exv4w4






Exhibit 4.4




NATIONAL HEALTH INVESTORS, INC.




as Issuer,



and



[                    ],



as Trustee



INDENTURE



Dated as of                     , 20___



Senior 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	 
	1.01 Definitions
	 	 	1	 
	1.02 Other Definitions
	 	 	5	 
	1.03 Incorporation by Reference of Trust Indenture Act
	 	 	5	 
	1.04 Rules of Construction
	 	 	5	 
	 
	 	 	 	 
	ARTICLE II DEBT SECURITIES
	 	 	5	 
	2.01 Forms Generally
	 	 	5	 
	2.02 Form of Trustee’s Certificate of Authentication
	 	 	6	 
	2.03 Principal Amount; Issuable in Series
	 	 	6	 
	2.04 Execution of Debt Securities
	 	 	8	 
	2.05 Authentication and Delivery of Debt Securities
	 	 	8	 
	2.06 Denomination of Debt Securities
	 	 	9	 
	2.07 Registration of Transfer and Exchange
	 	 	9	 
	2.08 Temporary Debt Securities
	 	 	10	 
	2.09 Mutilated, Destroyed, Lost or Stolen Debt Securities
	 	 	11	 
	2.10 Cancellation of Surrendered Debt Securities
	 	 	11	 
	2.11 Provisions of the Indenture and Debt Securities for the Sole Benefit of the
Parties and
the Holders
	 	 	11	 
	2.12 Payment of Interest; Interest Rights Preserved
	 	 	12	 
	2.13 Securities Denominated in Dollars
	 	 	12	 
	2.14 Wire Transfers
	 	 	12	 
	2.15 Securities Issuable in the Form of a Global Security
	 	 	12	 
	2.16 Medium Term Securities
	 	 	14	 
	2.17 Defaulted Interest
	 	 	14	 
	2.18 CUSIP Numbers
	 	 	15	 
	 
	 	 	 	 
	ARTICLE III REDEMPTION OF DEBT SECURITIES
	 	 	15	 
	3.01 Right of Redemption
	 	 	15	 
	3.02 Notice of Redemption; Selection of Debt Securities
	 	 	15	 
	3.03 Payment of Debt Securities Called for Redemption
	 	 	16	 
	3.04 Mandatory and Optional Sinking Funds
	 	 	17	 
	3.05 Redemption of Debt Securities for Sinking Fund
	 	 	17	 
	 
	 	 	 	 
	ARTICLE IV PARTICULAR COVENANTS OF THE ISSUER
	 	 	18	 
	4.01 Payment of Principal of, and Premium, If Any, and Interest on, Debt
Securities
	 	 	18	 
	4.02 Maintenance of Offices or Agencies for Registration of Transfer, Exchange
and
Payment of Debt Securities
	 	 	18	 
	4.03 Appointment to Fill a Vacancy in the Office of Trustee
	 	 	19	 
	4.04 Duties of Paying Agents, etc
	 	 	19	 
	4.05 SEC Reports; Financial Statements
	 	 	19	 
	4.06 Compliance Certificate
	 	 	20	 
	4.07 Further Instruments and Acts
	 	 	20	 
	4.08 Existence
	 	 	20	 
	4.09 Maintenance of Properties
	 	 	20	 
	4.10 Payment of Taxes and Other Claims
	 	 	21	 
	4.11 Waiver of Certain Covenants
	 	 	21	 
	 
	 	 	 	 
	ARTICLE V HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
	 	 	21	 
	5.01 Issuer to Furnish Trustee Information as to Names and Addresses of Holders;
Preservation of Information
	 	 	21	 
	5.02 Communications to Holders
	 	 	21	 






ii 









 






	 	 	 	 	 

	5.03 Reports by Trustee
	 	 	21	 
	5.04 Record Dates for Action by Holders
	 	 	22	 
	 
	 	 	 	 
	ARTICLE VI REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
	 	 	22	 
	6.01 Events of Default
	 	 	22	 
	6.02 Collection of Debt by Trustee, etc
	 	 	23	 
	6.03 Application of Moneys Collected by Trustee
	 	 	24	 
	6.04 Limitation on Suits by Holders
	 	 	25	 
	6.05 Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver
of Default
	 	 	25	 
	6.06 Rights of Holders of Majority in Principal Amount of Debt Securities to
Direct Trustee
and to Waive Default
	 	 	25	 
	6.07 Trustee to Give Notice of Defaults Known to It, but May Withhold Such
Notice in
Certain Circumstances
	 	 	26	 
	6.08 Requirement of an Undertaking to Pay Costs in Certain Suits under the
Indenture or
Against the Trustee
	 	 	26	 
	 
