EXHIBIT 4.10




 





 


THE MACERICH COMPANY


 


Issuer


 


AND


 


[                         ]


 


Trustee


 






 


INDENTURE


 


Dated as of
                  
    , 20  


 






 


Subordinated Debt
Securities


 




 




















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions of Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
  EXCHANGE OF SECURITIES 

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Designation and Terms of Securities

  	
  5

  
	
  Section 2.2

  	
  Form of Securities and Trustee’s Certificate

  	
  7

  
	
  Section 2.3

  	
  Denominations; Provisions for Payment

  	
  8

  
	
  Section 2.4

  	
  Execution and Authentications

  	
  9

  
	
  Section 2.5

  	
  Registration of Transfer and Exchange

  	
  10

  
	
  Section 2.6

  	
  Temporary Securities

  	
  11

  
	
  Section 2.7

  	
  Mutilated, Destroyed, Lost or Stolen Securities

  	
  12

  
	
  Section 2.8

  	
  Cancellation

  	
  12

  
	
  Section 2.9

  	
  Benefits of Indenture

  	
  13

  
	
  Section 2.10

  	
  Authenticating Agent

  	
  13

  
	
  Section 2.11

  	
  Global Securities

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 

  	
  REDEMPTION
  OF SECURITIES AND SINKING FUND PROVISIONS 

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Redemption

  	
  15

  
	
  Section 3.2

  	
  Notice of Redemption

  	
  15

  
	
  Section 3.3

  	
  Payment Upon Redemption

  	
  16

  
	
  Section 3.4

  	
  Sinking Fund

  	
  16

  
	
  Section 3.5

  	
  Satisfaction of Sinking Fund Payments with
  Securities

  	
  17

  
	
  Section 3.6

  	
  Redemption of Securities for Sinking Fund

  	
  17

  
				



 

















 


	
  ARTICLE 4

  	
  COVENANTS

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Payment of Principal, Premium and Interest

  	
  17

  
	
  Section 4.2

  	
  Maintenance of Office or Agency

  	
  18

  
	
  Section 4.3

  	
  Paying Agents

  	
  18

  
	
  Section 4.4

  	
  Appointment to Fill Vacancy in Office of Trustee

  	
  19

  
	
  Section 4.5

  	
  Compliance with Consolidation Provisions

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 

  	
  SECURITYHOLDERS’
  LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE 

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 5.1
  

  	
  Company
  to Furnish Trustee Names and Addresses of Securityholders

  	
  20

  
	
  Section 5.2

  	
  Preservation of Information; Communications With
  Securityholders

  	
  20

  
	
  Section 5.3

  	
  Reports by the Company

  	
  20

  
	
  Section 5.4

  	
  Reports by the Trustee

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 

  	
  REMEDIES
  OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT 

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Events of Default

  	
  21

  
	
  Section 6.2

  	
  Collection of Indebtedness and Suits for Enforcement
  by Trustee

  	
  23

  
	
  Section 6.3

  	
  Application of Moneys Collected

  	
  24

  
	
  Section 6.4

  	
  Limitation on Suits

  	
  25

  
	
  Section 6.5

  	
  Rights and Remedies Cumulative; Delay or Omission
  Not Waiver

  	
  25

  
	
  Section 6.6

  	
  Control by Securityholders

  	
  26

  
	
  Section 6.7

  	
  Undertaking to Pay Costs

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  CONCERNING THE TRUSTEE

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Certain Duties and Responsibilities of Trustee

  	
  27

  
	
  Section 7.2

  	
  Certain Rights of Trustee

  	
  28

  
	
  Section 7.3

  	
  Trustee Not Responsible for Recitals or Issuance or
  Securities

  	
  29

  
				



 

















 


	
  Section 7.4

  	
  May Hold Securities

  	
  29

  
	
  Section 7.5

  	
  Moneys Held in Trust

  	
  29

  
	
  Section 7.6

  	
  Compensation and Reimbursement

  	
  30

  
	
  Section 7.7

  	
  Reliance on Officers’ Certificate

  	
  30

  
	
  Section 7.8

  	
  Disqualification; Conflicting Interests

  	
  30

  
	
  Section 7.9

  	
  Corporate Trustee Required; Eligibility

  	
  31

  
	
  Section 7.10

  	
  Resignation and Removal; Appointment of Successor

  	
  31

  
	
  Section 7.11

  	
  Acceptance of Appointment By Successor

  	
  32

  
	
  Section 7.12

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
  34

  
	
  Section 7.13

  	
  Preferential Collection of Claims Against the
  Company

  	
  34

  
	
  Section 7.14

  	
  Notice of Default

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  CONCERNING THE SECURITYHOLDERS

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Evidence of Action by Securityholders

  	
  34

  
	
  Section 8.2

  	
  Proof of Execution by Securityholders

  	
  35

  
	
  Section 8.3

  	
  Who May be Deemed Owners

  	
  35

  
	
  Section 8.4

  	
  Certain Securities Owned by Company Disregarded

  	
  35

  
	
  Section 8.5

  	
  Actions Binding on Future Securityholders

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  SUPPLEMENTAL INDENTURES

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Supplemental Indentures Without the Consent of
  Securityholders

  	
  36

  
	
  Section 9.2

  	
  Supplemental Indentures With Consent of
  Securityholders

  	
  38

  
	
  Section 9.3

  	
  Effect of Supplemental Indentures

  	
  38

  
	
  Section 9.4

  	
  Securities Affected by Supplemental Indentures

  	
  38

  
	
  Section 9.5

  	
  Execution of Supplemental Indentures

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  SUCCESSOR ENTITY

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Company May Consolidate, Etc

  	
  39

  
				



 

















 


	
  Section 10.2

  	
  Successor Entity Substituted

  	
  40

  
	
  Section 10.3

  	
  Evidence of Consolidation, Etc. to Trustee

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  SATISFACTION AND DISCHARGE

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Satisfaction
  and Discharge of Indenture

  	
  40

  
	
  Section 11.2

  	
  Application
  of Trust Money

  	
  42

  
	
  Section 11.3

  	
  Discharge
  and Defeasance of Securities of Any Series

  	
  42

  
	
  Section 11.4

  	
  Reinstatement

  	
  44

  
	
  Section 11.5

  	
  Deposited
  Moneys to be Held in Trust

  	
  44

  
	
  Section 11.6

  	
  Payment of
  Moneys Held by Paying Agents

  	
  44

  
	
  Section 11.7

  	
  Repayment to
  Company

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 

  	
  IMMUNITY
  OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS 

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  No Recourse

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  MISCELLANEOUS PROVISIONS

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Effect on Successors and Assigns

  	
  45

  
	
  Section 13.2

  	
  Actions by Successor

  	
  45

  
	
  Section 13.3

  	
  Surrender of Company Powers

  	
  45

  
	
  Section 13.4

  	
  Notices.

  	
  46

  
	
  Section 13.5

  	
  Governing Law

  	
  46

  
	
  Section 13.6

  	
  Treatment of Securities as Debt

  	
  46

  
	
  Section 13.7

  	
  Compliance Certificates and Opinions

  	
  46

  
	
  Section 13.8

  	
  Payments on Business Days

  	
  47

  
	
  Section 13.9

  	
  Conflict with Trust Indenture Act

  	
  47

  
	
  Section 13.10

  	
  Counterparts

  	
  47

  
	
  Section 13.11

  	
  Separability

  	
  47

  
	
  Section 13.12

  	
  Compliance Certificates

  	
  47

  
				



 

















 


	
  ARTICLE 14

  	
  SUBORDINATION OF SECURITIES

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 14.1

  	
  Subordination Terms

  	
  48

  
				



 

















 


INDENTURE


 


INDENTURE,
dated as of
                  
    , 20    , among THE MACERICH
COMPANY, a Maryland corporation (the “Company”), and
                                            ,
as trustee (the “Trustee”):


 


WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the
execution and delivery of this Indenture to provide for the issuance of
subordinated debt securities (hereinafter referred to as the “Securities”), in
an unlimited aggregate principal amount to be issued from time to time in one
or more series as in this Indenture provided, as registered Securities without
coupons, to be authenticated by the certificate of the Trustee;


 


WHEREAS,
to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and


 


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


 


NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities
by the holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the holders of Securities:


 


ARTICLE 1


DEFINITIONS


 


SECTION 1.1                                                  DEFINITIONS
OF TERMS.


 


The
terms defined in this Section (except as in this Indenture or any
indenture supplemental hereto otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular. All
other terms used in this Indenture that are defined in the Trust Indenture Act
of 1939, as amended, or that are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein or any indenture
supplemental hereto otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.


 


“Authenticating
Agent” means an authenticating agent with respect to all or any of the series
of Securities appointed by the Trustee pursuant to Section 2.10.


 


“Authorized
Officer”, when used with respect to the Company, means the [Chairman of the
Board, President, Executive Vice Presidents, Chief Financial Officer or General
Counsel and Secretary] of the Company.


 


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


 


1

















 


“Board
of Directors” means the Board of Directors of the Company or any duly
authorized committee of such Board.


 


“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification.


 


“Business
Day” means, with respect to any series of Securities, any day other than a day
on which federal or state banking institutions in the Borough of Manhattan, the
City of New York, are authorized or obligated by law, executive order or
regulation to close.


