	“Subordinated Debt Securities”
	 	 	14.01	 
	“Successor Issuer”
	 	 	10.01	 






     Section 1.03. 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.



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



     Section 1.04. Rules of Construction.


Unless the context otherwise requires:





	 	(a)	 	a term has the meaning assigned to it;
	 
	 	(b)	 	an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
	 
	 	(c)	 	“or” is not exclusive;
	 
	 	(d)	 	words in the singular include the plural, and in the plural
include the singular;
	 
	 	(e)	 	provisions apply to successive events and transactions; and
	 
	 	(f)	 	the principal amount of any non-interest-bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the Issuer dated such date prepared in
accordance with GAAP.





5









 








ARTICLE II




DEBT SECURITIES



     Section 2.01. Forms Generally. The Debt Securities of each series shall be in substantially
the form established without the approval of any Holder by or pursuant to a resolution of the Board
of Directors or in one or more Indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Issuer may deem appropriate (and, if not contained in a
supplemental Indenture entered into in accordance with Article IX, as are not prohibited by the
provisions of this Indenture) or as may be required or appropriate to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange on which such series
of Debt Securities may be listed, or to conform to general usage, or as may, consistently herewith,
be determined by the officers executing such Debt Securities as evidenced by their execution of the
Debt Securities.



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



     Section 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of
authentication on all Debt Securities authenticated by the Trustee shall be in substantially the
following form:



TRUSTEE’S CERTIFICATE OF AUTHENTICATION




     This is one of the Debt Securities of the series designated therein referred to in the
within-mentioned Indenture.



[                                        ],

As Trustee




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

	 	 
	Authorized Signatory	 	 






     Section 2.03. Principal Amount; Issuable in Series. The aggregate principal amount of Debt
Securities which may be issued, executed, authenticated, delivered and outstanding under this
Indenture is unlimited.



     The Debt Securities may be issued in one or more series in fully registered form. There shall
be established, without the approval of any Holders, in or pursuant to a resolution of the Board of
Directors and set forth in an Officers’ Certificate, or established in one or more Indentures
supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the
following:




	 	(a)	 	the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt Securities);
	 
	 	(b)	 	any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
	 
	 	(c)	 	the date or dates on which the principal and premium, if any,
of the Debt Securities of the series are payable;
	 
	 	(d)	 	the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the method of
determining such rate or rates, the date




6









 






	 	 	 	or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable, or the method by which such date will be determined, the record dates
for the determination of Holders thereof to whom such interest is payable; and
the basis upon which interest will be calculated if other than that of a
360-day year of twelve thirty-day months;
	 
	 	(e)	 	the place or places, if any, in addition to or instead of the
corporate trust office of the Trustee, where the principal of, and premium, if
any, and interest on, Debt Securities of the series shall be payable (“Place of
Payment”);
	 
	 	(f)	 	the price or prices at which, the period or periods within which and the
terms and conditions upon which Debt Securities of the series may be redeemed,
in whole or in part, at the option of the Issuer or otherwise;
	 
	 	(g)	 	whether Debt Securities of the series are entitled to the
benefits of any guarantee of any subsidiary guarantors pursuant to this
Indenture or supplemental Indenture;
	 
	 	(h)	 	the obligation, if any, of the Issuer to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the price or prices at
which and the period or periods within which and the terms and conditions upon
which Debt Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligations;
	 
	 	(i)	 	the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for capital stock (which may be
represented by depositary shares), other Debt Securities or warrants for
capital stock or Debt or other securities of any kind of the Issuer or any
other obligor and the terms and conditions upon which such conversion or
exchange shall be effected, including the initial conversion or exchange price
or rate, the conversion or exchange period and any other provision in addition
to or in lieu of those described herein;
	 
	 	(j)	 	if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
	 
	 	(k)	 	if the amount of principal of or any premium or interest on
Debt Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined;
	 
	 	(l)	 	if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or more dates
prior to such Stated Maturity, the amount which will be deemed to be such
principal amount as of any such date for any purpose, including the principal
amount thereof which will be due and payable upon any maturity other than the
Stated Maturity or which will be deemed to be Outstanding as of any such date
(or, in any such case, the manner in which such deemed principal amount is to
be determined);
	 
	 	(m)	 	any changes or additions to Article XI or Article XIV,
including the addition of additional covenants that may be subject to the
covenant defeasance option pursuant to Section 11.02(b);
	 
	 	(n)	 	if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01 or
provable in bankruptcy pursuant to Section 6.02;




7









 






	 	(o)	 	the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether
certain provisions of the TIA are applicable and any corresponding changes to
provisions of this Indenture as currently in effect;
	 
	 	(p)	 	any addition to or change in the Events of Default with respect
to the Debt Securities of the series and any change in the right of the Trustee
or the Holders to declare the principal of, and premium and interest on, such
Debt Securities due and payable;
	 
	 	(q)	 	if the Debt Securities of the series shall be issued in whole
or in part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Debt Securities in
definitive registered form; and the Depositary for such Global Security or
Securities and the form of any legend or legends to be borne by any such Global
Security or Securities in addition to or in lieu of the legend referred to in
Section 2.15(a);
	 
	 	(r)	 	any trustees, authenticating or paying agents, transfer agents
or registrars;
	 
	 	(s)	 	the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in the terms
currently set forth in Article X, including conditioning any merger,
conveyance, transfer or lease permitted by Article X upon the satisfaction of
any Debt coverage standard by the Issuer and any Successor Issuer (as defined
in Article X);
	 
	 	(t)	 	with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
	 
	 	(u)	 	any other terms of the Debt Securities of the series (which
terms shall not be prohibited by the provisions of this Indenture).





     All Debt Securities of any one series appertaining thereto shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant to such resolution
of the Board of Directors and as set forth in such Officers’ Certificate or in any such Indenture
supplemental hereto.



     Section 2.04. Execution of Debt Securities. The Debt Securities shall be signed on behalf of
the Issuer by the Chairman of the Board, the President or a Vice President of the Issuer. Such
signatures upon the Debt Securities may be the manual or facsimile signatures of the present or any
future such authorized officers and may be imprinted or otherwise reproduced on the Debt
Securities. The seal of the Issuer, if any, may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.



     Only such Debt Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, signed manually by the Trustee, shall be entitled to the benefits
of the Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Debt Security executed by the Issuer, shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered hereunder.



     In case any officer of the Issuer who shall have signed any of the Debt Securities shall cease
to be such officer before the Debt Securities so signed shall have been authenticated and delivered
by the Trustee, or disposed of by the Issuer, such Debt Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such Debt Securities had
not ceased to be such officer of the Issuer; and any Debt Security may be signed on behalf of the
Issuer by such Persons as, at the actual date of the execution of such Debt Security, shall be the
proper officers of the Issuer, as applicable, although at the date of such Debt Security or of the
execution of this Indenture any such Person was not such officer.



     Section 2.05. Authentication and Delivery of Debt Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Issuer may deliver Debt Securities of
any series executed by the



8









 







Issuer to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debt Securities to or upon an Issuer Order. In
authenticating such Debt Securities, and accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon:



     a copy of any resolution or resolutions of the Board of Directors, certified by the Secretary
or Assistant Secretary of the Issuer, authorizing the terms of issuance of any series of Debt
Securities;




	 	(a)	 	an executed supplemental Indenture, if any;
	 
	 	(b)	 	an Officers’ Certificate; and
	 
	 	(c)	 	an Opinion of Counsel prepared in accordance with Section 13.05
which shall also state:






	 	(i)	 	that the form of such Debt Securities has been
established by or pursuant to a resolution of the Board of Directors or
by a supplemental Indenture as permitted by Section 2.01 in conformity
with the provisions of this Indenture;
	 
	 	(ii)	 	that the terms of such Debt Securities have
been established by or pursuant to a resolution of the Board of
Directors or by a supplemental Indenture as permitted by Section 2.03
in conformity with the provisions of this Indenture;
	 
	 	(iii)	 	that such Debt Securities, when authenticated
and delivered by the Trustee and issued by the Issuer in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Issuer,
enforceable in accordance with their terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally and rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
	 
	 	(iv)	 	that the Issuer has the corporate power to
issue such Debt Securities and has duly taken all necessary corporate
action with respect to such issuance;
	 
	 	(v)	 	that the issuance of such Debt Securities will
not contravene the organizational documents of the Issuer or result in
any material violation of any of the terms or provisions of any law or
regulation or of any material indenture, mortgage or other agreement
known to such counsel by which the Issuer is bound;
	 
	 	(vi)	 	that authentication and delivery of such Debt
Securities and the execution and delivery of any supplemental Indenture
will not violate the terms of this Indenture; and
	 
	 	(vii)	 	such other matters as the Trustee may
reasonably request.





     Such Opinion of Counsel need express no opinion as to whether a court in the United States
would render a money judgment in a currency other than that of the United States.



     The Trustee shall have the right to decline to authenticate and deliver any Debt Securities
under this Section 2.05 if the Trustee, being advised by counsel, determines that such action may
not lawfully be taken or if the Trustee in good faith by its board of directors or trustees,
executive committee or a trust committee of directors, trustees or vice presidents (or any
combination thereof) shall determine that such action would expose the Trustee to personal
liability to existing Holders.



9









 





     The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to
authenticate Debt Securities of any series. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Debt Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as any Registrar, paying agent or agent for service of
notices and demands.



     Unless otherwise provided in the form of Debt Security for any series, each Debt Security
shall be dated the date of its authentication.



     Section 2.06. Denomination of Debt Securities. Unless otherwise provided in the form of Debt
Security for any series, the Debt Securities of each series shall be issuable only as fully
registered Debt Securities in such Dollar denominations as shall be specified or contemplated by
Section 2.03. In the absence of any such specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.




	 	 	Section 2.07. Registration of Transfer and Exchange.






	 	(a)	 	The Issuer shall keep or cause to be kept a register for each
series of Debt Securities issued hereunder (hereinafter collectively referred
to as the “Debt Security Register”), in which, subject to such reasonable
regulations as it may prescribe, the Issuer shall provide for the registration
of all Debt Securities and the transfer of Debt Securities as in this Article
II provided. At all reasonable times the Debt Security Register shall be open
for inspection by the Trustee. Subject to Section 2.15, upon due presentment
for registration of transfer of any Debt Security at any office or agency to be
maintained by the Issuer in accordance with the provisions of Section 4.02, the
Issuer shall execute and the Trustee shall authenticate and deliver in the name
of the transferee or transferees a new Debt Security or Debt Securities of
authorized denominations for a like aggregate principal amount. In no event
may Debt Securities be issued as, or exchanged for, bearer securities.





     Unless and until otherwise determined by the Issuer by resolution of the Board of Directors,
the register of the Issuer for the purpose of registration, exchange or registration of transfer of
the Debt Securities shall be kept at the principal corporate trust office of the Trustee and, for
this purpose, the Trustee shall be designated “Registrar.”



     Debt Securities of any series (other than a Global Security, except as set forth below) may be
exchanged for a like aggregate principal amount of Debt Securities of the same series of other
authorized denominations. Subject to Section 2.15, Debt Securities to be exchanged shall be
surrendered at the office or agency to be maintained by the Issuer as provided in Section 4.02, and
the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the
Debt Security or Debt Securities which the Holder making the exchange shall be entitled to receive.




	 	(b)	 	All Debt Securities presented or surrendered for registration
of transfer, exchange or payment shall (if so required by the Issuer, the
Trustee or the Registrar) be duly endorsed or be accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Issuer, the
Trustee and the Registrar, duly executed by the Holder or his attorney duly
authorized in writing.





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



     No service charge shall be made for any exchange or registration of transfer of Debt
Securities (except as provided by Section 2.09), but the Issuer may require payment of a sum
sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in
relation thereto, other than those expressly provided in this Indenture to be made at the Issuer’s
own expense or without expense or without charge to the Holders.



10









 





     The Issuer shall not be required (i) to issue, register the transfer of or exchange any Debt
Securities for a period of 15 days next preceding any mailing of notice of redemption of Debt
Securities of such series or (ii) to register the transfer of or exchange any Debt Securities
selected, called or being called for redemption.



     Prior to the due presentation for registration of transfer of any Debt Security, the Issuer,
the Trustee, any paying agent or any Registrar may deem and treat the Person in whose name a Debt
Security is registered as the absolute owner of such Debt Security for the purpose of receiving
payment of or on account of the principal of, and premium, if any, and (subject to Section 2.12)
interest on, such Debt Security and for all other purposes whatsoever, whether or not such Debt
Security is overdue, and none of the Issuer, the Trustee, any paying agent or any Registrar shall
be affected by notice to the contrary.



     None of the Issuer, the Trustee, any agent of the Trustee, any paying agent or any Registrar
will have any responsibility or liability for any aspect of the records relating to, or payments
made on account of, beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.



     Section 2.08. Temporary Debt Securities. Pending the preparation of definitive Debt
Securities of any series, the Issuer may execute and the Trustee shall authenticate and deliver
temporary Debt Securities (printed, lithographed, photocopied, typewritten or otherwise produced)
of any authorized denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form with such omissions, insertions and variations as
may be appropriate for temporary Debt Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Debt Securities may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary Debt Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Debt Securities.



     If temporary Debt Securities of any series are issued, the Issuer will cause definitive Debt
Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Debt Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Issuer at a Place of Payment for such
series, without charge to the Holder thereof, except as provided in Section 2.07 in connection with
a transfer. Upon surrender for cancellation of any one or more temporary Debt Securities of any
series, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor. Until so exchanged, temporary Debt Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities
of such series.



     Upon any exchange of a portion of a temporary Global Security for a definitive Global Security
or for the individual Debt Securities represented thereby pursuant to Section 2.07 or this Section
2.08, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of
the principal amount evidenced thereby, whereupon the principal amount of such temporary Global
Security shall be reduced for all purposes by the amount to be exchanged and endorsed.



