Exhibit 4.18


 




 





 


 


FORM OF INDENTURE 


 


THE ROUSE COMPANY LLC


 


 


and


 


Wilmington Trust FSB,


 


as Trustee


 


6.75% SENIOR NOTES DUE 2015


 






 


INDENTURE


 


Dated as of            ,
2010


 






 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1.

  	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.02.

  	
  Other Definitions

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 1.04.

  	
  Conflict with Trust Indenture Act

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 1.05.

  	
  Rules of Construction

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2.

  	
  THE
  NOTES

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 2.03.

  	
  Registrar and Paying Agent

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 2.05.

  	
  Holder Lists

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 2.06.

  	
  Transfer and Exchange

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 2.07.

  	
  Replacement Notes

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 2.08.

  	
  Outstanding Notes

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 2.09.

  	
  Treasury Notes

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 2.10.

  	
  Temporary Notes

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 2.11.

  	
  Cancellation

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 2.12.

  	
  Payment of Interest; Defaulted Interest

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 2.13.

  	
  CUSIP or ISIN Numbers

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 2.14.

  	
  Issuance of Additional Notes

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 2.15.

  	
  Record Date

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3.

  	
  REDEMPTION
  AND PREPAYMENT

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Notices to Trustee

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 3.02.

  	
  Selection of Notes to Be Redeemed

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 3.05.

  	
  Deposit of Redemption Price

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 3.06.

  	
  Notes Redeemed in Part

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 3.07.

  	
  Optional Redemption

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 3.08.

  	
  Mandatory Redemption

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.

  	
  COVENANTS

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Principal, Premium and Interest

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 4.03.

  	
  Reporting

  	
  29

  



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.04.

  	
  Compliance Certificate

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 4.05.

  	
  Payment of Taxes and Other Claims

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 4.06.

  	
  Existence

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 4.07.

  	
  Maintenance of Properties

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 4.08.

  	
  Incurrence of Additional Debt and Issuance of
  Capital Stock

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 4.09.

  	
  Limitation on Sale/Leaseback Transactions

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5.

  	
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Company May Consolidate, Etc. Only on
  Certain Terms

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 5.02.

  	
  Successor Substituted

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6.

  	
  DEFAULTS AND REMEDIES

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events of Default

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 6.02.

  	
  Acceleration

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 6.03.

  	
  Collection of Indebtedness and Suits for
  Enforcement by Trustee

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 6.04.

  	
  Trustee May File Proofs of Claim

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 6.05.

  	
  Trustee May Enforce Claims Without Possession
  of Notes

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 6.06.

  	
  Application of Money Collected

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 6.07.

  	
  Limitation on Suits

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 6.08.

  	
  Unconditional Right of Holders to Receive
  Principal, Premium and Interest

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 6.09.

  	
  Restoration of Rights and Remedies

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 6.10.

  	
  Rights and Remedies Cumulative

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 6.11.

  	
  Delay or Omission Not Waiver

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 6.12.

  	
  Control by Holders

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 6.13.

  	
  Waiver of Past Defaults

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 6.14.

  	
  Undertaking for Costs

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 6.15.

  	
  Waiver of Usury, Stay or Extension Laws

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7.

  	
  TRUSTEE

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Duties of Trustee

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 7.02.

  	
  Rights of Trustee

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 7.03.

  	
  Individual Rights of Trustee

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 7.04.

  	
  Trustee’s Disclaimer

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 7.05.

  	
  Notice of Defaults

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 7.06.

  	
  Reports by Trustee to Holders

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 7.07.

  	
  Compensation and Indemnity

  	
  41

  



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 7.08.

  	
  Replacement of Trustee

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 7.09.

  	
  Successor Trustee by Merger, etc.

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 7.10.

  	
  Eligibility; Disqualification

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 7.11.

  	
  Preferential Collection of Claims Against Company

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  	
  LEGAL
  DEFEASANCE AND COVENANT DEFEASANCE

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Option to Effect Legal Defeasance or Covenant
  Defeasance

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 8.02.

  	
  Legal Defeasance and Discharge

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 8.03.

  	
  Covenant Defeasance

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 8.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 8.05.

  	
  Deposited Cash and U.S. Government Securities to be Held in Trust;
  Other Miscellaneous Provisions

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 8.06.

  	
  Repayment to the Company

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 8.07.

  	
  Reinstatement

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9.

  	
  AMENDMENT,
  SUPPLEMENT AND WAIVER

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Without Consent of Holders of Notes

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 9.02.

  	
  With Consent of Holders of Notes

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 9.03.

  	
  Revocation and Effect of Consents

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 9.04.

  	
  Notation on or Exchange of Notes

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 9.05.

  	
  Trustee to Sign Amendments, etc.

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10.

  	
  SATISFACTION
  AND DISCHARGE

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Satisfaction and Discharge

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 10.02.

  	
  Application of Trust Money

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11.

  	
  MISCELLANEOUS

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Table of Contents, Headings, etc.

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 11.02.

  	
  Notices

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 11.03.

  	
  Communication by Holders of Notes with Other
  Holders of Notes

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 11.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 11.05.

  	
  Statements Required in Certificate or Opinion

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 11.06.

  	
  Rules by Trustee and Agents

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.07.

  	
  No Personal Liability of Directors, Officers,
  Employees and Stockholders

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.08.

  	
  Governing Law

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.09.

  	
  No Adverse Interpretation of Other Agreements

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.10.

  	
  Successors

  	
  51

  



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.11.

  	
  Severability

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.12.

  	
  Counterpart Originals

  	
  51

  



 


iv

















 


This
INDENTURE dated as of [                
], 2010, is by and between The Rouse Company LLC, a limited liability
company validly existing under the laws of the State of Delaware (the “Company”) and [                 ], as trustee (the “Trustee”).


 


The
Company and the Trustee agree as follows for the benefit of each other and for
the equal and ratable benefit of the Holders of the 6.75% Senior Notes due 2015
(the “Notes”) issued under this
Indenture:


 


ARTICLE 1.


 


DEFINITIONS AND INCORPORATION BY
REFERENCE


 


Section 1.01.                Definitions.


 


For
all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:


 


“144A Global Note” means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee
issued in a denomination equal to the outstanding principal amount of the Notes
sold for initial resale in reliance on Rule 144A.


 


“Additional Notes” means any Notes (other than Initial Notes
and Notes issued under Sections 2.06, 2.07, 2.10 and 3.06 hereof) issued under
this Indenture in accordance with Sections 2.02 and 2.15 hereof, as part
of the same series as the Initial Notes.


 


“Adjusted Treasury Rate” means, with respect to any
Determination Date, the rate per annum equal to the semi-annual yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Determination Date, plus 50 basis points.


 


“Affiliate” of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. 
For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.


 


“Agent” means any Registrar, co-registrar, Paying Agent or
additional paying agent.


 


“Applicable Procedures” means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer, redemption or exchange.


 


“Asset” means, with respect to one or more transactions
occurring within any 12-month period, any asset or group of assets of the
Company or its Subsidiaries (including, but not limited to, all balance sheet
items and all intangible assets including management contracts, goodwill and
trade secrets) with a fair market or book value, whichever is larger, greater
than 5% of Consolidated Net Tangible Assets on the date of such transaction.


 


“Assets Under Development” means land and improvements owned
by a member of the Consolidated Group or an Investment Affiliate being
developed for retail, office, mixed-use or other rental-income producing
purposes which meet all four of the following criteria: (a) such project
(or phase) has not yet been substantially completed; (b) no rental income
has yet been received; (c) no certificate of occupancy has yet been issued
for such project (or phase); and (d) such project (or phase) is classified
as construction in progress in accordance with GAAP.


 

















 


“Attributable Debt” shall mean, as to any particular lease
under which the Company or any Restricted Subsidiary is at the time liable, at
any date as of which the amount thereof is to be determined, the lesser of (i) the
fair value of the property subject to such lease (as certified in an Officer’s
Certificate) or (ii) the total net amount of rent required to be paid by
the Company under such lease during the remaining term thereof, discounted from
the respective due dates thereof to such date at the rate of interest per annum
equal to 8.5%, compounded semi-annually. 
The net amount of rent required to be paid under any such lease for any
such period shall be the amount of the rent payable by the lessee with respect
to such period, after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges.  In the case of any lease which
is terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated.


 


“Bankruptcy Law” means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors, or the law of any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors.


 


“Board of Directors” means (1) in respect of a
corporation, the board of directors of the corporation, or any duly authorized
committee thereof; (2) with respect to a partnership, the board of
directors, or other body serving a similar function, of the general partner of
the partnership, or any duly authorized committee thereof; or (3) in
respect of any other Person, the board or committee of that Person serving an
equivalent function.


 


“Board Resolution” of a Person means a copy of a resolution
certified by the secretary or an assistant secretary (or individual performing
comparable duties) of the applicable Person to have been duly adopted by the
Board of Directors of such Person and to be in full force and effect on the
date of such certification, and delivered to the Trustee.


 


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


 


“Capital Lease Obligations” of any Person means the
obligations to pay rent or other amounts under a lease of (or other Debt
arrangements conveying the right to use) real or personal property of such
Person which are required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
GAAP, and the amount of such obligations shall be the capitalized amount
thereof in accordance with GAAP and the stated maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior
to the first date upon which such lease may be terminated by the lessee without
payment of a penalty.


 


“Capital Stock” means shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
equivalent ownership interests in a Person which is not a corporation, and
warrants or options to purchase any of the foregoing.


 


“Cash Equivalents” means (a) short-term obligations of,
or fully guaranteed by, the United States of America, (b) commercial paper
rated A-1 or better by Standard & Poor’s Rating Services (or any
successor) or P-1 or better by Moody’s Investors Service, Inc. (or any
successor), or (c) certificates of deposit issued by, and time deposits
with, commercial banks (whether domestic or foreign) having capital and surplus
in excess of $100,000,000.


 


“Clearstream”  means
Clearstream Banking S.A. and any successor thereto.


 


“Code” means the U.S. Internal Revenue Code of 1986, as
amended.


 


“Commission”
means the Securities and Exchange Commission.


 


“Company” means The Rouse Company LLC and any successor
thereto.


 


“Comparable Treasury Issue” means the United States Treasury
security selected by the Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes that would be 


 


2

















 


utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the Notes.


 


“Comparable Treasury Price” means, with respect to any
Determination Date: (1) the average of the Reference Treasury Dealer
Quotations for such date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (2) if fewer than three such Reference
Treasury Dealer Quotations are obtained, the average of all such Reference
Treasury Dealer Quotations.


 


“Consolidated Coverage Ratio” of any Person means for any
period the ratio of (a) Total FFO for such period plus Total Interest
Expense for the same period for such Person to (b) Total Interest Expense
for the same period for such Person.


 


“Consolidated Group” means the Company and its Subsidiaries
that are consolidated with the Company for financial reporting purposes under
GAAP, and any other Person whose financial results are included using the
proportionate share method under the Company’s segment accounting policies in
the financial statements of the Consolidated Group.


 


“Consolidated Group’s Pro Rata Share” means, with respect to
any Investment Affiliate, the percentage of the total ownership and financial
interests held by the Consolidated Group, in the aggregate, in such Investment
Affiliate as determined in accordance with the Company’s segment accounting
policies in the financial statements of the Consolidated Group.


 


“Consolidated Net Tangible Assets” shall mean the aggregate
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom: (i) all current liabilities (excluding any
thereof which are by their terms extendible or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of which
the amount thereof is being computed and excluding current maturities of
long-term indebtedness and Capital Lease Obligations); and (ii) all
goodwill, all as shown in the consolidated balance sheet of the Company and its
Subsidiaries as of the end of the latest fiscal quarter for which consolidated
financial statements are available.


 


“Corporate Trust Office of the Trustee” shall be at the
address of the Trustee specified in Section 11.02 hereof, or such other
address as to which the Trustee may give notice to the Company.


 


“Custodian” means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03(c) as
Custodian with respect to the Notes, and any and all successors thereto
appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.


 


“Debt” means (without duplication), with respect to any
Person: (i) every obligation of such Person for money borrowed; (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses, but excluding any trade payments
and other accrued current liabilities arising in the ordinary course of
business; (iii) every currently due reimbursement obligation of such
Person with respect to letters of credit, bankers’ acceptances or similar
facilities issued for the account of such Person; (iv) every obligation of
such Person issued or assumed as the deferred purchase price of property, but
excluding trade accounts payable and other accrued current liabilities arising
in the ordinary course of business which are not overdue by more than 90 days
or which are being contested in good faith; (v) every Capital Lease
Obligation of such Person; (vi) the maximum fixed redemption or repurchase
price of any equity security which may be converted into a debt security of
such Person at any time or is mandatorily redeemable for cash within 20 years
from its initial issuance; and (vii) every obligation of the type referred
to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or for which such Person is responsible or liable, directly or indirectly, as
obligor, guarantor or otherwise.


 


“Default” means
any event which is, or after notice or passage of time or both would be, an
Event of Default.


 


3

















 


“Definitive Note” means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 or
2.10 hereof, in substantially the form of Exhibit A hereto except that
such Note shall not bear the Global Note Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.


 


“Depositary” means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03(b) hereof
as the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.


 


“Determination Date” means, with respect to the calculation
of the Make-Whole Price in connection with any redemption of the Notes, the
redemption date.


 


“Distribution Compliance Period” means the 40-day
distribution compliance period as defined in Regulation S.


 


“Euroclear” means Euroclear Bank, S.A./N.V., as operator of
the Euroclear systems, and any successor thereto.


 


“Exchange Act” means the Securities Exchange Act of 1934,
as amended.


 


“GAAP” means generally
accepted accounting principles in the United States, consistent with the
accounting principles utilized in preparing the financial statements of the
Consolidated Group in accordance with this Indenture as in effect from time to
time.  All ratios and computations based
on GAAP contained in this Indenture will be computed in conformity with GAAP.


 


“Global Note Legend” means the legend set forth in Section 2.06(f)(ii),
which is required to be placed on all Global Notes issued under this Indenture.


 


“Global Notes” means the global Notes in the form of Exhibit A
hereto issued in accordance with Article 2 hereof.


 


“Gross Asset Value” means, as of any determination date, the
sum of the values of the following assets of the Consolidated Group, including
the Consolidated Group’s Pro Rata Share of the values of such assets of
Investment Affiliates, based on the valuation methods set forth below:


 


(a)                                  with respect to
all Retail Properties, the Net Operating Income attributable thereto for the
most recent period of four full fiscal quarters for which financial results
have been reported, divided by 0.0825;


 


(b)                                 with respect to
all office, mixed-use and other income-producing properties other than Retail
Properties, the Net Operating Income attributable thereto for the most recent
period of four full fiscal quarters for which financial results have been
reported, divided by 0.09;


 


(c)                                  with respect to
any properties relating to master planned communities, 100% of the most recent
current value thereof (without deduction for the value of the interests of the
Hughes heirs therein under the Hughes Heirs Obligations) as set forth in
appraisals prepared by a nationally recognized appraisal firm selected by the
Company), provided that the Company will obtain updated appraisals thereof at
least once during each fiscal year and also when, during any four consecutive
full fiscal quarters, any such properties having an aggregate value in excess
of 5% of Gross Asset Value as of the end of the last full fiscal quarter are
sold or transferred;


 


(d)                                 100% of the
GAAP book value of all other land, all Assets Under Development and other
non-income-producing properties (less the portion of such value attributable to
minority interest holders);


 


4

















 


(e)                                  100% of the
GAAP book value of cash and Cash Equivalents held by the Consolidated Group;
and


 


(f)                                    100% of the
GAAP book value of current accounts receivable, net held by the Consolidated
Group.