 


“Certificate”
means a certificate signed by the chairman of the Board of Directors, any
principal executive officer, any chief executive officer, any president, any
senior vice president, any vice president, any principal financial officer or
any principal accounting officer, any treasurer or any assistant treasurer, any
controller or any assistant controller, any secretary or any assistant
secretary of the Company. The Certificate need not comply with the provisions
of Section 13.7.


 


“Company”
means THE MACERICH COMPANY, a corporation duly organized and existing under the
laws of the State of Maryland, and, subject to the provisions of Article Ten,
shall also include its successors and assigns.


 


“Company
Request” and “Company Order” mean, respectively, a written request or order
signed in the name of the Company by one or more Authorized Officers of the
Company, and delivered to the Trustee.


 


“Corporate
Trust Office” means the office of the Trustee at which, at any particular time,
its corporate trust business shall be principally administered, which office at
the date hereof is located at


 


                                                                                          ;
Attention:
                              ,
except that whenever a provision herein refers to an office or agency of the
Trustee in the Borough of Manhattan, the City of New York, such office is
located, at the date hereof, at
                                            ,
Attn:
                              .


 


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


 


“Default”
means any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.


 


“Depositary”
means, with respect to Securities of any series for which the Company shall determine
that such Securities will be issued as a Global Security, The Depository Trust
Company, New York, New York, another clearing agency, or any successor
registered as a clearing agency under the Securities and Exchange Act of 1934,
as amended (the “Exchange Act”), or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to either Section 2.1
or 2.11.


 


2
















 


“Event
of Default” means, with respect to Securities of a particular series, any event
specified in Section 6.1, continued for the period of time, if any,
therein designated.


 


“Global
Security” means, with respect to any series of Securities, a Security executed
by the Company and delivered by the Trustee to the Depositary or pursuant to
the Depositary’s instruction, all in accordance with the Indenture, which shall
be registered in the name of the Depositary or its nominee.


 


“Governmental
Obligations” means securities that are (a) direct obligations of the
United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the Governmental Obligation or the specific payment
of principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.


 


“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.


 


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof.


 


“Interest
Payment Date”, when used with respect to any installment of interest on a
Security of a particular series, means the date specified in such Security or
in a Board Resolution or in an indenture supplemental hereto with respect to
such series as the fixed date on which an installment of interest with respect
to Securities of that series is due and payable.


 


“Officers’
Certificate” means a certificate signed by a chief executive officer, a
president, a senior vice president or a vice president and by the chief
financial officer or the treasurer or an assistant treasurer or the controller
or an assistant controller or the secretary or an assistant secretary of the
Company that is delivered to the Trustee in accordance with the terms hereof.
Each such certificate shall include the statements provided for in Section 13.7,
if and to the extent required by the provisions thereof.


 


“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of
legal counsel, who may be an employee of or counsel for the Company, that is
delivered to the Trustee in accordance with the terms hereof. Each such opinion
shall include the statements provided for in Section 13.7, if and to the
extent required by the provisions thereof.


 


3

















 


“Outstanding”,
when used with reference to Securities of any series, means, subject to the
provisions of Section 8.4, as of any particular time, all Securities of
that series theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Securities theretofore canceled by the Trustee or
any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or
portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Securities or portions
of such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.7.


 


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


 


“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 2.7 in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the lost, destroyed or
stolen Security.


 


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


 


“Responsible
Officer” when used with respect to the Trustee means any officer in the
Corporate Trust Office of the Trustee, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.


 


“Securities”
means the debt Securities authenticated and delivered under this Indenture.


 


“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the
Person or Persons in whose name or names a particular Security shall be
registered on the books of the Company kept for that purpose in accordance with
the terms of this Indenture.


 


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


 


“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority
of whose outstanding Voting Stock shall at the time be owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, (ii) any general partnership,
joint venture or similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such Person, or 


 


4

















 


by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited partnership of
which such Person or any of its Subsidiaries is a general partner.


 


“Trustee”
means
[                                          ],
and, subject to the provisions of Article Seven, shall also include its
successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person. The
term “Trustee” as used with respect to a particular series of the Securities
shall mean the trustee with respect to that series.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.


 


“Voting
Stock”, as applied to stock of any Person, means shares, interests, participations
or other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors
(or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.


 


ARTICLE 2


ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION


AND EXCHANGE OF
SECURITIES


 


SECTION 2.1                                                  DESIGNATION
AND TERMS OF SECURITIES.


 


(a)           The aggregate principal amount of
Securities that may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued in one or more series up to the
aggregate principal amount of Securities of that series from time to time
authorized by or pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of Securities of
any series, there shall be established in or pursuant to a Board Resolution,
and set forth in an Officers’ Certificate, or established in one or more
indentures supplemental hereto:


 


(1)           the title of the Securities of the
series (which shall distinguish the Securities of that series from all other
Securities);


 


(2)           any limit upon the aggregate
principal amount of the Securities of that series that may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series);


 


(3)           the date or dates on which the
principal of the Securities of the series is payable, any original issue
discount that may apply to the Securities of that series upon their issuance,
the principal amount due at maturity, and the place(s) of payment;


 


(4)           the rate or rates at which the
Securities of the series shall bear interest or the manner of calculation of
such rate or rates, if any;


 


(5)           the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest will
be payable or the manner of determination of 


 


5

















 


such Interest
Payment Dates, the place(s) of payment, and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates or the manner of determination of such record dates;


 


(6)           the right, if any, to extend the
interest payment periods and the duration of such extension;


 


(7)           the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company;


 


(8)           the obligation, if any, of the
Company to redeem or purchase Securities of the series pursuant to any sinking
fund, mandatory redemption, or analogous provisions (including payments made in
cash in satisfaction of future sinking fund obligations) or at the option of a
holder thereof and the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation;


 


(9)           the form of the Securities of the
series including the form of the Certificate of Authentication for such series;


 


(10)         if other than denominations of one
thousand U.S. dollars ($1,000) or any integral multiple thereof, the
denominations in which the Securities of the series shall be issuable;


 


(11)         any and all other terms (including
terms, to the extent applicable, relating to any auction or remarketing of the
Securities of that series and any security for the obligations of the Company
with respect to such Securities) with respect to such series (which terms shall
not be inconsistent with the terms of this Indenture, as amended by any
supplemental indenture) including any terms which may be required by or
advisable under United States laws or regulations or advisable in connection
with the marketing of Securities of that series;


 


(12)         whether the Securities are issuable as
a Global Security and, in such case, the terms and the identity of the
Depositary for such series;


 


(13)         whether the Securities will be
convertible into or exchangeable for shares of common stock or other securities
of the Company or any other Person and, if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the
conversion or exchange price, as applicable, or how it will be calculated and
may be adjusted, any mandatory or optional (at the Company’s option or the
holders’ option) conversion or exchange features, and the applicable conversion
or exchange period;


 


(14)         if other than the principal amount
thereof, the portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.1;


 


6

















 


(15)         any additional or different Events of
Default or restrictive covenants (which may include, among other restrictions,
restrictions on the Company’s ability or the ability of the Company’s
Subsidiaries to: incur additional indebtedness; issue additional securities;
create liens; pay dividends or make distributions in respect of their capital
stock; redeem capital stock; place restrictions on such Subsidiaries placing
restrictions on their ability to pay dividends, make distributions or transfer
assets; make investments or other restricted payments; sell or otherwise
dispose of assets; enter into sale-leaseback transactions; engage in
transactions with stockholders and affiliates; issue or sell stock of their
Subsidiaries; or effect a consolidation or merger) or financial covenants
(which may include, among other financial covenants, financial covenants that
require the Company and its Subsidiaries to maintain specified interest
coverage, fixed charge, cash flow-based or asset-based ratios) provided for
with respect to the Securities of the series;


 


(16)         if other than dollars, the coin or
currency in which the Securities of the series are denominated (including, but
not limited to, foreign currency);


 


(17)         the terms and conditions, if any, upon
which the Company shall pay amounts in addition to the stated interest,
premium, if any and principal amounts of the Securities of the series to any
Securityholder that is not a “United States person” for federal tax purposes;


 


(18)         any restrictions on transfer, sale or
assignment of the Securities of the series; and


 


(19)         the subordination terms of the
Securities of the series.


 


All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to any such
Board Resolution or in any indentures supplemental hereto.


 


If any
of the terms of the series are established by action taken pursuant to a Board
Resolution of the Company, a copy of an appropriate record of such action shall
be certified by the secretary or an assistant secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers’
Certificate of the Company setting forth the terms of the series.


 


Securities
of any particular series may be issued at various times, with different dates
on which the principal or any installment of principal is payable, with
different rates of interest, if any, or different methods by which rates of
interest may be determined, with different dates on which such interest may be
payable and with different redemption dates.


 


SECTION 2.2                                                  FORM OF
SECURITIES AND TRUSTEE’S CERTIFICATE.


 


The
Securities of any series and the Trustee’s certificate of authentication to be
borne by such Securities shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as provided in a Board
Resolution, and set forth in an Officers’ Certificate, and they may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, 


 


7

















 


or as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which Securities of that series may be
listed, or to conform to usage.


