exv4w1






Exhibit 4.1




 

 








FOREST CITY ENTERPRISES, INC.




as Issuer




and




THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.




as Trustee




INDENTURE




Dated as of October 26, 2009




5.00% Convertible Senior Notes due 2016




 

 






 









 





FOREST CITY ENTERPRISES, INC.

Reconciliation and tie between the Trust Indenture Act of 1939 and

this Indenture, dated as of October 26, 2009




	 	 	 
	 	 	Indenture
	Trust Indenture Act Section	 	Section
	§310(a)(1)
	 	6.09
	(a)(2)
	 	6.09
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(a)(5)
	 	6.09
	(b)
	 	6.08; 6.10; 6.11
	(c)
	 	Not Applicable
	§311(a)
	 	6.13
	(b)
	 	6.13
	§312(a)
	 	4.01; 4.02(a)
	(b)
	 	4.02(b)
	(c)
	 	4.02(c)
	§313(a)
	 	4.03(a)
	(b)
	 	4.03(a)
	(c)
	 	4.03(a)
	(d)
	 	4.03(b)
	§314(a)
	 	4.04(a)
	(b)
	 	Not Applicable
	(c)(1)
	 	3.08
	(c)(2)
	 	15.05
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	3.08
	§315(a)
	 	6.01
	(b)
	 	5.09
	(c)
	 	6.01
	(d)
	 	6.01
	(e)
	 	5.10
	§316(a)
	 	1.02
	(a)(1)(A)
	 	7.01; 5.01; 5.08
	(a)(1)(B)
	 	5.08
	(a)(2)
	 	Not Applicable
	(b)
	 	5.05
	(c)
	 	7.01
	§317(a)(1)
	 	5.03; 5.06
	(a)(2)
	 	5.03
	(b)
	 	6.05; 11.01
	§318(a)
	 	1.02
	(c)
	 	1.02





Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 Page	 
	ARTICLE 1
Definitions
	 
	 	 	 	 
	Section 1.01.    Definitions
	 	 	1	 
	Section 1.02.    Incorporation by Reference of Trust Indenture Act
	 	 	13	 
	 
	 	 	 	 
	ARTICLE
2
Issue, Description, Execution, Registration and Exchange of Notes
	 
	 	 	 	 
	Section 2.01.    Designation and Amount
	 	 	13	 
	Section 2.02.    Form of Notes
	 	 	13	 
	Section 2.03.    Date and Denomination of Notes; Payments of Interest
	 	 	14	 
	Section 2.04.    Payment of Additional Interest
	 	 	15	 
	Section 2.05.    Execution, Authentication and Delivery of Notes
	 	 	15	 
	Section 2.06.    Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary
	 	 	17	 
	Section 2.07.    Mutilated, Destroyed, Lost or Stolen Notes
	 	 	23	 
	Section 2.08.    Temporary Notes
	 	 	24	 
	Section 2.09.    Cancellation of Notes Paid, Etc.
	 	 	24	 
	Section 2.10.    CUSIP Numbers
	 	 	24	 
	Section 2.11.    Additional Notes, Repurchases
	 	 	25	 
	Section 2.12.    Automatic Exchange from Restricted Global Note to Unrestricted Global Note
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 3

Particular Covenants of the Company
	 
	 	 	 	 
	Section 3.01.    Payment of Principal, Interest and Additional Interest
	 	 	26	 
	Section 3.02.    Maintenance of Office or Agency
	 	 	26	 
	Section 3.03.    Appointments to Fill Vacancies in Trustee’s Office
	 	 	27	 
	Section 3.04.    Provisions as to Paying Agent
	 	 	27	 
	Section 3.05.     Existence
	 	 	28	 
	Section 3.06.    Rule 144A Information Requirement and Annual Reports
	 	 	28	 
	Section 3.07.    Stay, Extension and Usury Laws
	 	 	29	 
	Section 3.08.    Compliance Certificate; Statements as to Defaults
	 	 	30	 
	Section 3.09.    Further Instruments and Acts
	 	 	30	 
	Section 3.10.    Additional Interest Notification
	 	 	30	 






i









 






	 	 	 	 	 
	 	 	 Page	 
	ARTICLE 4
Lists of Noteholders and Reports by the Company and the Trustee
	 
	 	 	 	 
	Section 4.01.    Lists of Noteholders
	 	 	30	 
	Section 4.02.    Preservation and Disclosure of Lists
	 	 	30	 
	Section 4.03.    Reports by Trustee
	 	 	31	 
	Section 4.04.    Reports by Company
	 	 	31	 
	 
	 	 	 	 
	ARTICLE
5
Defaults and Remedies
	 
	 	 	 	 
	Section 5.01.    Events of Default
	 	 	31	 
	Section 5.02.    Additional Interest
	 	 	34	 
	Section 5.03.    Payments of Notes on Default; Suit Therefor
	 	 	34	 
	Section 5.04.    Application of Monies Collected by Trustee
	 	 	36	 
	Section 5.05.    Proceedings by Noteholders
	 	 	37	 
	Section 5.06.    Proceedings by Trustee
	 	 	37	 
	Section 5.07.    Remedies Cumulative and Continuing
	 	 	38	 
	Section 5.08.    Direction of Proceedings and Waiver of Defaults by Majority of Noteholders
	 	 	38	 
	Section 5.09.    Notice of Defaults
	 	 	38	 
	Section 5.10.    Undertaking to Pay Costs
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 6
Concerning the Trustee
	 
	 	 	 	 
	Section 6.01.    Duties and Responsibilities of Trustee
	 	 	39	 
	Section 6.02.    Reliance on Documents, Opinions, Etc.
	 	 	41	 
	Section 6.03.    No Responsibility for Recitals, Etc.
	 	 	42	 
	Section 6.04.   Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes
	 	 	43	 
	Section 6.05.    Monies to be Held in Trust
	 	 	43	 
	Section 6.06.    Compensation and Expenses of Trustee
	 	 	43	 
	Section 6.07.    Officers’ Certificate as Evidence
	 	 	44	 
	Section 6.08.    Conflicting Interests of Trustee
	 	 	44	 
	Section 6.09.    Eligibility of Trustee
	 	 	44	 
	Section 6.10.    Resignation or Removal of Trustee
	 	 	44	 
	Section 6.11.    Acceptance by Successor Trustee
	 	 	45	 
	Section 6.12.    Succession by Merger, Etc.
	 	 	46	 
	Section 6.13.    Limitation on Rights of Trustee as Creditor
	 	 	47	 
	Section 6.14.    Trustee’s Application for Instructions from the Company
	 	 	47	 






ii









 






	 	 	 	 	 
	 	 	 Page	 
	ARTICLE 7
Concerning the Noteholders
	 
	 	 	 	 
	Section 7.01.    Action By Noteholders
	 	 	47	 
	Section 7.02.    Proof of Execution by Noteholders
	 	 	48	 
	Section 7.03.    Who Are Deemed Absolute Owners
	 	 	48	 
	Section 7.04.    Company-owned Notes Disregarded
	 	 	48	 
	Section 7.05.    Revocation of Consents; Future Holders Bound
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 8
Noteholders’ Meetings
	 
	 	 	 	 
	Section 8.01.    Purpose of Meetings
	 	 	49	 
	Section 8.02.    Call of Meetings by Trustee
	 	 	49	 
	Section 8.03.    Call of Meetings by Company or Noteholders
	 	 	50	 
	Section 8.04.    Qualifications for Voting
	 	 	50	 
	Section 8.05.    Regulations
	 	 	50	 
	Section 8.06.    Voting
	 	 	51	 
	Section 8.07.    No Delay of Rights by Meeting
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 9
Supplemental Indentures
	 