 


Notwithstanding
the preceding sentence, the contribution to the Gross Asset Value of those
assets acquired in any acquisition will be calculated prior to the date ending
on or after four full fiscal quarters subsequent to any such acquisition using
the actual acquisition cost of such assets excluding actual transaction costs
(without regard to any adjustments which may be made in determining book value
under GAAP).


 


“guarantee”
means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any
manner (including, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof), of all or
any part of any Debt. The term “guarantee” used as a verb has a corresponding
meaning.


 


“Holder” means a Person in whose name a Note is registered in
the Security Register.


 


“Hughes Heirs Obligations” means the obligations asserted
against the Company, General Growth Properties, Inc., The Howard Hughes
Corporation, Howard Hughes Properties Limited Partnership and Howard Hughes
Properties, Inc., The Hughes Corporation and any of their affiliates pursuant
to the Contingent Stock Agreement, effective as of January 1, 1996, as the same
may be amended.


 


“IAI Global Note” means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee
issued in a denomination equal to the outstanding principal amount of the Notes
sold to Institutional Accredited Investors, if any, to the extent required by
the Applicable Procedures.


 


“Incur” means, with respect to any Debt or other obligation
of any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Debt or other obligation on the balance sheet of any such Person (and “incurrence,”
“incurred,” “incurrable” and “incurring” shall have meanings correlative to the
foregoing); provided that a change in GAAP that results in an obligation of
such Person that exists at such time becoming Debt shall not be deemed an
incurrence of such Debt.


 


“Indenture” means this instrument, as originally executed or
as it may from time to time be supplemented or amended in accordance with Article 9
hereof.


 


“Independent Investment Banker” means one of the Reference
Treasury Dealers appointed by the Company and acceptable to the Trustee after
consultation.


 


“Indirect Participant” means a Person who holds a beneficial
interest in a Global Note through a Participant.


 


“Initial Notes” means $[                ](2)aggregate principal amount
of Notes issued under this Indenture on the date hereof, which Notes shall be
in the form of Unrestricted Global Notes or Unrestricted Definitive Notes,
except to the extent otherwise required in order to comply with the Securities
Act.


 


“Institutional Accredited Investor” means an institution that
is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.


 


“Interest Payment Dates”
shall have the meaning set forth in paragraph 1 of each Note.


 






(2)  This blank will reflect the
aggregate principal amount of the New Rouse Notes to be issued pursuant to
General Growth Properties Inc.’s Plan of Reorganization.


 


5

















 


“Investment Affiliate” means any Person
in which any member of the Consolidated Group, directly or indirectly, has an
ownership interest, whose financial results are not included using the
proportionate share method under the Company’s segment accounting policies with
the financial results of the Consolidated Group in the financial statements of
the Consolidated Group.


 


“Issue Date” means [              ].


 


“Legal Holiday” means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, the city in which the Corporate
Trust Office of the Trustee is located or any other place of payment on the
Notes are authorized by law, regulation or executive order to remain closed.


 


“Lien” means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any filing or agreement to file a financing statement as debtor
under the Uniform Commercial Code on any property leased to any Person under a
lease which is not in the nature of a conditional sale or title retention
agreement, or any subordination agreement in favor of another Person).


 


“Make-Whole Price” means with respect to any Note as of any Determination
Date, an amount equal to the greater of (x) 100% of the principal amount
of the Note and (y) as determined by an Independent Investment Banker, the
sum of the present values of the remaining scheduled payments of principal and
interest thereon (not including any portion of such payments of interest
accrued as of the Determination Date) discounted to the Determination Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate, plus, in each case, accrued and unpaid interest
thereon to such Determination Date.


 


“Net Operating Income” means, with respect to any Property,
for any period, earnings from rental operations (computed in accordance with
GAAP, but without deduction for reserves) attributable to such Property, plus
depreciation, amortization, interest expense and deferred taxes with respect to
such Property for such period, and, if such period is less than four full
fiscal quarters, adjusted by straight lining ordinary operating expenses which
are payable less frequently than once during every such period (e.g., real estate taxes and insurance).
The amounts determined under the preceding sentence will be adjusted by adding
back (a) the interests of the former Hughes owners pursuant to the Hughes Heirs
Obligations that were excluded in determining such amounts and
(b) dividends or other distributions accrued with respect to such period
on any preferred stock or other preferred security issued by the Company to the
extent that such dividends or other distributions are treated as an operating
expense under GAAP. “Net Operating Income” shall be adjusted to include a pro
forma amount thereof (as determined in good faith by the Company) for four full
fiscal quarters for any Property placed in service during any quarter and to
exclude any Net Operating Income for the prior four full fiscal quarters from
any Property not owned as of the end of any quarter.


 


“Obligations”
means all obligations for principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Debt.


 


“Officer” means the Chairman of the Board, Vice Chairman,
Chief Executive Officer, Chief Operating Officer, President, Senior or
Executive Vice Presidents, Vice President, Treasurer, Assistant Treasurer,
Secretary or an Assistant Secretary of the Company.


 


“Officer’s Certificate” means a certificate signed by the
Chairman of the Board, Vice Chairman, Chief Executive Officer, Chief Operating
Officer, President, one of its Senior or Executive Vice Presidents, a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.  The officer signing an Officer’s Certificate given
pursuant to Section 4.04 shall an Officer.


 


“Opinion of Counsel” means a written opinion, in form and
substance reasonably satisfactory to the Trustee, from legal counsel who is
acceptable to the Trustee and which meets the requirements of Section 11.05
hereof. The counsel may be an employee of or counsel to the Company or the
Trustee.


 


6

















 


“Participant” means, with respect to the Depositary,
Euroclear or Clearstream, a Person who has an account with the Depositary,
Euroclear or Clearstream, respectively, and, with respect to DTC, shall include
Euroclear and Clearstream.


 


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


 


“Predecessor Note”  of any particular Note means every previous Note
evidencing all or a portion of the same Debt as that evidenced by such
particular Note; and any Note authenticated and delivered under Section 2.07
in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the
same Debt as the lost, destroyed or stolen Note.


 


“Principal Property” shall mean any land, and any building,
structure or other facility, together with the land upon which it is erected
and fixtures comprising a part thereof, in each case the net book value of
which on the date as of which the determination is being made exceeds 2% of
Consolidated Net Tangible Assets at such date; provided, however, that Principal
Property shall not include: (i) any building, structure or facility which,
in the opinion of the Board of Directors of the Company as evidenced by a Board
Resolution, is not of material importance to the total business conducted by
the Company and its Subsidiaries as an entirety; or (ii) any portion of a
particular building, structure or facility which, in the opinion of the Board
of Directors of the Company as evidenced by a Board Resolution, is not of
material importance to the use or operation of such building, structure or
facility.


 


“Private Placement Legend” means the legend set forth in Section 2.06(f)(i) hereof
to be placed on all Notes issued under this Indenture except as otherwise
permitted by the provisions of this Indenture.


 


“Property” means each parcel of real property owned or
operated by any member of the Consolidated Group or any Investment Affiliate.


 


“QIB” means a “qualified institutional buyer” as defined in Rule 144A.


 


“Ratio Calculation” means that, immediately after either the
incurrence of Debt or the sale of or other disposal of an Asset, as the case
may be, we, or our agent, shall calculate the Consolidated Coverage Ratio for
the four full fiscal quarter period preceding the Incurrence, sale or disposal
for which consolidated financial statements are available. In making such
calculation, (a) the Total Interest Expense attributable to interest on
any Debt to be Incurred bearing a floating interest rate shall be computed on a
pro forma basis as if the rate in effect on the date of computation had been
the applicable rate for the entire period and (b) with respect to any Debt
which bears, at the option of the Company, a fixed or floating rate of
interest, the Company shall apply the same rate for purposes of calculating the
Consolidated Coverage Ratio as it chooses to apply to the Debt. In addition,
such calculation shall be performed using the consolidated financial statements
which shall be reformulated on a pro forma basis as if such Debt had been
Incurred or such Asset had been sold or otherwise disposed of, as the case may
be, at the beginning of such four fiscal quarter period. Such reformulation
shall give effect, as if the relevant event had occurred at the beginning of
such four fiscal quarter period, to any actual use of proceeds of such Debt
being incurred or Asset being sold or disposed of and to any Incurrences or
repayments of Debt and other sales, disposals or acquisitions of Assets
occurring after the end of the last quarter for which there are consolidated
financial statements available. If any portion of the proceeds has not been
used, it shall be assumed that such portion of the proceeds was invested in
one-year Treasury bills on the first day of such four fiscal quarter period.


 


“Reference Treasury Dealer” means a primary U.S. Government
securities dealer in New York City appointed by the Company and acceptable to
the Trustee after consultation.


 


“Reference Treasury Dealer Quotations” means, with respect to
each Reference Treasury Dealer and any Determination Date, the average of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing by such Reference
Treasury Dealer at 5:00 p.m. on the third business day preceding such
Determination Date.


 


7

















 


“Regular Record Date” for the interest
payable on any Interest Payment Date means the applicable date specified as a “Record
Date” on the face of the Note.


 


“Regulation S” means Regulation S promulgated under the
Securities Act.


 


“Regulation S Global Note” means a Regulation S Temporary
Global Note or Regulation S Permanent Global Note, as appropriate.


 


“Regulation S Permanent Global Note” means a permanent Global
Note in the form of Exhibit A hereto bearing the Global Note Legend and
the Private Placement Legend and deposited with and registered in the name of
the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Distribution Compliance Period.


 


“Regulation S Temporary Global Note” means a temporary Global
Note in the form of Exhibit A hereto bearing the Global Note Legend, the
Private Placement Legend and Regulation S Temporary Global Note Legend and
deposited with and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of the Notes
sold for initial resale in reliance on Rule 903 of Regulation S.


 


“Regulation S Temporary Global Note Legend” means the legend
set forth in Section 2.06(f)(iii) hereof to be placed on all
Regulation S Temporary Global Notes issued under this Indenture.


 


“Responsible Officer,” when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.


 


“Restricted Definitive Note” means one or more Definitive
Notes bearing the Private Placement Legend.


 


“Restricted Global Notes” means 144A Global Notes, IAI
Global Notes and Regulation S Global Notes.


 


“Restricted Subsidiary”
means any subsidiary of the Company which has a 50% or greater ownership
interest in a Principal Property or Properties.


 


“Retail Property” means a shopping center or other retail
development containing more than one retail tenant in which at least 90% of the
Net Operating Income from such center or development is attributable to retail
uses.


 


“Rule 144” means Rule 144 promulgated under the
Securities Act.


 


“Rule 144A” means Rule 144A promulgated under the
Securities Act.


 


“Rule 903” means Rule 903 promulgated under the
Securities Act.


 


“Rule 904” means Rule 904 promulgated under the
Securities Act.


 


“Sale/Leaseback Transaction” has the meaning specified in Section 4.10.


 


“Secured Debt” means, as of any determination date, the sum
of:


 


(a)                                  the aggregate
principal amount of all Debt of the Consolidated Group then outstanding
(including only the Company’s proportionate interest in the Debt of any Person
whose financial results are included using the proportionate share method under
the Company’s segment accounting policies in the financial statements of the
Consolidated Group) which is secured by a Lien on any asset (including any
Capital Stock) of any member of 


 


8

















 


the
Consolidated Group, including, without limitation, loans secured by mortgages,
stock or partnership interests; plus


 


(b)                                 the
Consolidated Group’s Pro Rata Share of any Debt of an Investment Affiliate then
outstanding which is secured by a Lien on any asset (including any Capital
Stock) of such Investment Affiliate, without duplication of any such items.


 


For
purposes of the preceding sentence, “Debt” shall (1) include, with respect
to any Person, any loans where such Person is liable as a general partner or
co-venturer less, in each case, the proportionate share of any other general or
limited partners or co-venturers and (2) exclude any Debt due from any
member of the Consolidated Group or any Investment Affiliate solely to one or
more members of the Consolidated Group.


 


“Securities Act” means the Securities Act of 1933, as
amended.


 


“Significant Subsidiary”
means any Subsidiary of the Company that holds assets that had a value, on a
current value basis, in excess of 3% of the Company’s total partners’ capital,
on a current value basis, as reported in the Company’s most recent annual
financial statements.


 


“Stated Maturity” means,
with respect to any installment of interest or principal on any series of Debt
(including, without limitation, a scheduled repayment or a scheduled sinking
fund payment), the date on which the payment of interest or principal was
scheduled to be paid in the original documentation governing such Debt, and
will not include any contingent obligations to repay, redeem or repurchase any
such interest or principal prior to the date originally scheduled for the
payment hereof.


 


“Subsidiary,” means a Person
more than 50% of the (a) outstanding voting stock or interest in and/or (b) financial
interest in which, is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.  For the purposes of this
definition, “voting stock” means stock which ordinarily has voting power for
the election of directors or equivalent persons, whether at all times or only
so long as no senior class of stock has such voting power by reason of any
contingency.


 


“TIA” means the Trust Indenture Act of 1939, as amended, and
the rules and regulations thereunder.


 


“Total Debt” means, as of any
determination date:


 


(a)                                  all Debt of the
Consolidated Group then outstanding (including only the Company’s proportionate
interest in the Debt of any Person whose financial results are included using
the proportionate share method under the Company’s segment accounting policies
in the financial statements of the Consolidated Group); plus


 


(b)                                 the
Consolidated Group’s Pro Rata Share of all Debt of Investment Affiliates then
outstanding, without duplication of any such items.


 


For
purposes of the preceding sentence, “Debt” will (1) include, with respect
to any Person, any loans where such Person is liable as a general partner or
co-venturer less, in each case, the proportionate share of any other general or
limited partners or co-venturers and (2) exclude any Debt due from any
member of the Consolidated Group or any Investment Affiliate solely to one or
more members of the Consolidated Group.


 


“Total FFO” means, for any period, net
earnings, as reported by the Consolidated Group in accordance with GAAP,
excluding cumulative effects of changes in accounting principles, extraordinary
or unusual items, gains or losses from debt restructurings and sales of
operating properties, and deferred income taxes, plus depreciation and amortization
and after adjustments for minority interests, and treating unconsolidated
partnerships and joint ventures on the same basis, plus payments made and other
amounts treated as an expense of the Company under GAAP with respect to such
period pursuant to the Hughes Heirs Obligations (provided that no item of
income or expense shall be included more than once in such calculation even if
it falls within more than one of the above categories).


 


“Total Interest Expense” means, for any
period, the sum of


 


9














 


(a)           all interest expense
of the Consolidated Group (less the proportionate share of interest expense of
any minority interest holders); plus


 


(b)           the allocable
portion (based on liability) of any interest expense on any obligation for
which any member of the Consolidated Group is wholly or partially liable under
repayment, interest carry or performance guarantees or other relevant
liabilities; plus


 


(c)           the Consolidated
Group’s Pro Rata Share of any interest expense on any Debt of any Investment
Affiliate, whether recourse or non-recourse,


 


(provided
that no expense shall be included more than once in such calculation even if it
falls within more than one of the foregoing categories, and provided, further,
that no interest expense on Debt due from one member of the Consolidated Group
solely to another member of the Consolidated Group shall be included in
determining Total Interest Expense). For purposes of the preceding sentence,
interest expense will be determined in accordance with GAAP and will exclude any
amortization of debt issuance costs.