 


SECTION 2.3                                                  DENOMINATIONS;
PROVISIONS FOR PAYMENT.


 


The
Securities shall be issuable as registered Securities and in the denominations
of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject
to Section 2.1(10). The Securities of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Securities of any series, as
well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America that
at the time is legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
the City and State of New York. Each Security shall be dated the date of its
authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.


 


The
interest installment on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and the
redemption date is subsequent to a regular record date with respect to any
Interest Payment Date and prior to such Interest Payment Date, interest on such
Security will be paid upon presentation and surrender of such Security as
provided in Section 3.3.


 


Any
interest on any Security that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date for Securities of the same series
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of having been
such holder; and such Defaulted Interest shall be paid by the Company, at its
election, as provided in clause (1) or clause (2) below:


 


(1)           The Company may make payment of any
Defaulted Interest on Securities to the Persons in whose names such Securities
(or their respective Predecessor Securities) 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 Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15 nor 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 Company of such special record date and,
in the name 


 


8

















 


and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first class postage
prepaid, to each Securityholder at his or her address as it appears in the
Security Register (as hereinafter defined), 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 mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered on such special
record date.


 


(2)           The Company may make payment of any
Defaulted Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.


 


Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.1 hereof, the term “regular record date” as used in this Section with
respect to a series of Securities and any Interest Payment Date for such series
shall mean either the fifteenth day of the month immediately preceding the
month in which an Interest Payment Date established for such series pursuant to
Section 2.1 hereof shall occur, if such Interest Payment Date is the first
day of a month, or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant to Section 2.1
hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.


 


Subject
to the foregoing provisions of this Section, each Security of a series
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Security of such series shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other Security.


 


SECTION 2.4                                                  EXECUTION
AND AUTHENTICATIONS.


 


The
Securities shall be signed on behalf of the Company by its chief executive
officer, or one of its presidents, or one of its senior vice presidents, or one
of its vice presidents, or its chief financial officer, or its chief legal
officer, or its treasurer, or one of its assistant treasurers, or its
controller or one of its assistant controllers, or its secretary, or one of its
assistant secretaries, under its corporate seal attested by its secretary or
one of its assistant secretaries. Signatures may be in the form of a manual or
facsimile signature.


 


The
Company may use the facsimile signature of any Person who shall have been a
chief executive officer, president, senior vice president or vice president
thereof, chief financial officer, chief legal officer, treasurer or assistant
treasurer, controller or assistant controller, secretary or assistant secretary
thereof, notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have ceased to be
such an officer of the Company. The seal of the Company may be in the form of a
facsimile of such seal and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. The 


 


9

















 


Securities may contain such notations, legends or
endorsements required by law, stock exchange rule or usage. Each Security
shall be dated the date of its authentication by the Trustee.


 


A
Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall
be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of such
Securities, signed by a chief executive officer, president, senior vice
president or any vice president, chief financial officer, chief legal officer,
treasurer or assistant treasurer, controller or assistant controller, and its
secretary or any assistant secretary, and the Trustee in accordance with such
written order shall authenticate and deliver such Securities.


 


In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.1) shall be fully protected
in relying upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this Indenture.


 


The
Trustee shall not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.


 


SECTION 2.5                                                  REGISTRATION
OF TRANSFER AND EXCHANGE.


 


(a)           Securities of any series may be
exchanged upon presentation thereof at the office or agency of the Company
designated for such purpose in the Borough of Manhattan, the City and State of
New York, for other Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, all as provided
in this Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or agency
shall deliver in exchange therefor the Security or Securities of the same
series that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.


 


(b)           The Company shall keep, or cause to
be kept, at its office or agency designated for such purpose in the Borough of
Manhattan, the City and State of New York, or such other location designated by
the Company, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable times
shall be open for inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein provided shall be
appointed as authorized by Board Resolution (the “Security Registrar”).


 


10

















 


Upon
surrender for transfer of any Security at the office or agency of the Company
designated for such purpose, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as
the Security presented for a like aggregate principal amount.


 


All
Securities presented or surrendered for exchange or registration of transfer,
as provided in this Section, shall be accompanied (if so required by the
Company or the Security Registrar) by a written instrument or instruments of
transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder’s duly authorized attorney
in writing.


 


(c)           Except as provided pursuant to Section 2.1
pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental to this Indenture, no
service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any
series, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.6, Section 3.3(b) and Section 9.4 not
involving any transfer.


 


(d)           The Company shall not be required (i) to
issue, exchange or register the transfer of any Securities during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of less than all the Outstanding Securities of the same
series and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Securities of any series or portions
thereof called for redemption, other than the unredeemed portion of any such
Securities being redeemed in part. The provisions of this Section 2.5 are,
with respect to any Global Security, subject to Section 2.11 hereof.


 


SECTION 2.6                                                  TEMPORARY
SECURITIES.


 


Pending
the preparation of definitive Securities of any series, the Company may
execute, and the Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized denomination. Such
temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every temporary Security of any series
shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities of such series. Without unnecessary delay the Company
will execute and will furnish definitive Securities of such series and
thereupon any or all temporary Securities of such series may be surrendered in
exchange therefor (without charge to the holders), at the office or agency of
the Company designated for the purpose in the Borough of Manhattan, the City
and State of New York, and the Trustee shall authenticate and such office or
agency shall deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series, unless the
Company advises the Trustee to the effect that definitive Securities need not
be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.


 


11
















 


SECTION 2.7                                                  MUTILATED,
DESTROYED, LOST OR STOLEN SECURITIES.


 


In
case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same
upon the written request or authorization of any officer of the Company. Upon
the issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed


 


in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.


 


In
case any Security that has matured or is about to mature shall become mutilated
or be destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or
indemnity as they may require to save them harmless, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of the ownership
thereof.


 


Every
replacement Security issued pursuant to the provisions of this Section shall
constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time,
or be enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder. All 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
Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.


 


SECTION 2.8                                                  CANCELLATION.


 


All
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Securities held by the Trustee.
In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard 


 


12

















 


procedures and deliver a certificate of disposition to
the Company. If the Company shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.


 


SECTION 2.9                                                  BENEFITS
OF INDENTURE.


 


Nothing
in this Indenture or in the Securities, express or implied, shall give or be
construed to give to any Person, other than the parties hereto and the holders
of the Securities (and, with respect to the provisions of Article Fourteen,
the holders of any indebtedness of the Company to which the Securities of any
series are subordinated) any legal or equitable right, remedy or claim under or
in respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the Securities (and, with
respect to the provisions of Article Fourteen, the holders of any
indebtedness of the Company to which the Securities of any series are
subordinated).


 


SECTION 2.10                                            AUTHENTICATING
AGENT.


 


So
long as any of the Securities of any series remain Outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee
shall have the right to appoint. Said Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series issued
upon exchange, transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to the
Company and shall be a corporation that has a combined capital and surplus, as
most recently reported or determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by federal
or state authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.


 


Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
to the Company. Upon resignation, termination or cessation of eligibility of
any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.


 


13

















 


SECTION 2.11                                            GLOBAL
SECURITIES.


 


(a)           If the Company shall establish
pursuant to Section 2.1 that the Securities of a particular series are to
be issued as a Global Security, then the Company shall execute and the Trustee
shall, in accordance with Section 2.4, authenticate and deliver, a Global
Security that (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or
its nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction and (iv) shall bear a legend
substantially to the following effect: “Except as otherwise provided in Section 2.11
of the Indenture, this Security may be transferred, in whole but not in part,
only to another nominee of the Depositary or to a successor Depositary or to a
nominee of such successor Depositary.”


 


(b)           Notwithstanding the provisions of Section 2.5,
the Global Security of a series may be transferred, in whole but not in part
and in the manner provided in Section 2.5, only to another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.


 


(c)           If at any time the Depositary for a
series of the Securities notifies the Company that it is unwilling or unable to
continue as Depositary for such series or if at any time the Depositary for
such series shall no longer be registered or in good standing under the
Exchange Act, or other applicable statute or regulation, and a successor
Depositary for such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, as the
case may be, or if an Event of Default has occurred and is continuing and the
Company has received a request from the Depositary, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company
will execute, and subject to Section 2.4, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange
for such Global Security. In addition, the Company may at any time determine
that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer
apply to the Securities of such series. In such event the Company will execute
and, subject to Section 2.4, the Trustee, upon receipt of an Officers’
Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the Global Security for such
Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.


 


14

















 


ARTICLE 3


REDEMPTION OF
SECURITIES AND SINKING FUND PROVISIONS


 


SECTION 3.1                                                  REDEMPTION.


 


The
Company may redeem the Securities of any series issued hereunder on and after
the dates and in accordance with the terms established for such series pursuant
to Section 2.1 hereof.


 


SECTION 3.2                                                  NOTICE
OF REDEMPTION.


 


(a)           In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a portion of the
Securities of any series in accordance with any right the Company reserved for
itself to do so pursuant to Section 2.1 hereof, the Company shall, or
shall cause the Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than 90
days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register, unless a
shorter period is specified in the Securities to be redeemed. Any notice that
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the registered holder receives the notice. In
any case, failure duly to give such notice to the holder of any Security of any
series designated for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with any such restriction.