     Section 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities. If (a) any mutilated
Debt Security is surrendered to the Trustee at its corporate trust office or (b) the Issuer and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and there is delivered to the Issuer and the Trustee such security or indemnity as may be
required by them to save each of them and any paying agent harmless, and neither the Issuer nor the
Trustee receives notice that such Debt Security has been acquired by a bona fide purchaser, then
the Issuer shall execute and, upon an Issuer Order, the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new Debt
Security of the same series of like tenor, form, terms and principal amount, bearing a number not
contemporaneously Outstanding. Upon the issuance of any substituted Debt Security, the Issuer may
require the payment of a sum sufficient to cover any tax, fee, assessment or other governmental
charge that may be imposed in relation thereto and any other expenses connected therewith. In case
any Debt which has matured or is about to mature or which has been called for redemption shall
become mutilated or be destroyed, lost or stolen, the Issuer may, instead of issuing a substituted
Debt Security, pay or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Debt Security) if




11











 




the applicant for such payment shall furnish the Issuer and the Trustee with such security or
indemnity as either may require to save it harmless from all risk, however remote, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Issuer and the Trustee of the
destruction, loss or theft of such Debt Security and of the ownership thereof.




     Every substituted Debt Security of any series issued pursuant to the provisions of this
Section 2.09 by virtue of the fact that any Debt Security is destroyed, lost or stolen shall
constitute an original additional contractual obligation of the Issuer, whether or not the
destroyed, lost or stolen Debt Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Debt Securities
of that series duly issued hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities, and shall preclude any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other securities without their
surrender.



     Section 2.10. Cancellation of Surrendered Debt Securities. All Debt Securities surrendered for payment, redemption, conversion, registration of
transfer or exchange shall, if surrendered to the Issuer or any paying agent or a Registrar, be
delivered to the Trustee for cancellation by it, or if surrendered to the Trustee, shall be
canceled by it, and no Debt Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. All canceled Debt Securities held by the
Trustee shall be destroyed (subject to the record retention requirements of the Exchange Act) and
certification of their destruction delivered to the Issuer, unless otherwise directed. On request
of the Issuer, the Trustee shall deliver to the Issuer canceled Debt Securities held by the
Trustee. If the Issuer shall acquire any of the Debt Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the Debt represented thereby unless and until the
same are delivered or surrendered to the Trustee for cancellation. The Issuer may not issue new
Debt Securities to replace Debt Securities it has redeemed, converted, paid or delivered to the
Trustee for cancellation.



     Section 2.11. Provisions of the Indenture and Debt Securities for the Sole Benefit of the
Parties and the Holders. Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give or be
construed to give to any Person, other than the parties hereto, the Holders or any Registrar or
paying agent, any legal or equitable right, remedy or claim under or in respect of this Indenture,
or under any covenant, condition or provision herein contained; all its covenants, conditions and
provisions being for the sole benefit of the parties hereto, the Holders and any Registrar and
paying agents.



     Section 2.12. Payment of Interest; Interest Rights Preserved.




	 	(a)	 	Interest on any Debt Security that is payable and is punctually
paid or duly provided for on any interest payment date shall be paid to the
Person in whose name such Debt Security is registered at the close of business
on the regular record date for such interest notwithstanding the cancellation
of such Debt Security upon any transfer or exchange subsequent to the regular
record date. Payment of interest on Debt Securities shall be made at the
corporate trust office of the Trustee (except as otherwise specified pursuant
to Section 2.03), or at the option of the Issuer, by check mailed to the
address of the Person entitled thereto as such address shall appear in the Debt
Security Register or, if provided pursuant to Section 2.03 and in accordance
with arrangements satisfactory to the Trustee, at the option of the Holder by
wire transfer to an account designated by the Holder.
	 
	 	(b)	 	Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.




12









 











     Section 2.13. Securities Denominated in Dollars. Except as otherwise specified pursuant to Section 2.03 for Debt Securities of any series,
payment of the principal of, and premium, if any, and interest on, Debt Securities of such series
will be made in Dollars.



     Section 2.14. Wire Transfers. Notwithstanding any other provision to the contrary in this Indenture, the Issuer may make
any payment of moneys required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Debt Securities (whether pursuant to optional or mandatory
redemption payments, interest payments or otherwise) by wire transfer in immediately available
funds to an account designated by the Trustee before 11:00 a.m., New York City time, on the date
such moneys are to be paid to the Holders of the Debt Securities in accordance with the terms
hereof.



     Section 2.15. Securities Issuable in the Form of a Global Security.




	 	(a)	 	If the Issuer shall establish pursuant to Sections 2.01 and
2.03 that the Debt Securities of a particular series are to be issued in whole
or in part in the form of one or more Global Securities, then the Issuer shall
execute and the Trustee or its agent shall, in accordance with Section 2.05,
authenticate and deliver, such Global Security or Securities, which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Debt Securities of such series to be
represented by such Global Security or Securities, or such portion thereof as
the Issuer shall specify in an Officers’ Certificate, shall be registered in
the name of the Depositary for such Global Security or Securities or its
nominee, shall be delivered by the Trustee or its agent to the
Depositary or pursuant to the Depositary’s instruction and shall bear a
legend substantially to the following effect:





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



     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN,”



     or such other legend as may then be required by the Depositary for such Global Security or
Securities.




	 	(b)	 	Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary, or by the Depositary or
a nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Issuer, or to a nominee of such successor
Depositary.






     (c) (i) If at any time the Depositary for a Global Security or Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such Global Security or
Securities or if at



13









 






any time the Depositary for the Debt Securities for such series shall no
longer be eligible or in good standing under the Exchange Act or other applicable statute,
rule or regulation, the Issuer shall appoint a successor Depositary with respect to such
Global Security or Securities. If a successor Depositary for such Global Security or
Securities is not appointed by the Issuer within 90 days after the Issuer receives such
notice or becomes aware of such ineligibility, the Issuer shall execute, and the Trustee or
its agent, upon receipt of an Issuer Order for the authentication and delivery of such
individual Debt Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Debt Securities of such series of like tenor and terms
in definitive form in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security or Securities.




          (ii) The Issuer may at any time and in its sole discretion determine that the Debt
Securities of any series or portion thereof issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or Securities. In
such event the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of individual Debt Securities of such series in exchange in
whole or in part for such Global Security, will authenticate and deliver individual Debt
Securities of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such series or portion thereof in exchange
for such Global Security or Securities.




          (iii) If specified by the Issuer pursuant to Sections 2.01 and 2.03 with respect to
Debt Securities issued or issuable in the form of a Global Security, the Depositary for such
Global Security may surrender such Global Security in exchange in whole or in part for
individual Debt Securities of such series
of like tenor and terms in definitive form on such terms as are acceptable to the
Issuer, the Trustee and such Depositary. Thereupon the Issuer shall execute, and the
Trustee or its agent upon receipt of an Issuer Order for the authentication and delivery of
definitive Debt Securities of such series shall authenticate and deliver, without service
charge, to each Person specified by such Depositary a new Debt Security or Securities of the
same series of like tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such Person’s beneficial
interest in the Global Security; and to such Depositary a new Global Security of like tenor
and terms and in an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal amount of
Debt Securities delivered to Holders thereof.




          (iv) In any exchange provided for in any of the preceding three paragraphs, the Issuer
will execute and the Trustee or its agent will authenticate and deliver individual Debt
Securities. Upon the exchange of the entire principal amount of a Global Security for
individual Debt Securities, such Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph, Debt Securities issued in exchange
for a Global Security pursuant to this Section 2.15 shall be registered in such names and in
such authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall instruct the
Trustee or the Registrar. The Trustee or the Registrar shall deliver such Debt Securities
to the Persons in whose names such Debt Securities are so registered.



     Payments in respect of the principal of and interest on any Debt Securities registered in the
name of the Depositary or its nominee will be payable to the Depositary or such nominee in its
capacity as the registered owner of such Global Security. The Issuer and the Trustee may treat the
Person in whose name the Debt Securities, including the Global Security, are registered as the
owner thereof for the purpose of receiving such payments and for any and all other purposes
whatsoever. None of the Issuer, the Trustee, any Registrar, the paying agent or any agent of the
Issuer or the Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or any of the Depositary’s direct or indirect
participants, or for maintaining, supervising or reviewing any records of the Depositary, its
nominee or any of its direct or indirect participants relating to the beneficial ownership
interests of the Global Security, the payments to the beneficial owners of the Global Security of
amounts paid to the Depositary or its nominee, or any other matter relating to the actions and
practices of the Depositary, its nominee or any of its direct or indirect participants. None of
the Issuer, the Trustee or any such agent will be liable for any delay by the Depositary, its
nominee, or any of its direct or indirect participants in identifying the beneficial owners of the
Debt Securities, and the Issuer and the Trustee may conclusively rely on, and will be protected in
relying on,



14









 




instructions from the Depositary or its nominee for all purposes (including with
respect to the registration and delivery, and the respective principal amounts, of the Debt
Securities to be issued).




     Section 2.16. Medium Term Securities. Notwithstanding any contrary provision herein, if all Debt Securities of a series are not
to be originally issued at one time, it shall not be necessary for the Issuer to deliver to the
Trustee an Officers’ Certificate, resolutions of the Board of Directors, supplemental Indenture,
Opinion of Counsel or written order or any other document otherwise required pursuant to Sections
2.01, 2.03, 2.05 or 13.05 at or prior to the time of authentication of each Debt Security of such
series if such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such series to be issued;
provided, that any subsequent request by the Issuer to the Trustee to authenticate Debt Securities
of such series upon original issuance shall constitute a representation and warranty by the Issuer
that, as of the date of such request, the statements made in the Officers’ Certificate delivered
pursuant to Sections 2.05 or 13.05 shall be true and correct as if made on such date and that the
Opinion of Counsel delivered at or prior to such time of authentication of an original issuance of
Debt Securities shall specifically state that it shall relate to all subsequent issuances of Debt
Securities of such series that are identical to the Debt Securities issued in the first issuance of
Debt Securities of such series.



     An Issuer Order delivered by the Issuer to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Debt Securities which are the subject thereof will be
authenticated and delivered by the Trustee or its agent on original issue from time to time upon
the telephonic or written order of Persons designated in such written order (any such telephonic
instructions to be promptly confirmed in writing by such Person) and that
such Persons are authorized to determine, consistent with the Officers’ Certificate,
supplemental Indenture or resolution of the Board of Directors relating to such written order, such
terms and conditions of such Debt Securities as are specified in such Officers’ Certificate,
supplemental Indenture or such resolution.



     Section 2.17. Defaulted Interest. Any interest on any Debt Security of a particular series which is payable, but is not
punctually paid or duly provided for, on the dates and in the manner provided in the Debt
Securities of such series and in this Indenture (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder thereof on the relevant record date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Issuer, at their election in each
case, as provided in clause (a) or (b) below:




	 	(a)	 	The Issuer may elect to make payment of any Defaulted Interest
to the Persons in whose names the Debt Securities of such series are registered
at the close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Issuer
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debt Security of such series and the date of
the proposed payment, and at the same time the Issuer shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Issuer of such special record date and, in the name and at
the expense of the Issuer, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage pre-paid, to each Holder thereof at its address as it appears in
the Debt Security Register, not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Debt Securities of such series
are registered at the close of business on such special record date.
	 
	 	(b)	 	The Issuer may make payment of any Defaulted Interest on the
Debt Securities of such series in any other lawful manner not inconsistent with
the requirements of any securities




15









 






	 	 	 	exchange on which the Debt Securities of
such series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Issuer to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.





     Section 2.18. CUSIP Numbers. The Issuer in issuing the Debt 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
accuracy of such numbers either as printed on the Debt 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 Debt Securities, and any such redemption shall not be affected by any defect in or omission of
such numbers. The Issuer will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.



ARTICLE III




REDEMPTION OF DEBT SECURITIES



     Section 3.01. Right of Redemption. The Issuer may, at its option, redeem Debt Securities of any series as permitted or
required by the terms of Debt Securities, which redemption shall be made in accordance with the
terms of such Debt Securities and this Article. The Issuer may also redeem the Debt Securities of
any series, in whole or from time to time in part, at any time in order to protect the Issuer’s
status as a real estate investment trust (“REIT”), at the option of the Issuer at a redemption
price equal to 100% of the principal amount plus accrued and unpaid interest to the date of
redemption. Notwithstanding any other provision of this Article III, with respect to redemptions to
protect the Issuer’s status as a REIT, the Debt Securities of any series will be immediately
redeemable, at the option of and upon notice by the Issuer to the extent deemed sufficient in the
opinion of the Board of Directors to prevent the Holder of such Debt Securities (or any other
Person having an interest therein if the Debt Securities were thereupon converted) from being
deemed to own shares of beneficial interest in excess of the limits prescribed in Article Ninth of
the Charter.



     Section 3.02. Notice of Redemption; Selection of Debt Securities. In case the Issuer shall desire to exercise the right to redeem all or, as the case may be,
any part of the Debt Securities of any series in accordance with their terms, by resolution of the
Board of Directors or a supplemental Indenture, the Issuer shall fix a date for redemption and
shall give notice of such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the Holders of Debt Securities of such series so to be redeemed as a whole or in
part, in the manner provided in Section 13.03. The notice if given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice or any defect in the notice to the Holder of any
Debt Security of a series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Debt Security of such series.



     Each such notice of redemption shall specify the date fixed for redemption, the redemption
price at which Debt Securities of such series are to be redeemed (or the method of calculating such
redemption price), the Place or Places of Payment that payment will be made upon presentation and
surrender of such Debt Securities, that any interest accrued to the date fixed for redemption will
be paid as specified in said notice, that the redemption is for a sinking fund payment (if
applicable), that, unless otherwise specified in such notice, that, if the Issuer defaults in
making such redemption payment, the paying agent is prohibited from making such payment pursuant to
the terms of this Indenture, that on and after said date any interest thereon or on the portions
thereof to be redeemed will cease to accrue, that in the case of Original Issue Discount Debt
Securities original issue discount accrued after the date fixed for redemption will cease to
accrue, the terms of the Debt Securities of that series pursuant to which the Debt Securities of
that series are being redeemed, and that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the Debt Securities of
that series. If less than all the Debt Securities of a series are to be redeemed the notice of
redemption shall specify the certificate numbers of the Debt Securities of that series to be
redeemed. In case any Debt Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be redeemed and shall state
that on and after the date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities of that series in principal amount equal to the unredeemed portion
thereof, will be issued.