 


“Trustee” means the Person named as the “Trustee” in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee”
shall mean such successor Trustee.


 


“Unrestricted Definitive Notes” means one or more Definitive
Notes that do not and are not required to bear the Private Placement Legend.


 


“Unrestricted Global Notes” means one or more Global Notes
that do not and are not required to bear the Private Placement Legend and are
deposited with and registered in the name of the Depositary or its nominee.


 


“U.S. Government Securities” means direct obligations (or certificates representing an ownership
interest in such obligations) of the United States of America (including any
agency or instrumentality thereof) for the payment of which the full faith and
credit of the United States of America is pledged and which are not callable or
redeemable at the issuer’s option.


 


Section 1.02.                Other
Definitions.


 


	
   

  	
   

  	
  Defined in

  	
   

  
	
  Term

  	
   

  	
  Section

  	
   

  
	
  “Authentication Order”

  	
   

  	
  2.02

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  	
   

  
	
  “defeasance trust”

  	
   

  	
  8.04

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “losses”

  	
   

  	
  7.07

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Required Information”

  	
   

  	
  4.03

  	
   

  
	
  “Security Register”

  	
   

  	
  2.03

  	
   

  



 


Section 1.03.                Incorporation
by Reference of Trust Indenture Act.


 


(a) Whenever this Indenture expressly incorporates a provision of the
TIA, the provision is incorporated by reference in and made a part of this
Indenture.


 


(b) The TIA term “obligor” upon
the Notes means the Company and any successor obligor upon the Notes.


 


10

















 


Section 1.01.                Conflict
with Trust Indenture Act.


 


If any provision hereof limits, qualifies or conflicts
with a provision of the TIA that is required under the TIA to be a part of and
govern this Indenture, the TIA provision shall control.  If any provision of this Indenture modifies
or excludes any provision of the TIA that may be so modified or excluded, the TIA
provision shall be deemed


 


(a) to apply to this Indenture as so modified or


 


(b) to be excluded, as the case
may be.


 


Section 1.05.                Rules of
Construction.


 


(a) Unless the context otherwise requires:


 


(i)            a term has the meaning assigned to it;


 


(ii)           an accounting term not otherwise defined herein has the
meaning assigned to it in accordance with GAAP;


 


(iii)          “or” is not exclusive;


 


(iv)          words in the singular include the plural, and in the plural
include the singular;


 


(v)           all references in this instrument to “Articles,” “Sections”
and other subdivisions are to the designated Articles, Sections and
subdivisions of this instrument as originally executed;


 


(vi)          the words “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;


 


(vii)         “including” means “including without limitation”;


 


(viii)        provisions apply to successive events
and transactions; and


 


(ix)           references to sections of or rules under the
Securities Act, the Exchange Act or the TIA shall be deemed to include
substitute, replacement or successor sections or rules adopted by the
Commission from time to time thereunder.


 


ARTICLE 2.


 


THE NOTES


 


Section 2.01.                Form and
Dating.


 


(a) General.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form included in Exhibit A
hereto, which is hereby incorporated in and expressly made part of this
Indenture.  The Notes may have notations,
legends or endorsements required by law, exchange rule or usage in
addition to those set forth on Exhibit A. 
Each Note shall be dated the date of its authentication.  The Notes shall be in denominations of $1,000
and integral multiples thereof.  The
terms and provisions contained in the Notes shall constitute a part of this
Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby.  To the extent any provision of any Note
conflicts with the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling.


 


(b) Form of Notes.  Notes shall be issued in global form and
shall be substantially in the form of Exhibit A attached hereto (including
the Global Note Legend thereon and the “Schedule of Exchanges of Interests in
the Global Note” attached thereto). 
Notes issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the “Schedule
of Exchanges of Interests in the Global Note” attached thereto).  Each Global Note shall represent such
aggregate principal amount of the outstanding Notes as shall be specified therein
and each shall provide that it shall represent the aggregate principal amount
of outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions
and transfers of interests therein.  Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Notes represented thereby
shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as required by Section 2.06
hereof.


 


11

















 


(c) Temporary Global Notes.  Notes offered and
sold in reliance on Regulation S shall be issued initially in the form of the
Regulation S Temporary Global Note, which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Trustee, at its New York
office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Clearstream, duly executed by the
Company and authenticated by the Trustee as hereinafter provided.  The Distribution Compliance Period shall be
terminated upon the receipt by the Trustee of (i) a written certificate
from the Depositary, together with copies of certificates from Euroclear and
Clearstream certifying that they have received certification of non-United
States beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any beneficial
owners thereof who acquired an interest therein during the Distribution
Compliance Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a Global Note, bearing a Private Placement Legend, all as contemplated by Section 2.06(b) hereof),
and (ii) an Officer’s Certificate from the Company.  Following the termination of the Distribution
Compliance Period, beneficial interests in the Regulation S Temporary Global
Note shall be exchanged for beneficial interests in the Regulation S Permanent
Global Note pursuant to the Applicable Procedures.  Simultaneously with the authentication of the
Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S
Temporary Global Note.  The aggregate
principal amount of the Regulation S Temporary Global Note and the Regulation S
Permanent Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its
nominee, as the case may be, in connection with transfers of interests as
hereinafter provided.


 


(d) Book-Entry Provisions.  This Section 2.01(d) shall apply
only to Global Notes deposited with the Trustee, as custodian for the
Depositary.  Participants and Indirect
Participants shall have no rights under this Indenture or any Global Note with
respect to any Global Note held on their behalf by the Depositary or by the
Trustee as custodian for the Depositary, and the Depositary shall be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Participants or Indirect Participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of
the rights of a holder of a beneficial interest in any Global Note.


 


(e) Euroclear and Clearstream Procedures
Applicable.  The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream” and “Customer Handbook” of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.


 


(f)  Certificated Securities.  The Company shall exchange Global Notes for
Definitive Notes if: (1) at any time the Depositary notifies the Company
that it is unwilling or unable to continue to act as Depositary for the Global
Notes or if at any time the Depositary shall no longer be eligible to act as
such because it ceases to be a clearing agency registered under the Exchange
Act, and, in either case, the Company shall not have appointed a successor
Depositary within 120 days after the Company receives such notice or become
aware of such ineligibility, (2) the Company, in its discretion and in
accordance with the rules of the Depositary, determines not to require
that all of the Notes be represented by a Global Note and the Company notify
the Trustee of its decision or (3) upon written request of the Trustee if
an Event of Default shall have occurred and be continuing with respect to the
Notes represented by a Global Note and the Trustee shall have received a
written request from the Depositary to issue such Notes in certificated form.


 


Upon
the occurrence of any of the events set forth in clauses (1), (2) or (3) above,
the Company shall execute, and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver, Definitive Notes, in authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Notes in exchange
for such Global Notes.


 


In
no event shall the Regulation S Temporary Global Note be exchanged by the
Company for Definitive Notes prior to (x) the expiration of the
Distribution Compliance Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act.


 


12

















 


Upon
the exchange of a Global Note for Definitive Notes, such Global Note shall be
cancelled by the Trustee or an agent of the Company or the Trustee.  Definitive Notes issued in exchange for a
Global Note pursuant to this Section 2.01 shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its Participants or its Applicable Procedures, shall instruct
the Trustee or an agent of the Company or the Trustee in writing.  The Trustee or such agent shall deliver such
Definitive Notes to or as directed by the Persons in whose names such
Definitive Notes are so registered or to the Depositary.


 


Section 2.02.                Execution
and Authentication.


 


(a) One Officer of the Company shall execute the Notes on behalf of the
Company by manual or facsimile signature.


 


(b) If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated by the Trustee, the Note shall
nevertheless be valid.


 


(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee.  The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.


 


(d) The Trustee shall, upon a written order of the Company signed by an
Officer of the Company (an “Authentication Order”),
authenticate Notes for issuance.


 


(e) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes.  Unless
otherwise provided in such appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent shall have the same
rights as the Trustee to deal with Holders, the Company or an Affiliate of the
Company.


 


Section 2.03.                Registrar
and Paying Agent.


 


(a) The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange (“Registrar”)
and an office or agency where Notes may be presented for payment (“Paying Agent”).  The Registrar shall keep a register (the “Security Register”) of the Notes and
of their transfer and exchange.  The
Company may appoint one or more co-registrars and one or more additional paying
agents.  The term “Registrar” includes
any co-registrar and the term “Paying Agent” includes any additional paying
agent.  The Company may change any Paying
Agent or Registrar without notice to any Holder.  The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture.  If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as
such.  The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.


 


(b) The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes.


 


(c) The Company initially appoints the Trustee to act as Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes, and the
Trustee hereby agrees so to initially act.


 


Section 2.04.                Paying
Agent to Hold Money in Trust.


 


The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and shall notify the Trustee of any
default by the Company in making any such payment.  While any such default continues, the Trustee
may require a Paying Agent to pay all funds held by it relating to the Notes to
the Trustee.  The Company at any time may
require a Paying Agent to pay all funds held by it to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for such funds.  If the Company
or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all funds held by it as 


 


13

















 


Paying
Agent.  Upon any Event of Default under
Sections 6.01(e) and (f) hereof relating to the either of the
Company, the Trustee shall serve as Paying Agent for the Notes.


 


Section 2.05.                Holder
Lists.


 


The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all
Holders.  If the Trustee is not the
Registrar, the Company shall furnish or cause to be furnished to the Trustee at
least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date or such shorter time as the Trustee may allow, as the Trustee may
reasonably require of the names and addresses of the Holders.


 


Section 2.06.                Transfer
and Exchange.


 


(a) Transfer and Exchange of Global Notes.  A Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.  Upon the
occurrence of any of the events set forth in Section 2.01(f) above,
Definitive Notes shall be issued in denominations of $1,000 or integral
multiples thereof and in such names as the Depositary shall instruct the
Trustee in writing.  Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof.  Except as provided above,
every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and shall
be, a Global Note.  A Global Note may not
be exchanged for another Note other than as provided in this Section 2.06(a),
and beneficial interests in a Global Note may not be transferred and exchanged
other than as provided in Section 2.06(b) or (c) hereof.


 


(b) Transfer and Exchange of Beneficial
Interests in the Global Notes. 
The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. 
Beneficial interests in the Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. 
Transfers of beneficial interests in Global Notes also shall require
compliance with either clause (i) or (ii) below, as applicable, as
well as one or more of the other following clauses, as applicable:


 


(i)    Transfer of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend and any
Applicable Procedures; provided, however, that prior to the expiration of the Distribution
Compliance Period, transfers of beneficial interests in the Regulation S
Temporary Global Note may not be made to or for the account or benefit of a “U.S.
Person” (as defined in Rule 902(k) of Regulation S) (other than a “distributor”
(as defined in Rule 902(d) of the Regulation S)).  Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note.  Except as may be required by any Applicable
Procedures, no written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this Section 2.06(b)(i).


 


(ii)   All Other Transfers and Exchanges of Beneficial Interests in
Global Notes.  In connection with all
transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar either
(A)(1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B)(1) if permitted under Section 2.06(a),
a written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the 


 


14

















 


transfer or exchange referred
to in (B)(1) above; provided that
in no event shall Definitive Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act.  Upon satisfaction of
all of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(g) hereof.


 


(iii)  Transfer of Beneficial Interests in a Restricted Global Note to
Another Restricted Global Note.  A
holder of a beneficial interest in a Restricted Global Note may transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.06(b)(ii) above and the Registrar
receives the following:


 


(A)  if the transferee will take delivery in the form of a beneficial
interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (1) thereof or, if permitted by the Applicable Procedures, item (3) thereof;


 


(B)   if the transferee will take delivery in the form of a beneficial
interest in the Regulation S Temporary Global Note or the Regulation S
Permanent Global Note, as the case may be, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (2) thereof; and


 


(C)   if the transferee is required by the Applicable Procedures to take
delivery in the form of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications and certificates and Opinion of Counsel required
by item (3) thereof, if applicable.


 


(iv)  Transfer or Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note.  A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if the exchange or transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:


 


(A)  if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest in
an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or


 


(B)   if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;


 


and,
in each such case, if the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer complies with the
Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


15

















 


(v)   Transfer or Exchange of Beneficial Interests in an Unrestricted
Global Note for Beneficial Interests in a Restricted Global Note Prohibited.  Beneficial interests in an Unrestricted
Global Note may not be exchanged for, or transferred to Persons who take
delivery thereof in the form of, beneficial interests in a Restricted Global
Note.


 


(c) Transfer and Exchange of Beneficial
Interests in Global Notes for Definitive Notes.


 


(i)    Transfer or Exchange of Beneficial Interests in Restricted
Global Notes to Restricted Definitive Notes.  Subject to Section 2.06(a) hereof,
if any holder of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the Registrar of
the following documentation:


 


(A)  if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted Definitive
Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;


 


(B)   if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;


 


(C)   if such beneficial interest is being transferred to a “Non-U.S.
Person” in an offshore transaction (as defined in Section 902(k) of
Regulation S) in accordance with Rule 903 or Rule 904, a certificate
to the effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;


 


(D)  if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;


 


(E)   if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in clauses (B) through
(D) above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3)(d) thereof, if applicable; or


 


(F)   if such beneficial interest is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof,


 


the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.06(g) hereof, the aggregate principal amount of the
applicable Restricted Global Note, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver a Restricted Definitive Note in the
appropriate principal amount to the Person designated by the holder of such
beneficial interest in the instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on behalf of
such holder.  Any Restricted Definitive
Note issued in exchange for beneficial interests in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall be registered in such name
or names and in such authorized denomination or denominations as the holder of
such beneficial interest shall designate in such instructions.  The Trustee shall deliver such Restricted
Definitive Notes to the Persons in whose names such Notes are so registered.  Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note 


 


16

















 


pursuant
to this Section 2.06(c)(i) shall bear the Private Placement Legend
and shall be subject to all restrictions on transfer contained therein.


 


(ii)   Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes delivery
thereof in the form of a Definitive Note prior to (x) the expiration of
the Distribution Compliance Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption from
the registration requirements of the Securities Act other than Rule 903 or
Rule 904.


 


(iii)  Transfer or Exchange of Beneficial Interests in Restricted
Global Notes to Unrestricted Definitive Notes.  Subject to Section 2.06(a) hereof,
a holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if the Registrar receives the following:


 


(A)  if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or


 


(B)   if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;


 


and, in each such case, if
the Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer complies with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


Upon satisfaction of any of the conditions of any of the clauses of
this Section 2.06(c)(iii), the Company shall execute and, upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive Note in the
appropriate principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on behalf of
such holder, and the Trustee shall reduce or cause to be reduced in a
corresponding amount pursuant to Section 2.06(g), the aggregate principal
amount of the applicable Restricted Global Note.


 


(iv)  Transfer or Exchange of Beneficial Interests in Unrestricted
Global Notes to Unrestricted Definitive Notes.  Subject to Section 2.06(a) hereof,
if any holder of a beneficial interest in an Unrestricted Global Note proposes
to exchange such beneficial interest for an Unrestricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note, then, upon satisfaction of the
applicable conditions set forth in Section 2.06(b)(ii) hereof, the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.06(g) hereof, the aggregate principal amount of the
applicable Unrestricted Global Note, and the Company shall execute, and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver an Unrestricted Definitive Note in
the appropriate principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on behalf of
such holder.  Any Unrestricted Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall designate in such
instructions.  The Trustee shall deliver
such Unrestricted Definitive Notes to the Persons in whose names such Notes are
so registered.  Any Unrestricted
Definitive 


 


17

















 


Note issued in exchange for
a beneficial interest pursuant to this Section 2.06(c)(iv) shall not
bear the Private Placement Legend.