	 	 	 	 
	Section 9.01.    Supplemental Indentures Without Consent of Noteholders
	 	 	51	 
	Section 9.02.    Supplemental Indentures With Consent of Noteholders
	 	 	52	 
	Section 9.03.    Effect of Supplemental Indentures
	 	 	53	 
	Section 9.04.    Notation on Notes
	 	 	53	 
	Section 9.05.    Evidence of Compliance of Supplemental Indenture to be Furnished to the Trustee
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 10
Consolidation, Merger, Sale, Conveyance and Lease
	 
	 	 	 	 
	Section 10.01.    Company May Consolidate, Etc. on Certain Terms
	 	 	54	 
	Section 10.02.    Successor Corporation to be Substituted
	 	 	54	 
	Section 10.03.    Officers’ Certificate and Opinion of Counsel to be Given Trustee
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 11
Satisfaction and Discharge of Indenture
	 
	 	 	 	 
	Section 11.01.    Discharge of Indenture
	 	 	55	 
	Section 11.02.    Deposited Monies to be Held in Trust by Trustee
	 	 	56	 
	Section 11.03.    Paying Agent to Repay Monies Held
	 	 	56	 
	Section 11.04.    Return of Unclaimed Monies
	 	 	56	 
	Section 11.05.    Reinstatement
	 	 	56	 






iii









 






	 	 	 	 	 
	 	 	 Page	 
	ARTICLE 12
Immunity of Incorporators, Shareholders, Officers and Directors
	 
	 	 	 	 
	Section 12.01.    Indenture and Notes Solely Corporate Obligations
	 	 	57	 
	 
	 	 	 	 
	ARTICLE 13
Conversion
	 
	 	 	 	 
	Section 13.01.    Right of Convert
	 	 	57	 
	Section 13.02.    Conversion Procedure
	 	 	59	 
	Section 13.03.    Adjustment of Conversion Rate
	 	 	61	 
	Section 13.04.    Shares to Be Fully Paid
	 	 	69	 
	Section 13.05.    Certain Other Adjustments
	 	 	70	 
	Section 13.06.    Effect of Reclassification, Consolidation, Merger or Sale
	 	 	70	 
	Section 13.07.    Certain Covenants
	 	 	71	 
	Section 13.08.    Responsibility of Trustee
	 	 	72	 
	Section 13.09.    Notice to Holders Prior to Certain Actions
	 	 	72	 
	Section 13.10.    Shareholder Rights Plans
	 	 	73	 
	 
	 	 	 	 
	ARTICLE 14
Repurchase of Notes at Option of Holders
	 
	 	 	 	 
	Section 14.01.   Repurchase at Option of Holders Upon a Designated Event
	 	 	73	 
	 
	 	 	 	 
	ARTICLE 15
Miscellaneous Provisions
	 
	 	 	 	 
	Section 15.01.    Provisions Binding on Company’s Successors
	 	 	77	 
	Section 15.02.    Official Acts by Successor Corporation
	 	 	77	 
	Section 15.03.    Addresses for Notices, Etc.
	 	 	77	 
	Section 15.04.    Governing Law
	 	 	78	 
	Section 15.05.    Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee
	 	 	78	 
	Section 15.06.    Legal Holidays
	 	 	78	 
	Section 15.07.    No Security Interest Created
	 	 	79	 
	Section 15.08.    Benefits of Indenture
	 	 	79	 
	Section 15.09.    Table of Contents, Headings, Etc.
	 	 	79	 
	Section 15.10.    Authenticating Agent
	 	 	79	 
	Section 15.11.    Execution in Counterparts
	 	 	80	 
	Section 15.12.    Waiver Of Jury Trial
	 	 	80	 
	Section 15.13.    Force Majeure
	 	 	80	 







iv











 





          INDENTURE dated as of October 26, 2009 between Forest City Enterprises, Inc., an Ohio
corporation, as issuer (hereinafter sometimes called the “Company,” as more fully set forth in
Section 1.01), and The Bank of New York Mellon Trust Company, N.A., a national banking association,
as trustee (hereinafter sometimes called the “Trustee,” as more fully set forth in Section 1.01).




WITNESSETH:




          WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
5.00% Convertible Senior Notes due 2016 (hereinafter sometimes called the “Notes”), initially in an
aggregate principal amount not to exceed $175,000,000 (or $200,000,000 if the Initial Purchasers
(as defined below) exercise their option to purchase additional Notes in full as set forth in the
Purchase Agreement), and in order to provide the terms and conditions upon which the Notes are to
be authenticated, issued and delivered, the Company has duly authorized the execution and delivery
of this Indenture; and




          WHEREAS, the Notes, the certificate of authentication to be borne by the Notes, the Form of
Assignment and Transfer, the Form of Designated Event Purchase Notice, the Form of Conversion
Notice are to be substantially in the forms hereinafter provided for; and




          WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this
Indenture provided, the valid, binding and legal obligations of the Company, and to constitute
these presents a valid and legally binding agreement according to its terms, have been done and
performed, and the execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized.




NOW, THEREFORE, THIS INDENTURE WITNESSETH:




          That in order to declare the terms and conditions upon which the Notes are, and are to be,
authenticated, issued and delivered, and in consideration of the premises and of the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:




ARTICLE 1



Definitions




          Section 1.01. Definitions.




          (a) The terms defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture, which are defined in the Trust Indenture Act or which are by
reference therein defined in the Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires) shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of the execution of this
Indenture. The words “herein,” “hereof,” “hereunder,” and words of similar




 









 







import refer to this Indenture as a whole and not to any particular Article, Section or other
Subdivision. The terms defined in this Article include the plural as well as the singular.




          “Additional Interest” means all amounts, if any, payable pursuant to Sections 3.06(d), 3.06(e)
and 5.02.




          “Additional Shares” shall have the meaning specified in Section 13.01(b).




          “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 or cause the direction of 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.




          “Automatic Exchange” shall have the meaning specified in Section 2.12.




          “Automatic Exchange Notice” shall have the meaning specified in Section 2.12.




          “Beneficial Owner” and “Beneficial Ownership” means as determined in accordance with Rule
13d-3 under the Exchange Act.




          “Board of Directors” means the Board of Directors of the Company or a committee of such Board
duly authorized to act for it hereunder.




          “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors, or duly authorized
committee thereof (to the extent permitted by applicable law), and to be in full force and effect
on the date of such certification, and delivered to the Trustee.




          “Business Day” means any day, except a Saturday, Sunday or legal holiday on which the banking
institutions in The City of New York or the city in which the Corporate Trust Office is located are
authorized or obligated by law or executive order to close.




          “Capital Lease” means a lease that, in accordance with accounting principles generally
accepted in the United States of America, would be recorded as a capital lease on the balance sheet
of the lessee.




          “Capital Lease Obligation” of any Person means the obligation to pay rent or other payment
amounts under a lease of (or other Debt arrangements conveying the right to use) real or personal
property of such Person which is 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 generally accepted
accounting principles. The stated maturity of such obligation 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. The principal amount of such
obligation shall be the capitalized amount thereof that would appear on



2









 






the face of a balance sheet of such Person prepared in accordance with generally accepted
accounting principles.




          “capital stock” means, for any Person, any and all shares, interests, participations or other
equivalents of or interests in (however designated) stock issued by that Person.




          “close of business” means 5:00 p.m. (New York City time).




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




          “Commission” means the Securities and Exchange Commission.




          “Common Stock” means, subject to Section 13.06, shares of Class A common stock of the Company,
par value $0.33 1/3 per share, at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and that are not subject to redemption by the
Company; provided that if at any time there shall be more than one such resulting class, the shares
of each such class then so issuable shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the total number of
shares of all such classes resulting from all such reclassifications.




          “Company” means Forest City Enterprises, Inc., an Ohio corporation, and subject to the
provisions of Article 10, shall include its successors and assigns and, to the extent the
obligations hereunder shall be to more than one entity pursuant to Section 13.06, shall include
each of such entities.