	 	 	 	 
	ARTICLE VII CONCERNING THE TRUSTEE
	 	 	26	 
	7.01 Certain Duties and Responsibilities
	 	 	26	 
	7.02 Certain Rights of Trustee
	 	 	27	 
	7.03 Trustee Not Liable for Recitals in Indenture or in Debt Securities
	 	 	28	 
	7.04 Trustee, Paying Agent or Registrar May Own Debt Securities
	 	 	28	 
	7.05 Moneys Received by Trustee to Be Held in Trust
	 	 	28	 
	7.06 Compensation and Reimbursement
	 	 	28	 
	7.07 Right of Trustee to Rely on an Officers’ Certificate Where No Other
Evidence
Specifically Prescribed
	 	 	29	 
	7.08 Separate Trustee; Replacement of Trustee
	 	 	29	 
	7.09 Successor Trustee by Merger
	 	 	30	 
	7.10 Eligibility; Disqualification
	 	 	30	 
	7.11 Preferential Collection of Claims Against Issuer
	 	 	30	 
	7.12 Compliance with Tax Laws
	 	 	30	 
	 
	 	 	 	 
	ARTICLE VIII CONCERNING THE HOLDERS
	 	 	31	 
	8.01 Evidence of Action by Holders
	 	 	31	 
	8.02 Proof of Execution of Instruments and of Holding of Debt Securities

	 	 	31	 
	8.03 Who May Be Deemed Owner of Debt Securities
	 	 	31	 
	8.04 Instruments Executed by Holders Bind Future Holders
	 	 	31	 
	 
	 	 	 	 
	ARTICLE IX SUPPLEMENTAL INDENTURES
	 	 	32	 
	9.01 Purposes for Which Supplemental Indenture May Be Entered into Without
Consent of Holders
	 	 	32	 
	9.02 Modification of Indenture with Consent of Holders of Debt Securities

	 	 	33	 
	9.03 Effect of Supplemental Indentures
	 	 	34	 
	9.04 Debt Securities May Bear Notation of Changes by Supplemental Indentures
	 	 	34	 
	 
	 	 	 	 
	ARTICLE X CONSOLIDATION, MERGER, SALE OR CONVEYANCE
	 	 	34	 
	10.01 Consolidations and Mergers of the Issuer
	 	 	34	 
	10.02 Rights and Duties of Successor Issuer
	 	 	34	 
	 
	 	 	 	 
	ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONEYS
	 	 	35	 
	11.01 Applicability of Article
	 	 	35	 
	11.02 Satisfaction and Discharge of Indenture; Defeasance
	 	 	35	 
	11.03 Conditions of Defeasance
	 	 	36	 
	11.04 Application of Trust Money
	 	 	36	 
	11.05 Repayment to Issuer
	 	 	37	 
	11.06 Indemnity for U.S. Government Obligations
	 	 	37	 
	11.07 Reinstatement
	 	 	37	 






iii 









 






	 	 	 	 	 

	ARTICLE XII CONVERSION OF SECURITIES
	 	 	37	 
	12.01 Right of Conversion
	 	 	37	 
	12.02 Issuance of Shares on Conversion
	 	 	37	 
	12.03 No Adjustment for Interest or Dividends
	 	 	38	 
	12.04 Adjustment of Conversion Price
	 	 	38	 
	12.05 Notice of Adjustment of Conversion Price
	 	 	40	 
	12.06 Notice of Certain Corporate Action
	 	 	40	 
	12.07 Taxes on Conversions
	 	 	41	 
	12.08 Fractional Shares
	 	 	41	 
	12.09 Cancellation of Converted Debt Securities
	 	 	41	 
	12.10 Provisions in Case of Consolidation, Merger or Sale of Assets
	 	 	41	 
	12.11 Disclaimer by Trustee of Responsibility for Certain Matters
	 	 	41	 
	12.12 Covenant to Reserve Shares
	 	 	42	 
	 