16









 





     At least 45 days but not more than 60 days before the Redemption Date, unless the Trustee
consents to a shorter period, the Issuer shall give written notice to the Trustee of the Redemption
Date, the principal amount of Debt Securities to be redeemed and the series and terms of the Debt
Securities pursuant to which such redemption will occur. Such notice shall be accompanied by an
Officers’ Certificate and an Opinion of Counsel from the Issuer to the effect that such redemption
will comply with the conditions herein. If fewer than all the Debt Securities of a series are to
be redeemed, the record date relating to such redemption shall be selected by the Issuer and given
in writing to the Trustee, which record date shall be not less than 15 days after the date of
notice to the Trustee.



     By 11:00 a.m., New York City time, on the Redemption Date for any Debt Securities, the Issuer
shall deposit with the Trustee or with a paying agent (or, if the Issuer is acting as its own
paying agent, segregate and hold in trust) an amount of money in Dollars (except as provided
pursuant to Section 2.03) sufficient to pay the redemption price of such Debt Securities or any
portions thereof that are to be redeemed on that date, together with any interest accrued to the
Redemption Date.



     If less than all the Debt Securities of like tenor and terms of a series are to be redeemed,
the Trustee shall select, on a pro rata basis, by lot or by such other method as in its sole
discretion it shall deem appropriate and fair, the Debt Securities of that series or portions
thereof (in multiples of $1,000) to be redeemed. In any case where more than one Debt Security of
such series is registered in the same name, the Trustee in its discretion may treat the aggregate
principal amount so registered as if it were represented by one Debt Security of such series. The
Trustee shall promptly notify the Issuer in writing of the Debt Securities selected for redemption
and, in the case of any Debt Securities selected for partial redemption, the principal amount
thereof to be redeemed. If any Debt Security called for redemption shall not be so paid upon
surrender thereof on such Redemption Date, the principal, premium, if any, and interest shall bear
interest until paid from the Redemption Date at the rate borne by the Debt Securities of that
series. If less than all the Debt Securities of unlike tenor and terms of a series are to be
redeemed, the particular Debt Securities to be redeemed shall be selected by the Issuer.
Provisions of this Indenture that apply to Debt Securities called for redemption also apply to
portions of Debt Securities called for redemption.



     Section 3.03. Payment of Debt Securities Called for Redemption. If notice of redemption has been given as provided in Section 3.02, the Debt Securities or
portions of Debt Securities of the series with respect to which such notice has been given shall
become due and payable on the date and at the Place or Places of Payment stated in such notice at
the applicable redemption price, together with any interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the payment of such Debt
Securities at the applicable redemption price, together with any interest accrued to said date) any
interest on the Debt Securities or portions of Debt Securities of any series so called for
redemption shall cease to accrue, any original issue discount in the case of Original Issue
Discount Debt Securities shall cease to accrue. On presentation and surrender of such Debt
Securities at the Place or Places of Payment in said notice specified, the said Debt Securities or
the specified portions thereof shall be paid and redeemed by the Issuer at the applicable
redemption price, together with any interest accrued thereon to the date fixed for redemption.



     Any Debt Security that is to be redeemed only in part shall be surrendered at the corporate
trust office or such other office or agency of the Issuer as is specified pursuant to Section 2.03
with, if the Issuer, the Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer, the Registrar and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing, and the Issuer shall
execute, and the Trustee shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Debt Security or Debt Securities of the same series, of like tenor and form,
of any authorized denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered;
except that if a Global Security is so surrendered, the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Depositary for such Global Security, without service charge, a new
Global Security in a denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Security so surrendered. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.



     Section 3.04. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of Debt Securities
of any series, resolution of the Board of Directors or a



17









 




supplemental Indenture is herein referred
to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series, resolution of the Board of Directors or a
supplemental Indenture is herein referred to as an “optional sinking fund payment.”




     In lieu of making all or any part of any mandatory sinking fund payment with respect to any
Debt Securities of a series in cash, the Issuer may at its option (a) deliver to the Trustee Debt
Securities of that series theretofore purchased or otherwise acquired by the Issuer or (b) receive
credit for the principal amount of Debt Securities of that series which have been redeemed either
at the election of the Issuer pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of such Debt
Securities, resolution or supplemental Indenture; provided, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for such purpose by
the Trustee at the redemption
price specified in such Debt Securities, resolution or supplemental Indenture for redemption
through operation of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.



     Section 3.05. Redemption of Debt Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Debt
Securities, the Issuer will deliver to the Trustee an Officers’ Certificate specifying the amount
of the next ensuing sinking fund payment for that series pursuant to the terms of that series, any
resolution or supplemental Indenture, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by delivering and
crediting Debt Securities of that series pursuant to this Section 3.05 (which Debt Securities, if
not previously redeemed, will accompany such certificate) and whether the Issuer intends to
exercise its right to make any permitted optional sinking fund payment with respect to such series.
Such certificate shall also state that no Event of Default has occurred and is continuing with
respect to such series. Such certificate shall be irrevocable and upon its delivery the Issuer
shall be obligated to make the cash payment or payments therein referred to, if any, by 11 a.m.,
New York City time, on the next succeeding sinking fund payment date. Failure of the Issuer to
deliver such certificate (or to deliver the Debt Securities specified in this paragraph) shall not
constitute a Default, but such failure shall require that the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Debt Securities subject to a mandatory sinking
fund payment without the option to deliver or credit Debt Securities as provided in this Section
3.05 and without the right to make any optional sinking fund payment, if any, with respect to such
series.



     Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000
(or a lesser sum if the Issuer shall so request) with respect to the Debt Securities of any
particular series shall be applied by the Trustee on the sinking fund payment date on which such
payment is made (or, if such payment is made before a sinking fund payment date, on the sinking
fund payment date following the date of such payment) to the redemption of such Debt Securities at
the redemption price specified in such Debt Securities, resolution or supplemental Indenture for
operation of the sinking fund together with any accrued interest to the date fixed for redemption.
Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Debt
Securities shall be added to the next cash sinking fund payment received by the Trustee for such
series and, together with such payment, shall be applied in accordance with the provisions of this
Section 3.05. Any and all sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee on the last sinking fund payment date with respect to Debt
Securities of such series and not held for the payment or redemption of particular Debt Securities
shall be applied by the Trustee, together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of the principal of the Debt Securities of that series
at its Stated Maturity.



     The Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in the last paragraph of Section 3.02 and the Issuer shall cause
notice of the redemption thereof to be given in the manner provided in Section 3.02 except that the
notice of redemption shall also state that the Debt Securities are being redeemed by operation of
the sinking fund. Such notice having been duly given, the redemption of such Debt Securities shall
be made upon the terms and in the manner stated in Section 3.03.



     The Trustee shall not redeem any Debt Securities of a series with sinking fund moneys or mail
any notice of redemption of such Debt Securities by operation of the sinking fund for such series
during the continuance of a Default in payment of interest on such Debt Securities or of any Event
of Default (other than an Event of Default occurring as a consequence of this paragraph) with
respect to such Debt Securities, except that if the notice of



18









 




redemption of any such Debt
Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III. Except as aforesaid,
any moneys in the sinking fund for such series at the time when any such Default or Event of
Default shall occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such Default or Event of Default, be held as security for the payment of such Debt
Securities; provided, however, that in case such Default or Event of Default shall have been cured
or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund
payment date for such Debt Securities on which such moneys may be applied pursuant to the
provisions of this Section 3.05.




ARTICLE IV




PARTICULAR COVENANTS OF THE ISSUER



     Section 4.01. Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities.
The Issuer, for the benefit of each series of Debt Securities, will duly and punctually pay or
cause to be paid the principal of, and premium, if any, and interest on, each of the Debt
Securities at the place, at the respective times and in the manner provided herein or in the Debt
Securities. Each installment of interest on the Debt Securities may at the Issuer’s option be paid
by mailing checks for such interest payable to the Person entitled thereto pursuant to Section
2.07(a) to the address of such Person as it appears on the Debt Security Register.



     Principal, premium and interest of Debt Securities of any series shall be considered paid on
the date due if, by 11 a.m., New York City time, on such date the Trustee or any paying agent holds
in accordance with this Indenture money sufficient to pay all principal, premium and interest then
due.



     The Issuer shall pay interest on overdue principal or premium, if any, at the rate specified
therefor in the Debt Securities and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.



     Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange and
Payment of Debt Securities. The Issuer will maintain in each Place of Payment for any series of Debt Securities an
office or agency where Debt Securities of such series may be presented or surrendered for payment,
and it shall also maintain (in or outside such Place of Payment) an office or agency where Debt
Securities of such series may be surrendered for transfer or exchange and where notices and demands
to or upon the Issuer in respect of the Debt Securities of such series and this Indenture may be
served. The Issuer will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Issuer shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the office of the Trustee
where its corporate trust business is principally administered in the United States, and the Issuer
hereby appoints the Trustee as its agent to receive all presentations, surrenders, notices and
demands.



     The Issuer may also from time to time designate different or additional offices or agencies to
be maintained for such purposes (in or outside of such Place of Payment), and may from time to time
rescind any such designation; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of their obligations described in the preceding paragraph. The
Issuer will give prompt written notice to the Trustee of any such additional designation or
rescission of designation and any change in the location of any such different or additional office
or agency.



     Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.08, a Trustee, so that there shall at all times be a
Trustee hereunder with respect to each series of Debt Securities.



     Section 4.04. Duties of Paying Agents, etc.




	 	(a)	 	The Issuer shall cause each paying agent, if any, other than
the Trustee, to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
4.04:




19









 












	 	(i)	 	that it will hold all sums held by it as such
agent for the payment of the principal of, and premium, if any, or
interest on, the Debt Securities of any series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Debt Securities of such series) in trust for the
benefit of the Holders of the Debt Securities of such series;
	 
	 	(ii)	 	that it will give the Trustee notice of any
failure by the Issuer (or by any other obligor on the Debt Securities
of such series) to make any payment of the principal of, and premium,
if any, or interest on, the Debt Securities of such series when the
same shall be due and payable; and
	 
	 	(iii)	 	that it will at any time during the
continuance of an Event of Default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held by it as such
agent.






	 	(b)	 	If the Issuer shall act as their own paying agent, it will, on
or before each due date of the principal of, and premium, if any, or interest
on, the Debt Securities of any series, set aside, segregate and hold in trust
for the benefit of the Holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium, if any, or interest so becoming due.
The Issuer will promptly notify the Trustee of any failure by the Issuer to
take such action or the failure by any other obligor on such Debt Securities to
make any payment of the principal of, and premium, if any, or interest on, such
Debt Securities when the same shall be due and payable.
	 
	 	(c)	 	Anything in this Section 4.04 to the contrary notwithstanding,
the Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying agent, as required by
this Section 4.04, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Issuer or such paying agent.
	 
	 	(d)	 	Whenever the Issuer shall have one or more paying agents with
respect to any series of Debt Securities, it will, prior to each due date of
the principal of, and premium, if any, or interest on, any Debt Securities of
such series, deposit with any such paying agent a sum sufficient to pay the
principal, premium or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any such paying
agent is the Trustee) the Issuer will promptly notify the Trustee of its action
or failure so to act.
	 
	 	(e)	 	Anything in this Section 4.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 4.04 is subject
to the provisions of Section 11.05.





     Section 4.05. SEC Reports; Financial Statements.




	 	(a)	 	The Issuer shall, so long as any of the Debt Securities are
Outstanding, file with the Trustee, within 15 days after it files the same with
the SEC, copies of the annual reports and 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) that the Issuer is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Issuer is not
subject to the requirements of such Section 13 or 15(d), the Issuer shall file
with the Trustee, within 15 days after it would have been required to file the
same with the SEC, financial statements, including any notes thereto (and with
respect to annual reports, an auditors’ report by a firm of established
national reputation), and a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations,” both comparable to that which the Issuer
would have been required to include in such annual reports, information,
documents or other reports if the Issuer had been subject to the




20









 






	 	 	 	requirements of such Section 13 or 15(d). The Issuer shall also comply with
the provisions of TIA Section 314(a).
	 
	 	(b)	 	If the Issuer is required to furnish annual or quarterly
reports to its stockholders pursuant to the Exchange Act, the Issuer shall, so
long as any of the Debt Securities are outstanding, cause any annual report
furnished to its stockholders generally and any quarterly or other financial
reports furnished by it to its stockholders generally to be filed with the
Trustee and mailed to the Holders in the manner and to the extent provided in
Section 5.03.
	 
	 	(c)	 	The Issuer shall provide the Trustee with a sufficient number
of copies of all reports and other documents and information that the Trustee
may be required to deliver to Holders under this Section 4.05.
	 
	 	(d)	 	The Issuer shall, so long as any of the Debt Securities are
Outstanding, deliver to the Trustee, within 30 days of any Officer of the
Issuer becoming aware of the occurrence of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what
action the Issuer is taking or proposes to take with respect thereto.





     Section 4.06. Compliance Certificate.




	 	(a)	 	The Issuer shall, so long as any of the Debt Securities are
Outstanding, deliver to the Trustee, within 120 days after the end of each
fiscal year of the Issuer, an Officers’ Certificate stating that a review of
the activities of the Issuer and its subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers of the Issuer
with a view to determining whether the Issuer has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his knowledge the
Issuer has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof, without
regard to any grace period or requirement of notice required by this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which such Officer may have knowledge and what
action the Issuer is taking or proposes to take with respect thereto) and that
to the best of his knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of, or premium, if any, or
interest, if any, on the Debt Securities are prohibited or, if such event has
occurred, a description of the event and what action the Issuer is taking or
proposes to take with respect thereto.
	 
	 	(b)	 	The Issuer shall, so long as any of the Debt Securities are
outstanding, deliver to the Trustee within 30 days after the occurrence of any
Default or Event of Default under this Indenture, an Officers’ Certificate
specifying such Default or Event of Default, the status thereof and what action
the Issuer is taking or proposes to take with respect thereto.





     Section 4.07. Further Instruments and Acts. The Issuer will, upon request of the Trustee, execute and deliver such further instruments
and do such further acts as may reasonably be necessary or proper to carry out more effectually the
purposes of this Indenture.