          “Company Order” means a written order of the Company, signed by (a) the Company’s Chief
Executive Officer, President, Executive or Senior Vice President, Managing Director or any Vice
President (whether or not designated by a number or numbers or word or words added before or after
the title “Vice President”) and (b) any such other officer designated in clause (a) of this
definition or the Company’s Treasurer or Assistant Treasurer or Secretary or any Assistant
Secretary, and delivered to the Trustee.




          “Conversion Agent” shall have the meaning specified in Section 3.02.




          “Conversion Date” shall have the meaning specified in Section 13.02(b).




          “Conversion Notice” shall have the meaning specified in Section 13.02(b).




          “Conversion Rate” shall have the meaning specified in Section 13.01(a).




          “Corporate Trust Office” or other similar term means a corporate trust office of the Trustee
at which at any particular time its corporate trust business shall be administered, which office
is, at the date as of which this Indenture is dated, located at The Bank of New York Mellon Trust
Company, N.A., 2 North LaSalle Street, Chicago, Illinois 60602, Attention: Corporate Trust
Administration; Forest City Enterprises, Inc. or such other address as the Trustee may designate
from time to time by notice to the holders and the Company.




3









 








          “Custodian” means The Bank of New York Mellon Trust Company, N.A., as custodian for The
Depository Trust Company, with respect to the Notes in global form, or any successor entity
thereto.




          “Debt” means (without duplication), with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (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, (iii) every 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 or services (including securities repurchase agreements but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of business which are
not overdue or which are being contested in good faith), (v) every Capital Lease Obligation of such
Person, (vi) all Receivables Sales of such Person, together with any obligation of such Person to
pay any discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts in
connection therewith, (vii) all Redeemable Stock issued by such Person, (viii) every obligation to
pay rent or other payment amounts of such Person with respect to any Sale and Leaseback Transaction
to which such Person is a party (including, if applicable, the full payment obligation of that
Person at expiry of the lease arrangement assuming no refinancing or third party sale), (ix) every
obligation under Interest Rate, Currency or Commodity Price Agreements of such Person and (x) every
obligation of the type referred to in clauses (i) through (ix) 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.
The “amount” or “principal amount” of Debt at any time of determination as used herein represented
by (a) any contingent Debt, shall be the maximum liability upon the occurrence of the contingency
giving rise to the obligation (unless the underlying contingency has not occurred and the
occurrence of the underlying contingency is entirely within the control of the Company), (b) any
Debt issued at a price that is less than the principal amount at maturity thereof, shall be the
amount of the liability in respect thereof determined in accordance with generally accepted
accounting principles, (c) any Receivables Sale, shall be the amount of the unrecovered capital or
principal investment of the purchaser (other than the Company or a Wholly Owned Subsidiary of the
Company) thereof as of such time of determination, excluding amounts representative of yield or
interest earned on such investment and (d) any Redeemable Stock, shall be the maximum fixed
redemption or repurchase price in respect thereof.




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




          “Defaulted Interest” shall have the meaning specified in Section 2.03.




          “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.06(c) as the Depositary with respect to such Notes, until a
successor shall have been appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, “Depositary” shall mean or include such successor.




4









 








          “Designated Event” means the occurrence of either a Fundamental Change or a Termination of
Trading.




          “Designated Event Company Notice” shall have the meaning specified in Section 14.01(b).




          “Designated Event Expiration Time” shall have the meaning specified in Section 14.01(b).




          “Designated Event Purchase Date” shall have the meaning specified in Section 14.01(a).




          “Designated Event Purchase Notice” shall have the meaning specified in Section 14.01(a).




          “Designated Event Purchase Price” shall have the meaning specified in Section 14.01(a).




          “Distributed Property” shall have the meaning specified in Section 13.03(c).




          “Effective Date” shall have the meaning specified in Section 13.01(b)(ii).




          “Event of Default” means, with respect to the Notes, any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of notice, if any, therein
designated.




          “Ex-Date” means, with respect to any issuance or distribution on the Common Stock or any other
equity security, the first date on which the shares of Common Stock or such other equity security
trade on the relevant exchange or in the relevant market, regular way, without the right to receive
such issuance or distribution.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.




          “Fiscal Year” means a fiscal year of the Company ending on January 31 of each calendar year.




          “Fundamental Change” will be deemed to have occurred at the time after the Notes are
originally issued that any of the following occurs:





     (1) (i) any Person, including any syndicate or group deemed to be a “person” under
Section 13(d)(3) of the Exchange Act (other than the members of the Ratner, Miller or
Shafran families who are general partners of RMSLP (the “family interests”) and/or RMSLP),
acquires Beneficial Ownership, directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of (A) shares of the Company’s capital
stock entitling the person to exercise 50% or more of the total voting power of all shares
of the Company’s capital stock entitled to vote generally in elections of directors or (B)
50% or more of the voting interest in RMSLP, other than an



5









 






acquisition by the Company, any of the Company’s Subsidiaries or any of the Company’s
employee benefit plans or (ii) an aggregate Beneficial Ownership of more than 30% of the
Common Stock then outstanding by the family interests and/or RMSLP other than upon the
conversion of shares of the Company’s Class B common stock into shares of Common Stock;




     (2) the Company merges, or consolidates with or into any other Person (other than a
Subsidiary), another Person merges with or into the Company, or the Company conveys, sells,
transfers or leases all or substantially all of the Company’s assets to another Person,
other than any transaction:




     (i) that does not result in a reclassification, conversion, exchange or
cancellation of the outstanding Common Stock;




     (ii) pursuant to which the holders of the Common Stock immediately prior to the
transaction have the entitlement to exercise, directly or indirectly, 50% or more of
the voting power of all shares of the Company’s capital stock entitled to vote
generally in the election of directors of the continuing or surviving corporation
immediately after the transaction; or




     (iii) which is effected solely to change the Company’s jurisdiction of
incorporation and results in a reclassification, conversion or exchange of
outstanding shares of the Common Stock solely into shares of Common Stock of the
surviving corporation.



          “Global Note” shall have the meaning specified in Section 2.06(b).




          “Indenture” means this instrument as originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented.




          “Initial Purchasers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays
Capital Inc., Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated and the other several initial
purchasers named in Schedule I to the Purchase Agreement.




          “Interest Payment Date” means April 15 and October 15 of each year, beginning on April 15,
2010; provided, however, that if any Interest Payment Date falls on a date that is not a Business
Day, such payment of interest will be postponed until the next succeeding Business Day, and no
interest or other amount will be paid as a result of such postponement.




          “Interest Rate, Currency or Commodity Price Agreement” of any Person means any forward
contract, futures contract, swap, option or other financial agreement or arrangement (including,
without limitation, caps, floors, collars and similar agreements) relating to, or the value of
which is dependent upon, interest rates, currency exchange rates or commodity prices or indices
(excluding contracts for the purchase or sale of goods in the ordinary course of business).




          “Last Reported Sale Price” means, with respect to the Common Stock or any other security for
which a Last Reported Sale Price must be determined, on any date, the closing



6









 






sale price per share of the Common Stock or unit of such other security (or, if no closing
sale price is reported, the average of the last bid and last ask prices or, if more than one in
either case, the average of the average last bid and the average last ask prices) on such date as
reported in composite transactions for the principal U.S. securities exchange on which it is then
traded. If the Common Stock or such other security is not listed for trading on a United States
national or regional securities exchange on the relevant date, the Last Reported Sale Price shall
be the last quoted bid price per share of Common Stock or such other security in the
over-the-counter market on the relevant date, as reported by the National Quotation Bureau or
similar organization. In absence of such quotation, the Last Reported Sale Price shall be the
average of the mid-point of the last bid and ask prices for the Common Stock or such other security
on the relevant date from each of at least three nationally recognized independent investment
banking firms, which may include any or all of the Initial Purchasers, selected from time to time
by the Board of Directors of the Company for this purpose. The Last Reported Sale Price shall be
determined without reference to extended or after hours trading. Any such determination by the
Company will be conclusive absent manifest error.