	 	 	 	 
	ARTICLE XIII MISCELLANEOUS PROVISIONS
	 	 	42	 
	13.01 Successors and Assigns of Issuer Bound by Indenture
	 	 	42	 
	13.02 Acts of Board, Committee or Officer of Successor Issuer Valid
	 	 	42	 
	13.03 Required Notices or Demands
	 	 	42	 
	13.04 Indenture and Debt Securities to Be Construed in Accordance with the Laws
of the State
of New York
	 	 	43	 
	13.05 Officers’ Certificate and Opinion of Counsel to Be Furnished upon
Application or Demand
by the Issuer
	 	 	43	 
	13.06 Payments Due on Legal Holidays
	 	 	43	 
	13.07 Provisions Required by TIA to Control
	 	 	43	 
	13.08 Computation of Interest on Debt Securities
	 	 	44	 
	13.09 Rules by Trustee, Paying Agent and Registrar
	 	 	44	 
	13.10 Severability
	 	 	44	 
	13.11 Effect of Headings
	 	 	44	 
	13.12 Indenture May Be Executed in Counterparts
	 	 	44	 






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 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, has 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



     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.



     “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)).



     “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



2









 




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






3









 







Securities and that the pledgee is not the Issuer or any other obligor upon the Debt 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.



     “SEC” means the Securities and Exchange Commission.



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



     “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 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.



4









 





     “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.



     1.02 Other Definitions.



	 	 	 	 	 
	Term
	 	Defined in Section
	“Debt Security Register”
	 	 	2.07	 
	“Defaulted Interest”
	 	 	2.17	 
	“Event of Default”
	 	 	6.01	 
	“Place of Payment”
	 	 	2.03	 
	“Registrar”
	 	 	2.07	 
	“REIT
	 	 	3.01	 
	“Successor Issuer”
	 	 	10.01	 






     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.



     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.





ARTICLE II




DEBT SECURITIES



     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.



5









 





     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.



     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	 	 






     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 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;







6









 








          (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, 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;




          (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);







7









 








          (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.



     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.



     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 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) 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;




          (b) an executed supplemental Indenture, if any;




          (c) an Officers’ Certificate; and




          (d) 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



8









 







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.



     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.



     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.



     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.







9









 








     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.



     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.



     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




10











 




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.



     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
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.



     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.



     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,



11









 




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.




     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.




     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.



     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.



     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



12









 




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 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



13









 







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, 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).



     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.



     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






14









 







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 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.




     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



     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.



     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



15









 




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.




     At least 30 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.



     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



16









 




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.




     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 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.



     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.



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     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 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



     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.



     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.



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     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.



     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:





          (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.




     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






19









 







reports if the Issuer had been subject to the 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.




     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.




     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.



     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.



     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



20









 




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.




     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.



     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



     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.



     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.



     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).



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     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.



     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



     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 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,



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               (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 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.



     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).



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     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.



     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;



     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



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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.



     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, 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.



     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 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.



     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




25











 




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.




     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.



     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.



ARTICLE VII




CONCERNING THE TRUSTEE



     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:



26









 





     (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.



     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.



     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;



27









 





          (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 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.



     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.



     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.



     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.



     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



28









 







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.



     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.



     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.



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     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.



     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
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.



     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.



     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.



     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.



30









 





ARTICLE VIII




CONCERNING THE HOLDERS



     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.



     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.



     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 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.



     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



31









 







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



     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 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 add subsidiary guarantors with respect to any or all of the Debt Securities or to
secure any or all of the Debt Securities;



          (g) to make any change that does not adversely affect the rights of any Holder;



          (h) 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



32









 







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;



          (i) 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



          (j) to establish the form or terms of Debt Securities of any series as permitted by Sections
2.01 and 2.03.



     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.



     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.



33









 





     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.



     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.



     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.



     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



     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.



     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



34









 







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 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



     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.



     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).



     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.



35









 





          (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.



     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



          (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.



     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.



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     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.



     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.



     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



     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.



     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



37









 







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.



     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.



     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 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



38









 







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 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.



39









 





     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 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).



     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.



40









 





          (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.



     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.



     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.



     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.



     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.



     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



41









 







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.



     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



     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.



     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.



     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.



42









 





     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.



     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.



     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.



     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.



     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.



     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.



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     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.



     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.



     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.



     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.



     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.



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     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:	 	 	 	 
	 

	 	 	 	 	 	 






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