     Section 4.08. Existence. Except as permitted by Article X hereof, the Issuer shall do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all rights (charter and
statutory) and franchises of the
Issuer, provided that the Issuer shall not be required to preserve any such right or
franchise, if the Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Issuer.



21









 





     Section 4.09. Maintenance of Properties. The Issuer shall cause all properties owned by the Issuer or any of its subsidiaries or
used or held for use in the conduct of its business or the business of any such subsidiary to be
maintained and kept in good condition, repair and working order (reasonable wear and tear excepted)
and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of the Issuer
may be necessary so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided that nothing in this Section 4.09 shall prevent the
Issuer from discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Issuer, desirable in the conduct of its business or the
business of any such Subsidiary and not disadvantageous in any material respect to the Holders.



     Section 4.10. Payment of Taxes and Other Claims. The Issuer shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the
Issuer or any of its subsidiaries or upon the income, profits or property of the Issuer or any of
its subsidiaries, and (ii) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a Lien upon the property of the Issuer or any of its subsidiaries; provided
that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.



     Section 4.11. Waiver of Certain Covenants. The Issuer may, with respect to the Debt Securities of any series, omit in any particular
instance to comply with any covenant set forth in this Article IV (except Sections 4.01 through
4.08) or made applicable to such Debt Securities pursuant to Section 2.03, if, before or after the
time for such compliance, the Holders of at least a majority in principal amount of the Outstanding
Debt Securities of each series affected, waive such compliance in such instance with such covenant,
but no such waiver shall extend to or affect such covenant except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Issuer and the duties
of the Trustee in respect of any such covenant shall remain in full force and effect.



ARTICLE V




HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE



     Section 5.01. Issuer to Furnish Trustee Information as to Names and Addresses of Holders;
Preservation of Information. The Issuer covenants and agrees that it will furnish or cause to be furnished to the
Trustee with respect to the Debt Securities of each series:




	 	(a)	 	not more than 10 days after each record date with respect to
the payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such record
date, and
	 
	 	(b)	 	at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a list of
similar form and contents as of a date not more than 15 days prior to the time
such list is furnished;




provided, however, that so long as the Trustee shall be the Registrar, such lists shall not be
required to be furnished.




     The Trustee shall preserve, in as current a form as is reasonably practicable, all information
as to the names and addresses of the Holders (i) contained in the most recent list furnished to it
as provided in this Section 5.01 or (ii) received by it in the capacity of paying agent or
Registrar (if so acting) hereunder.



     The Trustee may destroy any list furnished to it as provided in this Section 5.01 upon receipt
of a new list so furnished.



     Section 5.02. Communications to Holders. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Debt Securities. The Issuer, the Trustee, the
Registrar and anyone else shall have the protection of Section 312(c) of the TIA.



22









 





     Section 5.03. Reports by Trustee. Within 60 days after each January 31, beginning with the first January 31 following the
date of this Indenture, and in any event on or before April 1 in each year, the Trustee shall mail
to Holders a brief report dated as of such January 31 that complies with TIA Section 313(a);
provided, however, that if no event described in TIA Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted. The Trustee also shall comply
with TIA Section 313(b).



     Reports pursuant to this Section 5.03 shall be transmitted by mail:




	 	(a)	 	to all Holders, as the names and addresses of such Holders
appear in the Debt Security Register; and
	 
	 	(b)	 	except in the cases of reports under Section 313(b)(2) of the
TIA, to each Holder of a Debt Security of any series whose name and address
appear in the information preserved at the time by the Trustee in accordance
with Section 5.01.





     A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each stock exchange (if any) on which the Debt Securities of any series are listed. The Issuer
agrees to notify promptly the Trustee whenever the Debt Securities of any series become listed on
any stock exchange and of any delisting thereof.



     Section 5.04. Record Dates for Action by Holders. If the Issuer shall solicit from the Holders of Debt Securities of any series any action
(including the making of any demand or request, the giving of any direction, notice, consent or
waiver or the taking of any other action), the Issuer may, at its option, by resolution of the
Board of Directors, fix in advance a record date for the determination of Holders of Debt
Securities entitled to take such action, but the Issuer shall have no obligation to do so. Any
such record date shall be fixed at the Issuer’s discretion. If such a record date is fixed, such
action may be sought or given before or after the record date, but only the Holders of Debt
Securities of record at the close of business on such record date shall be deemed to be Holders of
Debt Securities for the purpose of determining whether Holders of the requisite proportion of Debt
Securities of such series Outstanding have authorized or agreed or consented to such action, and
for that purpose the Debt Securities of such series Outstanding shall be computed as of such record
date.



ARTICLE VI




REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT



     Section 6.01. Events of Default. If any one or more of the following shall have occurred and be continuing with respect to
Debt Securities of any series (each of the following, an “Event of Default”):




	 	(a)	 	default in the payment of any installment of interest upon any
Debt Securities of that series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
	 
	 	(b)	 	default in the payment of the principal of or premium, if any,
on any Debt Securities of that series as and when the same shall become due and
payable, whether at Stated Maturity, upon redemption, by declaration, upon
required repurchase or otherwise; or
	 
	 	(c)	 	default in the payment of any sinking fund payment with respect
to any Debt Securities of that series as and when the same shall become due and
payable; or
	 
	 	(d)	 	failure on the part of the Issuer duly to observe or perform
any other of the covenants or agreements on the part of the Issuer, in the Debt
Securities of that series, in any resolution of the Board of Directors
authorizing the issuance of that series of Debt Securities, in this Indenture
with respect to such series or in any supplemental Indenture with respect to
such series (other than a covenant a default in the performance of which is
elsewhere in this Section specifically dealt with), continuing for a period of
60 days after the date on




23









 






	 	 	 	which written notice specifying such failure and
requiring the Issuer to remedy the same shall have been given, by registered or
certified mail, to the Issuer, by the Trustee or to the Issuer and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Debt
Securities of that series at the time Outstanding; or
	 
	 	(e)	 	the Issuer, pursuant to or within the meaning of any Bankruptcy
Law:






	 	(i)	 	commences a voluntary case,
	 
	 	(ii)	 	consents to the entry of an order for relief
against it in an involuntary case,
	 
	 	(iii)	 	consents to the appointment of a Custodian of
it or for all or substantially all of its property; or
	 
	 	(iv)	 	makes a general assignment for the benefit of
its creditors;






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






	 	(i)	 	is for relief against the Issuer, as debtor in
an involuntary case,
	 
	 	(ii)	 	appoints a Custodian of the Issuer, or a
Custodian for all or substantially all of the property of the Issuer,
or
	 
	 	(iii)	 	orders the liquidation of the Issuer,




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





	 	(g)	 	any other Event of Default provided with respect to Debt
Securities of that series; then and in each and every case that an Event of
Default described in clause (a), (b), (c), (d), or (g) with respect to Debt
Securities of that series at the time Outstanding occurs and is continuing,
unless the principal of, premium, if any, and interest on all the Debt
Securities of that series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Debt Securities of that series then Outstanding hereunder, by notice in
writing to the Issuer (and to the
Trustee if given by Holders), may declare the principal of (or, if the Debt
Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of that
series), premium, if any, and interest on all the Debt Securities of that
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Debt Securities of that series contained to the contrary
notwithstanding. If an Event of Default described in clause (e) or (f)
occurs, then and in each and every such case, unless the principal of and
interest on all the Debt Securities shall have become due and payable, the
principal of (or, if any Debt Securities are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms thereof), premium, if any, and interest on all the Debt Securities
then Outstanding hereunder shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee
or any Holders, anything in this Indenture or in the Debt Securities
contained to the contrary notwithstanding.





     The Holders of a majority in aggregate principal amount of the Debt Securities of a particular
series by written notice to the Trustee may waive all past Defaults (except with respect to the
nonpayment of principal, premium, if any, or interest) and rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction already rendered and if all existing Events of Default have been cured or
waived except nonpayment of principal, premium, if any, or interest that has become due



24









 




solely
because of acceleration. Upon any such rescission, the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights, remedies and powers
of the parties hereto shall continue as though no such proceeding had been taken.




     Section 6.02. Collection of Debt by Trustee, etc. If an Event of Default occurs and is continuing, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid or enforce the performance of
any provision of the Debt Securities of the affected series or this Indenture, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Issuer or any other obligor upon the Debt Securities of such series (and
collect in the manner provided by law out of the property of the Issuer or any other obligor upon
the Debt Securities of such series wherever situated the moneys adjudged or decreed to be payable).



     In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Issuer or any other obligor upon the Debt Securities of any series under any Bankruptcy Law, or in
case a Custodian shall have been appointed for its property, or in case of any other similar
judicial proceedings relative to the Issuer or any other obligor upon the Debt Securities of any
series, its creditors or its property, the Trustee, irrespective of whether the principal of Debt
Securities of any series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal,
premium, if any, and interest (or, if the Debt Securities of such series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be specified in the terms of
such series) owing and unpaid in respect of the Debt Securities of such series, and to file such
other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by
the Trustee except as a result of its negligence or bad faith) and of the Holders thereof allowed
in any such judicial proceedings relative to the Issuer, or any other obligor upon the Debt
Securities of such series, its creditors or its property, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute all amounts received
with respect to the claims of such Holders and of the Trustee on their behalf, and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized by each of such Holders to
make payments to the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to such Holders, to pay to the Trustee such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other
reasonable expenses and liabilities incurred, and all advances made, by the Trustee except as a
result of its negligence or bad faith.



     All rights of action and of asserting claims under this Indenture, or under any of the Debt
Securities of any series, may be enforced by the Trustee without the possession of any such Debt
Securities, or the production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment (except for any amounts payable to the Trustee
pursuant to Section 7.06) shall be for the ratable benefit of the Holders of all the Debt
Securities in respect of which such action was taken.



     In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or
in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.



     Section 6.03. Application of Moneys Collected by Trustee. Any moneys or other property collected by the Trustee pursuant to Section 6.02 with respect
to Debt Securities of any series shall be applied, in the order following, at the date or dates
fixed by the Trustee for the distribution of such moneys or other property, upon presentation of
the several Debt Securities of such series in respect of which moneys or other property have been
collected, and the notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:



     FIRST: To the payment of all money due the Trustee pursuant to Section 7.06;




25












 





     SECOND: In case the principal of the Outstanding Debt Securities in respect of which such
moneys have been collected shall not have become due, to the payment of interest on the Debt
Securities of such series in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of Original Issue Discount
Debt Securities) borne by the Debt Securities of such series, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference;



     THIRD: In case the principal of the Outstanding Debt Securities in respect of which such
moneys have been collected shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the Debt Securities of such series for principal and
premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to
the extent that such interest has been collected by the Trustee) upon overdue installments of
interest at the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities)
borne by the Debt Securities of such series; and, in case such moneys shall be insufficient to pay
in full the whole amount so due and unpaid upon the Debt Securities of such series, then to the
payment of such principal and premium, if any, and interest, without preference or priority of
principal and premium, if any, over interest, or of interest over principal and premium, if any, or
of any installment of interest over any other installment of interest, or of any Debt Security of
such series over any Debt Security of such series, ratably to the aggregate of such principal and
premium, if any, and interest; and



     FOURTH: The remainder, if any, shall be paid to the Issuer, its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction
may direct.



     The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.03. At least 15 days before such record date, the Issuer shall mail to each Holder and
the Trustee a notice that states the record date, the payment date and amount to be paid.



     Section 6.04. Limitation on Suits by Holders. No Holder of any Debt Security of any series
shall have any right by virtue or by availing
of any provision of this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have
given to the Trustee written notice of an Event of Default with respect to Debt Securities of that
same series and of the continuance thereof and unless the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of that series shall have made written request
upon the Trustee to institute such action or proceedings in respect of such Event of Default in its
own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity or
security as it may require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity or security shall have failed to institute any such action or proceedings and no
direction inconsistent with such written request shall have been given to the Trustee pursuant to
Section 6.06; it being understood and intended, and being expressly covenanted by the Holder of
every Debt Security with every other Holder and the Trustee, that no one or more Holders shall have
any right in any manner whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any Holders, or to obtain or seek to obtain priority
over or preference to any other such Holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of all such Holders.
For the protection and enforcement of the provisions of this Section 6.04, each and every Holder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.



     Notwithstanding any other provision in this Indenture (but subject to Article XIV), however,
the right of any Holder of any Debt Security to receive payment of the principal of, and premium,
if any, and (subject to Section 2.12) interest on, such Debt Security, on or after the respective
due dates expressed in such Debt Security, and to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected without the consent of
such Holder.



     Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of
Default. All powers and remedies given by this Article VI to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other
powers and remedies available to the Trustee or the Holders, by judicial proceedings or otherwise,
to enforce the performance or observance of the



26









 




covenants and agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any Default occurring and continuing
as aforesaid, shall impair any such right or power, or shall be construed to be a waiver of any
such Default or an acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Holders.




     Section 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities to Direct
Trustee and to Waive Default. The Holders of a majority in aggregate principal amount of the Debt Securities of any
series at the time Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any right, trust
or power conferred on the Trustee, with respect to the Debt Securities of such series; provided,
however, that such direction shall not be otherwise than in accordance with law and the provisions
of this Indenture, and that subject to the provisions of Section 7.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee being advised by counsel shall
determine that the action so directed may not lawfully be taken, or if the Trustee shall by a
responsible officer or officers determine that the action so directed would involve it in personal
liability or would be unduly prejudicial to Holders of Debt Securities of such series not taking
part in such direction; and provided, further, however, that nothing in this Indenture contained
shall impair the right of the Trustee to take any action deemed proper by the Trustee and which is
not inconsistent with such direction by such Holders. Prior to the acceleration of the maturity of
the Debt Securities of any series, as provided in Section 6.01, the Holders of a majority in
aggregate principal amount of the Debt Securities of that series at the time Outstanding may on
behalf of the Holders of all the Debt Securities of that series waive any past Default or Event of
Default and its consequences for that series, except a Default in the payment of the principal of,
and premium, if any, or interest on, any of the Debt Securities and a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each Holder affected
thereby. In case of any such waiver, such Default shall cease to exist, any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture, and the
Issuer, the Trustee and the Holders of the Debt Securities of that series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.