 


(d) Transfer and Exchange of Definitive Notes
for Beneficial Interests in the Global Notes.


 


(i)    Transfer or Exchange of Restricted Definitive Notes to
Beneficial Interests in Restricted Global Notes.  If any holder of a Restricted Definitive Note
proposes to exchange such Restricted Definitive Note for a beneficial interest
in a Restricted Global Note or to transfer such Restricted Definitive Notes to
a Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the following
documentation:


 


(A)  if the holder of such Restricted Definitive Note proposes to
exchange such Restricted Definitive Note for a beneficial interest in a
Restricted Global Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;


 


(B)   if such Restricted Definitive Note is being transferred to a QIB
in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;


 


(C)   if such Restricted Definitive Note is being transferred to a “non-U.S.
Person” in an offshore transaction (as defined in Rule 902(k) of
Regulation S) in accordance with Rule 903 or Rule 904, a certificate
to the effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;


 


(D)  if such Restricted Definitive Note is being transferred pursuant to
an exemption from the registration requirements of the Securities Act in
accordance with Rule 144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;


 


(E)   if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
clauses (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, if applicable; or


 


(F)   if such Restricted Definitive Note is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof,


 


the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased in a corresponding amount pursuant to Section 2.06(g) hereof,
the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, a
144A Global Note, in the case of clause (C) above, a Regulation S Global
Note, and in all other cases, a IAI Global Note.


 


(ii)   Transfer or Exchange of Restricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes.  A holder of a Restricted Definitive Note may
exchange such Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if the Registrar receives the following:


 


(A)  if the holder of such Restricted Definitive Note proposes to
exchange such Restricted Definitive Note for a beneficial interest in an 


 


18

















 


Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof; or


 


(B)   if the holder of such Restricted Definitive Note proposes to
transfer such Restricted Definitive Note to a Person who shall take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;


 


and, in each such case, if
the Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer shall be effected in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the Private
Placement Legend shall no longer be required in order to maintain compliance
with the Securities Act.


 


Upon satisfaction of the conditions of any of the clauses in this Section 2.06(d)(ii),
the Trustee shall cancel such Restricted Definitive Note and increase or cause
to be increased in a corresponding amount pursuant to Section 2.06(g) hereof,
the aggregate principal amount of the Unrestricted Global Note.


 


(iii)  Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes.  A holder of an Unrestricted Definitive Note
may exchange such Unrestricted Definitive Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. 
Upon receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Unrestricted Definitive Note and increase or cause
to be increased in a corresponding amount pursuant to Section 2.06(g) hereof
the aggregate principal amount of one of the Unrestricted Global Notes.


 


(iv)  Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Restricted Global Notes Prohibited.  An Unrestricted Definitive Note may not be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, beneficial interests in a Restricted Global Note.


 


(v)   Issuance of Unrestricted Global Notes.  If any such exchange or transfer of a
Definitive Note for a beneficial interest in an Unrestricted Global Note is
effected pursuant to clause (ii) or (iii) at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of Definitive Notes
so transferred.


 


(e) Transfer and Exchange of Definitive Notes
for Definitive Notes. 
Upon request by a holder of Definitive Notes and such holder’s
compliance with the provisions of this Section 2.06(e), the Registrar
shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such
holder.  In addition, the requesting
holder shall provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section 2.06(e).


 


(i)    Transfer of Restricted Definitive Notes to Restricted
Definitive Notes.  Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who
take delivery thereof in the form of a Restricted Definitive Note if the
Registrar receives the following:


 


(A)  if the transfer will be made pursuant to Rule 144A, a
certificate in the form of Exhibit B hereto, including the certifications
in item (1) thereof;


 


19














 


(B)   if the transfer will be made pursuant to Rule 903 or Rule 904,
a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and


 


(C)   if the transfer will be made pursuant to any other exemption from
the registration requirements of the Securities Act, a certificate in the form
of Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.


 


(ii)   Transfer or Exchange of Restricted Definitive Notes to Unrestricted
Definitive Notes.  Any Restricted
Definitive Note may be exchanged by the holder thereof for an Unrestricted
Definitive Note or transferred to a Person or Persons who take delivery thereof
in the form of an Unrestricted Definitive Note only if the Registrar receives
the following:


 


(A)  if the holder of such Restricted Definitive Note proposes to
exchange such Restricted Definitive Notes for an Unrestricted Definitive Note,
a certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(d) thereof; or


 


(B)   if the holder of such Restricted Definitive Notes proposes to
transfer such Restricted Definitive Notes to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;


 


and, in each such case, if
the Registrar so requests, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer complies with the
Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


Upon
satisfaction of the conditions of any of the clauses of this Section 2.06(e)(ii),
the Trustee shall cancel the prior Restricted Definitive Note and the Company
shall execute, and upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver an Unrestricted Definitive
Note in the appropriate aggregate principal amount to the Person designated by
the holder of such prior Restricted Definitive Note in instructions delivered
to the Registrar by such holder.


 


(iii)  Transfer of Unrestricted Definitive Notes to Unrestricted
Definitive Notes.  A holder of
Unrestricted Definitive Notes may transfer such Unrestricted Definitive Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note.  Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the holder
thereof.


 


(f)  Legends.  The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.


 


(i)    Private Placement Legend.


 


(A)  Except as permitted by clause (B) below, each Global Note and
each Definitive Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:


 


“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER 


 


20

















 


WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) TO A NON-U.S. PERSON IN AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) TO
AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 (A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT, IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH
CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES.”


 


(B)   Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to clauses (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or
(e)(iii) to this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the Private Placement Legend.


 


(ii)   Global Note Legend. 
Each Global Note shall bear a legend in substantially the following
form:


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.  UNLESS THIS NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENTS FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”


 


(iii)  Regulation S Temporary Global Note Legend.  Each Regulation S Temporary Global Note shall
bear a legend in substantially the following form:


 


“EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS
REGULATION S TEMPORARY GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN
THE REGULATION S PERMANENT GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN
INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40-DAY
DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(B)(2) OF
REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON 


 


21

















 


CERTIFICATION
IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL
INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED
SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT.  DURING SUCH 40-DAY
DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP IN THIS REGULATION S
TEMPORARY GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH
EUROCLEAR SYSTEM OR CLEARSTREAM LUXEMBOURG, A SOCIETE ANONYME AND ONLY (1) TO
THE COMPANY, (2) WITHIN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (3) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF THE CASES (1) THROUGH
(4) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND OTHER JURISDICTIONS. 
HOLDERS OF INTERESTS IN THIS REGULATION S TEMPORARY GLOBAL NOTE WILL
NOTIFY ANY PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF
THEN APPLICABLE.


 


BENEFICIAL INTERESTS IN THIS REGULATION S TEMPORARY GLOBAL NOTE MAY BE
EXCHANGED FOR INTERESTS IN A RESTRICTED GLOBAL NOTE ONLY IF (1) SUCH
EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE NOTES IN COMPLIANCE WITH
RULE 144A, AND (2) THE TRANSFEROR OF THE REGULATION S TEMPORARY GLOBAL
NOTE FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED
TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL NOTE IS BEING
TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, (B) TO A
PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND (C) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.


 


BENEFICIAL INTERESTS IN A GLOBAL TRANSFER RESTRICTED NOTE MAY BE
TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN
THE REGULATION S GLOBAL NOTE, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE
40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO
THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS
CERTIFICATE) TO THE EFFECT THAT IF SUCH TRANSFER IS BEING MADE IN ACCORDANCE
WITH RULE 903 OR 904 OF REGULATION S OR RULE 144 (IF AVAILABLE) AND THAT, IF
SUCH TRANSFER OCCURS PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION
COMPLIANCE PERIOD, THE INTEREST TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER
THROUGH EUROCLEAR SYSTEM OR CLEARSTREAM LUXEMBOURG, A SOCIETE ANONYME.”


 


(g) Cancellation and/or Adjustment of Global
Notes.  At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11
hereof.  At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the
aggregate principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, the aggregate principal amount of such other Global
Note shall be increased accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such increase.


 


22

















 


(h) General Provisions Relating to Transfers and
Exchanges.


 


(i)    No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.06 and 9.05 hereof).


 


(ii)   All Global Notes and Definitive Notes issued upon any registration
of transfer or exchange of Global Notes or Definitive Notes shall be the valid
obligations of the Company, evidencing the same debt as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or exchange and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.


 


(iii)  Neither the Registrar nor the Company shall be required (A) to
issue, to register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.02 hereof and ending at the close of
business on the date of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part or (C) to register
the transfer of or to exchange a Note between a record date (including a
Regular Record Date) and the next succeeding Interest Payment Date.


 


(iv)  Prior to due presentment for the registration of transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, premium, if any, and interest on
such Note and for all other purposes, in each case regardless of any notice to
the contrary.


 


(v)   All certifications, certificates and Opinions of Counsel required
to be submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.


 


(vi)  The Trustee is hereby authorized and directed to enter into a
letter of representation with the Depositary in the form provided by the
Company and to act in accordance with such letter.


 


Section 2.07.                Replacement
Notes.


 


If
any mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate a
replacement Note.  If required by the
Trustee or the Company, the Holder of such Note shall provide an indemnity bond
that is sufficient, in the judgment of the Trustee or the Company, to protect
the Company, as determined for itself, the Trustee, as determined for itself,
any Agent, as determined for itself, and any authenticating agent from any loss
that any of them may suffer in connection with such replacement.  If required by the Company, such Holder shall
reimburse the Company for its reasonable expenses in connection with such
replacement.


 


Every
replacement Note issued in accordance with this Section 2.07 shall be the
valid obligation of the Company, evidencing the same debt as the destroyed,
lost or stolen Note, and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued
hereunder.


 


Section 2.08.                Outstanding
Notes.


 


(a) The Notes outstanding at any time shall be the entire principal
amount of Notes represented by all of the Global Notes and Definitive Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those subject to reductions in beneficial interests
effected by the Trustee in accordance with Section 2.06 hereof, and those
described in this Section 2.08 as not outstanding.  Except as set forth 


 


23

















 


in Section 2.09 hereof, a Note shall not cease
to be outstanding because the Company or an Affiliate of the Company holds the
Note.


 


(b) If a Note is replaced pursuant to Section 2.07 hereof, it shall
cease to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced note is held by a bona fide purchaser.


 


(c) If the principal amount of any Note is considered paid under Section 4.01
hereof, it shall cease to be outstanding and interest on it shall cease to
accrue.


 


(d) If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or a maturity date, funds
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.


 


Section 2.09.                Treasury
Notes.


 


In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company, or
by any Affiliate of the Company, shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that
the Trustee knows are so owned shall be so disregarded.


 


Section 2.10.                Temporary
Notes.


 


Until
certificates representing Notes are ready for delivery, the Company may prepare
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate temporary Notes.  Temporary Notes shall be substantially in the
form of Definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee.  Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate Global Notes or
Definitive Notes in exchange for temporary Notes, as applicable.  After preparation of Definitive Notes, the
Temporary Note will be exchangeable for Definitive Notes upon surrender of the
Temporary Notes.


 


Holders
of temporary Notes shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.


 


Section 2.11.                Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment.  Upon sole direction
of the Company, the Trustee and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation
and shall destroy cancelled Notes (subject to the record retention requirements
of the Exchange Act or other applicable laws). 
Certification of the destruction of all cancelled Notes shall be
delivered to the Company from time to time upon request.  The Company may not issue new Notes to
replace Notes that they have paid or that have been delivered to the Trustee
for cancellation.


 


Section 2.12.                Payment
of Interest; Defaulted Interest.


 


If
the Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. The Company shall fix or cause to be
fixed each such special record date and payment date; provided
that no such special record date shall be less than 10 days prior to the related
Interest Payment Date for such defaulted interest. At least 15 days before the
special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) shall mail or 


 


24

















 


cause
to be mailed to Holders a notice that states the special record date, the
related Interest Payment Date and the amount of such interest to be paid.


 


Section 2.13.                CUSIP
or ISIN Numbers.


 


The
Company in issuing the Notes may use “CUSIP” and/or “ISIN” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” and/or “ISIN”
numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the Notes,
and any such redemption shall not be affected by any defect in or omission of
such numbers.  The Company shall promptly
notify the Trustee of any change in the “CUSIP” and/or “ISIN” numbers.


 


Section 2.14.                Issuance
of Additional Notes.


 


The
Company shall be entitled, subject to its compliance with Section 4.09
hereof, to issue Additional Notes under this Indenture which shall have
identical terms as the Initial Notes issued on the date hereof, other than with
respect to the date of issuance and issue price.  The Initial Notes issued on the date hereof
and any Additional Notes shall be treated as a single class for all purposes
under this Indenture, including directions, waivers, amendments, consents and
redemptions.


 


With
respect to any Additional Notes, the Company shall set forth in a Board
Resolution and an Officer’s Certificate, a copy of each of which shall be
delivered to the Trustee, the following information:


 


(a) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;


 


(b) the issue price, the issue date and the CUSIP and/or ISIN number of
such Additional Notes; provided, however,
that no Additional Notes may be issued at a price that would cause such
Additional Notes to have “original issue discount” within the meaning of Section 1273
of the Code, other than a de minimis
original issue discount within the meaning of Section 1273 of the Code;
and


 


(c) whether such Additional Notes shall be subject to the restrictions
on transfer set forth in Section 2.06 hereof relating to Restricted Global
Notes and Restricted Definitive Notes.


 


Section 2.15.                Record
Date.


 


The
record date for purposes of determining the identity of Holders of Notes
entitled to vote or consent to any action by vote or consent or permitted under
this Indenture shall be determined as provided for in TIA Section 316(c).


 


ARTICLE 3.


 


REDEMPTION AND PREPAYMENT


 


Section 3.01.                Notices
to Trustee.


 


If
the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, the Company shall furnish to the
Trustee, at least 35 days but not more than 60 days before a redemption
date (or such shorter period as allowed by the Trustee), an Officer’s
Certificate setting forth (a) the applicable section of this Indenture
pursuant to which the redemption shall occur, (b) the redemption date, (c) the
principal amount of Notes to be redeemed and (d) the redemption price.


 


25

















 


Section 3.02.                Selection
of Notes to Be Redeemed.


 


If
less than all of the Notes are to be redeemed at any time, the Trustee shall
select the Notes to be redeemed among the Holders of the Notes in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other
method the Trustee deems fair and appropriate. 
In the event of partial redemption by lot, the particular Notes to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.


 


The
Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. 
Notes and portions of Notes selected shall be in amounts of $1,000 or
integral multiples thereof; except that if all of the Notes of a Holder are to
be redeemed, the entire outstanding amount of Notes held by such Holder, even
if not an integral multiple of $1,000, shall be redeemed.  Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption.


 


Section 3.03.                Notice
of Redemption.


 


At
least 30 days but not more than 60 days prior to a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at such Holder’s
registered address appearing in the Security Register.


 


The
notice shall identify the Notes to be redeemed and shall state:


 


(a) the redemption date;


 


(b) the appropriate method for calculation of the redemption price, but
need not include the redemption price itself; the actual redemption price shall
be set forth in an Officer’s Certificate delivered to the Trustee no later than
two (2) Business Days prior to the redemption date;


 


(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, if applicable, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued upon cancellation of the
original Note;


 


(d) the name and address of the Paying Agent;


 


(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;


 


(f)  that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date;


 


(g) the applicable section of this Indenture pursuant to which the Notes
called for redemption are being redeemed; and


 


(h) that no representation is made as to the correctness of the CUSIP
and/or ISIN numbers, if any, listed in such notice or printed on the Notes.