          “Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental
Change (determined after giving effect to any exceptions or exclusions to such definition, but
without regard to the exception in clause (2)(ii) of the definition thereof).




          “Make-Whole Fundamental Change Notice” shall have the meaning specified in Section 13.01(b).




          “Market Disruption Event” means the occurrence or existence on any Scheduled Trading Day for
the Common Stock of any suspension of or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the relevant securities exchange or otherwise) in the Common
Stock on the relevant securities exchange or in any options contracts or futures contracts relating
to the Common Stock on any relevant exchange if, in any such case, such suspension or limitation
occurs or exists during the one-hour period before the closing time of the relevant exchange on
such day.




          “Maturity Date” means October 15, 2016; provided, however, that if the Maturity Date falls on
a date that is not a Scheduled Trading Day, then the Maturity Date will be postponed until the next
succeeding Scheduled Trading Day, and no interest or other amount will be paid as a result of such
postponement.




          “Merger Event” shall have the meaning specified in Section 13.06.




          “Non-Recourse” as applied to any Debt means Debt of a Person (or any portion thereof) to the
extent that, under the terms thereof, no personal recourse may be had against such Person or any
Affiliate of such Person for the payment of all or a portion of the principal of or interest or
premium on such Debt, and enforcement of obligations on such Debt (except with respect to fraud,
willful misconduct, intentional misrepresentation, misapplication of funds, waste and undertakings
with respect to environmental matters) is limited only to recourse against interests in specified
assets and properties owned by such Person (the “Subject Assets”),



7









 






accounts and proceeds arising therefrom, and rights under purchase agreements or other
agreements relating to such Subject Assets.




          “Note” or “Notes” means any note or notes, as the case may be, authenticated and delivered
under this Indenture.




          “Noteholder” or “holder,” as applied to any Note, or other similar terms (but excluding the
term “beneficial holder”), means any person in whose name at the time a particular Note is
registered on the Note Register.




          “Note Register” shall have the meaning specified in Section 2.06(a).




          “Note Registrar” shall have the meaning specified in Section 2.06(a).




          “Offering Circular” means the final offering circular dated October 20, 2009 with respect to
offering and sale of the Notes.




          “Officers’ Certificate,” when used with respect to the Company, means a certificate signed by
(a) one of the President, the Chief Executive Officer, any Executive or Senior Vice President, or
any Vice President (whether or not designated by a number or numbers or word added before or after
the title “Vice President”) and (b) by any such other officer designated in (a) or by one of the
Treasurer or any Assistant Treasurer, Secretary or any Assistant Secretary or Controller of the
Company, which is delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 15.05 if and to the extent required by the provisions of such Section. One
of the officers giving an Officers’ Certificate pursuant to Section 3.08 shall be the principal
executive, financial or accounting officer of the Company.




          “opening of business” means 9:00 a.m. (New York City time).




          “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, which is delivered to the Trustee. Each such opinion shall
include the statements provided for in Section 15.05 if and to the extent required by the
provisions of such Section.




          “outstanding,” when used with reference to Notes, shall, subject to the provisions of Section
7.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under
this Indenture, except:





     (i) Notes theretofore canceled by the Trustee or accepted by the Trustee for
cancellation;




     (ii) Notes, or portions thereof, for the payment or purchase of which monies in the
necessary amount shall have been deposited in trust with the Trustee or with any Paying
Agent (other than the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent);




     (iii) Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.07 unless proof



8









 






satisfactory to the Trustee is presented that any such Notes are held by protected
purchasers in due course; and



          (iv) Notes converted pursuant to Article 13.




          “Paying Agent” shall have the meaning specified in Section 3.02.




          “Person” means an individual, a corporation, a limited liability company, an association, a
partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a
government or an agency or a political subdivision thereof, including any syndicate or group that
would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.




          “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, for the purposes of this
definition, any Note authenticated and delivered under Section 2.07 in lieu of or in exchange for a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note that it replaces.




          “Purchase Agreement” means that certain Purchase Agreement, dated October 20, 2009, among the
Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., Goldman,
Sachs & Co. and Morgan Stanley & Co. Incorporated as representatives of the several Initial
Purchasers.




          “Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A.




          “Receivables” means receivables, chattel paper, instruments, documents or intangibles
evidencing or relating to the right to payment of money.




          “Receivables Sale” of any Person means any sale of Receivables of such Person (pursuant to a
purchase facility or otherwise), other than in connection with a disposition of the business
operations of such Person relating thereto or a disposition of defaulted Receivables for purposes
of collection and not as a financing arrangement.




          “record date,” with respect to the payment of interest on any Interest Payment Date, shall
have the meaning specified in Section 2.03.




          “Redeemable Stock” of any Person means any capital stock of such Person that by its terms (or
by the terms of any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to be redeemed
(pursuant to any sinking fund obligation or otherwise) or is convertible into or exchangeable for
Debt or is redeemable at the option of the holder thereof, in whole or in part, at any time on or
prior to the date that is 91 days after the Maturity Date.




          “Reference Property” shall have the meaning specified in Section 13.06(a).




9









 








          “Resale Restriction Termination Date” shall have the meaning specified in Section 2.06(c).




          “Responsible Officer” when used with respect to the Trustee, shall mean an officer of the
Trustee in the Corporate Trust Office, having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.




          “Restricted Common Stock” shall have the meaning specified in Section 2.12.




          “Restricted Global Note” shall have the meaning specified in Section 2.12.




          “Restricted Security” or “Restricted Securities” has the meaning specified in Section 2.06(c).




          “Rights Plan” shall have the meaning specified in Section 13.09.




          “RMSLP” means RMS, Limited Partnership, an Ohio limited partnership.




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




          “Sale and Leaseback Transaction” of any Person means an arrangement with any lender or
investor or to which such lender or investor is a party providing for the leasing by such Person of
any property or asset of such Person which has been or is being sold or transferred by such Person
more than 270 days after the acquisition thereof or the completion of construction or commencement
of operation thereof 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 property or asset. The stated
maturity of such arrangement shall be the date of the last payment of rent or any other amount due
under such arrangement prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.




          “Scheduled Trading Day” means any day that is scheduled to be a Trading Day on the principal
U.S. national securities exchange or market on which the Common Stock is listed or admitted for
trading. If the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day”
means a Business Day.




          “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.




          “Significant Subsidiary” means such Subsidiary of the Company as meets the definition of
“significant subsidiary” in Rule 1-02 of Regulation S-X promulgated by the Commission as in effect
on the original date of issuance of the Notes.




          “Spin-Off” shall have the meaning specified in Section 13.03(c).





10












 





          “Stock Price” means the price paid per share of Common Stock in connection with a Make-Whole
Fundamental Change pursuant to which Additional Shares shall be added to the Conversion Rate as set
forth in Section 13.01(b) hereof, which shall be equal to the average of the Last Reported Sale
Prices of the Common Stock over the five consecutive Trading Day period ending on the Trading Day
preceding the Effective Date of the Make-Whole Fundamental Change. If holders receive only cash in
the Make-Whole Fundamental Change, the Stock Price shall be the cash amount paid per share.




          “Subsidiary” of the Company means (i) a corporation a majority of whose capital stock with
voting power, under ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by the Company, by the Company and one or more Subsidiaries of the Company or by
one or more Subsidiaries of the Company or (ii) any other Person (other than a corporation) in
which the Company, one or more Subsidiaries of the Company or the Company and one or more
Subsidiaries of the Company, directly or indirectly, at the date of determination thereof, has
greater than a 50% ownership interest.