     Section 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in
Certain Circumstances. The Trustee shall, within 90 days after the occurrence of a Default known to it, or if
later, within 30 days after the Trustee obtains actual knowledge of the Default, with respect to a
series of Debt Securities give to the Holders thereof, in the manner provided in Section 13.03,
notice of all Defaults with respect to such series known to the Trustee, unless such Defaults shall
have been cured or waived before the giving of such notice; provided, that, except in the case of
Default in the payment of the principal of, or premium, if any, or interest on, any of the Debt
Securities of such series or in the making of any sinking fund payment with respect to the Debt
Securities of such series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a committee of directors or responsible
officers of the Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders thereof.



     Section 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture
or Against the Trustee. All parties to this Indenture agree, and each Holder of any Debt Security by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit in the manner and to the extent provided in the TIA,
and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the provisions of this
Section 6.08 shall not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 25% in principal amount of the
Outstanding Debt Securities of that series or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, or premium, if any, or interest on, any Debt
Security on or after the due date for such payment expressed in such Debt Security.



27









 





ARTICLE VII




CONCERNING THE TRUSTEE



     Section 7.01. Certain Duties and Responsibilities. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiving
of all Events of Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of Default has occurred
(which has not been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his own affairs.



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




	 	(a)	 	this paragraph shall not be construed to limit the effect of
the first paragraph of this Section 7.01;
	 
	 	(b)	 	prior to the occurrence of an Event of Default with respect to
the Debt Securities of a series and after the curing or waiving of all Events
of Default with respect to such series which may have occurred:






	 	(i)	 	the duties and obligations of the Trustee with
respect to Debt Securities of any series shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations with
respect to such series as are specifically set forth in this Indenture,
and no implied covenants or obligations with respect to such series
shall be read into this Indenture against the Trustee;
	 
	 	(ii)	 	in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture; but the Trustee shall examine the
evidence furnished to it pursuant to Sections 4.05 and 4.06 to
determine whether or not such evidence conforms to the requirement of
this Indenture;
	 
	 	(iii)	 	the Trustee shall not be liable for an error
of judgment made in good faith by a responsible officer, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
	 
	 	(iv)	 	the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Debt Securities of that series relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to Debt Securities
of such series.





     None of the provisions of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any personal financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.



28









 





     Whether or not therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.



     Section 7.02. Certain Rights of Trustee. Except as otherwise provided in Section 7.01:




	 	(a)	 	the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note or other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
	 
	 	(b)	 	any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Issuer Order (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Issuer;
	 
	 	(c)	 	the Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
	 
	 	(d)	 	the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of Debt Securities of any series pursuant to
the provisions of this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
	 
	 	(e)	 	the Trustee shall not be liable for any action taken or omitted
by it in good faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
	 
	 	(f)	 	prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval or other paper or document, unless
requested in writing to do so by the Holders of a majority in aggregate
principal amount of the then Outstanding Debt Securities of a series affected
by such matter; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding, and the
reasonable expense of every such investigation shall be paid by the Issuer or,
if paid by the Trustee, shall be repaid by the Issuer upon demand;
	 
	 	(g)	 	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 by it with due care
hereunder; and
	 
	 	(h)	 	if any property other than cash shall at any time be subject to
a Lien in favor of the Holders, the Trustee, if and to the extent authorized by
a receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to




29









 






	 	 	 	such Lien, shall be entitled to make advances for the purpose of preserving
such property or of discharging tax Liens or other prior Liens or
encumbrances thereon.





     Section 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities. The recitals contained herein, in the Debt Securities (except the Trustee’s certificate of
authentication) shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debt Securities of any series, except that the
Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate
the Debt Securities and perform its obligations hereunder, and that the statements made by it or to
be made by it in a Statement of Eligibility and Qualification on Form T-1 supplied to the Issuer is
true and accurate. The Trustee shall not be accountable for the use or application by the Issuer
of any of the Debt Securities or of the proceeds thereof.



     Section 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities. The Trustee or any paying agent or Registrar, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities and subject to the provisions of the TIA relating to
conflicts of interest and preferential claims may otherwise deal with the Issuer with the same
rights it would have if it were not Trustee, paying agent or Registrar.



     Section 7.05. Moneys Received by Trustee to Be Held in Trust. Subject to the provisions of Section 11.05, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on any such moneys
shall be paid from time to time to the Issuer upon an Issuer Order.



     Section 7.06. Compensation and Reimbursement. The Issuer covenants and agrees to pay in Dollars to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder
(which shall not be limited by any provision of law in regard to the compensation of a trustee of
an express trust), and, except as otherwise expressly provided herein, the Issuer will pay or
reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its agents, attorneys
and counsel and of all Persons not regularly in its employ), including without limitation, Section
6.02, except any such expense, disbursement or advances as may arise from its negligence, willful
misconduct or bad faith. The Issuer also covenants to indemnify in Dollars the Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without negligence, willful
misconduct or bad faith on the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust or trusts hereunder, including the reasonable costs and
expenses of defending itself against any claim of liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligations of the Issuer under this
Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional Debt hereunder and shall survive
the satisfaction and discharge of this Indenture. The Issuer and the Holders agree that such
additional Debt shall be secured by a Lien prior to that of the Debt Securities upon all property
and funds held or collected by the Trustee, as such, except funds held in trust for the payment of
principal of, and premium, if any, or interest on, particular Debt Securities.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Sections 6.01(e) or 6.01(f) occurs, the expenses and the compensation for the services are intended
to constitute expenses of administration under any bankruptcy, insolvency, reorganization or other
similar law.



     Section 7.07. Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence
Specifically Prescribed. Except as otherwise provided in Section 7.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions of this Indenture upon the
faith thereof.



30









 





     Section 7.08. Separate Trustee; Replacement of Trustee. The Issuer may, but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at
any time by giving notice to the Issuer. The Holders of a majority in principal amount of the Debt
Securities of a particular series may remove the Trustee for such series and only such series by so
notifying the Trustee and may appoint a successor Trustee. The Issuer shall remove the Trustee if:




	 	(a)	 	the Trustee fails to comply with Section 7.10;
	 
	 	(b)	 	the Trustee is adjudged bankrupt or insolvent;
	 
	 	(c)	 	a Custodian takes charge of the Trustee or its property; or
	 
	 	(d)	 	the Trustee otherwise becomes incapable of acting.





     If the Trustee resigns, is removed by the Issuer or by the Holders of a majority in principal
amount of the Debt Securities of a particular series and such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly
appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a
successor Trustee shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of this Section 7.08.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in
Section 7.06.



     If a successor Trustee does not take office within 60 days after the retiring Trustee gives
notice of resignation or is removed, the retiring Trustee or the Holders of 25% in principal amount
of the Debt Securities of any applicable series may petition any court of competent jurisdiction
for the appointment of a successor Trustee for the Debt Securities of such series.



     If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any
applicable series may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee for the Debt Securities of such series.



     Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, Issuer’s
obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.



     In the case of the appointment hereunder of a separate or successor Trustee with respect to
the Debt Securities of one or more series, the Issuer, any retiring Trustee and each successor or
separate Trustee with respect to the Debt Securities of any applicable series shall execute and
deliver an Indenture supplemental hereto (i) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring
Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is
not retiring shall continue to be vested in such retiring Trustee and (ii) that shall add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of the
same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee.



     Section 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation or banking



31









 




association, the resulting, surviving or transferee corporation or banking association without
any further act shall be the successor Trustee.




     In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture any of the Debt Securities shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Debt Securities so authenticated;
and in case at that time any of the Debt Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Debt Securities either in the name of any
predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Debt Securities or in this
Indenture provided that the certificate of the Trustee shall have.



     Section 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the requirements of Section 310(a) of the TIA. The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. No obligor upon the Debt Securities of a particular
series or Person directly or indirectly controlling, controlled by or under common control with
such obligor shall serve as Trustee upon the Debt Securities of such series. The Trustee shall
comply with Section 310(b) of the TIA; provided, however, that there shall be excluded from the
operation of Section 310(b)(1) of the TIA this Indenture or any indenture or indentures under which
other securities or certificates of interest or participation in other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the TIA are
met.



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



     Section 7.12. Compliance with Tax Laws. The Trustee hereby agrees to comply with all U.S. Federal income tax information reporting
and withholding requirements applicable to it with respect to payments of premium (if any) and
interest on the Debt Securities, whether acting as Trustee, Registrar, paying agent or otherwise
with respect to the Debt Securities.



ARTICLE VIII




CONCERNING THE HOLDERS



     Section 8.01. Evidence of Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Debt Securities of any or all series may take action (including
the making of any demand or request, the giving of any direction, notice, consent or waiver or the
taking of any other action) the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or proxy appointed in
writing, by the record of the Holders voting in favor thereof at any meeting of Holders duly called
and held in accordance with the provisions of Section 5.02 or by a combination of such instrument
or instruments and any such record of such a meeting of Holders.



     Section 8.02. Proof of Execution of Instruments and of Holding of Debt Securities. Subject to the provisions of Sections 7.01, 7.02 and 13.09, proof of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Debt Securities of any series shall be proved by the
Debt Security Register or by a certificate of the Registrar for such series. The Trustee may
require such additional proof of any matter referred to in this Section 8.02 as it shall deem
necessary.



     Section 8.03. Who May Be Deemed Owner of Debt Securities. Prior to due presentment for registration of transfer of any Debt Security, the Issuer, the
Trustee, any paying agent and any Registrar may deem and treat the Person in whose name any Debt
Security shall be registered upon the books of the Issuer as the absolute owner of such Debt
Security (whether or not such Debt Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or on account of the
principal of and premium, if any, and (subject to Section 2.12) interest on such Debt Security and
for all other



32









 




purposes, and neither the Issuer nor the Trustee nor any paying agent nor any Registrar shall
be affected by any notice to the contrary; and all such payments so made to any such Holder for the
time being, or upon his order, shall be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any such Debt Security.




     None of the Issuer, the Trustee, any agent of the Trustee, any paying agent or any Registrar
will have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.



     Section 8.04. Instruments Executed by Holders Bind Future Holders. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of
the Debt Securities of any series specified in this Indenture in connection with such action and
subject to the following paragraph, any Holder of a Debt Security which is shown by the evidence to
be included in the Debt Securities the Holders of which have consented to such action may, by
filing written notice with the Trustee at its corporate trust office and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Debt Security. Except as
aforesaid any such action taken by the Holder of any Debt Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Debt Security and of any Debt
Security issued upon transfer thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security or such other Debt
Securities. Any action taken by the Holders of the percentage in aggregate principal amount of the
Debt Securities of any series specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the Debt Securities of
such series.



     The Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders of Debt Securities entitled to give their consent or take any other action
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders of Debt
Securities at such record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders of Debt Securities after such record date. No
such consent shall be valid or effective for more than 120 days after such record date unless the
consent of the Holders of the percentage in aggregate principal amount of the Debt Securities of
such series specified in this Indenture shall have been received within such 120-day period.



ARTICLE IX




SUPPLEMENTAL INDENTURES



     Section 9.01. Purposes for Which Supplemental Indenture May Be Entered into Without Consent of
Holders. The Issuer, when authorized by resolutions of the Board of Directors, and the Trustee may
from time to time and at any time, without the consent of Holders, enter into an Indenture or
Indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the
date of the execution thereof) for one or more of the following purposes:




	 	(a)	 	to evidence the succession pursuant to Article X of another
Person to the Issuer, or successive successions, and the assumption by the
Successor Issuer (as defined in Section 10.01) of the covenants, agreements and
obligations of the Issuer in this Indenture and in the Debt Securities;
	 
	 	(b)	 	to surrender any right or power herein conferred upon the
Issuer, to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions for the protection of the Holders of all
or any series of Debt Securities (and if such covenants are to be for the
benefit of less than all series of Debt Securities, stating that such covenants
are expressly being included solely for the benefit of such series) as the
Board of Directors shall consider to be for the protection of the Holders of
such Debt Securities, and to make the occurrence, or the occurrence and
continuance, of a Default in any of




33









 






	 	 	 	such additional covenants, restrictions, conditions or provisions a Default
or an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture; provided, that in respect of
any such additional covenant, restriction, condition or provision such
supplemental Indenture may provide for a particular period of grace after
Default (which period may be shorter or longer than that allowed in the case
of other Defaults) or may provide for an immediate enforcement upon such
Default or may limit the remedies available to the Trustee upon such Default
or may limit the right of the Holders of a majority in aggregate principal
amount of any or all series of Debt Securities to waive such default;






	 	(c)	 	to cure any ambiguity or omission or to correct or supplement
any provision contained herein, in any supplemental Indenture or in any Debt
Securities of any series that may be defective or inconsistent with any other
provision contained herein, in any supplemental Indenture or in the Debt
Securities of such series; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make such other provisions in regard to
matters or questions arising under this Indenture as shall not adversely affect
the interests of any Holders of Debt Securities of any series;
	 
	 	(d)	 	to modify or amend this Indenture in such a manner as to permit
the qualification of this Indenture or any Indenture supplemental hereto under
the TIA as then in effect, except that nothing herein contained shall permit or
authorize the inclusion in any Indenture supplemental hereto of the provisions
referred to in Section 316(a)(2) of the TIA;
	 
	 	(e)	 	to add to or change any of the provisions of this Indenture to
change or eliminate any restrictions on the payment of principal of, or
premium, if any, on, Debt Securities; provided, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of any series
in any material respect or permit or facilitate the issuance of Debt Securities
of any series in uncertificated form;
	 
	 	(f)	 	to comply with Article XIV;
	 
	 	(g)	 	to add subsidiary guarantors with respect to any or all of the
Debt Securities or to secure any or all of the Debt Securities;
	 
	 	(h)	 	to make any change that does not adversely affect the rights of
any Holder;
	 
	 	(i)	 	to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities; provided,
however, that any such addition, change or elimination not otherwise permitted
under this Section 9.01 shall neither apply to any Debt Security of any series
created prior to the execution of such supplemental Indenture and entitled to
the benefit of such provision nor modify the rights of the Holder of any such
Debt Security with respect to such provision or shall become effective only
when there is no such Debt Security Outstanding;
	 
	 	(j)	 	to make any changes in Article XIV that would limit or
terminate the benefits applicable to any holder of Senior Indebtedness (or its
Representatives) under Article XIV;
	 
	 	(k)	 	to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; and
	 
	 	(l)	 	to establish the form or terms of Debt Securities of any series
as permitted by Sections 2.01 and 2.03.