 


Each
such notice of redemption shall specify the date fixed for redemption and the
redemption price at which Securities of that series are to be redeemed, and
shall state that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company in the Borough of
Manhattan, the City and State of New York, upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in part shall
specify the particular Securities to be so redeemed.


 


In
case any Security is to be redeemed in part only, the notice that relates to
such Security shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date, upon surrender
of such Security, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof will be issued.


 


(b)           If less than all the Securities of a
series are to be redeemed, the Company shall give the Trustee at least 45 days’
notice in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and that may provide for the selection
of a portion or portions (equal to one thousand U.S. 


 


15

















 


dollars ($1,000) or any integral multiple thereof) of
the principal amount of such Securities of a denomination larger than $1,000,
the Securities to be redeemed and shall thereafter promptly notify the Company
in writing of the numbers of the Securities to be redeemed, in whole or in
part. The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its chief executive officer, president or
any senior vice president or vice president, instruct the Trustee or any paying
agent to call all or any part of the Securities of a particular series for
redemption and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own name as the
Trustee or such paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit to remain with, the
Trustee or such paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by
mail that may be required under the provisions of this Section.


 


SECTION 3.3                                                  PAYMENT
UPON REDEMPTION.


 


(a)           If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of
Securities of the series to be redeemed specified in such notice shall become
due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption and interest on such Securities or portions of Securities shall
cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest with
respect to any such Security or portion thereof. On presentation and surrender
of such Securities on or after the date fixed for redemption at the place of
payment specified in the notice, said Securities shall be paid and redeemed at
the applicable redemption price for such series, together with interest accrued
thereon to the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.3).


 


(b)           Upon presentation of any Security of
such series that is to be redeemed in part only, the Company shall execute and
the Trustee shall authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of the Company, a
new Security of the same series of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.


 


SECTION 3.4                                                  SINKING
FUND.


 


The
provisions of Sections 3.4, 3.5 and 3.6 shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 2.1 for Securities of such series.


 


The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series 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 Securities of any series is herein referred to as an “optional sinking
fund payment”. If provided for by the terms of 


 


16

















 


Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 3.5.
Each sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.


 


SECTION 3.5                                                  SATISFACTION
OF SINKING FUND PAYMENTS WITH SECURITIES.


 


The
Company (i) may deliver Outstanding Securities of a series and (ii) may
apply as a credit Securities of a series that have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms
of such series, provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.


 


SECTION 3.6                                                  REDEMPTION
OF SECURITIES FOR SINKING FUND.


 


Not
less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company 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 the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities of that series pursuant to Section 3.5
and the basis for such credit and will, together with such Officers’
Certificate, deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 3.2 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner
provided in Section 3.2. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.3.


 


ARTICLE 4


COVENANTS


 


SECTION 4.1                                                  PAYMENT
OF PRINCIPAL, PREMIUM AND INTEREST.


 


The
Company will duly and punctually pay or cause to be paid the principal of (and
premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such
Securities. Payments of principal on the Securities may be made at the time
provided herein and established with respect to such Securities by U.S. dollar
check drawn on and mailed to the address of the Securityholder entitled thereto
as such address shall appear in the Security Register, or U.S. dollar wire
transfer to, a U.S. dollar account (such a wire transfer to be made only to a
Securityholder of an aggregate principal amount of Securities of the applicable
series in excess of U.S. $2,000,000 and only if such Securityholder shall have
furnished wire instructions to the Trustee no later than 15 days prior to the
relevant payment date). Payments of interest on the Securities may be made at
the time provided herein and established with respect to such Securities by U.S.
dollar check mailed 


 


17

















 


to the address of the Securityholder entitled thereto
as such address shall appear in the Security Register, or U.S. dollar wire
transfer to, a U.S. dollar account (such a wire transfer to be made only to a
Securityholder of an aggregate principal amount of Securities of the applicable
series in excess of U.S. $2,000,000 and only if such Securityholder shall have
furnished wire instructions in writing to the Security Registrar and the
Trustee no later than 15 days prior to the relevant payment date).


 


SECTION 4.2                                                  MAINTENANCE
OF OFFICE OR AGENCY.


 


So
long as any series of the Securities remain Outstanding, the Company agrees to
maintain an office or agency in the Borough of Manhattan, the City and State of
New York, with respect to each such series and at such other location or
locations as may be designated as provided in this Section 4.2, where (i) Securities
of that series may be presented for payment, (ii) Securities of that
series may be presented as herein above authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be given or
served, such designation to continue with respect to such office or agency
until the Company shall, by written notice signed by any officer authorized to
sign an Officers’ Certificate and delivered to the Trustee, designate some
other office or agency for such purposes or any of them. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands. The Company initially appoints the
corporate trust office of
[                                              ],
an affiliate of the Trustee, located in the Borough of Manhattan, the City of
New York as its paying agent with respect to the Securities.


 


SECTION 4.3                                                  PAYING
AGENTS.


 


(a)           If the Company shall appoint one or
more paying agents for all or any series of the Securities, other than the
Trustee, the Company will cause each such paying agent 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:


 


(1)           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 Securities of that series (whether such sums have been paid to
it by the Company or by any other obligor of such Securities) in trust for the
benefit of the Persons entitled thereto;


 


(2)           that it will give the Trustee notice
of any failure by the Company (or by any other obligor of such Securities) to
make any payment of the principal of (and premium, if any) or interest on the
Securities of that series when the same shall be due and payable;


 


(3)           that it will, at any time during the
continuance of any failure referred to in the preceding paragraph (a)(2) above,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and


 


18

















 


(4)           that it will perform all other duties
of paying agent as set forth in this Indenture.


 


(b)           If the Company shall act as its own
paying agent with respect to any series of the Securities, it will on or before
each due date of the principal of (and premium, if any) or interest on
Securities of that series, set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay such principal
(and premium, if any) or interest so becoming due on Securities of that series
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such action, or any
failure (by it or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any series of
Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities of that series, deposit with the paying
agent a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such paying agent
is the Trustee) the Company will promptly notify the Trustee of this action or
failure so to act.


 


(c)           Notwithstanding anything in this Section to
the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.7, and (ii) the Company may
at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or direct any paying agent to
pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and, upon
such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to
such money.


 


SECTION 4.4                                                  APPOINTMENT
TO FILL VACANCY IN OFFICE OF TRUSTEE.


 


The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee,
so that there shall at all times be a Trustee hereunder.


 


SECTION 4.5                                                  COMPLIANCE
WITH CONSOLIDATION PROVISIONS.


 


The
Company will not, while any of the Securities remain Outstanding, consolidate
with or merge into any other Person, in either case where the Company is not
the survivor of such transaction, or sell or convey all or substantially all of
its property to any other Person unless the provisions of Article Ten
hereof are complied with.


 


19

















 


ARTICLE 5


SECURITYHOLDERS’
LISTS AND REPORTS


BY THE COMPANY AND
THE TRUSTEE


 


SECTION 5.1                                                  COMPANY
TO FURNISH TRUSTEE NAMES AND ADDRESSES OF SECURITYHOLDERS.


 


The
Company will furnish or cause to be furnished to the Trustee (a) on each
regular record date (as defined in Section 2.3) a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders
of each series of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the most recent list
furnished to the Trustee by the Company and (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by the Company
of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the
Trustee shall be the Security Registrar.


 


SECTION 5.2                                                  PRESERVATION
OF INFORMATION; COMMUNICATIONS WITH SECURITYHOLDERS.


 


(a)           The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names
and addresses of the holders of Securities contained in the most recent list
furnished to it as provided in Section 5.1 and as to the names and
addresses of holders of Securities received by the Trustee in its capacity as
Security Registrar (if acting in such capacity).


 


(b)           The Trustee may destroy any list
furnished to it as provided in Section 5.1 upon receipt of a new list so
furnished.


 


(c)           Securityholders may communicate as
provided in Section 312(b) of the Trust Indenture Act with other
Securityholders with respect to their rights under this Indenture or under the
Securities, and, in connection with any such communications, the Trustee shall
satisfy its obligations under Section 312(b) of the Trust Indenture
Act in accordance with the provisions of Section 312(b) of the Trust
Indenture Act.


 


SECTION 5.3                                                  REPORTS
BY THE COMPANY.


 


The
Company covenants and agrees to provide a copy to the Trustee, within 15 days
after the Company is required to file the same with the Securities and Exchange
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Securities and Exchange Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with the Securities
and Exchange Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act.


 


20
















 


SECTION 5.4                                                  REPORTS
BY THE TRUSTEE.


 


(a)           The Trustee shall transmit to the
Securityholders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the time
and in the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Trustee shall, within 60 days after each May 15
following the date of this Indenture, deliver to Holders a brief report, dated
as of such May 15, which complies with the provisions of such Section 313(a).


 


(b)           The Trustee shall comply with Section 313(b) and
313(c) of the Trust Indenture Act.


 


(c)           A copy of each such report shall, at
the time of such transmission to Securityholders, be filed by the Trustee with
the Company, with each securities exchange upon which any Securities are listed
(if so listed) and also with the Securities and Exchange Commission. The
Company agrees to notify the Trustee when any Securities become listed on any
securities exchange.