 


At
the Company’s request, the Trustee shall give the notice of redemption in the
Company’s names and at its expense; provided, however,
that the Company shall have delivered to the Trustee, at least 45 days (or such
shorter period allowed by the Trustee), prior to the redemption date, an
Officer’s Certificate requesting that the Trustee give such notice (in the name
and at the expense of the Company) and setting forth the information to be
stated in such notice as provided in this Section 3.03.


 


26

















 


Section 3.04.                Effect
of Notice of Redemption.


 


Once
notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption shall become irrevocably due and payable on the
redemption date at the redemption price. 
A notice of redemption may not be conditional.


 


Section 3.05.                Deposit
of Redemption Price.


 


On
or prior to 1:00 p.m. Eastern time on the Business Day prior to any
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and, if applicable,
accrued and unpaid interest on all Notes to be redeemed on that date.  The Trustee or the Paying Agent shall
promptly, and in any event within two (2) Business Days after the
redemption date, return to the Company any money deposited with the Trustee or
the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest, if any, on, all Notes to
be redeemed.


 


If
the Company complies with the provisions of the preceding paragraph, on and
after the redemption date, interest shall cease to accrue on the Notes or the
portions of Notes called for redemption in accordance with Section 2.08(d) hereof,
whether or not such Notes are presented for payment.  If a Note is redeemed on or after a Regular
Record Date but on or prior to the related Interest Payment Date, then any
accrued and unpaid interest, if any, shall be paid to the Person in whose name
such Note was registered at the close of business on such Regular Record
Date.  If any Note called for redemption
shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal from the redemption date until such principal is paid, and
to the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.


 


Section 3.06.                Notes
Redeemed in Part.


 


Upon
surrender of a Note that is redeemed in part, the Company shall issue and, upon
receipt of an authentication order in accordance with Section 2.02 hereof,
the Trustee shall authenticate for the Holder at the expense of the Company a
new Note equal in principal amount to the unredeemed portion of the Note
surrendered.


 


Section 3.07.                Optional
Redemption.


 


(a) At any time prior to [        
], 2013(3), the Company may redeem all or any portion of the Notes, at
once or over time, after giving the notice required pursuant to Section 3.03
hereof, at a redemption price equal to the Make-Whole Price.  Any notice to the Holders of Notes of a
redemption pursuant to this Section 3.07(a) shall include the
calculation of the redemption price, but need not include the redemption price
itself.  The actual redemption price,
calculated as described above, shall be set forth in an Officer’s Certificate
delivered to the Trustee no later than two Business Days prior to the
redemption date.


 


(b) On or after [         ].
2013(4), the Company may redeem all or any portion of the Notes, at once or
over time, after giving the notice required pursuant to Section 3.03 hereof,
at the redemption prices set forth below. 
The Notes will be redeemable at the redemption prices (expressed as
percentages of principal amount of the Notes to be redeemed) plus accrued and
unpaid interest thereon to the applicable redemption date, subject to the right
of Holders of record on the relevant record date to receive interest due on the
relevant Interest Payment Date, if redeemed during the twelve-month period
beginning on the dates indicated below:


 


	
   

  	
  Year

  	
   

  	
  Percentage

  	
   

  	
   

  
	
   

  	
  [            ],
  2013(5)

  	
   

  	
  103.375

  	
  %

  	
   

  
	
   

  	
  [            ],
  2014(6)

  	
   

  	
  100.000

  	
  %

  	
   

  



 






(3) 
Represents a date 2 1/2 years after the Issue Date.


 


(4) 
Represents a date 2 1/2 years after the Issue Date


 


(5) 
Represents a date 2 1/2 years after the Issue Date.


 


(6) 
Represents a date 3 1/2 years after the Issue Date


 


 


27

















 


Any
prepayment pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.


 


Section 3.08.                Mandatory
Redemption.


 


The
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to, or offer to purchase, the Notes.


 


ARTICLE 4.


 


COVENANTS


 


Section 4.01.                Payment
of Principal, Premium and Interest.


 


The
Company covenants and agrees for the benefit of the Holders of the Notes that
they will duly and punctually pay the principal of and any premium and interest
on the Notes in accordance with the terms of the Notes and this Indenture.  Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 1:00 p.m. Eastern Time on the
due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due.  Such Paying Agent
shall return to the Company promptly, and in any event, no later than five (5) Business
Days following the date of payment, any money (including accrued interest) that
exceeds such amount of principal, premium, if any, and interest paid on the
Notes.  If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.


 


Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.


 


Section 4.02.                Maintenance
of Office or Agency.


 


(a) The Company shall maintain in the United States, an office or agency
(which may be an office or drop facility of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be presented or surrendered
for registration of transfer or for exchange and where notices and demands to
or upon the Company in respect of the Notes and this Indenture may be
served.  The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


 


(b) The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency for the
Notes for such purposes.  The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.


 


(c) The Company hereby designates the Corporate Trust Office of the
Trustee, as one such office, drop facility or agency of the Company in accordance
with Section 2.03 hereof.


 


 


28

















 


Section 4.03.                Reporting.


 


So long as the Notes are outstanding, the Company will provide:


 


(a)  not later than 105 days after the end of each fiscal
year of the Company, audited consolidated financial statements of the Company,
including consolidated balance sheets as of the end of such year and the end of
the preceding year and the related audited consolidated statements of income
and of cash flows for each year in the three year period then ended, reported
on by an independent registered public accounting firm of nationally recognized
standing;


 


(b)  not later than 60 days after the end of each of the
first three quarterly periods of each fiscal year of the Company, unaudited
consolidated financial statements of the Company, including a balance sheet as
at the end of such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in comparative form
the figures for the previous year; and


 


(c)  with each delivery of the financial statements specified in
clauses (a) and (b), a corresponding discussion of the statements of
income included therein and the Company’s cash position.


 


All such financial statements shall be prepared in accordance with
GAAP; provided that the financial statements specified in clause (b) need
not contain footnotes. The information specified in clauses (a), (b) and
(c) is herein referred to as the “Required Information.”


 


The Company may provide the Required Information by (1) filing or
furnishing the Required Information with the Commission (submitted either by
the Company or any direct or indirect parent of the Company) or (2) both
(a) posting the Required Information on the website of the Company or any
direct or indirect parent of the Company and (b) providing the Required
Information to the Trustee.


 


In addition, for so long as any Notes are “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act, during
any period in which the Company in not subject to or in voluntary compliance
with Section 13 or 15(d) of the Exchange Act, the Company will
furnish to the holders of the notes and to prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


Section 4.04.                Compliance
Certificate.


 


The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officer’s Certificate, stating whether or not
to the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which it may have knowledge.


 


Section 4.05.                Payment
of Taxes and Other Claims.


 


The
Company will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (l) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Significant Subsidiary or
upon the income, profits or property of the Company or any Significant
Subsidiary, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company
or any Significant Subsidiary; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate proceedings.


 


29






 










 


Section 4.06.                Existence.


 


Subject
to Article 5, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its existence, rights (charter
and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.


 


Section 4.07.                Maintenance
of Properties


 


The
Company will cause all material properties used or useful in the conduct of its
business or the business of any Significant Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from (i) discontinuing the operation or maintenance of
any of such properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business of any
Significant Subsidiary and not disadvantageous in any material respect to the
Holders or (ii) selling any properties or taking any action in accordance
with Article 5.


 


Section 4.08.                Incurrence
of Additional Debt and Issuance of Capital Stock.


 


(a)       The Company and its consolidated Subsidiaries may not Incur
any Debt if, after giving effect to the Incurrence of such Debt, the Ratio
Calculation is less than 1.7 to 1.


 


(b)       Notwithstanding paragraph (a) above, the Company and its
consolidated Subsidiaries may Incur the following additional Debt without
regard to paragraph (a) above (although the additional Debt so incurred
will be included in the determination of the Consolidated Coverage Ratio
thereafter):


 


(i)        additional Debt securities, not to exceed an aggregate issue
price of $150,000,000;


 


(ii)       intercompany Debt (representing Debt to which the only parties
are the Company and any of its consolidated Subsidiaries (but only so long as
such Debt is held solely by any of the Company and its consolidated
Subsidiaries));


 


(iii)      any drawings or redrawings under any lines of credit, provided, however, that the maximum amount
that may be drawn under all lines of credit pursuant to this clause (c) may
not at any time exceed $200,000,000;


 


(iv)      third party Debt of a Subsidiary, including Debt of a
Subsidiary that carries a Company guarantee of repayment, directly relating to
the development of projects or the expansion, renovation or improvement of
existing properties;


 


(v)       third party Debt of a Subsidiary directly relating to the
acquisition of assets;


 


(vi)      reimbursement obligations under letters of credit, bankers’
acceptances or similar facilities, provided
that at the time of incurring any additional obligations pursuant to this
clause (g) the amount of all such obligations, whether or not
currently due, aggregate at any time less than 5% of Consolidated Net Tangible
Assets at such date;


 


(vii)     Debt that by its terms is subordinate in right of payment to the
other Debt of the Company, provided, however,
the aggregate issue price of such subordinated Debt may not at any time exceed
$100,000,000;


 


(viii)    Attributable Debt; and


 


30

















 


(ix)      in addition to Debt referred to in clauses (i) through
(viii) above, Debt in the aggregate principal amount of $50,000,000 that
is to be used only for working capital purposes.


 


(c)       In addition to the limitations in paragraph (a) above,
the Company will not, and will not permit any Subsidiary (as to which the
Company owns, directly or indirectly, more than 50% of the voting stock
therein) to, incur any Debt if, immediately after giving effect to the
incurrence of such additional Debt, the aggregate principal amount of
outstanding Total Debt would be greater than 65% of the sum of:


 


(i)        the Gross Asset Value as of the end of the fiscal quarter
prior to the incurrence of such additional Debt, plus


 


(ii)       any increase in the Gross Asset Value resulting from any
acquisition completed after the end of such quarter, including, without
limitation, any pro forma increase from the application of the proceeds of such
additional Debt, less


 


(iii)      any decrease in the Gross Asset Value resulting from any
disposition completed after the end of such quarter.


 


(d)       In addition to the limitations in paragraphs (a) and (c) above,
the Company will not, and will not permit any Subsidiary (as to which the
Company owns, directly or indirectly, more than 50% of the voting stock
therein) to, incur any Secured Debt if, immediately after giving effect to the
incurrence of such additional Secured Debt, the aggregate principal amount of
all outstanding Secured Debt would be greater than 50% of the sum of:


 


(i)        the Gross Asset Value as of the end of the fiscal quarter
prior to the incurrence of such additional Secured Debt, plus


 


(ii)       any increase in the Gross Asset Value resulting from any
acquisition completed after the end of such quarter, including, without
limitation, any pro forma increase from the application of the proceeds of such
additional Secured Debt, less


 


(iii)      any decrease in the Gross Asset Value resulting from any
disposition completed after the end of such quarter.


 


(e)       Notwithstanding paragraphs (a), (c) or (d) above,
the Company and its consolidated Subsidiaries may Incur additional Debt
consisting of refinancings, renewals, refundings or extensions of any Debt, in
any case in an amount not to exceed the principal amount of the Debt so refinanced
plus any prepayment premium or accrued interest, provided that


 


(i)        such refinancing Debt is either:


 


(A)  Debt of the Company that ranks equally with or junior to the Debt
being refinanced,


 


(B)   Debt of a Subsidiary that the Company or another Subsidiary
guarantees, or


 


(C)   Debt of a Subsidiary; and


 


(ii)       such refinancing Debt either has a weighted average life equal
to or longer than the remaining weighted average life of the Debt being
refinanced or has a minimum term of five years;


 


31

















 


Section 4.09.                Limitation
on Sale/Leaseback Transactions.


 


The Company will not, nor will it permit any Restricted Subsidiary to,
enter into any arrangement with any bank, insurance company or other lender or
investor (not including the Company or any consolidated Subsidiary) or to which
any such lender or investor is a party, providing for the leasing by the
Company or any such Restricted Subsidiary for a period, including renewals, in
excess of three years, of any Principal Property owned by the Company or such
Restricted Subsidiary, which has been or is to be sold or transferred more than
one year after either the acquisition thereof or the completion of construction
and commencement of full operation thereof by the Company or any such
Restricted Subsidiary, to such lender or investor or to any Person to whom
funds have been or are to be advanced by such lender or investor on the
security of such Principal Property (herein referred to as a “Sale/Leaseback Transaction”) unless
(A) the aggregate amount of Attributable Debt for the proposed and all
existing Sale/Leaseback Transactions is less than 10% of Consolidated Net
Tangible Assets and (B) if the Ratio Calculation is less than 1.7 to 1
after giving effect to the proposed Sale/Leaseback Transaction, the Company and
its Subsidiaries, within 270 days after the sale or transfer shall have
been made by the Company or by any such Restricted Subsidiary, must apply an
amount equal to the net proceeds of the sale of the Principal Property sold and
leased back pursuant to such arrangement to either (or a combination of)
(x) the purchase of property, facilities or equipment (other than the
property, facilities or equipment involved in such Sale/Leaseback Transaction)
or (y) the retirement of Debt of the Company or a Restricted Subsidiary,
including the notes, which either has an initial term of greater than
12 months or is a bona fide acquisition loan or a construction or bridge
loan entered in connection with a construction project or other real estate
development.


 


ARTICLE 5.


 


CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE


 


Section 5.01.                Company
May Consolidate, Etc. Only on Certain Terms.


 


The
Company shall not consolidate with or merge into any other Person or sell,
convey or lease all of substantially all of its Assets to any other Person, and
the Company shall not permit any Person to consolidate with or merge into the
Company, unless:


 


(a) the Person (if other than the Company) formed by such consolidation
or into which the Company is merged or which acquires or leases substantially
all of the Assets of the Company, shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest on all the Notes and
the performance or observance of every covenant of this Indenture on the part
of the Company to be performed or observed;


 


(b) immediately after giving effect to such consolidation or merger, or
such sale, conveyance or lease, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing;


 


(c) the Company or such successor entity shall, immediately after giving
effect to such consolidation or merger, or such sale, conveyance or lease, have
a Ratio Calculation of 1.7 to 1 or more;


 


(d) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would become
subject to a mortgage, pledge, lien, security interest or other encumbrance
which would not be permitted by this Indenture, the Company or such successor
Person, as the case may be, shall take such steps as shall be necessary
effectively to secure the Notes equally and ratably with (or prior to) all
indebtedness secured thereby; and


 


32

















 


(e) the Company has delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.


 


Section 5.02.                Successor
Substituted.


 


Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of all or substantially all of the Assets of the
Company in accordance with Section 5.01, the successor Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Notes.


 


ARTICLE 6.


 


DEFAULTS AND REMEDIES


 


Section 6.01.                Events
of Default.


 


“Event of Default,” wherever used
herein with respect to the Notes, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):


 


(a) default in the payment of the principal of (or premium, if any, on)
any Note when due; or


 


(b) default in the payment of any interest upon any Note when it becomes
due and payable, and continuance of such default for a period of 30 days; or


 


(c) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty default
which is specifically dealt with) and continuance of such default or breach for
a period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the outstanding Notes a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or


 


(d) a default under any bond, debenture, note, mortgage, indenture or
other evidence of indebtedness for borrowed money of the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor) having an
aggregate principal amount outstanding of at least $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the outstanding Notes a written notice specifying such
default and requiring the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a “Notice of Default” hereunder; or


 


(e) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrateor or other
similar official of the Company or of any substantial part of its


 


33

















 


property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60
consecutive days; or


 


(f)  the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company to the entry of a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company, or the filing by the Company
of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by the Company to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of their property, or the making by the
Company of an assignment for the benefit of creditors, or the admission by them
in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such
action; or


 


(g) any other Event of Default provided with respect to Notes.