          “subsidiary” of any Person means (i) a corporation more than 50% of the combined voting power
of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one
or more other subsidiaries of such Person or by such Person and one or more subsidiaries thereof,
(ii) a partnership of which such Person, or one or more other subsidiaries of such Person or such
Person and one or more other subsidiaries thereof, directly or indirectly, is the general partner
and has the power to direct the policies, management and affairs of the partnership, (iii) a
limited liability company of which such Person or one or more subsidiaries of such Person or such
Person and one or more subsidiaries of such Person, directly or indirectly, is the managing member
and has the power to direct the policies, management and affairs of the company, or (iv) any other
Person (other than a corporation, partnership or limited liability company) in which such Person,
or one or more other subsidiaries of such Person or such Person and one or more other subsidiaries
thereof, directly or indirectly, has at least a majority ownership and power to direct the
policies, management and affairs thereof.




          “Successor Company” shall have the meaning specified in Section 10.01(a).




          “Termination of Trading” means the occurrence if the Common Stock is neither listed for
trading on a U.S. national securities exchange nor approved for quotation on a U.S. system of
automated dissemination of quotations of securities prices similar to the NASDAQ Global Market
prior to its designation as a national securities exchange.




          “Trading Day” means a day during which (a) trading in Common Stock generally occurs and (b)
there is no Market Disruption Event.




          “transfer” shall have the meaning specified in Section 2.06(c).




          “Trigger Event” shall have the meaning specified in Section 13.03(c).




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of execution of this Indenture; provided however, that in the event the Trust Indenture
Act of 1939 is amended after the date hereof, the term “Trust Indenture Act”



11









 






shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so
amended.




          “Trustee” means The Bank of New York Mellon Trust Company, N.A., and its successors and any
corporation resulting from or surviving any consolidation or merger to which it or its successors
may be a party and any successor trustee at the time serving as successor trustee hereunder.




          “Unrestricted Common Stock” shall have the meaning specified in Section 2.12.




          “Unrestricted Global Note” shall have the meaning specified in Section 2.12.




          “Voting Stock” of any Person means capital stock of such Person which ordinarily has voting
power for the election of directors (or persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of securities has such voting power by
reason of any contingency.




          “Wholly Owned Subsidiary” of any Person means a subsidiary of such Person all of the
outstanding capital stock or other ownership interests of which (other than directors’ qualifying
shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.




12









 








          Section 1.02. Incorporation by Reference of Trust Indenture Act.




          This Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are
incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act
terms have the following meanings:




          “indenture securities” means the Notes.




          “indenture security holder” means a holder.




          “indenture to be qualified” means this Indenture.




          “indenture trustee” or “institutional trustee” means the Trustee.




          All other terms in this Indenture that are defined by the Trust Indenture Act, defined by it
by reference to another statute or defined by Commission rule have the meanings assigned to them by
such definitions. If any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in this Indenture by the Trust Indenture Act, such required
provision shall control.




ARTICLE 2

Issue, Description, Execution, Registration and Exchange of Notes




          Section 2.01. Designation and Amount. The Notes shall be designated as the “5.00% Convertible
Senior Notes due 2016.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is initially limited to $175,000,000 (or $200,000,000 if the Initial
Purchasers exercise their option to purchase additional Notes in full as set forth in the Purchase
Agreement), subject to Section 2.11 and except for Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section
2.06, Section 2.07, Section 2.12 and Section 9.04.




          Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the respective forms set forth in Exhibit A.




          Any Global Note may be endorsed with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Indenture as may be required by
the Custodian or the Depositary or to indicate any special limitations or restrictions to which any
particular Notes are subject.




          Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or to conform to usage or to indicate any special limitations or restrictions to
which any particular Notes are subject.




13









 








          Each Global Note shall represent such principal amount of the outstanding Notes as shall be
specified therein and 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 increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of any Global
Note to reflect the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the holder of such Notes in accordance with this
Indenture. Payment of principal and accrued and unpaid interest (including Additional Interest, if
any) on each Global Note shall be made to the Depositary or its nominee of such Note on the date of
payment, unless a record date or other means of determining holders eligible to receive payment is
provided for herein.




          The terms and provisions contained in the form of Note attached as Exhibit A hereto are
incorporated herein and shall constitute, and are hereby expressly made, a part of this Indenture
and to the extent applicable, 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.




          Section 2.03. Date and Denomination of Notes; Payments of Interest. The Notes shall be
issuable in registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear
interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.




          The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register
at the close of business on any record date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date. Interest (including
Additional Interest, if any) on Notes in definitive form shall be payable at the office of the
Company maintained by the Company for such purposes in the Borough of Manhattan, City of New York,
which shall initially be an office or agency of the Trustee. The Company shall pay interest
(including Additional Interest, if any) (i) on any Notes in definitive form by check mailed to the
address of the Person entitled thereto as it appears in the Note Register (or upon written
application by such Person to the Note Registrar not later than the relevant record date, by wire
transfer in immediately available funds to such Person’s account within the United States, if such
Person is entitled to interest on an aggregate principal in excess of $1,000,000) or (ii) on any
Global Note by wire transfer of immediately available funds to the account of the Depositary or its
nominee. The term “record date” with respect to any Interest Payment Date shall mean the March 31
or September 30 preceding the applicable April 15 or October 15 Interest Payment Date,
respectively.




          Any interest on any Note which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable
to the Noteholder on the relevant record date by virtue of its having been such Noteholder, and
such Defaulted Interest shall be paid by the Company, at its election in each case, as provided in
clause (a) or (b) below:




14









 








          (a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the close of business on
a special record date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note and the date of the proposed payment (which shall be not
less than twenty-five (25) days after the receipt by the Trustee of such notice, unless the Trustee
shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a
special record date for the payment of such Defaulted Interest which shall be not more than fifteen
(15) days and not less than ten (10) days prior to the date of the proposed payment, and not less
than ten (10) days after the receipt by the Trustee of the notice of the proposed payment. The
Company shall promptly notify the Trustee in writing of such special record date and the Trustee,
in the name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first-class postage prepaid,
to each holder at its address as it appears in the Note Register, not less than ten (10) days prior
to such special record date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the
close of business on such special record date and shall no longer be payable pursuant to the
following clause (b) of this Section 2.03.




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




          Section 2.04. Payment of Additional Interest. If required by Sections 3.06(d), 3.06(e) or
5.02 of this Indenture, each Note shall pay Additional Interest in the manner and to the Persons
set forth by such Sections. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of, any Note, such
mention shall be deemed to include mention of the payment of “Additional Interest” provided for in
Sections 3.06(d), 3.06(e) and 5.02 to the extent that, in such context, Additional Interest is, was
or would be payable in respect thereof pursuant to the provisions of such sections, and express
mention of the payment of Additional Interest (if applicable) in any provisions hereof shall not be
construed as excluding Additional Interest in those provisions hereof where such express mention is
not made.




          Section 2.05. Execution, Authentication and Delivery of Notes. The Notes shall be signed in
the name and on behalf of the Company by the manual or facsimile signature of its Chairman or
Vice-Chairman of the Board of Directors, Chief Executive Officer, President, any of its Executive
or Senior Vice Presidents, or any of its Vice Presidents (whether or not



15









 






designated by a number or numbers or word or words added before or after the title “Vice
President”). The signature of any of these officers on the Notes shall be manual, facsimile, in
the form of a .pdf attachment or by other means of electronic transmission. Notes shall be dated
the date of their authentication.




          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver additional Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Notes, and the Trustee in
accordance with such Company Order shall authenticate and deliver such Notes, without any further
action by the Company hereunder.




          Only such Notes as shall bear thereon a certificate of authentication substantially in the
form set forth on the form of Note attached as Exhibit A hereto, manually executed by the Trustee
(or an authenticating agent appointed by the Trustee as provided by Section 15.11), shall be
entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company
shall be conclusive evidence that the Note so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this Indenture.