 


ARTICLE 6


REMEDIES OF THE
TRUSTEE AND


SECURITYHOLDERS ON
EVENT OF DEFAULT


 


SECTION 6.1                                                  EVENTS
OF DEFAULT.


 


(a)           Whenever used herein with respect to
Securities of a particular series, “Event of Default” means any one or more of
the following events that has occurred and is continuing:


 


(1)           the Company defaults in the payment
of any installment of interest upon any of the Securities of that series, as
and when the same shall become due and payable, and such default continues for
a period of 30 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of interest
for this purpose;


 


(2)           the Company defaults in the payment
of the principal of (or premium, if any, on) any of the Securities of that
series as and when the same shall become due and payable whether at maturity,
upon redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series; provided,
however, that a valid extension of the maturity of such Securities in
accordance with the terms of any indenture supplemental hereto shall not
constitute a default in the payment of principal or premium, if any;


 


(3)           the Company fails to observe or
perform any other of its covenants or agreements with respect to that series
contained in this Indenture or otherwise established with respect to that
series of Securities pursuant to Section 2.1 hereof (other than a covenant
or agreement that has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series) for a
period of 90 days after the date on which written notice of such failure,
requiring the same to be remedied 


 


21

















 


and stating that
such notice is a “Notice of Default” hereunder, shall have been given to the
Company by the Trustee, by registered or certified mail, or to the Company and
the Trustee by the holders of at least 25% in principal amount of the
Securities of that series at the time Outstanding;


 


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


 


(5)           a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the
Company in an involuntary case, (ii) appoints a Custodian of the Company
for all or substantially all of its property or (iii) orders the
liquidation of the Company, and the order or decree remains unstayed and in
effect for 90 days.


 


(b)           In each and every such case (other
than an Event of Default specified in clause (4) or clause (5) above),
unless the principal of all the 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 Securities of that series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of (and premium, if any, on)
and accrued and unpaid interest on all the 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. If an Event of Default specified in
clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be
immediately due and payable without any declaration or other act on the part of
the Trustee or the holders of the Securities.


 


(c)           At any time after the principal of
(and premium, if any, on) and accrued and unpaid interest on the Securities of
that series shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding hereunder,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if: (i) the Company has paid or deposited
with the Trustee a sum sufficient to pay all matured installments of interest
upon all the Securities of that series and the principal of (and premium, if
any, on) any and all Securities of that series that shall have become due
otherwise than by acceleration (with interest upon such principal and premium,
if any, and, to the extent that such payment is enforceable under applicable
law, upon overdue installments of interest, at the rate per annum expressed in
the Securities of that series to the date of such payment or deposit) and the
amount payable to the Trustee under Section 7.6, and (ii) any and all
Events of Default under the Indenture with respect to such series, other than
the nonpayment of principal on (and premium, if any, on) and accrued and unpaid
interest on Securities of that series that shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.6.


 


22

















 


No
such rescission and annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.


 


(d)           In case the Trustee shall have
proceeded to enforce any right with respect to Securities of that series under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case, subject
to any determination in such proceedings, the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.


 


SECTION 6.2                                                  COLLECTION
OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.


 


(a)           The Company covenants that (i) in
case it shall default in the payment of any installment of interest on any of
the Securities of a series, and such default shall have continued for a period
of 90 Business Days, or (ii) in case it shall default in the payment of
the principal of (or premium, if any, on) any of the Securities of a series
when the same shall have become due and payable, whether upon maturity of the
Securities of a series or upon redemption or upon declaration or otherwise, or
in any payment required by any sinking or analogous fund established with
respect to that series as and when the same shall have become due and payable, then,
upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Securities of that series, the whole amount that
then shall have been become due and payable on all such Securities for
principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum expressed in the Securities of
that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.6.


 


(b)           If the Company shall fail to pay such
amounts forthwith upon such demand, 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, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Securities of that series and collect the moneys
adjudged or decreed to be payable in the manner provided by law or equity out
of the property of the Company or other obligor upon the Securities of that
series, wherever situated.


 


(c)           In case of any receivership,
insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement,
composition or judicial proceedings affecting the Company, or its creditors or
property, the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and shall (except as
may be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to have
the claims of the Trustee and of the holders of Securities of such series
allowed for the entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and for any additional
amount that may 


 


23

















 


become due and payable by the Company after such date,
and to collect and receive any moneys or other property payable or deliverable
on any such claim, and to distribute the same after the deduction of the amount
payable to the Trustee under Section 7.6; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the
holders of Securities of such series to make such payments to the Trustee, and,
in the event that the Trustee shall consent to the making of such payments
directly to such Securityholders, to pay to the Trustee any amount due it under
Section 7.6.


 


(d)           All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect
to Securities of that series, may be enforced by the Trustee without the
possession of any of such Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for payment to the Trustee
of any amounts due under Section 7.6, be for the ratable benefit of the
holders of the Securities of such series.


 


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 the 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.


 


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


 


SECTION 6.3                                                  APPLICATION
OF MONEYS COLLECTED.


 


Any
moneys collected by the Trustee pursuant to this Article with respect to a
particular series of Securities shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal (or premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon of the
payment, if only partially paid, and upon surrender thereof if fully paid:


 


FIRST:  To the payment of reasonable costs and
expenses of collection and of all amounts payable to the Trustee under Section 7.6;


 


SECOND:  To the payment of all indebtedness of the
Company to which such series of Securities is subordinated to the extent
required by Article Fourteen;


 


THIRD:  To the payment of the amounts then due and
unpaid upon Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, 


 


24

















 


according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively; and


 


FOURTH:  To the payment of the remainder, if any, to
the Company or any other Person lawfully entitled thereto.


 


SECTION 6.4                                                  LIMITATION
ON SUITS.


 


No
holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law 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 (i) such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with respect to
the Securities of such series specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder; (iii) such holder or holders shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby; (iv) the
Trustee for 90 days after its receipt of such notice, request and offer of indemnity,
shall have failed to institute any such action, suit or proceeding and (v) during
such 90 day period, the holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with
the request.


 


Notwithstanding
anything contained herein to the contrary or any other provisions of this
Indenture, the right of any holder of any Security to receive payment of the
principal of (and premium, if any) and interest on such Security, as therein
provided, on or after the respective due dates expressed in such Security (or
in the case of redemption, on the redemption date), or to institute suit for
the enforcement of any such payment on or after such respective dates or
redemption date, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such
series with every other such taker and holder and the Trustee, that no one or
more holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other of such
Securities, 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
holders of Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.


 


SECTION 6.5                                                  RIGHTS
AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER.


 


(a) Except
as otherwise provided in Section 2.7, all powers and remedies given by
this Article to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and remedies available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or 


 


25

















 


observance of the covenants and agreements contained
in this Indenture or otherwise established with respect to such Securities.


 


(b) No
delay or omission of the Trustee or of any holder of any of the Securities to
exercise any right or power accruing upon any Event of 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 6.4, every power and remedy given by
this Article or by law to the Trustee or the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.


 


SECTION 6.6                                                  CONTROL
BY SECURITYHOLDERS.


 


The
holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding, determined in accordance with Section 8.4,
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to such series; provided, however,
that such direction shall not be in conflict with any rule of law or with
this Indenture. Subject to the provisions of Section 7.1, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or officers of the Trustee,
determine that the proceeding so directed, subject to the Trustee’s duties
under the Trust Indenture Act, would involve the Trustee in personal liability
or might be unduly prejudicial to the Securityholders not involved in the
proceeding. The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding affected thereby, determined
in accordance with Section 8.4, may on behalf of the holders of all of the
Securities of such series waive any past default in the performance of any of
the covenants contained herein or established pursuant to Section 2.1 with
respect to such series and its consequences, except a default in the payment of
the principal of, or premium, if any, or interest on, any of the Securities of
that series as and when the same shall become due by the terms of such
Securities otherwise than by acceleration (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
and any premium has been deposited with the Trustee (in accordance with Section 6.1(c)).
Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders
of the Securities of such series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.


 


SECTION 6.7                                                  UNDERTAKING
TO PAY COSTS.


 


All
parties to this Indenture agree, and each holder of any Securities by such
holder’s 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, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to 


 


26

















 


any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.


 


ARTICLE 7


CONCERNING THE
TRUSTEE


 


SECTION 7.1                                                  CERTAIN
DUTIES AND RESPONSIBILITIES OF TRUSTEE.


 


(a)           The Trustee, prior to the occurrence
of an Event of Default with respect to the Securities of a series and after the
curing of all Events of Default with respect to the Securities of that series
that may have occurred, shall undertake to perform with respect to the
Securities of such series such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the
Securities of a series has occurred (that has not been cured or waived), the
Trustee shall exercise with respect to Securities of that series 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.


 


(b)           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, or its own willful misconduct, except
that:


 


(i)            prior to the occurrence of an Event
of Default with respect to the Securities of a series and after the curing or
waiving of all such Events of Default with respect to that series that may have
occurred:


 


(A)          the duties and obligations of the
Trustee shall with respect to the Securities of such series be determined
solely by the express provisions of this Indenture, and the Trustee shall not
be liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and


 


(B)           in the absence of bad faith on the
part of the Trustee, the Trustee may with respect to the Securities of such
series 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 that 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 requirement of this Indenture;


 


27

















 


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


 


(iii) the Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the holders of not less
than a majority in principal amount of the Securities of any series at the time
Outstanding relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the Securities
of that series; and


 


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


 


SECTION 7.2                                                  CERTAIN
RIGHTS OF TRUSTEE.