 


Upon
receipt by the Trustee of any Notice of Default pursuant to this Section 6.01
with respect to the Notes, a record date shall automatically and without any
other action by any Person be set for the purpose of determining the Holders of
outstanding Notes entitled to join in such Notice of Default, which record date
shall be the close of business on the day the Trustee receives such Notice of
Default.  The Holders of outstanding
Notes on such record date (or their duly appointed agents), and only such
Persons, shall be entitled to join in such Notice of Default, whether or not
such Holders remain Holders after such record date; provided that, unless such
Notice of Default shall have become effective by virtue of Holders of the
requisite principal amount of outstanding Notes on such record date (or their
duly appointed agents) having joined therein on or prior to the 90th day after
such record date, such Notice of Default shall automatically and without any
action by any Person be cancelled and of no further effect.  Nothing in this paragraph shall prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a Notice of Default contrary to or different
from, or, after the expiration of such period, identical to, a Notice of
Default that has been cancelled pursuant to the proviso to the preceding
sentence, in which event a new record date in respect thereof shall be set
pursuant to this paragraph.


 


Section 6.02.                Acceleration.


 


If
an Event of Default with respect to Notes at the time outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the outstanding Notes may declare the principal
amount of all of the Notes to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.


 


At
any time after such a declaration of acceleration with respect to Notes has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the outstanding Notes, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:


 


(a) the Company has paid or deposited with the Trustee a sum sufficient
to pay:


 


(i)    all overdue interest on all Notes,


 


(ii)   the principal of (and premium, if any, on) any Notes which have
become due otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such Notes,


 


(iii)  to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such Notes,
and


 


34

















 


(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;


 


and


 


(b) all Events of Default with respect to Notes, other than the
non-payment of the principal of Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 6.13.


 


No
such rescission shall affect any subsequent default or impair any right
consequent thereon.


 


Upon
receipt by the Trustee of any declaration of acceleration, or any rescission
and annulment of any such declaration, pursuant to this Section 6.02, a
record date shall automatically and without any other action by any Person be
set for the purpose of determining the Holders of outstanding Notes entitled to
join in such declaration, or rescission and annulment, as the case may be,
which record date shall be the close of business on the day the Trustee
receives such declaration, or rescission and annulment, as the case may
be.  The Holders of outstanding Notes on
such record date (or their duly appointed agents), and only such Persons, shall
be entitled to join in such declaration, or rescission and annulment, as the
case may be, whether or not such Holders remain Holders after such record date;
provided that, unless such declaration, or rescission and annulment, as the case
may be, shall have become effective by virtue of Holders of the requisite
principal amount of outstanding Notes on such record date (or their duly
appointed agents) having joined therein on or prior to the 90th day after such
record date, such declaration, or rescission and annulment, as the case may be,
shall automatically and without any action by any Person be cancelled and of no
further effect.  Nothing in this
paragraph shall prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a declaration of
acceleration, or a rescission and annulment of any such declaration, contrary
to or different from, or, after the expiration of such period, identical to, a
declaration, or rescission and annulment, as the case may be, that has been
cancelled pursuant to the proviso to the preceding sentence, in which event a
new record date in respect thereof shall be set pursuant to this paragraph.


 


Section 6.03.                Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The
Company covenants that if:


 


(a) default is made in the payment of any interest on any Note when such
interest becomes due and payable and such default continues for a period of 30
days, or


 


(b) default is made in the payment of the principal of (or premium, if
any, on) any Note at the maturity thereof,


 


the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor
in such Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.


 


If
an Event of Default with respect to Notes occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Notes by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.


 


35

















 


Section 6.04.                Trustee
May File Proofs of Claim.


 


In
case of any judicial proceeding relative to the Company (or any other obligor
upon the Notes), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the TIA in order to have claims of the Holders and
the Trustee allowed in any such proceeding. 
In particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.


 


No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for
the election of a trustee in bankruptcy or similar official and be a member of
a creditors’ or other similar committee.


 


Section 6.05.                Trustee
May Enforce Claims Without Possession of Notes.


 


All
rights of action and claims under this Indenture or the Notes may be prosecuted
and enforced by the Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such 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 the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered


 


Section 6.06.                Application
of Money Collected.


 


Any
money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or any premium or
interest, upon presentation of the Notes and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:


 


FIRST:  To the payment of all
amounts due the Trustee under Section 7.07; 


 


SECOND:  To the payment of the amounts then due and
unpaid for principal of and any premium and interest on the Notes 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 Notes for principal and any premium and interest, respectively;
and


 


THIRD:  To the Company or as directed by a court of competent
jurisdiction.


 


Section 6.07.                Limitation
on Suits.


 


No
Holder of any Note shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:


 


(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Notes;


 


(b) the Holders of not less than 25% in principal amount of the
outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;


 


36

















 


(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;


 


(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and


 


(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the outstanding Notes;


 


it
being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.


 


Section 6.08.                Unconditional
Right of Holders to Receive Principal, Premium and Interest.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium and (subject to Section 4.01) interest on such Note on
the Stated Maturity expressed in such Note (or, in the case of redemption, on
the redemption date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.


 


Section 6.09.                Restoration
of Rights and Remedies.


 


If
the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.


 


Section 6.10.                Rights
and Remedies Cumulative.


 


No
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


Section 6.11.                Delay
or Omission Not Waiver.


 


No
delay or omission of the Trustee or of any Holder of any Notes to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.


 


Section 6.12.                Control
by Holders.


 


The
Holders of a majority in principal amount of the outstanding Notes 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 the Notes of such series, provided that:


 


(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and


 


37

















 


(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.


 


Upon
receipt by the Trustee of any such direction with respect to Notes, a record
date shall automatically and without any other action by any Person be set for
determining the Holders of outstanding Notes entitled to join in such
direction, which record date shall be the close of business on the day the
Trustee receives such direction.  The
Holders of outstanding Notes on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to join in such direction,
whether or not such Holders remain Holders after such record date; provided
that, unless such direction shall have become effective by virtue of Holders of
the requisite principal amount of outstanding Notes on such record date (or
their duly appointed agents) having joined therein on or prior to the 90th day
after such record date, such direction shall automatically and without any
action by any Person be cancelled and of no further effect.  Nothing in this paragraph shall prevent
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a direction contrary to or different from,
or, after the expiration of such period, identical to, a direction that has
been cancelled pursuant to the proviso to the preceding sentence, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph.


 


Section 6.13.                Waiver
of Past Defaults.


 


The
Holders of not less than a majority in principal amount of the outstanding
Notes may on behalf of the Holders of all the Notes of such series waive any
past default hereunder with respect to such series and its consequences, except
a default:


 


(a) in the payment of the principal of or any premium or interest on any
Note, or


 


(b) in respect of a covenant or provision hereof which under Article 9
cannot be modified or amended without the consent of the Holder of each
outstanding Note affected.


 


Upon
any such waiver, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.


 


Section 6.14.                Undertaking
for Costs.


 


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, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the TIA;
provided that neither this Section nor the TIA shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.


 


Section 6.15.                Waiver
of Usury, Stay or Extension Laws.


 


The
Company covenants (to the extent that they may lawfully do so) that they will
not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that they
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenant that they will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


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ARTICLE 7.


 


TRUSTEE


 


Section 7.01.                Duties
of Trustee


 


(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent Person
would exercise or use under the circumstances in the conduct of such Person’s
own affairs.


 


(b) Except during the continuance of an Event of Default:


 


(1)   the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and


 


(2)   in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.  However,
the Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).


 


(c) The Trustee may not be relieved from liabilities for its own gross negligent
action, its own gross negligent failure to act, or its own gross willful
misconduct or bad faith, except that:


 


(1)   this paragraph does not limit the effect of paragraph (b) of
this Section;


 


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


 


(3)   the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.12 hereof.


 


(d)                 Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section 7.01.


 


(e)                 No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability.  The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request of
any Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.


 


(f)                  The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.  Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law.


 


Section 7.02.                Rights
of Trustee.


 


Subject to TIA Section 315:


 


(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. 
The Trustee need not investigate any fact or matter stated in any such
document.


 


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(b) Before the Trustee acts or refrains from acting, it may require an
Officer’s Certificate or an Opinion of Counsel or both.  The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officer’s
Certificate or Opinion of Counsel.  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 from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.


 


(c) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.


 


(d) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.


 


(e) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
Default or Event of Default is received by a Responsible Officer of the Trustee
at the Corporate Trust Office of the Trustee from the Company or the Holders of
25% in aggregate principal amount of the outstanding Notes, and such notice
references the specific Default or Event of Default, the Notes and this
Indenture.


 


(f)  The Trustee shall not be required to give any bond or surety in
respect of the performance of its power and duties hereunder.


 


(g) The Trustee shall have no duty to inquire as to the performance of
the Company’s covenants herein.


 


(h) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.


 


Section 7.03.                Individual
Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee.  However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue as Trustee or
resign.  Any Agent may do the same with
like rights and duties.  The Trustee
shall also be subject to Sections 7.10 and 7.11 hereof.


 


Section 7.04.                Trustee’s
Disclaimer.


 


The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company’s use of the proceeds from the Notes or any money
paid to the Company or upon the Company’s direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.


 


Section 7.05.                Notice
of Defaults.


 


If
a Default or Event of Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to Holders a notice of the Default or Event
of Default within 90 days after the Trustee has notice thereof.  Except in the case of a Default or Event of
Default in payment of principal of, premium, if any, or interest on any Note,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders.


 


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Section 7.06.                Reports
by Trustee to Holders.


 


Within
60 days after each May 15 beginning with May 15, 2011, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders  a brief report dated as of such reporting
date that complies with TIA §313(a) (but if no event described in TIA §313(a)
has occurred within the twelve months preceding the reporting date, no report
need be transmitted).  The Trustee also shall comply with TIA
§313(b)(2).  The Trustee shall also
transmit by mail all reports as required by TIA §313(c).


 


A
copy of each report at the time of its mailing to the Holders shall be mailed
to the Company and filed with the Commission and each stock exchange on which
the Notes are listed in accordance with TIA §313(d).  The Company  shall promptly notify the Trustee when the
Notes are listed on any stock exchange and any delisting thereof.


 


Section 7.07.                Compensation
and Indemnity.


 


The
Company shall pay to the Trustee from time to time reasonable compensation for
its acceptance of this Indenture and services hereunder.  The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation
for its services.  Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee’s
agents and counsel.


 


The
Company shall indemnify the Trustee (in its capacity as Trustee) or any
predecessor Trustee (in its capacity as Trustee) against any and all losses,
claims, damages, penalties, fines, liabilities or expenses, including
incidental and out-of-pocket expenses and reasonable attorneys fees (for
purposes of this Article, “losses”)
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this
Section 7.07) and defending itself against any claim (whether asserted by the
Company or any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent such losses may be attributable to its gross negligence or bad
faith.  The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity.  Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations under this Section 7.07, except to the extent the Company has been
prejudiced thereby.  The Company shall
defend the claim, and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel if the
Trustee has been advised by counsel that there may be one or more legal
defenses available to it that are different from or additional to those
available to the Company and in the judgment of such counsel it is advisable
for the Trustee to engage separate counsel, and the Company shall pay the
reasonable fees and expenses of such counsel.  The Company need not pay
for any settlement made without its consent, which consent shall not be
unreasonably withheld.  The Company need
not reimburse any expense or indemnify against any loss incurred by the Trustee
through the Trustee’s own willful misconduct, gross negligence or bad faith.


 


The
obligations of the Company under this Section 7.07 shall survive the satisfaction
and discharge of this Indenture, the resignation or removal of the Trustee and
payment in full of the Notes through the expiration of the applicable statute
of limitations.


 


To
secure the Company’s payment obligations in this Section, the Trustee shall
have a Lien prior to the Notes on all money or property held or collected by
the Trustee, except that held in trust to pay principal, premium, if any, and
interest on particular Notes.  Such Lien
shall survive the satisfaction and discharge of this Indenture.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(e) or (f) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.


 


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Section 7.08.                Replacement
of Trustee.


 


A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.


 


The
Trustee may resign in writing at any time upon 30 days’ prior notice to the
Company and be discharged from the trust hereby created by so notifying the
Company.  The Holders of a majority in
aggregate principal amount of the then outstanding Notes may remove the Trustee
by so notifying the Trustee and the Company in writing.  The Company may remove the Trustee if:


 


(a) the Trustee fails to comply with Section 7.10 hereof;


 


(b) the Trustee is adjudged bankrupt or insolvent or an order for relief
is entered with respect to the Trustee under any Bankruptcy Law;


 


(c) a custodian or public officer takes charge of the Trustee or its
property; or


 


(d) the Trustee becomes incapable of acting.


 


If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor
Trustee.  Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount
of the then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.


 


If
a successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company, or the
Holders of at least 10% in aggregate principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.


 


If
the Trustee, after written request by any Holder who has been a Holder for at
least six months, fails to comply with Section 7.10 hereof, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.


 


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company.  Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture.  The successor Trustee shall
mail a notice of its succession to Holders.  Subject to the Lien provided
for in Section 7.07 hereof, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided,
however, that all sums owing to the
Trustee hereunder shall have been paid. 
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company’s obligations under Section 7.07 hereof shall continue for
the benefit of the retiring Trustee.


 


In
the case of an appointment hereunder of a separate or successor Trustee with
respect to the Notes, the Company, any retiring Trustee and each successor or
separate Trustee with respect to the Notes shall execute and deliver an
Indenture supplemental hereto (1) which shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of any retiring Trustee with respect to the Notes as to which any
such retiring Trustee is not retiring shall continue to be vested in such
retiring Trustee and (2) that shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any such other Trustee.


 


42

















 


Section 7.09.                Successor
Trustee by Merger, etc.


 


If
the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
banking association, the successor corporation or banking association without
any further act shall, if such successor corporation or banking association is
otherwise eligible hereunder, be the successor Trustee.


 


Section 7.10.                Eligibility;
Disqualification.


 


There
shall at all times be a Trustee hereunder that is a Person organized and doing
business under the laws of the United States of America or of any state thereof
that is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal or state authorities and that
has a combined capital and surplus of at least $50.0 million (or a wholly-owned
subsidiary of a bank or trust company, or of a bank holding company, the
principal subsidiary of which is a bank or trust company having a combined
capital and surplus of at least $50.0 million) as set forth in its most recent
published annual report of condition.


 


This
Indenture shall always have a Trustee who satisfies the requirements of TIA
§310(a)(1), (2) and (5).  The Trustee is
subject to TIA §310(b).


 


Section 7.11.                Preferential
Collection of Claims Against Company.


 


The
Trustee is subject to TIA §311(a), excluding any creditor relationship listed
in TIA §311(b).  A Trustee who has
resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.


 


ARTICLE 8.


 


LEGAL DEFEASANCE AND COVENANT
DEFEASANCE


 


Section 8.01.                Option
to Effect Legal Defeasance or Covenant Defeasance.


 


The
Company may, at its option and at any time, elect to have either Section 8.02
or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth in this Article 8.


