EXHIBIT 4.9


 




 





THE MACERICH COMPANY


 


Issuer


 


AND


 






 


Trustee


 






 


INDENTURE


 


Dated as of
                  
    , 20   


 






 


Senior Debt Securities


 




 




















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.1

  	
   

  	
  Definitions
  of Terms

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  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

  	
  11

  
	
  Section 2.8

  	
   

  	
  Cancellation

  	
  12

  
	
  Section 2.9

  	
   

  	
  Benefits of
  Indenture

  	
  13

  
	
  Section 2.10

  	
   

  	
  Authenticating
  Agent

  	
  13

  
	
  Section 2.11

  	
   

  	
  Global
  Securities

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REDEMPTION
  OF SECURITIES AND SINKING FUND PROVISIONS

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1

  	
   

  	
  Redemption

  	
  14

  
	
  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

  	
  16

  
	
  Section 3.6

  	
   

  	
  Redemption
  of Securities for Sinking Fund

  	
  17

  
					



 

















 


	
  ARTICLE IV

  	
  COVENANTS

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1

  	
   

  	
  Payment of
  Principal, Premium and Interest

  	
  17

  
	
  Section 4.2

  	
   

  	
  Maintenance
  of Office or Agency

  	
  17

  
	
  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 V

  	
  SECURITYHOLDERS’
  LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.1

  	
   

  	
  Company to
  Furnish Trustee Names and Addresses of Securityholders

  	
  19

  
	
  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

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  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

  	
  22

  
	
  Section 6.3

  	
   

  	
  Application
  of Moneys Collected

  	
  24

  
	
  Section 6.4

  	
   

  	
  Limitation
  on Suits

  	
  24

  
	
  Section 6.5

  	
   

  	
  Rights and
  Remedies Cumulative; Delay or Omission Not Waiver

  	
  25

  
	
  Section 6.6

  	
   

  	
  Control by
  Securityholders

  	
  25

  
	
  Section 6.7

  	
   

  	
  Undertaking
  to Pay Costs

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  CONCERNING
  THE TRUSTEE

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.1

  	
   

  	
  Certain
  Duties and Responsibilities of Trustee

  	
  26

  
	
  Section 7.2

  	
   

  	
  Certain
  Rights of Trustee

  	
  27

  
	
  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

  	
  29

  
	
  Section 7.7

  	
   

  	
  Reliance on
  Officers’ Certificate

  	
  30

  
	
  Section 7.8

  	
   

  	
  Disqualification;
  Conflicting Interests

  	
  30

  
	
  Section 7.9

  	
   

  	
  Corporate
  Trustee Required; Eligibility

  	
  30

  
	
  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

  	
  33

  
	
  Section 7.13

  	
   

  	
  Preferential
  Collection of Claims Against the Company

  	
  33

  
	
  Section 7.14

  	
   

  	
  Notice of
  Default

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  CONCERNING
  THE SECURITYHOLDERS

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.1

  	
   

  	
  Evidence of
  Action by Securityholders

  	
  34

  
	
  Section 8.2

  	
   

  	
  Proof of
  Execution by Securityholders

  	
  34

  
	
  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

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL
  INDENTURES

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.1

  	
   

  	
  Supplemental
  Indentures Without the Consent of Securityholders

  	
  36

  
	
  Section 9.2

  	
   

  	
  Supplemental
  Indentures With Consent of Securityholders

  	
  37

  
	
  Section 9.3

  	
   

  	
  Effect of
  Supplemental Indentures

  	
  38

  
	
  Section 9.4

  	
   

  	
  Securities
  Affected by Supplemental Indentures

  	
  38

  
	
  Section 9.5

  	
   

  	
  Execution of
  Supplemental Indentures

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  SUCCESSOR
  ENTITY

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.1

  	
   

  	
  Company
  May Consolidate, Etc

  	
  39

  
					



 

















 


	
  Section 10.2

  	
   

  	
  Successor
  Entity Substituted

  	
  39

  
	
  Section 10.3

  	
   