 


Except
as otherwise provided in Section 7.1:


 


(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, consent, order,
approval, bond, security or other paper or document 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 Company mentioned herein shall be sufficiently evidenced by a
Board Resolution or an instrument signed in the name of the Company by any
authorized officer of the Company (unless other evidence in respect thereof is
specifically prescribed herein);


 


(c)           The Trustee may consult with counsel
and the written 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 hereunder in good faith and in reliance thereon;


 


(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 Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall
have offered to the


 


Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Securities (that has not been cured
or waived), to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to 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;


 


28

















 


(e)           The Trustee shall not be liable for
any action taken or omitted to be taken by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred upon it
by this Indenture;


 


(f)            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, consent,
order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal
amount of the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.4); 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,
in the opinion of the Trustee, not 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. The reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall be repaid by the Company
upon demand; and


 


(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
with due care by it hereunder.


 


SECTION 7.3                                                  TRUSTEE
NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR SECURITIES.


 


(a)           The recitals contained herein and in
the Securities shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same.


 


(b)           The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.


 


(c)           The Trustee shall not be accountable
for the use or application by the Company of any of the Securities or of the
proceeds of such Securities, or for the use or application of any moneys paid
over by the Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.1, or for the use or application of any moneys
received by any paying agent other than the Trustee.


 


SECTION 7.4                                                  MAY HOLD
SECURITIES.


 


The
Trustee or any paying agent or Security Registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security
Registrar.


 


SECTION 7.5                                                  MONEYS
HELD IN TRUST.


 


Subject
to the provisions of Section 11.7, 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 


 


29

















 


Trustee shall be under no liability for interest on
any moneys received by it hereunder except such as it may agree with the
Company to pay thereon.


 


SECTION 7.6                                                  COMPENSATION
AND REIMBURSEMENT.


 


(a)           The Company covenants and agrees to
pay to the Trustee, and the Trustee shall be entitled to, such reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) as the Company and the
Trustee may from time to time agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and,
except as otherwise expressly provided herein, the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all Persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith and except as the Company and Trustee may from time
to time agree in writing. The Company also covenants to indemnify the Trustee
(and its officers, agents, directors and employees) for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the reasonable costs
and expenses of defending itself against any claim of liability in the
premises.


 


(b)           The obligations of the Company under
this Section to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for reasonable expenses, disbursements and advances shall
constitute indebtedness of the Company to which the Securities are
subordinated. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Securities.


 


SECTION 7.7                                                  RELIANCE
ON OFFICERS’ CERTIFICATE.


 


Except
as otherwise provided in Section 7.1, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it reasonably necessary
or desirable that a matter be proved or established prior to taking or
suffering or omitting to take 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 to be taken by it under the provisions of this
Indenture upon the faith thereof.


 


SECTION 7.8                                                  DISQUALIFICATION;
CONFLICTING INTERESTS.


 


If the
Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture
Act.


 


30
















 


SECTION 7.9                                                  CORPORATE
TRUSTEE REQUIRED; ELIGIBILITY.


 


There
shall at all times be a Trustee with respect to the Securities issued hereunder
which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any state or territory thereof or
of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the Securities and Exchange Commission, authorized under such
laws to exercise corporate trust powers, having (or, in the case of a
subsidiary of a bank holding company, its bank holding company parent shall
have) a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority.


 


If
such corporation or other Person publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation or other Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.


 


SECTION 7.10                                            RESIGNATION
AND REMOVAL; APPOINTMENT OF SUCCESSOR.


 


(a)           The Trustee or any successor
hereafter appointed may at any time resign with respect to the Securities of
one or more series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities of such series
by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee with
respect to Securities of such series, or any Securityholder of that series who
has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.


 


(b)           In case at any time any one of the
following shall occur:


 


(i)            the Trustee shall fail to comply
with the provisions of Section 7.8 after written request therefor by the
Company or by any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months; or


 


31

















 


(ii)           the Trustee shall cease to be
eligible in accordance with the provisions of Section 7.9 and shall fail
to resign after written request therefor by the Company or by any such
Securityholder; or


 


(iii)          the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary
bankruptcy proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;


 


then,
in any such case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of that holder and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.


 


(c)           The holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding may at any time remove the Trustee with respect to such series by
so notifying the Trustee and the Company and may appoint a successor Trustee
for such series with the consent of the Company.


 


(d)           Any resignation or removal of the
Trustee and appointment of a successor trustee with respect to the Securities
of a series pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.


 


(e)           Any successor trustee appointed
pursuant to this Section may be appointed with respect to the Securities
of one or more series or all of such series, and at any time there shall be
only one Trustee with respect to the Securities of any particular series.


 


SECTION 7.11                                            ACCEPTANCE
OF APPOINTMENT BY SUCCESSOR.


 


(a)           In case of the appointment hereunder
of a successor trustee with respect to all Securities, every such successor
trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights, powers, and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring Trustee
hereunder.


 


(b)           In case of the appointment hereunder
of a successor trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each 


 


32

















 


successor trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee
relates, (ii) shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) 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, that each such 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 and that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor trustee relates.


 


(c)           Upon request of any such successor
trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.


 


(d)           No successor trustee shall accept its
appointment unless at the time of such acceptance such successor trustee shall
be qualified and eligible under this Article.


 


(e)           Upon acceptance of appointment by a
successor trustee as provided in this Section, the Company shall transmit
notice of the succession of such trustee hereunder by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.


 


33

















 


SECTION 7.12                                            MERGER,
CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.


 


Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee (including the administration of the trust created by this Indenture),
shall be the successor of the Trustee hereunder, provided that such corporation
shall be qualified under the provisions of Section 7.8 and eligible under
the provisions of Section 7.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.


 


SECTION 7.13                                            PREFERENTIAL
COLLECTION OF CLAIMS AGAINST THE COMPANY.


 


The
Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent
included therein.


 


SECTION 7.14                                            NOTICE OF
DEFAULT


 


If any
Default or any Event of Default occurs and is continuing and if such Default or
Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Securityholder in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act notice of the Default or Event of Default within 45
days after it occurs, unless such Default or Event of Default has been cured;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Securityholders.


 


ARTICLE 8


CONCERNING THE
SECURITYHOLDERS


 


SECTION 8.1                                                  EVIDENCE
OF ACTION BY SECURITYHOLDERS.


 


Whenever
in this Indenture it is provided that the holders of a majority or specified
percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the
giving of any 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 majority or
specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in person or by agent or proxy appointed
in writing.


 


34

















 


If the
Company shall solicit from the Securityholders of any series any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers’ Certificate, fix in
advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after
the record date, but only the Securityholders of record at the close of
business on the record date shall be deemed to be Securityholders for the
purposes of determining whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


 


SECTION 8.2                                                  PROOF
OF EXECUTION BY SECURITYHOLDERS.


 


Subject
to the provisions of Section 7.1, proof of the execution of any instrument
by a Securityholder (such proof will not require notarization) or his agent or
proxy and proof of the holding by any Person of any of the Securities shall be
sufficient if made in the following manner:


 


(a)           The fact and date of the execution by
any such Person of any instrument may be proved in any reasonable manner
acceptable to the Trustee.


 


(b)           The ownership of Securities shall be
proved by the Security Register of such Securities or by a certificate of the
Security Registrar thereof.


 


The
Trustee may require such additional proof of any matter referred to in this Section as
it shall deem necessary.


 


SECTION 8.3                                                  WHO MAY BE
DEEMED OWNERS.


 


Prior
to the due presentment for registration of transfer of any Security, the
Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the Person in whose name such Security shall be registered upon the books
of the Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of ownership or
writing thereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal of, premium, if
any, and (subject to Section 2.3) interest on such Security and for all
other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.


 


SECTION 8.4                                                  CERTAIN
SECURITIES OWNED BY COMPANY DISREGARDED.


 


In
determining whether the holders of the requisite aggregate principal amount of
Securities of a particular series have concurred in any direction, consent or
waiver under this 


 


35

















 


Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that series or
by any Person directly or indirectly controlling or controlled by or under
common control with the Company or any other obligor on the Securities of that
series shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good
faith may be regarded as Outstanding for the purposes of this Section, if the
pledgee shall establish to the satisfaction of the Trustee the pledgee’s right
so to act with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.


 


SECTION 8.5                                                  ACTIONS
BINDING ON FUTURE SECURITYHOLDERS.


 


At any
time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.1,
of the taking of any action by the holders of the majority or percentage in
aggregate principal amount of the Securities of a particular series specified
in this Indenture in connection with such action, any holder of a Security of
that series that is shown by the evidence to be included in the Securities the
holders of which have consented to such action may, by filing written notice
with the Trustee, and upon proof of holding as provided in Section 8.2,
revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security, and
of any Security issued in exchange therefor, on registration of transfer
thereof or in place thereof, irrespective of whether or not any notation in
regard thereto is made upon such Security. Any action taken by the holders of
the majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the holders of
all the Securities of that series.