     In authenticating additional Notes after the date hereof, and accepting the additional
responsibilities under this Indenture in relation to such Notes, the Trustee shall receive, and,
shall be fully protected in relying upon:



          (a) A copy of the resolution or resolutions of the Board of Directors in or pursuant to which
the terms and form of the Notes were established, certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect as of the date of such certificate, and if the terms and form of such Notes are
established by an Officers’ Certificate pursuant to general authorization of the Board of
Directors, such Officers’ Certificate;





     (b) an executed supplemental indenture, if any;




     (c) an Officers’ Certificate delivered in accordance with Section 15.05; and




     (d) an Opinion of Counsel which shall state:




     (i) that the form of such Notes has been established by a supplemental indenture or by
or pursuant to a resolution of the Board of Directors in accordance with Section 2.01 and
Section 2.02 and in conformity with the provisions of this Indenture;




     (ii) that the terms of such Notes have been established in accordance with Section 2.01
and in conformity with the other provisions of this Indenture;




     (iii) that such Notes, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency,



16









 







reorganization, fraudulent transfer, moratorium or other laws of general applicability
relating to or affecting the enforcement of creditors’ rights and to general equity
principles regardless of whether such enforceability is considered in a proceeding of law or
equity; and




     (iv) that all laws and requirements in respect of the execution and delivery by the
Company of such Notes have been complied with.



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




          Section 2.06. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary.




          (a) The Company shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company designated pursuant to
Section 3.02 being herein sometimes collectively referred to as the “Note Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. Such register shall be in written form or in any
form capable of being converted into written form within a reasonable period of time. The Trustee
is hereby appointed “Note Registrar” for the purpose of registering Notes and transfers of Notes as
herein provided. The Company may appoint one or more co-registrars in accordance with Section
3.02.




          Upon surrender for registration of transfer of any Note to the Note Registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized denominations and of
a like aggregate principal amount and bearing such restrictive legends as may be required by this
Indenture.




          Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 3.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Noteholder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.




          All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Note Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of



17









 






transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or
his attorney-in-fact duly authorized in writing.




          No service charge shall be charged to the Noteholder for any exchange or registration of
transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover
any tax, assessments or other governmental charges that may be imposed in connection therewith.




          None of the Company, the Trustee, the Note Registrar or any co-registrar shall be required to
exchange or register a transfer of (a) any Notes surrendered for conversion or, if a portion of any
Note is surrendered for conversion, such portion thereof surrendered for conversion or (b) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) except in
accordance with Article 13 for conversion and Article 14 for repurchase hereof, respectively.




          All Notes issued upon any registration of transfer or exchange of Notes in accordance with
this Indenture shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Notes surrendered upon such registration
of transfer or exchange.




          (b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or more Notes in global form
(each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in a Global Note, which does not involve the
issuance of a definitive Note, shall be effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depositary therefor.




          (c) Every Note that bears or is required under this Section 2.06(c) to bear the legend set
forth in this Section 2.06(c) (together with any Common Stock issued upon the conversion of the
Notes and required to bear the legend set forth in Section 2.06(d), collectively, the “Restricted
Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.06(c)
(including the legend set forth below), unless such restrictions on transfer shall be waived by
written consent of the Company, and the holder of each such Restricted Security, by such holder’s
acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in Section
2.06(c) and Section 2.06(d), the term “transfer” encompasses any sale, pledge, transfer or other
disposition whatsoever of any Restricted Security.




          Until the date (the “Resale Restriction Termination Date”) that is one year after the last
date of original issuance of the Notes, or such other period of time as permitted by Rule 144 under
the Securities Act or any successor provision thereto, any certificate evidencing such Note (and
all securities issued in exchange therefor or substitution thereof, other than Common Stock, if
any, issued upon conversion thereof which shall bear the legend set forth in Section 2.06(d), if
applicable) shall bear a legend in substantially the following form (unless such Notes have been
transferred pursuant to a registration statement that has become or been declared effective under
the Securities Act and that continues to be effective at the time of such transfer, pursuant to the
exemption from registration provided by Rule 144 or any similar



18









 






provision
then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with
notice thereof to the Trustee):




          THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT); (2) AGREES THAT IT WILL NOT WITHIN THE LATER OF (X) SIX MONTHS (OR, IF THE
COMPANY HAS NOT SATISFIED THE CURRENT PUBLIC INFORMATION REQUIREMENTS OF RULE 144, ONE YEAR) AFTER
THE LAST DATE OF ORIGINAL ISSUANCE OF NOTES (INCLUDING THROUGH THE EXERCISE OF THE OPTION TO
PURCHASE ADDITIONAL NOTES) AND (Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING
OF RULE 144 UNDER THE SECURITIES ACT) OF FOREST CITY ENTERPRISES, INC. (THE “COMPANY”) OFFER,
RESELL, PLEDGE OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE CLASS A COMMON STOCK ISSUABLE
UPON CONVERSION OF SUCH NOTE, EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) UNDER ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE
144 (IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT (AND THAT CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3)
PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSES 2(A), 2(B) AND 2(D) ABOVE), IT
WILL FURNISH TO THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (4)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(D) ABOVE ) PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF
THE NOTE EVIDENCED HEREBY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF
THE TRANSFER OF THIS NOTE PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER
RULE 144 SUCH THAT THE NOTE IS NO LONGER CONSIDERED “RESTRICTED SECURITIES” AS DEFINED UNDER RULE
144 (OR ANY SUCCESSOR PROVISION). THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTION.




19









 








          No transfer of any Note prior to the Resale Restriction Termination Date will be registered by
the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been
checked.




          Any Note (or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms may, upon surrender of
such Note for exchange to the Note Registrar in accordance with the provisions of this Section
2.06, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which
shall not bear the restrictive legend required by this Section 2.06(c). The Company shall notify
the Trustee upon the occurrence of the Resale Restriction Termination Date and promptly after a
Registration Statement with respect to the Notes or the Common Stock has been declared effective
under the Securities Act.




          Notwithstanding any other provisions of this Indenture, a Global Note may not be transferred
as a whole or in part except (i) 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 and (ii) for
transfers of portions of a Global Note in definitive form made upon request of a member of, or a
participant in, the Depositary (for itself or on behalf of a beneficial owner) by written notice
given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of
the Depositary and in compliance with this Section.




          The Depositary shall be a clearing agency registered under the Exchange Act. The Company
initially appoints The Depository Trust Company to act as Depositary with respect to each Global
Note. Initially, the Global Note shall be issued to the Depositary, registered in the name of Cede
& Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for the
Depositary.




          If at any time the Depositary for a Global Note (i) notifies the Company that it is unwilling
or unable to continue as depositary for such Note or (ii) ceases to be registered as a clearing
agency under the Exchange Act, the Company may appoint a successor Depositary with respect to such
Note. If (A) a successor Depositary for such Global Note is not appointed by the Company within
ninety (90) days after the Company receives such notice or the Depositary ceases to be a registered
clearing agency, (B) the Company, at its option, notifies the Trustee that it elects to cause the
issuance of Notes in definitive form in exchange for all or any part of the Notes represented by a
Global Note, subject to the procedures of the Depositary, or (C) an Event of Default has occurred
and is continuing and the Note Registrar has received a request from the Depositary for the
issuance of Notes in definitive form in exchange for a Global Note, the Company will execute, and
the Trustee, upon receipt of an Officers’ Certificate for the authentication and delivery of Notes,
will authenticate and deliver Notes in definitive form in an aggregate principal amount equal to
the principal amount of such Global Note, in exchange for such Global Note, and upon delivery of
the Global Note to the Trustee such Global Note shall be canceled.




          Definitive Notes issued in exchange for all or a part of the Global Note pursuant to this
Section 2.06(c) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall



20









 






instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such
definitive Notes to the Persons in whose names such definitive Notes are so registered.