34









 





     The Trustee is hereby authorized to join with the Issuer in the execution of any such
supplemental Indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any such supplemental
Indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.



     Any supplemental Indenture authorized by the provisions of this Section 9.01 may be executed
by the Issuer, and the Trustee without the consent of the Holders of any of the Debt Securities at
the time Outstanding, notwithstanding any of the provisions of Section 9.02.



     Section 9.02. Modification of Indenture with Consent of Holders of Debt Securities. Without notice to any Holder but with the consent (evidenced as provided in Section 8.01)
of the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such supplemental Indenture (including consents obtained in
connection with a tender offer or exchange offer for any such series of Debt Securities), the
Issuer, when authorized by resolutions of the Board of Directors, and the Trustee may from time to
time and at any time enter into an Indenture or Indentures supplemental hereto (which shall conform
to the provisions of the TIA as in force at the date of execution thereof) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental Indenture or of modifying in any manner the rights of the Holders
of the Debt Securities of such series; provided, that no such supplemental Indenture, without the
consent of the Holders of each Debt Security so affected, shall: (i) reduce the percentage in
principal amount of Debt Securities of any series whose Holders must consent to an amendment; (ii)
reduce the rate of or extend the time for payment of interest on any Debt Security; (iii) reduce
the principal of or extend the Stated Maturity of any Debt Security; (iv) reduce the premium
payable upon the redemption of any Debt Security or change the time at which any Debt Security may
or shall be redeemed in accordance with Article III; (v) make any Debt Security payable in currency
other than the Dollar; (vi) impair the right of any Holder to receive payment of premium, if any,
principal of and interest on such Holder’s Debt Securities on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to such Holder’s Debt
Securities; (vii) release any security that may have been granted in respect of the Debt
Securities; or (viii) make any change in Section 6.06 or this Section 9.02.



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



     Upon the request of the Issuer, accompanied by a copy of resolutions of the Board of Directors
authorizing the execution of any such supplemental Indenture, and upon the filing with the Trustee
of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Issuer in the
execution of such supplemental Indenture unless such supplemental Indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion but shall not be obligated to enter into such supplemental Indenture.



     It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed supplemental Indenture, but it shall be sufficient if such
consent shall approve the substance thereof.



     An amendment under this Section 9.02 may not make any change that adversely affects the rights
under Article XIV of any holder of Senior Indebtedness then Outstanding unless the holders of such
Senior Indebtedness (or any group or Representative thereof authorized to give a consent) consents
to such change.



     After an amendment under this Section 9.02 becomes effective, the Issuer shall mail to Holders
of Debt Securities of each series affected thereby a notice briefly describing such amendment. The
failure to give such notice to all such Holders, or any defect therein, shall not impair or affect
the validity of an amendment under this Section 9.02.



35









 





     Section 9.03. Effect of Supplemental Indentures. Upon the execution of any supplemental Indenture pursuant to the provisions of this Article
IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Issuer, and the Holders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental Indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.



     The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such supplemental Indenture
complies with the provisions of this Article IX.



     Section 9.04. Debt Securities May Bear Notation of Changes by Supplemental Indentures. Debt Securities of any series authenticated and delivered after the execution of any
supplemental Indenture pursuant to the provisions of this Article IX may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such
supplemental Indenture. New Debt Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained
in any such supplemental Indenture may be prepared and executed by the Issuer, authenticated by the
Trustee and delivered in exchange for the Debt Securities of such series then Outstanding. Failure
to make the appropriate notation or to issue a new Debt Security of such series shall not affect
the validity of such amendment.



ARTICLE X




CONSOLIDATION, MERGER, SALE OR CONVEYANCE



     Section 10.01. Consolidations and Mergers of the Issuer. The Issuer shall not consolidate or amalgamate with or merge with or into any Person, or
sell, convey, transfer, lease or otherwise dispose of all or substantially all of its assets to any
Person, whether in a single transaction or a series of related transactions, except (1) in
accordance with the provisions of the Charter, and (2) unless: (a) either (i) the Issuer shall be
the continuing Person in the case of a merger or (ii) the resulting, surviving or transferee Person
if other than the Issuer (the “Successor Issuer”), shall be a partnership, limited liability
company or corporation organized and existing under the laws of the United States, any state
thereof or the District of Columbia, and the Successor Issuer shall expressly assume, by an
Indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Issuer under this Indenture and the Debt Securities according
to their tenor; (b) immediately after giving effect to such transaction (and treating any Debt
which becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a
result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at
the time of such transaction), no Default or Event of Default would occur or be continuing; and (c)
the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, amalgamation, merger or disposition and such supplemental
Indenture (if any) comply with this Indenture.



     Section 10.02. Rights and Duties of Successor Issuer. In case of any consolidation, amalgamation or merger in respect of an Issuer where such
Issuer is not the continuing Person, or disposition of all or substantially all of the assets of
such Issuer in accordance with Section 10.01, the Successor Issuer shall succeed to and be
substituted for such Issuer with the same effect as if it had been named herein as the respective
party to this Indenture, and the predecessor entity shall be released from all liabilities and
obligations under this Indenture and the Debt Securities, except that no such release will occur in
the case of a lease of all or substantially all of its assets. The Successor Issuer thereupon may
cause to be signed, and may issue either in its own name or in the name of such Issuer, any or all
the Debt Securities issuable hereunder which theretofore shall not have been signed by such Issuer
and delivered to the Trustee; and, upon the order of the Successor Issuer, instead of the Issuer,
and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Debt Securities which previously shall have been signed
and delivered by the officers of the Issuer, to the Trustee for authentication, and any Debt
Securities which the Successor Issuer thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Debt Securities so issued shall in all respects have the same
legal



36









 




rank and benefit under this Indenture as the Debt Securities theretofore or thereafter issued
in accordance with the terms of this Indenture as though all such Debt Securities had been issued
at the date of the execution hereof.




     In case of any such consolidation, amalgamation, merger, sale or disposition such changes in
phraseology and form (but not in substance) may be made in the Debt Securities thereafter to be
issued as may be appropriate.



ARTICLE XI




SATISFACTION AND DISCHARGE OF



INDENTURE; DEFEASANCE; UNCLAIMED MONEYS



     Section 11.01. Applicability of Article. The provisions of this Article XI relating to defeasance of Debt Securities shall be
applicable to each series of Debt Securities except as otherwise specified pursuant to Section 2.03
for Debt Securities of such series.



     Section 11.02. Satisfaction and Discharge of Indenture; Defeasance.





	 	(a)	 	If at any time the Issuer shall have delivered to the Trustee
for cancellation all Debt Securities of any series theretofore authenticated
and delivered (other than any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.09 and Debt Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Issuer as
provided in Section 11.05) or all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Issuer shall
deposit with the Trustee as trust funds the entire amount in cash sufficient to
pay at maturity or upon redemption all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due on such date of Stated
Maturity or redemption date, as the case may be, and if in either case the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer, then this Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of such Debt
Securities herein expressly provided for) with respect to the Debt Securities
of such series, and the Trustee, on demand of the Issuer accompanied by an
Officers’ Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture.
	 
	 	(b)	 	Subject to Sections 11.02(c), 11.03 and 11.07, the Issuer at
any time may terminate, with respect to Debt Securities of a particular series,
all its obligations under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series (“legal defeasance option”)
or the operation of (x) any covenant made applicable to such Debt Securities
pursuant to Section 2.03, (y) Sections 6.01(d) and 6.01(g) (“covenant
defeasance option”). If the Issuer exercises its legal defeasance option, any
guarantee will terminate with respect to that series of Debt Securities. The
Issuer may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.





     If the Issuer exercises its legal defeasance option, payment of the Debt Securities of the
defeased series may not be accelerated because of an Event of Default. If the Issuer exercises its
covenant defeasance option, payment of the Debt Securities of the defeased series may not be
accelerated because of an Event of Default specified in Sections 6.01(d) and 6.01(g) and, with
respect to any subsidiary guarantors only, Sections 6.01(e) and 6.01(f) (except to the extent
covenants or agreements referenced in such sections remain applicable).



37









 





     Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the
Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.




	 	(c)	 	Notwithstanding clauses (a) and (b) above, the Issuer’s
obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 11.05, 11.06, 11.07
and in Article XII shall survive until the Debt Securities of the defeased
series have been paid in full. Thereafter, the Issuer’s obligations in
Sections 7.06, 11.05 and 11.06 shall survive.





     Section 11.03. Conditions of Defeasance. The Issuer may exercise its legal defeasance option or its covenant defeasance option with
respect to Debt Securities of a particular series only if:




	 	(a)	 	the Issuer irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, and premium, if
any, and interest on, the Debt Securities of such series to Stated Maturity or
redemption, as the case may be;
	 
	 	(b)	 	the Issuer deliver to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without reinvestment
on the deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay the principal, premium and interest when due on all the Debt
Securities of such series to Stated Maturity or redemption, as the case may be;
	 
	 	(c)	 	91 days pass after the deposit is made and during the 91-day
period no Default specified in Sections 6.01(e) or 6.01(f) with respect to the
Issuer occurs which is continuing at the end of the period;
	 
	 	(d)	 	no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
	 
	 	(e)	 	the deposit does not constitute a default under any other
agreement binding on the Issuer;
	 
	 	(f)	 	the Issuer delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act
of 1940;
	 
	 	(g)	 	in the event of the legal defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that the Issuer
has received from the Internal Revenue Service a ruling, or since the date of
this Indenture there has been a change in the applicable Federal income tax
law, in either case of the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Debt Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such defeasance had not occurred;
	 
	 	(h)	 	in the event of the covenant defeasance option, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of Debt Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant
defeasance had not occurred; and




38









 






	 	(i)	 	the Issuer delivers to the Trustee an Officers’ Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as contemplated
by this Article XI have been complied with.





     Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for
the redemption of Debt Securities of such series at a future date in accordance with Article III.



     Section 11.04. Application of Trust Money. The Trustee shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to this Article XI. It shall apply the deposited money and the money from U.S. Government
Obligations through any paying agent and in accordance with this Indenture to the payment of
principal of, and premium, if any, and interest on, the Debt Securities of the defeased series.



     Section 11.05. Repayment to Issuer. The Trustee and any paying agent shall promptly turn over to the Issuer upon request any
excess money or securities held by them at any time.



     Subject to any applicable abandoned property law, the Trustee and any paying agent shall pay
to the Issuer upon request any money held by them for the payment of principal, premium or interest
that remains unclaimed for two years, and, thereafter, Holders entitled to such money must look to
the Issuer for payment as general creditors.



     Section 11.06. Indemnity for U.S. Government Obligations. The Issuer shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.



     Section 11.07. Reinstatement. If the Trustee or any paying agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article XI by reason of any legal proceeding or by reason of
any order or judgment of any court or government authority enjoining, restraining or otherwise
prohibiting such application, the Issuer’s obligations under this Indenture and the Debt Securities
of the defeased series shall be revived and reinstated as though no deposit had occurred pursuant
to this Article XI until such time as the Trustee or any paying agent is permitted to apply all
such money or U.S. Government Obligations in accordance with this Article XI.



ARTICLE XII




CONVERSION OF SECURITIES



     Section 12.01. Right of Conversion: Conversion Price. If provided in the resolutions of the Board of Directors with respect to
such series of Debt Securities, the Holder of any Debt Security or Debt Securities of a particular
series shall have the right, at his option, at any time after such date as determined by such
resolutions and before the close of business on such date as determined by such resolutions (except
that, with respect to any Debt Security or portion of a Debt Security of such series which shall be
called for redemption, such right shall terminate at the close of business on the date fixed for
redemption of such Debt Security or portion of a Debt Security unless the Issuer shall default in
payment due upon redemption thereof), to convert, subject to the terms and provisions of this
Article XII, the principal of any Debt Security or Debt Securities of such series or any portion
thereof which is $1,000 principal amount or an integral multiple thereof into shares of common
stock of the Issuer or Debt Securities of another series of Debt Securities, initially at the
conversion price per share specified in the Debt Securities of such series; or, in case an
adjustment of such price has taken place pursuant to the provisions of Section 12.04, then at the
price as last adjusted (such price or adjusted price being referred to herein as the “conversion
price”), upon surrender of the Debt Security or Debt Securities, the principal of which is so to be
converted, accompanied by written notice of conversion duly executed, to the Issuer, at any time
during usual business hours at the office or agency maintained by it for such purpose, and, if so
required by the conversion agent or Registrar, accompanied by a written instrument or instruments
of transfer in form satisfactory to the conversion agent or Registrar duly executed by the Holder
or his duly authorized representative in writing. Notwithstanding the foregoing, and in order to
protect the Issuer’s status as a REIT, a Holder may not convert any Debt Security, and any such
Debt Security shall not be convertible by any Holder, if as a result of such conversion any person
would then be deemed to beneficially own, directly or indirectly shares of beneficial interest in
excess of the limits prescribed in Article Ninth of the Charter.