 


ARTICLE 9


SUPPLEMENTAL
INDENTURES


 


SECTION 9.1                                                  SUPPLEMENTAL
INDENTURES WITHOUT THE CONSENT OF SECURITYHOLDERS.


 


In
addition to any supplemental indenture otherwise authorized by this Indenture,
the Company 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 Trust Indenture Act as then in effect), without the consent
of the Securityholders, for one or more of the following purposes:


 


(a)           to cure any ambiguity, defect, or
inconsistency herein or in the Securities of any series;


 


36

















 


(b)           to comply with Article Ten,
including to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities contained;


 


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


 


(d)           to add to the covenants,
restrictions, conditions or provisions relating to the Company for the benefit
of the holders of all or any series of Securities (and if such covenants,
restrictions, conditions or provisions are to be for the benefit of less than
all series of Securities, stating that such covenants, restrictions, conditions
or provisions are expressly being included solely for the benefit of such
series), to make the occurrence, or the occurrence and the continuance, of a
default in any such additional covenants, restrictions, conditions or
provisions an Event of Default, or to surrender any right or power herein
conferred upon the Company;


 


(e)           to add any additional Events of
Default;


 


(f)            to add to, change or eliminate any
of the provisions of this Indenture in respect of one or more series of
Securities; provided, however, that any such addition, change or elimination
not otherwise permitted under this Section 9.1 shall (i) neither (A) apply
to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (B) modify
the rights of the Securityholder of any such Security with respect to such
provision or (ii) become effective only when there is no such Security
outstanding;


 


(g)           to provide for the issuance of and
establish the form and terms and conditions of the Securities of any series as
provided in Section 2.1, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of
Securities;


 


(h)           to evidence and provide for the
acceptance of appointment hereunder by a successor trustee;


 


(i)            to comply with any requirements of
the Securities and Exchange Commission or any successor in connection with the
qualification of this Indenture under the Trust Indenture Act; or


 


(j)            to make any other provisions with
respect to matters or questions arising under this Indenture, provided that
such action shall not adversely affect the interests of the Securityholders of
Securities of any series or any related coupons in any material respect.


 


The
Trustee is hereby authorized to join with the Company in the execution of any
such supplemental indenture, and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture that affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


37

















 


Any
supplemental indenture authorized by the provisions of this Section may be
executed by the Company and the Trustee without the consent of the holders of
any of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 9.2.


 


SECTION 9.2                                                  SUPPLEMENTAL
INDENTURES WITH CONSENT OF SECURITYHOLDERS.


 


With
the consent (evidenced as provided in Section 8.1) of the holders of not
less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by a Board Resolution, 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
Trust Indenture Act as then in effect) 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 not
covered by Section 9.1 the rights of the holders of the Securities of such
series under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the holders of each Security then Outstanding and
affected thereby, (a) extend the fixed maturity of any Securities of any
series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof or (b) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such supplemental
indenture.


 


It
shall not be necessary for the consent of the Securityholders of any series
affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.


 


SECTION 9.3                                                  EFFECT
OF SUPPLEMENTAL INDENTURES.


 


Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or
of Section 10.1, this Indenture shall, with respect to such series, 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 Company and the holders of Securities of the
series affected thereby 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.


 


SECTION 9.4                                                  SECURITIES
AFFECTED BY SUPPLEMENTAL INDENTURES.


 


Securities
of any series affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.1, may bear a notation in form
approved by the Company, provided such form meets the requirements of any
securities exchange upon which such series may be listed, as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of that series so modified as to conform, in the opinion of the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be 


 


38

















 


prepared by the Company, authenticated by the Trustee
and delivered in exchange for the Securities of that series then Outstanding.


 


SECTION 9.5                                                  EXECUTION
OF SUPPLEMENTAL INDENTURES.


 


Upon
the request of the Company, accompanied by its Board Resolutions authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders required to consent
thereto as aforesaid, the Trustee shall join with the Company 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. The Trustee, subject to the provisions
of Section 7.1, may receive an Officers’ Certificate or an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed
pursuant to this Article is authorized or permitted by, and conforms to,
the terms of this Article and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof; provided,
however, that such Officers’ Certificate or Opinion of Counsel need not be
provided in connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section 2.1
hereof.


 


Promptly
after the execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Trustee shall transmit
by mail, first class postage prepaid, a notice, setting forth in general terms
the substance of such supplemental indenture, to the Securityholders of all
series affected thereby as their names and addresses appear upon the Security
Register. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.


 


ARTICLE 10


SUCCESSOR ENTITY


 


SECTION 10.1                                            COMPANY MAY CONSOLIDATE,
ETC.


 


Except
as provided pursuant to Section 2.1 pursuant to a Board Resolution, and
set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, nothing contained in this Indenture shall
prevent any consolidation or merger of the Company with or into any other
Person (whether or not affiliated with the Company) or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance, transfer or
other disposition of the property of the Company or its successor or successors
as an entirety, or substantially as an entirety, to any other corporation
(whether or not affiliated with the Company or its successor or successors)
authorized to acquire and operate the same; provided, however, the Company
hereby covenants and agrees that, upon any such consolidation or merger (in
each case, if the Company is not the survivor of such transaction), sale,
conveyance, transfer or other disposition, (a) the due and punctual
payment of the principal of (premium, if any) and interest on all of the
Securities of all series in accordance with the terms of each series, according
to their tenor, and the due and punctual performance and observance of all the
covenants and conditions of this Indenture with respect to each series or
established with respect to such series pursuant to 


 


39

















 


Section 2.1 to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
reasonably satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company shall
have been merged, or by the entity which shall have acquired such property and (b) in
the event that the Securities of any series then Outstanding are convertible
into or exchangeable for shares of common stock or other securities of the
Company, such entity shall, by such supplemental indenture, make provision so
that the Securityholders of Securities of that series shall thereafter be
entitled to receive upon conversion or exchange of such Securities the number
of securities or property to which a holder of the number of shares of common
stock or other securities of the Company deliverable upon conversion or
exchange of those Securities would have been entitled had such conversion or
exchange occurred immediately prior to such consolidation, merger, sale,
conveyance, transfer or other disposition.


 


SECTION 10.2                                            SUCCESSOR
ENTITY SUBSTITUTED.


 


(a)           In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon the assumption
by the successor entity by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the obligations set
forth under Section 10.1 on all of the Securities of all series
Outstanding, such successor entity shall succeed to and be substituted for the
Company with the same effect as if it had been named as the Company herein, and
thereupon the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.


 


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


 


(c)           Nothing contained in this Article shall
require any action by the Company in the case of a consolidation or merger of
any Person into the Company where the Company is the survivor of such
transaction, or the acquisition by the Company, by purchase or otherwise, of
all or any part of the property of any other Person (whether or not affiliated
with the Company).


 


SECTION 10.3                                            EVIDENCE OF
CONSOLIDATION, ETC. TO TRUSTEE.


 


The
Trustee, subject to the provisions of Section 7.1, may receive an Officers’
Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article.


 


ARTICLE 11


SATISFACTION AND
DISCHARGE


 


SECTION 11.1                                            SATISFACTION
AND DISCHARGE OF INDENTURE.


 


This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities (except as to any surviving rights of
registration of transfer or exchange of Securities of such series herein
expressly provided for or in the form of Security for such 


 


40

















 


series and any
right to receive additional amounts), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when


 


(a) either


 


(i) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.7 and
(ii) Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Sections 11.5, 11.6
and 11.7) have been delivered to the Trustee for cancellation; or


 


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


 


(A) have become due and payable, or


 


(B) will become due and payable at their Stated Maturity within
one year of the date of deposit, or


 


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


 


and the Company, in the case of (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities which have become due and
payable), or to the Stated Maturity or the Redemption Date, as the case may be;


 


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


 


(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that, with respect to such series, all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.


 


Notwithstanding
the satisfaction and discharge of this Indenture with respect to such series,
the obligations of the Company to the Trustee with respect to such series under
this Section 11.1 and Sections 7.6 and 7.10, the obligations of the
Company to any Authenticating Agent under Section 2.10, and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of
clause (a) of this Section, the obligations of the Trustee under Section 11.2,
11.5 and Section 11.7, shall survive.


 


41
















 


SECTION 11.2.
APPLICATION OF TRUST MONEY.


 


Subject to the
provisions of Section 11.7, all money deposited with the Trustee pursuant
to Section 11.1, all money and U.S. Government Obligations deposited with
the Trustee (or a successor trustee satisfying the requirements of Section 7.9)
pursuant to Section 11.3 and all money received by the Trustee in respect
of U.S. Government Obligations deposited with the Trustee pursuant to Section 11.3
shall be held in trust and shall be applied by it, in accordance with the
provisions of the series of Securities and this Indenture, to the payment,
either directly or through any paying agent as the Trustee may determine, to
the Persons entitled thereto, of all sums due and to become due thereon in
respect of the principal of (and premium, if any) and interest, if any, on the
Securities for which payment of such money has been deposited with the Trustee
or to make mandatory sinking fund payments or analogous payments as
contemplated by Section 11.3.