 


Section 8.02.                Legal
Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 8.01 of the option applicable to this
Section 8.02, the Company shall, subject to the satisfaction of the conditions
set forth in Section 8.04, be deemed to have been discharged from its
obligations with respect to all outstanding Notes on the date the conditions
set forth below are satisfied (hereinafter, “Legal
Defeasance”).  For
this purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Debt represented by the outstanding Notes, which
shall thereafter be deemed to be “outstanding” only for the purposes of Section
8.05 and the other Sections of this Indenture referred to in (a) and (b) below,
and to have satisfied all its other obligations under the Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:  (a) the
rights of Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, or interest on such
Notes when such payments are due, (b) the Company’s obligations with
respect to such Notes under Article 2 and Sections 4.01 and 4.02, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith and (d) this Article 8.  If the Company exercises under Section 8.01
the option applicable to this Section 8.02, subject to the satisfaction of the
conditions set forth in Section 8.04, payment of the Notes may not be
accelerated because of an Event of Default. 
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03.


 


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Section 8.03.                Covenant
Defeasance.


 


Upon
the Company’s exercise under Section 8.01 of the option applicable to this
Section 8.03, the Company shall, subject to the satisfaction of the conditions
set forth in Section 8.04, be released from its obligations under the covenants
contained in Sections 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 5.01 hereof
and the occurrence of any event specified in clause (c) (with respect to Sections
4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 5.01 hereof) or (d) of Section
6.01 shall be deemed not to be or result in an Event of Default, in each case
with respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”) and the Notes shall
thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). 
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
6.01, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby.


 


Section 8.04.                Conditions
to Legal or Covenant Defeasance.


 


The
following shall be the conditions to the application of either Section 8.02 or
8.03 to the outstanding Notes.


 


The
Legal Defeasance or Covenant Defeasance may be exercised only if:


 


(a) the Company irrevocably deposits with the Trustee, in trust (the “defeasance trust”), for the benefit
of the Holders, cash in U.S. dollars, non-callable U.S. Government Securities,
or a combination of cash in U.S. dollars and non-callable U.S. Government
Securities, in an amount sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal, premium, if any,
and interest on the outstanding Notes on the Stated Maturity or on the next
redemption date, as the case may be, and the Company shall specify whether the
Notes are being defeased to maturity or to such particular redemption date;


 


(b) in the case of Legal Defeasance, the Company shall deliver to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) subsequent to the Issue Date, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;


 


(c) in the case of Covenant Defeasance, the Company shall deliver to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming
that the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance
had not occurred;


 


(d) no Event of Default under Section 6.01(e) or (f) shall have occurred
at any time in the period ending on the 91st day after the
cash and/or non-callable U.S. Government Securities have been deposited in the
defeasance trust;


 


(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Company or any
Restricted Subsidiary is a party or by which the Company or any Restricted
Subsidiary is bound;


 


44

















 


(f)  the Company shall deliver to the Trustee an Officer’s Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders over other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding such other creditors; and


 


(g) the Company deliver to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent relating to the
Legal Defeasance or the Covenant Defeasance have been complied with.


 


Section 8.05.                Deposited
Cash and U.S. Government Securities to be Held in Trust; Other Miscellaneous
Provisions.


 


Subject
to Section 8.06, all cash and non-callable U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of all
sums due and to become due thereon in respect of principal, premium, if any,
and interest but such cash and securities need not be segregated from other
funds except to the extent required by law.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable U.S. Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.


 


Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon the request of the Company any cash
or non-callable U.S. Government Securities held by it as provided in Section
8.04 which, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the certification delivered under
Section 8.04(a)), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.


 


Section 8.06.                Repayment
to the Company.


 


The
Trustee shall promptly, and in any event, no later than five (5) Business Days,
pay to the Company after written request therefor, any excess money held with
respect to the Notes at such time in excess of amounts required to pay any of
the Company’ Obligations then owing with respect to the Notes.


 


Subject
to any applicable abandoned property law, any cash or non-callable U.S.
Government Securities deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal, premium, if
any, or interest on any Note and remaining unclaimed for one year after such
principal, premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder shall thereafter, as an unsecured
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such cash and securities, and
all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in The New York Times and
The Wall Street Journal (national
edition), notice that such cash and securities remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such cash and
securities then remaining shall be repaid to the Company.


 


Section 8.07.                Reinstatement.


 


If
the Trustee or Paying Agent is unable to apply any cash or non-callable U.S.
Government Securities in accordance with Section 8.02 or 8.03, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s 


 


45

















 


obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the
Trustee or Paying Agent is permitted to apply all such cash and securities in
accordance with Section 8.02 or 8.03, as the case may be; provided,
however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders to
receive such payment from the cash and securities held by the Trustee or Paying
Agent.


 


ARTICLE 9.


 


AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.                Without
Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder to:


 


(a) cure any ambiguity, manifest error, omission, defect or
inconsistency;


 


(b) provide for the assumption by a surviving Person of the obligations
of the Company under this Indenture;


 


(c) provide for uncertificated Notes in addition to or in place of
certificated Notes (provided that
the uncertificated Notes are issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the uncertificated Notes are
described in Section 163(f)(2)(B) of the Code);


 


(d) add guarantees with respect to the Notes;


 


(e) secure the Notes; or


 


(f)  add to the covenants of the Company for the benefit of the Holders
or to surrender any right or power conferred upon the Company.


 


Section 9.02.                With
Consent of Holders of Notes.


 


Except
as provided below in this Section 9.02, the Company and the Trustee may amend
or supplement this Indenture and the Notes with the consent of the Holders of
at least a majority in aggregate principal amount of the Notes, including
Additional Notes, if any, then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange
offer for the Notes), and, subject to Sections 6.08 and 6.13, any existing
Default or Event of Default (except a continuing Default or Event of Default in
(i) the payment of principal, premium, if any, or interest on the Notes and
(ii) in respect of a covenant or provision which under this Indenture cannot be
modified or amended without the consent of the Holder of each Note affected by
such modification or amendment) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes, including
Additional Notes, if any, then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange
offer for the Notes).


 


Without
the consent of each Holder, an amendment or waiver under this Section 9.02 may
not (with respect to any Notes held by a non-consenting Holder):


 


(a)           change the stated maturity of the principal of, or any
installment of principal of or interest on the Notes;


 


(b)           reduce the amount of, or any premium or interest on, the
Notes;


 


46

















 


(c)           change the place or currency of payment of principal of,
or any premium or interest on, the Notes;


 


(d)           impair the right to institute suit for the enforcement of
any payment on or with respect to the Notes;


 


(e)           reduce the percentage in principal amount of Notes, the
consent of whose Holders is required for modification or amendment of this
Indenture;


 


(f)            reduce the percentage in principal amount of Notes
necessary for waiver of certain defaults; or


 


(g)           modify such provisions with respect to modification and
waiver.


 


The
Holders of a majority in principal amount of Notes may on behalf of the Holders
of all Notes waive any past default under this Indenture, except a default in
the payment of the principal of or premium, if any, or interest on the Notes or
in respect of a provision which under this Indenture cannot be modified or
amended without the consent of each Holder affected.


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Persons entitled to consent to any supplemental
indenture.  If a record date is fixed,
the Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to consent to such supplemental indenture,
whether or not such Holders remain Holders after such record date; provided that unless such consent shall have become
effective by virtue of the requisite percentage having been obtained prior to
the date which is 120 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no further effect.


 


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


 


After
an amendment, supplement or waiver under this Section 9.02 becomes effective,
the Company shall mail to the Holder of each Note affected thereby to such
Holder’s address appearing in the Security Register a notice briefly describing
the amendment, supplement or waiver.  Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.


 


Section 9.03.                Revocation
and Effect of Consents.


 


Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion thereof that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note.  However, any such Holder or
subsequent Holder may revoke the consent as to its Note or portion thereof if
the Trustee receives written notice of revocation before the Trustee receives
an Officer’s Certificate certifying that the Holders of the requisite principal
amount of Notes have consented (and theretofore not revoked such consent) to
the amendment, supplement or waiver.


 


Section 9.04.                Notation
on or Exchange of Notes.


 


The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated.  The Company in exchange for
all Notes may issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate new Notes that reflect
the amendment, supplement or waiver.


 


47

















 


Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.


 


Section 9.05.                Trustee
to Sign Amendments, etc.


 


The
Trustee shall sign any amended or supplemental indenture authorized pursuant to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee.  The Company may
not sign an amendment or supplemental indenture until its board of directors
(or committee serving a similar function) approves it.  In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon an Officer’s Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that such amended or
supplemental indenture is the legal, valid and binding obligations of the
Company enforceable against them in accordance with its terms, subject to
customary exceptions and that such amended or supplemental indenture complies
with the provisions hereof.


 


ARTICLE 10.


 


SATISFACTION AND DISCHARGE


 


Section 10.01.              Satisfaction
and Discharge.


 


This
Indenture shall upon the Company’s request cease to be of further effect
(except as to any surviving rights of transfer or exchange of Notes herein
expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when:


 


(a) either


 


(1)   all Notes theretofore authenticated and delivered (other than (i)
Notes which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.07 and (ii) Notes 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 Section 2.04) have been delivered to the Trustee for cancellation;
or


 


(2)   all such Notes 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, 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, have 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 Notes not
theretofore delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Notes which
have become due and payable) or to the Stated Maturity or 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; and


 


48

















 


(c) the Company has delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that 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, the obligations of the Company to the Trustee under Section
7.07, the obligations of the Trustee to any authenticating agent under Section
2.02(e) and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 10.02 and Section 2.04 shall survive.


 


Section 10.02.              Application
of Trust Money.


 


Subject
to provisions of Section 2.04, all money deposited with the Trustee pursuant to
Section 10.01 shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
and any premium and interest for whose payment such money has been deposited
with the Trustee.


 


ARTICLE 11.


 


MISCELLANEOUS


 


Section 11.01.              Table
of Contents, Headings, etc.


 


The
Table of Contents, Cross-Reference Table and Headings in this Indenture have
been inserted for convenience of reference only, are not to be considered a
part of this Indenture and shall in no way modify or restrict any of the terms
or provisions hereof.


 


Section 11.02.              Notices.


 


Any
notice or communication by the Company or the Trustee to the other is duly
given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), facsimile transmission or
overnight air courier guaranteeing next-day delivery, to the other’s address:


 


If
to the Company:


 


The
Rouse Company LLC


110
N. Wacker Drive


Chicago,
IL 60606


Attention:  Chief Financial Officer


Telecopier
No.:  (312) 960-5000


 


With
a copy to:


 


Weil,
Gotshal & Manges LLP


767
Fifth Ave.


New
York, NY 10153


Attention:  Matthew D. Bloch


Telecopier
No.: (212) 310-8000


 


If
to the Trustee:


 


Wilmington
Trust, FSB


Corporate
Capital Markets


50
South Sixth Street, Suite 1290


Minneapolis,
MN 55402


Attention:
Rouse Company Administrator


Telecopier
No.:  (612) 217-5651


 


49






 










 


The
Company or the Trustee, by notice to the other, may designate additional or
different addresses for subsequent notices or communications.


 


All
notices and communications (other than those sent to the Trustee or Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if sent by facsimile
transmission; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next-day delivery.  All notices and communications to the Trustee
or Holders shall be deemed duly given and effective only upon receipt.


 


Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next-day delivery to its address shown on the Security
Register.  Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.


 


If
a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.


 


If
the Company mails a notice or communication to Holders, the Company shall mail
a copy to the Trustee and each Agent at the same time.


 


Section 11.03.                                          Communication
by Holders of Notes with Other Holders of Notes.


 


Holders
may communicate pursuant to TIA §312(b) with other Holders with respect to
their rights under this Indenture or the Notes.  The Company, the Trustee,
the Registrar and anyone else shall have the protection of TIA §312(c).


 


Section 11.04.                                          Certificate
and Opinion as to Conditions Precedent.


 


Upon
any request or application by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee:


 


(a)    an Officer’s Certificate in
form and substance reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 11.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and


 


(b)   an Opinion of Counsel in
form and substance reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 11.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been
complied with.


 


Section 11.05.                                          Statements
Required in Certificate or Opinion.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA §314(a)(4)) shall comply with the provisions of TIA §314(e) and shall
include:


 


(a)    a statement that the Person
making such certificate or opinion has read such covenant or condition;


 


(b)   a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based;


 


50

















 


(c)    a statement that, in the
opinion of such Person, he or she has made such examination or investigation as
is necessary to enable such Person to express an informed opinion as to whether
or not such covenant or condition has been complied with; and


 


(d)   a statement as to whether or
not, in the opinion of such Person, such condition or covenant has been
complied with.


 


With
respect to matters of fact, an Opinion of Counsel may rely on an Officer’s
Certificate, certificates of public officials or reports or opinions of
experts.


 


Section 11.06.                                          Rules by
Trustee and Agents.


 


The
Trustee may make reasonable rules for action by or at a meeting of
Holders.  The Registrar or Paying Agent
may make reasonable rules and set reasonable requirements for its
functions.


 


Section 11.07.                                          No
Personal Liability of Directors, Officers, Employees and Stockholders.


 


No
past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.   The waiver and release may not
be effective to waive or release liabilities under the federal securities laws.


 


Section 11.08.                                          Governing
Law.


 


THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.


 


Section 11.09.                                          No
Adverse Interpretation of Other Agreements.


 


This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person.  Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.


 


Section 11.10.                                          Successors.


 


All
covenants and agreements of the Company in this Indenture and the Notes shall
bind their successors.  All covenants and agreements of the Trustee in
this Indenture shall bind its successors.


 


Section 11.11.                                          Severability.


 


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


 


Section 11.12.                                          Counterpart
Originals.


 


The
parties may sign any number of copies of this Indenture.  Each signed copy
shall be an original, but all of them together represent the same agreement.


 


[Signatures on following page]


 


51

















 


SIGNATURES


 


Dated
as of [            ]


 


	
   

  	
  THE
  ROUSE COMPANY LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


SIGNATURE PAGES TO THE
SENIOR NOTE INDENTURE


 

















 


	
   

  	
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


SIGNATURE PAGES TO SENIOR
NOTE INDENTURE


 

















 


EXHIBIT A


 


(Face of Note)


 


6.75% SENIOR NOTES DUE 2015


 


	
   

  	
  CUSIP

  	
   

  
	
  No.

  	
  $

  	
   

  



 


THE ROUSE COMPANY LLC


 


promises
to pay to CEDE & CO., INC. or registered assigns, the principal
sum of
                                  
Dollars
($                            )
or such other amount as shall be set forth in the Schedule of Exchanges of
interest in the Global Note attached hereto on May 1, 2015(1).


 


Interest
Payment Dates: May 1 and November 1.


 


Record
Dates:  [    ] and [      ].


 


Dated:  [         
].


 






(1) 
Fifth anniversary of the Issue Date.


 


A-1

















 


IN
WITNESS WHEREOF, each of the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officer.


 


 


	
   

  	
  THE
  ROUSE COMPANY LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This
is one of the Global


Notes
referred to in the


within-mentioned
Indenture:


 


[                     ],


as
Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
	
   

  
	
  Dated:

  	
   

  	
   

  
				



 


A-2

















 


(Back of Note)


 


6.75% SENIOR NOTES due 2015


 


[Insert the Global Note Legend, if applicable pursuant to the terms of
the Indenture]


 


[Insert the Private Placement Legend, if applicable pursuant to the
terms of the Indenture]


 


[Insert the Regulation S Temporary Global Note Placement Legend, if
applicable pursuant to the terms of the Indenture]


 


Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.