39









 





     Section 12.02. Issuance of Shares on Conversion. As promptly as practicable after the surrender, as herein provided, of any Debt Security or
Debt Securities of any series for conversion, the Issuer shall deliver or cause to be delivered at
its said office or agency, to or upon the written order of the Holder of the Debt Security or Debt
Securities so surrendered, certificates representing the number of fully paid and nonassessable
shares of common stock of the Issuer or Debt Securities of another series of the Issuer into which
such Debt Security or Debt Securities may be converted in accordance with the provisions of this
Article XII. Such conversion shall be deemed to have been made as of the close of business on the
date that such Debt Security or Debt Securities shall have been surrendered for conversion by
delivery thereof with a written notice of conversion duly executed, so that the rights of the
Holder of such Debt Security or Debt Securities as such shall cease at such time and, subject to
the following provisions of this paragraph, the Person or Persons entitled to receive the shares of
common stock or Debt Securities of another series upon conversion of such Debt Security or Debt
Securities shall be treated for all purposes as having become the record holder or holders of such
shares of common stock or Debt Securities of another series at such time and such conversion shall
be at the conversion price in effect at such time; provided, however, that with
respect to shares of the Issuer’s common stock, no such surrender on any date when the stock
transfer books of the Issuer shall be closed shall be effective to constitute the Person or Persons
entitled to receive the shares of common stock upon such conversion as the record holder or holders
of such shares of common stock on such date, but such surrender shall be effective to constitute
the Person or Persons entitled to receive such shares of common stock as the record holder or
holders thereof for all purposes at the close of business on the next succeeding day on which such
stock transfer books are open; such conversion shall be at the conversion price in effect on the
date that such Debt Security or Debt Securities shall have been surrendered for conversion by
delivery thereof, as if the stock transfer books of the Issuer had not been closed. The Issuer
shall give or cause to be given to the Trustee written notice whenever the stock transfer books of
the Issuer shall be closed.



     Upon conversion of any Debt Security of any series which is converted in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Issuer, a new Debt Security or Debt Securities of such series of
authorized denominations in principal amount equal to the unconverted portion of such Debt
Security.



     Section 12.03. No Adjustment for Interest or Dividends. No payment or adjustment in respect of interest on the Debt Securities of any series or
dividends on the shares of common stock shall be made upon the conversion of any Debt Security or
Debt Securities; provided, however, that if a Debt Security of any series or any
portion thereof shall be converted subsequent to any regular record date and on or prior to the
next succeeding interest payment date, the interest falling due on such interest payment date shall
be payable on such interest payment date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the Person in whose name
such Debt Security is registered at the close of business on such regular record date and Debt
Securities surrendered for conversion during the period from the close of business on any regular
record date to the opening of business on the corresponding interest payment date must be
accompanied by payment of an amount equal to the interest payable on such interest payment date.



     Section 12.04. Adjustment of Conversion Price.





	 	(a)	 	With respect to any series of Debt Securities that is
convertible into shares of the Issuer’s common stock, in case the Issuer shall
pay or make a dividend or other distribution on any class of capital stock of
the Issuer in shares of common stock, the conversion price for any series of
Debt Securities in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such conversion
price by a fraction of which the numerator shall be the number of shares of
common stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination.
	 
	 	(b)	 	With respect to any series of Debt Securities that is
convertible into shares of the Issuer’s common stock, in case the Issuer shall
issue rights or warrants to all or substantially all holders of its shares of
common stock entitling them to subscribe for or purchase shares




40









 






	 		 	of common stock at a price per share (or having a conversion price per
share) less than the current market price per share (determined as provided
in paragraph (f) of this Section) of the shares of common stock on the date
fixed for the determination of stockholders entitled to receive such rights
or warrants, the conversion price for any series of Debt Securities in
effect at the opening of business on the day following the date fixed for
such determination shall be reduced by multiplying such conversion price by
a fraction of which the numerator shall be the number of shares of common
stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of common stock which the aggregate
of the subscription price of the total number of shares of common stock so
offered for subscription or purchase would purchase at such current market
price and the denominator shall be the number of shares of common stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of common stock so offered for
subscription or purchase, such reduction to become effective immediately
after the opening of business on the day following the date fixed for such
determination. In the event that all of the shares of common stock subject
to such rights or warrants have not been issued when such rights or warrants
expire, then the conversion price shall promptly be readjusted to the
conversion price which would then be in effect had the adjustment upon the
issuance of such rights or warrants been made on the basis of the actual
number of shares of common stock issued upon the exercise of such rights or
warrants. For the purposes of this paragraph (b), the number of shares of
common stock at any time outstanding shall not include shares held in the
treasury of the Issuer but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of common stock. The
Issuer will not issue any rights or warrants in respect of shares of common
stock held in the treasury of the Issuer.
	 
	 	(c)	 	With respect to any series of Debt Securities that is
convertible into shares of the Issuer’s common stock, in case the outstanding
shares of common stock shall be subdivided into a greater number of shares, the
conversion price for any series of Debt Securities in effect at the opening of
business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in case
outstanding shares of common stock shall each be combined into a smaller number
of shares, the conversion price for any series of Debt Securities in effect at
the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
	 
	 	(d)	 	With respect to any series of Debt Securities that is
convertible into shares of the Issuer’s common stock, in case the Issuer shall,
by dividend or otherwise, distribute to all or substantially all holders of
shares of common stock evidences of indebtedness or assets (including
securities, but excluding (i) any rights or warrants referred to in paragraph
(b) of this Section 12.04, (ii) any dividend or distribution paid in cash and
(iii) any dividend or distribution referred to in paragraph (a) of this
Section), the conversion price for any series of Debt Securities shall be
adjusted so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the close of business on the
day fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current market
price per share (determined as provided in paragraph (f) of this Section) of
the shares of common stock on the date fixed for such determination less the
then fair market value as determined by the Board of Directors (whose
determination shall be conclusive and described in a resolution of the Board of
Directors filed with the Trustee) of the portion of the assets or evidences of
indebtedness so distributed allocable to one share of common stock and the
denominator shall be such current market price per share of the shares of
common stock, such adjustment to become effective immediately prior to the




41









 






	 		 	opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.
	 
	 	(e)	 	With respect to any series of Debt Securities that is
convertible into shares of the Issuer’s common stock, in case the shares of
common stock shall be changed into the same or a different number of shares of
any class or classes of stock, whether by capital reorganization,
reclassification, or otherwise (other than a subdivision or combination of
shares or a stock dividend described in paragraph (a) or paragraph (c) of this
Section 12.04, or a consolidation, merger or sale of assets described in
Section 12.10), then and in each such event the Holders of Debt Securities of
any series shall have the right thereafter to convert such Debt Securities into
the kind and amount of shares of stock and other securities and property
receivable upon such reorganization, reclassification or other change, by
holders of the number of shares of common stock into which such Debt Securities
might have been converted immediately prior to such reorganization,
reclassification or change.
	 
	 	(f)	 	For the purpose of any computation under paragraphs (b) and (d)
of this Section 12.04, the current market price per share of common stock on
any date shall be deemed to be the average of the closing prices for the 15
consecutive Business Days selected by the Issuer commencing not more than 30
and not less than 20 Business Days before the date in question.
	 
	 	(g)	 	No adjustment in the conversion price for the Debt Securities
of any series shall be required unless such adjustment (plus any adjustments
not previously made by reason of this paragraph (g)) would require an increase
or decrease of at least 1% in such price; provided, however, that any
adjustments which by reason of this paragraph (g) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this paragraph (g) shall be made to the nearest cent.
	 
	 	(h)	 	The Issuer may, but shall not be required to, make such
reductions in the conversion price for the Debt Securities of any series, in
addition to those required by paragraph (a), (b), (c) and (d) of this Section
12.04, as the Board of Directors considers to be advisable in order to avoid or
diminish any income tax to any holders of shares of common stock resulting from
any dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for stock or from any event treated as such for income
tax purposes or for any other reasons. The Board of Directors shall have the
power to resolve any ambiguity or correct any error in the adjustments made
pursuant to this Section 12.04 and its actions in so doing shall be final and
conclusive.





     Section 12.05. Notice of Adjustment of Conversion Price. Whenever the conversion price for the Debt Securities of any series is adjusted as herein
provided:




	 	(a)	 	the Issuer shall compute the adjusted conversion price in
accordance with Section 12.04 and shall prepare an Officers’ Certificate
setting forth the adjusted conversion price and showing the facts upon which
such adjustment is based and the computation thereof, and such certificate
shall forthwith be filed at each office or agency maintained for the purpose of
conversion of Debt Securities pursuant to Section 4.02 and with the Trustee;
and
	 
	 	(b)	 	a notice stating that the conversion price has been adjusted
and setting forth the adjusted conversion price shall as soon as practicable be
mailed by the Issuer to all Holders of Debt Securities of such series at their
last addresses as they shall appear in the Debt Security Register.
	 
	 	(c)	 	If the conversion price is adjusted and the Issuer fails to
file an Officers’ Certificate with the Trustee as provided by Section 12.05(a)
and the Trustee is acting as the conversion




42









 






	 	 	 	agent, the Trustee shall be entitled to rely conclusively on the conversion
price set forth in the Officer’s Certificate most recently received by the
Trustee (or as set forth in this Indenture if the conversion price shall not
have been adjusted).





     Section 12.06. Notice of Certain Corporate Action.





	 	(a)	 	In case:






	 	(i)	 	the Issuer shall authorize the granting to
holders of its shares of common stock of rights or warrants entitling
them to subscribe for or purchase any shares of capital stock of any
class or of any other rights; or
	 
	 	(ii)	 	of any reclassification of the shares of common
stock of the Issuer, or of any consolidation or merger to which the
Issuer is a party and for which approval of any stockholders of the
Issuer is required, or of the sale or transfer of all or substantially
all of the assets of the Issuer; or
	 
	 	(iii)	 	of the voluntary or involuntary dissolution,
liquidation or winding up of the Issuer; then the Issuer shall cause to
be filed at each office or agency maintained for the purpose of
conversion of Debt Securities of any series pursuant to Section 4.02
and shall cause to be mailed to all Holders of Debt Securities of such
series that are convertible into shares of the Issuer’s common stock at
their last addresses as they shall appear in the Debt Security
Register, at least 20 days (or 10 days in any case specified in clause
(i) or (ii) above) prior to the applicable record date hereinafter
specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the
holders of shares of common stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
shares of common stock of record shall be entitled to exchange their
shares of common stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Such notice shall
also state whether such transaction will result in any adjustment in
the conversion price applicable to the Debt Securities of such series
and, if so, shall state what the adjusted conversion price will be and
when it will become effective. Neither the failure to give the notice
required by this Section 12.06, nor any defect therein, to any
particular Holder shall affect the sufficiency of the notice or the
legality or validity of any such dividend, distribution, right,
warrant, reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution or winding-up, or the vote on any action
authorizing such with respect to the other holders.






	 	(b)	 	In case the Issuer or any Affiliate of the Issuer shall propose
to engage in a “Rule 13e-3 Transaction” as defined in the SEC’s Rule 13e-3
under the Exchange Act, the Issuer shall, no later than the date on which any
information with respect to such Rule 13e-3 Transaction is first required to be
given to the Commission or any other Person pursuant to such Rule 13e-3, cause
to be mailed to all Holders at their last addresses as they shall appear in the
Debt Security Register, a copy of all information required to be given to the
holders of the Issuer’s capital stock pursuant to such Rule 13e-3. The
information required to be given under this paragraph shall be in addition to
and not in lieu of any other information required to be given by the Issuer
pursuant to this Section 12.06 or any other provision of the Debt Securities or
this Indenture.




43









 











     Section 12.07. Taxes on Conversions. The Issuer will pay any and all stamp or similar taxes that may be payable in respect of
the issuance or delivery of shares of common stock or Debt Securities of another series on
conversion of Debt Securities pursuant hereto. The Issuer shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issuance and delivery of
shares of common stock in a name other than that of the Holder of the Debt Security or Debt
Securities to be converted, and no such issuance or delivery shall be made unless and until the
Person requesting such issuance has paid to the Issuer the amount of any such tax, or has
established to the satisfaction of the Issuer that such tax has been paid.



     Section 12.08. Fractional Shares . No fractional shares or scrip representing fractional shares shall be issued upon any
conversion of Debt Securities. If any such conversion would otherwise require the issuance of a
fractional share an amount equal to such fraction multiplied by the current market price per share
of common stock (determined as provided in paragraph (f) of Section 12.04) on the day of conversion
shall be paid to the Holder in cash by the Issuer.



     Section 12.09. Cancellation of Converted Debt Securities. All Debt Securities delivered for conversion shall be delivered to the Trustee or the
conversion agent to be cancelled by or at the direction of the Trustee or the conversion agent,
which shall dispose of the same as provided in Section 2.10.



     Section 12.10. Provisions in Case of Consolidation, Merger or Sale of Assets.




	 	(a)	 	In case of any consolidation of the Issuer with, or merger of
the Issuer into, any other corporation or trust, or in case of any merger of
another corporation or trust into the Issuer (other than a consolidation or
merger which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of common stock of the Issuer), or in case
of any sale or transfer of all or substantially all of the assets of the
Issuer, the corporation or trust formed by such consolidation or resulting from
such merger or which acquires such assets, as the case may be, shall execute
and deliver to the Trustee a supplemental Indenture providing that the Holder
of each Debt Security of any series then outstanding shall have the right
thereafter, during the period such Debt Security shall be convertible as
specified in Section 12.01 to convert such Debt Security only into the kind and
amount of Debt Securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
common stock of the Issuer into which such Debt Security might have been
converted immediately prior to such consolidation, merger, sale or transfer.
Such supplemental Indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental Indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article XII. The above provisions of this Section 12.10 shall similarly apply
to successive consolidations, mergers, sales or transfers.
	 
	 	(b)	 	The Trustee shall not be under any responsibility to determine
the correctness of any provisions contained in any such supplemental Indenture
relating either to the kind or amount of shares of stock or securities or
property receivable by Holders upon the conversion of their Debt Securities
after any such reclassification, change, consolidation, merger, sale or
conveyance or to any adjustment to be made with respect thereto.





     Section 12.11. Disclaimer by Trustee of Responsibility for Certain Matters. The Trustee shall not at any time be under any duty or responsibility to any Holder of Debt
Securities of any series to determine whether any facts exist which may require any adjustment of
the conversion price for such series, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in any supplemental
Indenture provided to be employed, in making the same. The Trustee shall not be accountable with
respect to the validity, value, kind or amount of any shares of common stock, or of any securities
or property, which may at any time be issued or delivered upon the conversion of any Debt Security;
and it makes no representation with respect thereto. The Trustee shall not be responsible for any
failure of the Issuer to issue, transfer or deliver any shares of common stock or stock
certificates or other securities or property upon the surrender of any Debt Security for the
purpose of conversion or, subject to Section 7.01, to comply with any of the covenants of the
Issuer contained in this Article XII.