 


SECTION 11.3.
DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES.


 


If this Section 11.3
is specified to be applicable to the Securities of any series, then,
notwithstanding the provisions of Section 11.1, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
Outstanding Securities of any such series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall, upon Company
Request execute proper instruments acknowledging the same), except as to:


 


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


 


(b) the
rights, powers, trusts, duties and immunities of the Trustee hereunder with
respect to such series, including those set forth in Section 7.6, 7.10,
11.2, 11.2, 11.5 and 11.7; and


 


(c) either
(i) if this Section 11.3(c)(i) is specified, as contemplated by Section 2.1,
to be applicable to the Securities of any series, the Company’s obligations
with respect to the Securities of such series under Sections 2.5, 2.6, 2.7,
4.2, 11.2, 11.5, 11.6 and 11.7; or, alternatively, (ii) if this Section 11.3(c)(ii) is
specified, as contemplated by Section 2.1, to be applicable to the
Securities of any series, the Company’s obligations with respect to such
Securities under Sections 2.5, 2.6, 2.7, 4.1, 4.2, 11.2 and 11.7;


 


provided that,
the following conditions shall have been satisfied:


 


(d) the
Company shall have irrevocably deposited or caused to be deposited (in
accordance with Section 11.2) with the Trustee (or another trustee
satisfying the requirements of Section 7.9) as trust funds in trust
specifically pledged as security for, and dedicated solely to, the benefit of
the Securityholders of the Securities of that series, with reference to this Section 


 


42

















 


11.3 (i) money
in an amount, or (ii) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance with their
terms will provide not later than one Business Day before the due date of any
payment referred to in clause (A) or (B) of this subparagraph (d) money
in an amount, or (iii) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge (A) the principal of (and premium, if any) and each
installment of principal of (and premium, if any) and interest, if any, on the
Outstanding Securities of such series on the Stated Maturity of such principal
or installment of principal or interest or on the applicable Redemption Date
and (B) any mandatory sinking fund payments or analogous payments
applicable to the Securities of such series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of such
Securities;


 


(e) such
deposit shall not cause the Trustee with respect to the Securities of such
series to have a conflicting interest as defined in Section 7.8 or for
purposes of the Trust Indenture Act with respect to the Securities of any
series;


 


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


 


(g) if
this Section 11.3(g) is specified, as contemplated by Section 2.1,
to be applicable to the Securities of any series, such provision would not
cause any Outstanding Securities of such series then listed on the New York
Stock Exchange or other nationally recognized securities exchange to be
de-listed as a result thereof;


 


(h) no
Event of Default or event which with the giving of notice or lapse of time or
both would become an Event of Default with respect to the Securities of that
series shall have occurred and be continuing on the date of such deposit or at
any time during the period ending on the 91st day after such date;


 


(i) the
Company has delivered to the Trustee an Opinion of Counsel to the effect that,
based upon applicable United States Federal income tax law or a ruling
published by the Internal Revenue Service (which opinion, for the purposes
contemplated by Section 11.3(c)(i), must be based on a change in
applicable United States Federal income tax law after the date of this
Indenture or a ruling published by the Internal Revenue Service after the date
of this Indenture), the Holders of the Securities of such series will not
recognize income, gain or loss for United States Federal income tax purposes as
a result of such deposit, defeasance and discharge and will be subject to
United States Federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit, defeasance and
discharge had not occurred; and


 


(j) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the defeasance
contemplated by this Section have been complied with.


 


43

















 


SECTION 11.4.
REINSTATEMENT


 


If the Trustee
is unable to apply any money in accordance with Section 11.3 by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s
obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 11.3
until such time as the Trustee is permitted to apply all such money in
accordance with Section 11.3; provided, however, that if the Company makes
any payment of principal of (and premium, if any) or interest on any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of the Securities of such series to receive such
payment from the money held by the Trustee.


 


SECTION 11.5                                            DEPOSITED
MONEYS TO BE HELD IN TRUST.


 


All moneys or
Governmental Obligations deposited with the Trustee pursuant to Sections 11.1
or 11.3 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as
its own paying agent), to the holders of the particular series of Securities
for the payment or redemption of which such moneys or Governmental Obligations
have been deposited with the Trustee.


 


SECTION 11.6                                            PAYMENT
OF MONEYS HELD BY PAYING AGENTS.


 


In connection
with the satisfaction and discharge of this Indenture all moneys or
Governmental Obligations then held by any paying agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.


 


SECTION 11.7                                            REPAYMENT
TO COMPANY.


 


Any moneys or
Governmental Obligations deposited with any paying agent or the Trustee, or
then held by the Company, in trust for payment of principal of or premium, if
any, or interest on the Securities of a particular series that are not applied
but remain unclaimed by the holders of such Securities for two years after the
date upon which the principal of (and premium, if any) or interest on such
Securities shall have respectively become due and payable, or such other
shorter period set forth in applicable escheat or abandoned or unclaimed
property law, shall be repaid to the Company on May 31 of each year or
upon the Company’s request (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to receive such
payment shall thereafter, as a general creditor, look only to the Company for
the payment thereof.


 


44

















 


ARTICLE 12


IMMUNITY OF
INCORPORATORS, STOCKHOLDERS,


OFFICERS AND
DIRECTORS


 


SECTION 12.1                                            NO
RECOURSE.


 


No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or
of any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Securities.


 


ARTICLE 13


MISCELLANEOUS
PROVISIONS


 


SECTION 13.1                                            EFFECT ON
SUCCESSORS AND ASSIGNS.


 


All
the covenants, stipulations, promises and agreements in this Indenture made by
or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.


 


SECTION 13.2                                            ACTIONS BY
SUCCESSOR.


 


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 Company shall
and may be done and performed with like force and effect by the corresponding
board, committee or officer of any corporation that shall at the time be the
lawful successor of the Company.


 


SECTION 13.3                                            SURRENDER
OF COMPANY POWERS.


 


The
Company by instrument in writing executed by authority of its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall terminate both as
to the Company and as to any successor corporation.


 


45

















 


SECTION 13.4                                            NOTICES.


 


Except
as otherwise expressly provided herein, any notice, request or demand that by
any provision of this Indenture is required or permitted to be given, made or
served by the Trustee or by the holders of Securities or by any other Person
pursuant to this Indenture to or on the Company may be given or served by being
deposited in first class mail, postage prepaid, addressed (until another
address is filed in writing by the Company with the Trustee), as follows: The
Macerich Company, 401 Wilshire Boulevard, No. 700, Santa Monica,
California 90401, Attention: General Counsel. Any notice, election, request or
demand by the Company or any Securityholder or by any other Person pursuant to
this Indenture to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the Corporate
Trust Office of the Trustee.


 


SECTION 13.5                                            GOVERNING
LAW.


 


This
Indenture and each Security shall be deemed to be a contract made under the
internal laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of said State, except to the extent that the Trust
Indenture Act is applicable.


 


SECTION 13.6                                            TREATMENT
OF SECURITIES AS DEBT.


 


It is
intended that the Securities will be treated as indebtedness and not as equity
for federal income tax purposes. The provisions of this Indenture shall be
interpreted to further this intention.


 


SECTION 13.7                                            COMPLIANCE
CERTIFICATES AND OPINIONS.


 


(a)           Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company 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 documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.


 


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


 


46

















 


SECTION 13.8                                            PAYMENTS ON
BUSINESS DAYS.


 


Except
as provided pursuant to Section 2.1 pursuant to a Board Resolution, and
set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of
interest or principal of any Security or the date of redemption of any Security
shall not be a Business Day, then payment of interest or principal (and
premium, if any) may be made on the next succeeding Business Day with the same
force and effect as if made on the nominal date of maturity or redemption, and
no interest shall accrue for the period after such nominal date.


 


SECTION 13.9                                            CONFLICT
WITH TRUST INDENTURE ACT.


 


If and
to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.


 


SECTION 13.10                                      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.


 


SECTION 13.11                                      SEPARABILITY.


 


In
case any one or more of the provisions contained in this Indenture or in the
Securities of any series shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.


 


SECTION 13.12                                      COMPLIANCE
CERTIFICATES.


 


The
Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year during which any Securities of any series were outstanding, an
Officers’ Certificate stating whether or not the signers know of any Default or
Event of Default that occurred during such fiscal year. Such certificate shall
contain a certification from the principal executive officer, principal
financial officer or principal accounting officer of the Company that a review
has been conducted of the activities of the Company and the Company’s
performance under this Indenture and that the Company has complied with all
conditions and covenants under this Indenture. For purposes of this Section 13.12,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If any of the officers of
the Company signing such certificate has knowledge of such a Default or Event
of Default, the certificate shall describe any such Default or Event of Default
and its status.


 


47

















 


ARTICLE 14


SUBORDINATION OF
SECURITIES


 


SECTION 14.1                                            SUBORDINATION
TERMS.


 


The
payment by the Company of the principal of, premium, if any, and interest on
any series of Securities issued hereunder shall be subordinated to the extent
established in or pursuant to a Board Resolution, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto
relating to such Securities.


 


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


 


	
   

  	
  THE MACERICH COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                                  ]

  
	
   

  	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


48