          At such time as all interests in a Global Note have been converted, canceled, repurchased or
transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance
with standing procedures and instructions existing between the Depositary and the Custodian. At
any time prior to such cancellation, if any interest in a Global Note is exchanged for definitive
Notes, converted, canceled, repurchased or transferred to a transferee who receives definitive
Notes therefor or any definitive Note is exchanged or transferred for part of such Global Note, the
principal amount of such Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be appropriately reduced or
increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee
or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.




          None of the Company, the Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.




          (d) Until the Resale Restriction Termination Date, any stock certificate representing Common
Stock issued upon conversion of the Note shall bear a legend in substantially the following form
(unless such Note or such Common Stock has been transferred pursuant to a registration statement
that has become or been declared effective under the Securities Act and that continues to be
effective at the time of such transfer or pursuant to the exemption from registration provided by
Rule 144 under the Securities Act or any similar provision then in force under the Securities Act,
or such Common Stock has been issued upon conversion of the Notes that have been transferred
pursuant to a registration statement that has become or been declared effective under the
Securities Act and that continues to be effective at the time of such transfer or pursuant to the
exemption from registration provided by Rule 144 under the Securities Act, or unless otherwise
agreed by the Company with written notice thereof to the Trustee and any transfer agent for the
Common Stock):




          THE CLASS A COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER
HEREOF AGREES THAT (1) IT WILL NOT WITHIN THE LATER OF (X) SIX MONTHS (OR, IF THE COMPANY HAS NOT
SATISFIED THE CURRENT PUBLIC INFORMATION REQUIREMENTS OF RULE 144, ONE YEAR) AFTER THE LAST DATE OF
ORIGINAL ISSUANCE OF THE NOTES (INCLUDING THROUGH THE EXERCISE OF THE OPTION TO PURCHASE ADDITIONAL
NOTES) UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED AND (Y) 90 DAYS AFTER IT CEASES TO BE
AN AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF FOREST CITY ENTERPRISES,
INC. (THE “COMPANY”) OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE CLASS A COMMON STOCK EVIDENCED
HEREBY, EXCEPT (A) TO



21









 






THE COMPANY OR TO ANY SUBSIDIARY THEREOF, (B) UNDER ANY AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 (IF AVAILABLE), OR (C) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND THAT
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER THAN A
TRANSFER PURSUANT TO CLAUSES 1(A) OR 1(C) ABOVE), IT WILL FURNISH TO NATIONAL CITY BANK, AS
TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS THE TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL DELIVER TO EACH PERSON TO WHOM THE CLASS A
COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(C) ABOVE)
PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CLASS A COMMON STOCK EVIDENCED
HEREBY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
CLASS A COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE 1(C) ABOVE OR UPON ANY TRANSFER OF THE
CLASS A COMMON STOCK EVIDENCED HEREBY UNDER RULE 144 SUCH THAT THE CLASS A COMMON STOCK EVIDENCED
HEREBY IS NO LONGER CONSIDERED “RESTRICTED SECURITIES” AS DEFINED UNDER RULE 144 (OR ANY SUCCESSOR
PROVISION).




          Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of
Common Stock, which shall not bear the restrictive legend required by this Section 2.06(d).




          (e) Any Note or Common Stock issued upon conversion of the Notes that, prior to the expiration
of the holding period applicable to sales thereof under Rule 144 under the Securities Act (or any
successor provision), is purchased or owned by the Company or any Affiliate thereof may not be
resold by the Company or such Affiliate unless registered under the Securities Act in a transaction
that results in such Notes or Common Stock, as the case may be, no longer being “Restricted
Securities” (as defined under Rule 144).




          (f) Notwithstanding any provision of Section 2.06 to the contrary, in the event Rule 144 as
promulgated under the Securities Act (or any successor rule) is amended to change the one-year
period under Rule 144 (or the corresponding period under any successor rule), from and after
receipt by the Trustee of the Officers’ Certificate and Opinion of Counsel provided for in this
Section 2.06(f), (i) each reference in Section 2.06(c) to “one year” and in the restrictive legend
set forth in such paragraph to “ONE YEAR” shall be deemed for all purposes hereof to be references
to such changed period, (ii) each reference in Section 2.06(d) to “one year” and in the



22









 






restrictive legend set forth in such paragraph to “ONE YEAR” shall be deemed for all purposes
hereof to be references to such changed period and (iii) all corresponding references in the Notes
(including the definition of Resale Restriction Termination Date) and the restrictive legends
thereon shall be deemed for all purposes hereof to be references to such changed period, provided
that such changes shall not become effective if they are otherwise prohibited by, or would
otherwise cause a violation of, the then-applicable federal securities laws. The provisions of
this Section 2.06(f) will not be effective until such time as the Opinion of Counsel and Officers’
Certificate have been received by the Trustee hereunder. This Section 2.06(f) shall apply to
successive amendments to Rule 144 (or any successor rule) changing the holding period thereunder.




          Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become
mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its
written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate
and deliver, a new Note, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company,
to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may
be required by them to save each of them harmless from any loss, liability, cost or expense caused
by or connected with such substitution, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.




          The Trustee or such authenticating agent may authenticate any such substituted Note and
deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if
applicable, such authenticating agent may require. Upon the issuance of any substituted Note, the
Company or the Trustee may require the payment by the holder of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note which has matured or is about to mature or has been
tendered for repurchase upon a Designated Event or is about to be converted shall become mutilated
or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a
substitute Note, pay or authorize the payment or the conversion of the same (without surrender
thereof except in the case of a mutilated Note), as the case may be, if the applicant for such
payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by them to save each of them
harmless for any loss, liability, cost or expense caused by or connected with such substitution,
and, in every case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee
and, if applicable, any Paying Agent or Conversion Agent evidence of their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof.




          Every substitute Note issued pursuant to the provisions of this Section 2.07 by virtue of the
fact that any Note is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any
time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other Notes



23









 






duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment or conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall
preclude any and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment or conversion of
negotiable instruments or other securities without their surrender.




          Section 2.08. Temporary Notes. Pending the preparation of Notes in definitive form, the
Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon
written request of the Company, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of
the Notes in definitive form but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent
upon the same conditions and in substantially the same manner, and with the same effect, as the
Notes in definitive form. Without unreasonable delay the Company will execute and deliver to the
Trustee or such authenticating agent Notes in definitive form (other than in the case of Notes in
global form) and thereupon any or all temporary Notes (other than any Global Note) may be
surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to
Section 3.02 and the Trustee or such authenticating agent shall authenticate and deliver in
exchange for such temporary Notes an equal aggregate principal amount of Notes in definitive form.
Such exchange shall be made by the Company at its own expense and without any charge therefor.
Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and
subject to the same limitations under this Indenture as Notes in definitive form authenticated and
delivered hereunder.




          Section 2.09. Cancellation of Notes Paid, Etc. All Notes surrendered for the purpose of
payment, repurchase, conversion, exchange or registration of transfer, shall, if surrendered to the
Company or any Paying Agent or any Note Registrar or any Conversion Agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be promptly canceled
by it, and no Notes shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall dispose of canceled Notes in accordance with its
customary procedures and, after such disposal, shall deliver a certificate of such disposal to the
Company, at the Company’s written request. If the Company shall acquire any of the Notes, such
acquisition shall not operate as satisfaction of the debt represented by such Notes unless and
until the same are delivered to the Trustee for cancellation.




          Section 2.10. CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices to
Noteholders as a convenience to holders of the Notes; provided, 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
on such notice and that reliance may be placed only on the other identification numbers printed on
the Notes. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers. Until such time as the Company notifies the Trustee to remove the restrictive legend as
set forth in Section 2.06(c) from the Notes or a



24









 






transfer of Notes from a Restricted Global Note to an Unrestricted Global Note is otherwise
made pursuant to the terms hereof, the restricted CUSIP will be the CUSIP number for the Notes. At
such time as the Company notifies the Trustee to remove the restrictive legend as set forth in
Section 2.06(c) from the Notes, such legend shall be deemed removed from any Global Notes and an
unrestricted CUSIP number for the Notes shall be deemed to be the CUSIP number for the Notes.