44









 





     Section 12.12. Covenant to Reserve Shares. The Issuer covenants that it will at all times reserve and keep available, free from
preemptive rights, out of its authorized shares of common stock, solely for the purpose of issuance
upon conversion of Debt Securities as herein provided, such number of shares of common stock as
shall then be issuable upon the conversion of all outstanding Debt Securities. The Issuer covenants
that all shares of common stock which shall be so issuable shall be, when issued, duly and validly
issued and fully paid and non-assessable. For purposes of this Section 12.12, the number of shares
of common stock which shall be deliverable upon the conversion of all outstanding Debt Securities
shall be computed as if at the time of computation all outstanding Debt Securities were held by a
single holder.



ARTICLE XIII




MISCELLANEOUS PROVISIONS



     Section 13.01. Successors and Assigns of Issuer Bound by Indenture. All the covenants, stipulations, promises and agreements in this Indenture contained by or
in behalf of the Issuer or the Trustee shall bind their respective successors and assigns, whether
so expressed or not.



     Section 13.02. Acts of Board, Committee or Officer of Successor Issuer Valid. Any act or proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Issuer shall and may be done and performed
with like force and effect by the like board, committee or officer of any Successor Issuer.



     Section 13.03. Required Notices or Demands. Any notice or communication by the Issuer or the Trustee to the others is duly given if in
writing (in the English language) and delivered in Person or mailed by registered or certified mail
(return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to
the other’s address:


If to the Issuer:




                                                            




                                                            




                                                            



If to the Trustee:




[                                                            ]

[                                                            ]

[                                                            ]

[                                                            ]




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



     All notices and communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; on the first Business Day on or after being sent, if telecopied and the sender
receives confirmation of successful transmission; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day delivery.



     Any notice required or permitted to a Holder by the Issuer or the Trustee pursuant to the
provisions of this Indenture shall be deemed to be properly mailed by being deposited postage
prepaid in a post office letter box in the United States addressed to such Holder at the address of
such Holder as shown on the Debt Security Register. Any report pursuant to Section 313 of the TIA
shall be transmitted in compliance with subsection (c) therein.



45









 





     Notwithstanding the foregoing, any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required pursuant to Section 2.03,
shall be sufficiently given if given in the manner specified pursuant to Section 2.03.



     In the event of suspension of regular mail service or by reason of any other cause it shall be
impracticable to give notice by mail, then such notification as shall be given with the approval of
the Trustee shall constitute sufficient notice for every purpose hereunder.



     In the event it shall be impracticable to give notice by publication, then such notification
as shall be given with the approval of the Trustee shall constitute sufficient notice for every
purpose hereunder.



     Failure to mail a notice or communication to a Holder or any defect in it or any defect in any
notice by publication as to a Holder shall not affect the sufficiency of such notice with respect
to other Holders. If a notice or communication is mailed or published in the manner provided
above, it is conclusively presumed duly given.



     Section 13.04. Indenture and Debt Securities to Be Construed in Accordance with the Laws of
the State of New York. THIS INDENTURE AND EACH DEBT SECURITY SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.



     Section 13.05. Officers’ Certificate and Opinion of Counsel to Be Furnished upon Application
or Demand by the Issuer. Upon any application or demand by the Issuer to the Trustee to take any action under any of
the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is specifically required by any
provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include (a)
a statement that the Person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (c) a statement that, in
the opinion of such Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.



     Section 13.06. Payments Due on Legal Holidays. In any case where the date of maturity of interest on or principal of and premium, if any,
on the Debt Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a Business Day at any Place of
Payment for the Debt Securities of such series, then payment of interest or principal and premium,
if any, or the making of such sinking fund payment need not be made on such date at such Place of
Payment, but may be made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date. If a record date is not a Business Day, the
record date shall not be affected.



     Section 13.07. Provisions Required by TIA to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts
with another provision included in this Indenture which is required to be included in this
Indenture by any of Sections 310 to 318, inclusive, of the TIA, such required provision shall
control.



     Section 13.08. Computation of Interest on Debt Securities. Interest, if any, on the Debt Securities shall be computed on the basis of a 360-day year
of twelve 30-day months, except as may otherwise be provided pursuant to Section 2.03.



46









 





     Section 13.09. Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar
and any paying agent may make reasonable rules for their functions.



     Section 13.10. Severability. In case any provision in this Indenture or the Debt Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



     Section 13.11. Effect of Headings. The article and section headings herein and in the Table of Contents are for convenience
only and shall not affect the construction hereof.



     Section 13.12. Indenture May Be Executed in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same instrument.



ARTICLE XIV




SUBORDINATION OF DEBT SECURITIES



     Section 14.01. Applicability of Article; Agreement to Subordinate.The provisions of this Article XIV shall be applicable to the Debt Securities of any series
(Debt Securities of such series being referred to in this Article XIV as “Subordinated Debt
Securities”) except to the extent such provisions may be changed or added to pursuant to Section
2.03. Each Holder by accepting a Subordinated Debt Security agrees that the indebtedness evidenced
by such Subordinated Debt Security is subordinated in right of payment, to the extent and in the
manner provided in this Article XIV, to the prior payment of all Senior Indebtedness and that the
subordination is for the benefit of and enforceable by the holders of Senior Indebtedness. All
provisions of this Article XIV shall be subject to Section 14.12.



     Section 14.02. Liquidation, Dissolution, Bankruptcy.Upon any payment or distribution of the assets of the Issuer to creditors upon a voluntary or
involuntary liquidation or dissolution of the Issuer or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Issuer or its property:




	 	(a)	 	holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of the Senior Indebtedness (including interest (if
any), accruing on or after the commencement of a proceeding in bankruptcy,
whether or not allowed as a claim against the Issuer in such bankruptcy
proceeding) before Holders of Subordinated Debt Securities shall be entitled to
receive any payment of principal of, or premium, if any, or interest on, the
Subordinated Debt Securities; and
	 
	 	(b)	 	until the Senior Indebtedness is paid in full, any distribution
to which Holders of Subordinated Debt Securities would be entitled but for this
Article XIV shall be made to holders of Senior Indebtedness as their interests
may appear, except that such Holders may receive Equity Interests and any debt
securities that are subordinated to Senior Indebtedness to at least the same
extent as the Subordinated Debt Securities.





     Section 14.03. Default on Senior Indebtedness.The Issuer may not pay the principal of, or premium, if any, or interest on, the Subordinated
Debt Securities or make any deposit into a defeasance trust or pursuant to Article XI and may not
repurchase, redeem or otherwise retire (except, in the case of Subordinated Debt Securities that
provide for a mandatory sinking fund pursuant to Section 3.04, by the delivery of Subordinated Debt
Securities by the Issuer to the Trustee pursuant to the first paragraph of Section 3.05) any Debt
Securities (collectively, “pay the Subordinated Debt Securities”) if (i) any principal, premium,
interest or any other amount payable in respect of Senior Indebtedness is not paid within any
applicable grace period (including at maturity) or (ii) any other default on Senior Indebtedness
occurs and the maturity of such Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived and any such acceleration has been
rescinded or (y) such Senior Indebtedness has been paid in full in cash; provided, however, that
the Issuer may pay the Subordinated



47









 




Debt Securities without regard to the foregoing if the Issuer and the Trustee receive written
notice approving such payment from the Representative of each issue of Designated Senior
Indebtedness. During the continuance of any default (other than a default described in clause (i)
or (ii) of the preceding sentence) with respect to any Senior Indebtedness pursuant to which the
maturity thereof may be accelerated immediately without further notice (except such notice as may
be required to effect such acceleration) or the expiration of any applicable grace periods, the
Issuer may not pay the Subordinated Debt Securities for a period (a “Payment Blockage Period”)
commencing upon the receipt by the Issuer and the Trustee of written notice of such default from
the Representative of any Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period (a “Blockage Notice”) and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (i) by written notice to the Trustee and the Issuer from the Person
or Persons who gave such Blockage Notice, (ii) by repayment in full in cash of such Designated
Senior Indebtedness or (iii) because the default giving rise to such Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately preceding sentence (but
subject to the provisions contained in the first sentence of this Section 14.03), unless the
holders of such Designated Senior Indebtedness or the Representative of such holders shall have
accelerated the maturity of such Designated Senior Indebtedness, the Issuer may resume payments on
the Subordinated Debt Securities after such Payment Blockage Period. Not more than one Blockage
Notice may be given in any consecutive 360-day period, irrespective of the number of defaults with
respect to any number of issues of Senior Indebtedness during such period. For purposes of this
Section 14.03, no default or event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Senior Indebtedness initiating such
Payment Blockage Period shall be, or be made, the basis of the commencement of a subsequent Payment
Blockage Period by the Representative of such Senior Indebtedness, whether or not within a period
of 360 consecutive days, unless such default or event of default shall have been cured or waived
for a period of not less than 90 consecutive days.




     Section 14.04. Acceleration of Payment of Debt Securities.If payment of the Subordinated Debt Securities is accelerated because of an Event of Default,
the Issuer or the Trustee shall promptly notify the holders of the Designated Senior Indebtedness
(or their Representatives) of the acceleration.



     Section 14.05. When Distribution Must Be Paid Over.
If a distribution is made to Holders of Subordinated Debt Securities that because of this
Article XIV should not have been made to them, the Holders who receive such distribution shall hold
it in trust for holders of Senior Indebtedness and pay it over to them as their interests may
appear.



     Section 14.06. Subrogation.
After all Senior Indebtedness is paid in full and until the Subordinated Debt Securities are
paid in full, Holders thereof shall be subrogated to the rights of holders of Senior Indebtedness
to receive distributions applicable to Senior Indebtedness. A distribution made under this Article
XIV to holders of Senior Indebtedness which otherwise would have been made to Holders of
Subordinated Debt Securities is not, as between the Issuer and such Holders, a payment by the
Issuer on Senior Indebtedness.



     Section 14.07. Relative Rights.
This Article XIV defines the relative rights of Holders of Subordinated Debt Securities and
holders of Senior Indebtedness. Nothing in the Indenture shall:




	 	(a)	 	impair, as between the Issuer and Holders of Subordinated Debt
Securities, the obligation of the Issuer, which is absolute and unconditional,
to pay principal of, and premium, if any, and interest on, the Subordinated
Debt Securities in accordance with their terms; or
	 
	 	(b)	 	prevent the Trustee or any Holder of Subordinated Debt
Securities from exercising its available remedies upon an Event of Default,
subject to the rights of holders of Senior Indebtedness to receive
distributions otherwise payable to Holders of Subordinated Debt Securities.





     Section 14.08. Subordination May Not Be Impaired by Issuer.
No right of any holder of Senior Indebtedness to enforce the subordination of the indebtedness
evidenced by the Subordinated Debt Securities shall be impaired by any act or failure to act by the
Issuer or by their failure to comply with the Indenture.



     Section 14.09. Rights of Trustee and Paying Agents.
Notwithstanding Section 14.03, the Trustee or any paying agent may continue to make payments
on Subordinated Debt Securities and shall not be charged with



48









 




knowledge of the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a responsible officer of
the Trustee receives notice satisfactory to it that payments may not be made under this Article
XIV. The Issuer, the Registrar, any paying agent, a Representative or a holder of Senior
Indebtedness may give the notice; provided, however, that, if an issue of Senior Indebtedness has a
Representative, only the Representative may give the notice. The Trustee in its individual or any
other capacity may hold Senior Indebtedness with the same rights it would have if it were not
Trustee. The Registrar and any paying agent may do the same with like rights. The Trustee shall be
entitled to all the rights set forth in this Article XIV with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness;
and nothing in Article VII shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article XIV shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.06.




     Section 14.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness, the
distribution may be made and the notice given to their Representative (if any).



     Section 14.11. Article XIV Not to Prevent Defaults or Limit Right to Accelerate.
The failure to make a payment pursuant to the Debt Securities by reason of any provision in
this Article XIV shall not be construed as preventing the occurrence of a Default. Nothing in this
Article XIV shall have any effect on the right of the Holders or the Trustee to accelerate the
maturity of the Subordinated Debt Securities.



     Section 14.12. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in a defeasance trust or in trust under Article XI by the
Trustee for the payment of principal of, and premium, if any, and interest on, the Subordinated
Debt Securities shall not be subordinated to the prior payment of any Senior Indebtedness or
subject to the restrictions set forth in this Article XIV, and none of the Holders thereof shall be
obligated to pay over any such amount to the Issuer or any holder of Senior Indebtedness or any
other creditor of the Issuer.



     Section 14.13. Trustee Entitled to Rely.
Upon any payment or distribution pursuant to this Article XIV, the Trustee and the Holders
shall be entitled to rely (i) upon any order or decree of a court of competent jurisdiction in
which any proceedings of the nature referred to in Section 14.02 are pending, (ii) upon a
certificate of the liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to such Holders or (iii) upon the Representatives for the holders of Senior
Indebtedness for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of the Issuer, the
amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XIV. In the event that the Trustee determines, in good
faith, that evidence is required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this Article XIV, the
Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and other facts pertinent to the rights of
such Person under this Article XIV, and, if such evidence is not furnished, the Trustee may defer
any payment to such Person pending judicial determination as to the right of such Person to receive
such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article XIV.



     Section 14.14. Trustee to Effectuate Subordination.
Each Holder by accepting a Subordinated Debt Security authorizes and directs the Trustee on
its behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders of Subordinated Debt Securities and the holders of Senior
Indebtedness as provided in this Article XIV and appoints the Trustee as attorney-in-fact for any
and all such purposes.



     Section 14.15. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Holders of Subordinated Debt Securities or the Issuer or any other Person, money or
assets to which any holders of Senior Indebtedness shall be entitled by virtue of this Article XIV
or otherwise.



49









 





     Section 14.16. Reliance by Holders of Senior Indebtedness on Subordination Provisions.
Each Holder by accepting a Subordinated Debt Security acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement and a consideration
to each holder of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired
before or after the issuance of the Subordinated Debt Securities, to acquire and continue to hold,
or to continue to hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.



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



	 	 	 	 	 	 	 

	 	 	NATIONAL HEALTH INVESTORS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[                                                            ]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






50