  	
  Evidence of
  Consolidation, Etc. to Trustee

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  SATISFACTION
  AND DISCHARGE

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.1

  	
   

  	
  Satisfaction
  and Discharge of Indenture

  	
  40

  
	
  Section 11.2

  	
   

  	
  Application
  of Trust Money

  	
  41

  
	
  Section 11.3

  	
   

  	
  Discharge
  and Defeasance of Securities of Any Series

  	
  41

  
	
  Section 11.4

  	
   

  	
  Reinstatement

  	
  43

  
	
  Section 11.5

  	
   

  	
  Deposited
  Moneys to be Held in Trust

  	
  43

  
	
  Section 11.6

  	
   

  	
  Payment of
  Moneys Held by Paying Agents

  	
  43

  
	
  Section 11.7

  	
   

  	
  Repayment to
  Company

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  IMMUNITY OF
  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.1

  	
   

  	
  No Recourse

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  MISCELLANEOUS
  PROVISIONS

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.1

  	
   

  	
  Effect on
  Successors and Assigns

  	
  44

  
	
  Section 13.2

  	
   

  	
  Actions by
  Successor

  	
  45

  
	
  Section 13.3

  	
   

  	
  Surrender of
  Company Powers

  	
  45

  
	
  Section 13.4

  	
   

  	
  Notices

  	
  45

  
	
  Section 13.5

  	
   

  	
  Governing
  Law

  	
  45

  
	
  Section 13.6

  	
   

  	
  Treatment of
  Securities as Debt

  	
  45

  
	
  Section 13.7

  	
   

  	
  Compliance
  Certificates and Opinions

  	
  45

  
	
  Section 13.8

  	
   

  	
  Payments on
  Business Days

  	
  46

  
	
  Section 13.9

  	
   

  	
  Conflict
  with Trust Indenture Act

  	
  46

  
	
  Section 13.10

  	
   

  	
  Counterparts

  	
  46

  
	
  Section 13.11

  	
   

  	
  Separability

  	
  46

  
	
  Section 13.12

  	
   

  	
  Compliance
  Certificates

  	
  46

  
					



 

















 


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 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 I

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.


 


“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.


 


2

















 


“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.


 


“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 


 


3

















 


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
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.


 


4

















 


“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 II

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 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;


 


5
















 


(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;


 


(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 


 


6

















 


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; and


 


(18)     any
restrictions on transfer, sale or assignment 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, 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.


 


7

















 


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 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 


 


8

















 


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 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.


 


9

















 


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”).


 


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.


 


10

















 


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.


 


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 


 


11

















 


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
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.


 


12

















 


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 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.


 


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.


 


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, 


 


13

















 


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.


 


ARTICLE
III

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.


 


14
















 


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.
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, 


 


15

















 


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 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 


 


16

















 


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 IV

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 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).


 


17

















 


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


 


(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 


 


18

















 


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.


 


ARTICLE V

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, 


 


19

















 


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.


 


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.


 


20

















 


ARTICLE VI

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 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.


 


21

















 


(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.


 


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 


 


22

















 


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 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 


 


23

















 


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


 


THIRD:  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.


 


24
















 


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 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 


 


25

















 


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 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 VII

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.


 


26

















 


(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;


 


(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, 


 


27

















 


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;


 


(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.


 


28

















 


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 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.


 


29

















 


(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 additional indebtedness hereunder.
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.


 


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.


 


30

















 


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


 


(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.


 


31

















 


(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 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 


 


32

















 


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.


 


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 


 


33

















 


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 VIII

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.


 


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.


 


34
















 


(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 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 


 


35

















 


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 IX

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;


 


(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 


 


36

















 


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.


 


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.


 


37

















 


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 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.


 


38

















 


ARTICLE X

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 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.


 


39

















 


(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 XI

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 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 


 


40

















 


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.


 


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 


 


41

















 


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 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 


 


42

















 


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.


 


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.


 


43

















 


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.


 


ARTICLE XII

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 XIII

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.


 


44

















 


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.


 


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 


 


45

















 


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.


 


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, 


 


46

















 


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.


 


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:

  



 


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