 


1.                                       Interest.  The
Rouse Company LLC, a Delaware limited company (the “Company”),
promises to pay interest on the principal amount of this Note at 6.75% per
annum until maturity.  The Company shall pay interest semi-annually on
[      ] and [        ] of each year, or if any such day is
not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”).  Interest shall accrue from the most recent
date to which interest has been paid on the Notes (or one or more Predecessor
Notes) or, if no interest has been paid, from the date of issuance of this
Note; provided, however, that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further,
that the first Interest Payment Date shall be [       ]. 
Interest shall be computed on the basis of a 360-day year of twelve
30-day months.


 


2.                                       Method
of Payment.  The Company shall pay interest on the Notes
(except defaulted interest) to the Persons in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on the April 15
or October 15 next preceding the Interest Payment Date, even if such Notes
are cancelled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest.  The Notes shall be payable as to principal, premium,
if any, and interest at the office or agency of the Company maintained for such
purpose, or, at the option of the Company, payment of interest may be made by
check mailed to the Holders at their addresses set forth in the Security
Register; provided, however,
that payment by wire transfer of immediately available funds shall be required
with respect to principal of and interest and premium, if any, on, all Global
Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent.  Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.


 


3.                                       Paying
Agent and Registrar.  Initially, [                   ], the Trustee under the
Indenture, shall act as Paying Agent and Registrar.  The Company may
change any Paying Agent or Registrar without notice to any Holder.  The
Company or any of its Subsidiaries may act in any such capacity.


 


4.                                       Indenture.  The Company issued the Notes under an
Indenture dated as of [        ] (“Indenture”) between the Company and
the Trustee.  The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code §§ 77aaa-77bbbb).  The Notes are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of such terms.  To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. 
The Notes are obligations of the Company unlimited in aggregate
principal amount.


 


5.                                       Optional
Redemption.


 


(a)    At any time prior to [         ], 2013(8), the Company may redeem all
or any portion of the Notes, at once or over time, after giving the notice
required pursuant to Section 3.03 of the Indenture, at a redemption price 


 






(8) 
Represents a date 2 1/2 years after the Issue Date.


 


A-3

















 


equal to the Make-Whole Price.  Any notice to the Holders of Notes of a
redemption pursuant to this Section 3.07(a) shall include the
calculation of the redemption price, but need not include the redemption price
itself.  The actual redemption price,
calculated as described above, shall be set forth in an Officer’s Certificate
delivered to the Trustee no later than two Business Days prior to the
redemption date.


 


(b)   On or after [         ]. 2013(9), the Company may redeem all
or any portion of the Notes, at once or over time, after giving the notice
required pursuant to Section 3.03 of the Indenture, at the redemption
prices set forth below.  The Notes will
be redeemable at the redemption prices (expressed as percentages of principal
amount of the Notes to be redeemed) plus accrued and unpaid interest thereon to
the applicable redemption date, subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant Interest
Payment Date, if redeemed during the twelve-month period beginning on the dates
indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  [      ], 2013(10)

  	
   

  	
  103.375

  	
  %

  
	
  [      ], 2014(11)

  	
   

  	
  100.000

  	
  %

  



 


(b)                                 Any prepayment
pursuant to this paragraph shall be made pursuant to the provisions of Sections
3.01 through 3.06 of the Indenture.


 


6.                                       Mandatory
Redemption.  The Company
shall not be required to make mandatory redemption or sinking fund payments
with respect to, or offer to purchase, the Notes.


 


7.                                       Notice
of Redemption.  Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address.  Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed.  On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.


 


8.                                       Denominations,
Transfer, Exchange.  The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of
$1,000.  This Note shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed hereon and the aggregate principal
amount of Notes represented hereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. The transfer
of Notes may be registered and Notes may be exchanged as provided in the
Indenture.  The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and
the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture.  The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part.  Also, the
Company need not exchange or register the transfer of any Notes for a period of
15 days before a selection of Notes to be redeemed or during the period between
a record date and the corresponding Interest Payment Date.


 


[This
Regulation S Temporary Global Note is exchangeable in whole or in part for one
or more Global Notes only (i) on or after the termination of the
Distribution Compliance Period and (ii) upon presentation of certificates
(accompanied by an Opinion of Counsel, if applicable) required by Article 2
of the Indenture.  Upon exchange of this
Regulation S Temporary Global Note for one or more Global Notes, the Trustee
shall cancel this Regulation S Temporary Global Note.]


 






(9) 
Represents a date 2 1/2 years after the Issue Date


 


(10) 
Represents a date 2 1/2 years after the Issue Date.


 


(11)  Represents a date 3 1/2 years after the Issue
Date


 


A-4

















 


9.                                       Persons
Deemed Owners.  The registered Holder of a Note may be
treated as its owner for all purposes.


 


10.                                 Amendment,
Supplement and Waiver.  Subject to certain exceptions, the
Company and the Trustee may amend or supplement the Indenture or the Notes with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes, including Additional Notes, if any, voting as a single class
(including consents obtained in connection with a purchase of or tender offer
or exchange offer for the Notes), and, subject to Sections 6.08 and 6.13 of the
Indenture, any existing Default or Event of Default (except a continuing
Default or Event of Default in the payment of principal, premium, if any,
interest on the Notes) or compliance with any provision of the Indenture or the
Notes (except for certain covenants and provisions of the Indenture which
cannot be amended without the consent of each Holder) may be waived with the
consent of the Holders of a majority in principal amount of the then
outstanding Notes, including Additional Notes, if any, then outstanding voting
as a single class (including consents obtained in connection with a purchase of
or tender offer or exchange offer for the Notes).  Without the consent of any Holder, the
Company and the Trustee may amend or supplement the Indenture or the Notes to
cure any ambiguity, manifest error, omission, defect or inconsistency, to
provide for the assumption by a successor of the obligations of the Company
under the Indenture, to provide for uncertificated Notes in addition to or in
place of certificated Notes, to add guarantees with respect to the Notes, to
secure the Notes, to add to the covenants of the Company for the benefit of the
Holders of the Notes or to surrender any right or power conferred upon the
Company.


 


11.                                 Defaults
and Remedies.  If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and
payable.  Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency described in the Indenture, all outstanding Notes shall become due
and payable without further action or notice. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture.  Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their interest.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest, or the principal of, the Notes. 
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture.


 


12.                                 Trustee
Dealings with Company.  Subject
to certain limitations, the Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company or
any Affiliate of the Company with the same rights it would have if it were not
Trustee.


 


13.                                 No
Recourse Against Others.  No past, present or
future director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Indenture, the Notes or for any claim based on, in respect of, or by reason of,
such obligations or their creation.  Each Holder by accepting a Note
waives and releases all such liability.


 


14.                                 Authentication.  This
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.


 


15.                                 Abbreviations. 
Customary abbreviations may be used in the name of a Holder or an assignee,
such as:  TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).


 


16.                                 CUSIP
Numbers.  Pursuant to
a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company have caused CUSIP numbers to be printed
on the Notes and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Holders. 
No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.


 


A-5

















 


The
Company shall furnish to any Holder upon written request and without charge a
copy of the Indenture.  Requests may be
made to:


 


The
Rouse Company LLC

110 North Wacker Drive

Chicago, Illinois 60606

Attention: Chief Financial Officer


 


17.                                 Governing
Law.  The law of the State of New
York shall govern and be used to construe this Note without giving effect to
applicable principals of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.


 


A-6














 


Assignment Form


 


To
assign this Note, fill in the form below:


 


(I) or
(we) assign and transfer this Note to


 


	
   

  
	
  (Insert assignee’s social security or other tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and zip code)

  
	
   

  
	
  and
  irrevocably appoint

  	
   

  
	
  as
  agent to transfer this Note on the books of the Company.  The agent may
  substitute another to act for him.

  
	
   

  



 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee:

  	
   

  
						



 


A-7

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:


 


	
  Date
  of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount

  of this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized signatory

  of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF
TRANSFER


 


The
Rouse Company LLC


110
North Wacker Drive

Chicago, Illinois 60606


Attention:
Chief Financial Officer


 


Wilmington
Trust, FSB


Corporate
Capital Markets


50
South Sixth Street, Suite 1290


Minneapolis,
MN 55402


Attention:
Rouse Company Administrator


 


Re:                                       6.75% Senior
Notes due 2015


 


Reference
is hereby made to the Indenture, dated as of [              ] (the “Indenture”),
between The Rouse Company LLC, as issuer (the “Company”)
and [           ], as trustee.  Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


,
(the “Transferor”) owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of
$                      
in such Note[s] or interests (the “Transfer”), to
                                                      
(the “Transferee”), as further specified in
Annex A hereto.  In connection with the
Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.  o  Check if Transferee will
take delivery of a beneficial interest in the 144A Global Note or a Definitive
Note Pursuant to Rule 144A. 
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby
further certifies that the beneficial interest or Definitive Note is being
transferred to a Person that the Transferor reasonably believed and believes is
purchasing the beneficial interest or Definitive Note for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance
with any applicable blue sky securities laws of any state of the United
States.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.


 


2.  o  Check if Transferee will
take delivery of a beneficial interest in the Regulation S Global Note or a
Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United States
or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(a) of
Regulation S under the Securities Act, (iii) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities
Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser).  Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Regulation S Temporary Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.


 


3.  o  Check and complete if
Transferee will take delivery of a beneficial interest in the IAI Global Note
or a Definitive Note pursuant to any provision of the Securities Act other than
Rule 144A or 


 


B-1

















 


Regulation
S.  The Transfer is being effected
in compliance with the transfer restrictions applicable to beneficial interests
in Restricted Global Notes and Restricted Definitive Notes and pursuant to and
in accordance with the Securities Act and any applicable blue sky securities
laws of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):


 


(a)                                 o  such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)                                 o  such Transfer is being effected to the
Company or a subsidiary thereof;


 


or


 


(c)                                  o  such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)                                 o  such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D under
the Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which certification
is supported by (1) a certificate executed by the Transferee in the form
of Exhibit D to the Indenture and (2) if such Transfer is in respect
of a principal amount of Notes at the time of transfer of less than $250,000,
an Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect that
such Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the IAI Global Note and/or the
Definitive Notes and in the Indenture and the Securities Act.


 


4.  o  Check if Transferee will
take delivery of a beneficial interest in an Unrestricted Global Note or of an
Unrestricted Definitive Note.


 


(a) 
o  Check if Transfer is
pursuant to Rule 144.  (i) The
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


(b) 
o  Check if Transfer is
Pursuant to Regulation S.  (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


B-2

















 


(c) 
o  Check if Transfer is
Pursuant to Other Exemption.  (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule 903
or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.


 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  
				



 


B-3

















 


ANNEX A TO CERTIFICATE OF
TRANSFER


 


1.                                      The Transferor
owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR
(b)]


 


(a)                                 o   a beneficial interest in the:


 


(i)                             o   144A Global Note (CUSIP
                  ),
or


 


(ii)                          o   Regulation S Global Note (CUSIP
                  ),
or


 


(iii)                       o   IAI Global Note (CUSIP
                  );
or


 


(b)                                 o   a Restricted Definitive Note.


 


2.                                      After the
Transfer the Transferee will hold:


 


[CHECK ONE OF (a), (b) OR
(c)]


 


(a)                                 o   a beneficial interest in the:


 


(i)                             o   144A Global Note (CUSIP
                  ),
or


 


(ii)                          o   Regulation S Global Note (CUSIP
                  ),
or


 


(iii)                       o   IAI Global Note (CUSIP
                  );
or


 


(iv)                      o   Unrestricted Global Note (CUSIP
                  );
or


 


(b)                                 o   a Restricted Definitive Note; or


 


(c)                                  o   an Unrestricted Definitive Note,


 


in accordance with the terms of the Indenture.


 


B-4

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF
EXCHANGE


 


The
Rouse Company LLC


110
North Wacker Drive

Chicago, Illinois 60606


Attention:
Chief Financial Officer


 


Wilmington
Trust, FSB


Corporate
Capital Markets


50
South Sixth Street, Suite 1290


Minneapolis,
MN 55402


Attention:
Rouse Company Administrator


 


Re:                                       6.75% Senior
Notes due 2015


 


Reference
is hereby made to the Indenture, dated as of [          ] (the “Indenture”),
among The Rouse Company LLC issuer (the “Company”) and
[                  ], as trustee.  Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


,
(the “Owner”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of
$                        
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.                                      Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note


 


(a) 
o  Check if Exchange is from
beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Note and pursuant to and in accordance with
the United States Securities Act of 1933, as amended (the “Securities
Act”), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.


 


(b) 
o  Check if Exchange is from beneficial interest
in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is
being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Note and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(c) 
o  Check if Exchange is from Restricted
Definitive Note to beneficial interest in an Unrestricted Global Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(d) 
o  Check if Exchange is from
Restricted Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


C-1

















 


2.                                      Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes


 


(a) 
o  Check if Exchange is from beneficial interest
in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and the Securities Act.


 


(b) 
o  Check if Exchange is from
Restricted Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CIRCLE ONE] 144A
Global Note, Regulation S Global Note, IAI Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Definitive Note and pursuant to and
in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.


 


C-2

















 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  
				



 


C-3

















 


EXHIBIT D


 


FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


The
Rouse Company LLC


110
North Wacker Drive

Chicago, Illinois 60606


Attention:
Chief Financial Officer


 


Wilmington
Trust, FSB


Corporate
Capital Markets


50
South Sixth Street, Suite 1290


Minneapolis,
MN 55402


Attention:
Rouse Company Administrator


 


Re:                                       6.75% Senior
Notes due 2015


 


Reference
is hereby made to the Indenture, dated as of [       ] (the “Indenture”),
among The Rouse Company LLC, the issuer (the “Company”)
and [            ], as trustee.  Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


In
connection with our proposed purchase of
$                        
aggregate principal amount of:


 


(a) 
o  a beneficial interest in a Global Note, or


 


(b) 
o  a Definitive Note,


 


we confirm that:


 


1.                                      We understand
that any subsequent transfer of the Notes or any interest therein is subject to
certain restrictions and conditions set forth in the Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the United States Securities Act of 1933, as
amended (the “Securities Act”).


 


2.                                      We understand
that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered
or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should
sell the Notes or any interest therein, we will do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with Rule 144A
under the Securities Act to a “qualified institutional buyer” (as defined
therein), (C) to an institutional “accredited investor” (as defined below)
that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to you and to the Company a signed letter substantially in
the form of this letter and, if such transfer is in respect of a principal
amount of Notes, at the time of transfer of less than $250,000, an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the
Securities Act or (F) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any Person
purchasing the Definitive Note or beneficial interest in a Global Note from us
in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.


 


3.                                      We understand
that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably require to
confirm that the proposed sale complies 


 

















 


with
the foregoing restrictions.  We further
understand that the Notes purchased by us will bear a legend to the foregoing
effect.


 


4.                                      We are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment.  We have had access to such
financial and other information and have been afforded the opportunity to ask
such questions of representatives of the Company and receive answers thereto,
as we deem necessary in connection with our decision to purchase the Notes.


 


5.                                      We are
acquiring the Notes or a beneficial interest therein purchased by us for our
own account or for one or more accounts (each of which is an institutional “accredited
investor”) as to each of which we exercise sole investment discretion and are
not acquiring the Notes with a view to any distribution thereof in a
transaction that would violate the Securities Act of the securities laws of any
state of the United States or any other applicable jurisdiction.


 


You
and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.  This letter
shall be governed by, and construed in accordance with, the laws of the State
of New York.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert Name of Accredited Investor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


5