          Section 2.11. Additional Notes, Repurchases. The Company may, without the consent of the
Noteholders and notwithstanding Section 2.01, reopen this Indenture and issue additional Notes
hereunder with the same terms and with the same CUSIP number as the Notes initially issued
hereunder in an unlimited aggregate principal amount, which will form the same series with the
Notes initially issued hereunder; provided that no such additional Notes may be issued unless
fungible with the Notes initially issued hereunder for U.S. federal income tax purposes. The
Company may also from time to time repurchase the Notes in tender offers, open market purchases or
negotiated transactions without prior notice to Noteholders.




          Section 2.12. Automatic Exchange from Restricted Global Note to Unrestricted Global Note.
Beneficial interests in a Global Note or Common Stock issued upon conversion of Notes that is
subject to restrictions set out in Section 2.06(c) or Section 2.06(d), as applicable (including the
legend set forth in Section 2.06(c) or Section 2.06(d), as applicable) (the “Restricted Global
Note” or “Restricted Common Stock,” as applicable), shall be automatically exchanged into
beneficial interests in an unrestricted Global Note or stock certificate representing unrestricted
Common Stock, as applicable, that is no longer subject to the restrictions set out in Section
2.06(c) or Section 2.06(d), as applicable (including removal of the legend set forth in Section
2.06(c) or Section 2.06(d), as applicable) (the “Unrestricted Global Note” or “Unrestricted Common
Stock,” as applicable), without any action required by or on behalf of the holder (the “Automatic
Exchange”). In order to effect such exchange, the Company shall at least 15 days but not more than
30 days prior to the Resale Restriction Termination Date, deliver a notice of Automatic Exchange
(an “Automatic Exchange Notice”) to each holder at such holder’s address appearing in the Note
Register or register maintained at the registrar for Common Stock, as applicable, with a copy to
the Trustee or transfer agent for Common Stock, as applicable. The Automatic Exchange Notice shall
identify the Notes or Common Stock , as applicable, subject to the Automatic Exchange and shall
state: (1) the date of the Automatic Exchange; (2) the section of this Indenture pursuant to which
the Automatic Exchange shall occur; (3) the “CUSIP” number of the Restricted Global Note or
Restricted Common Stock, as applicable, from which such holders’ beneficial interests shall be
transferred and (4) the “CUSIP” number of the Unrestricted Global Note or Unrestricted Common
Stock, as applicable, into which such holders’ beneficial interests shall be transferred. At the
Company’s request on no less than 5 days’ prior notice, the Trustee shall deliver, or, with respect
to Common Stock, the Company shall cause the transfer agent to deliver, in the Company’s name and
at its expense, the Automatic Exchange Notice to each holder at such holder’s address appearing in
the Note Register or register maintained at the registrar for Common Stock, as applicable;
provided, however, that the Company shall have delivered to the Trustee or transfer agent, as
applicable, a Company Order and an Officers’ Certificate requesting that the Trustee or transfer
agent, as applicable, give the Automatic Exchange Notice (in the name and at the expense of the
Company) and setting forth the information to be stated in the Automatic Exchange Notice as
provided in the preceding sentence. As a condition to any such exchange pursuant to this



25









 






Section 2.12, the Trustee or transfer agent, as applicable, shall be entitled to receive from the
Company, and rely conclusively without any liability, upon an Officers’ Certificate and an Opinion
of Counsel to the Company, in form and in substance reasonably satisfactory to the Trustee or
transfer agent, as applicable, to the effect that such transfer of beneficial interests to the
Unrestricted Global Note or Unrestricted Common Stock, as applicable, shall be effected in
compliance with the Securities Act. Upon such exchange of beneficial interests pursuant to this
Section 2.12, (i) with respect to the Notes, the Note Registrar shall endorse the schedule of
increases and decreases in the Global Note to the relevant Notes and reflect on its books and
records the date of such transfer and a decrease and increase, respectively, in the principal
amount of the applicable Restricted Global Note and the Unrestricted Global Note, respectively,
equal to the principal amount of beneficial interests transferred or (ii) with respect to Common
Stock, the registrar for Common Stock shall reflect on its books and records the date of such
transfer and a decrease and increase, respectively, in the number of shares of the applicable
Restricted Common Stock and the Unrestricted Common Stock, respectively, equal to the beneficial
interests transferred. If an Unrestricted Global Note is not then outstanding at the time of the
Automatic Exchange, the Company shall execute and the Trustee shall authenticate and deliver an
Unrestricted Global Note to the Depositary. Following any such transfer pursuant to this Section
2.12, the relevant Restricted Global Note or Restricted Common Stock, as applicable, shall be
cancelled.




ARTICLE 3

Particular Covenants of the Company




          Section 3.01. Payment of Principal, Interest and Additional Interest. The Company covenants
and agrees that it will cause to be paid the principal of, and accrued and unpaid interest
(including Additional Interest, if any) on, each of the Notes and if applicable, deliver shares of
Common Stock (together with any cash in lieu of fractional shares) upon conversion, at the places,
at the respective times and in the manner provided herein and in the Notes. Each installment of
accrued and unpaid interest (including Additional Interest, if any) on the Notes in definitive form
due on any Interest Payment Date may be paid by mailing checks for the amount payable to or upon
the written order of the Noteholders entitled thereto as they shall appear on the registry books of
the Company, provided that, with respect to any Noteholder with an aggregate principal amount in
excess of $1,000,000, at the application of such holder in writing to the Note Registrar not later
than the relevant record date, accrued and unpaid interest (including Additional Interest, if any)
on such holder’s Notes shall be paid by wire transfer in immediately available funds to such
holder’s account in the United States supplied by such holder from time to time to the Trustee and
Paying Agent (if different from Trustee); provided further that payment of accrued and unpaid
interest (including Additional Interest, if any) on the Notes in global form shall be made to the
Depositary and be paid by wire transfer in immediately available funds in accordance with such wire
transfer instructions and other procedures provided by the Depositary from time to time.




          Section 3.02. Maintenance of Office or Agency. The Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”)
or for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company



26









 






will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency not designated or appointed by the Trustee. 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 or the office or agency of the Trustee in the Borough of
Manhattan, The City of New York.




          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 that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company will 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. The terms Paying Agent and Conversion Agent include any such additional or other
offices or agencies, as applicable.




          The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar,
Custodian and Conversion Agent and the Corporate Trust Office and the office or agency of the
Trustee in the Borough of Manhattan shall be considered as one such office or agency of the Company
for each of the aforesaid purposes.




          So long as the Trustee is the Note Registrar, the Trustee agrees to mail, or cause to be
mailed, the notices set forth in Section 6.10(a) and the third paragraph of Section 6.11.




          Section 3.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 6.10, a Trustee, so that there shall at all times be a Trustee hereunder.




          Section 3.04. Provisions as to Paying Agent.




          (a) If the Company shall appoint a Paying Agent other than the Trustee or if the Trustee shall
appoint such a Paying Agent, the Company will cause such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section 3.04:





     (i) that it will hold all sums held by it as such agent for the payment of the
principal of, and accrued and unpaid interest (including Additional Interest, if any) on,
the Notes (whether such sums have been paid to it by the Company) in trust for the benefit
of the holders of the Notes;




     (ii) that it will give the Trustee notice of any failure by the Company to make any
payment of the principal of, and accrued and unpaid interest (including Additional Interest,
if any) on, the Notes when the same shall be due and payable; and




     (iii) that at any time during the continuance of an Event of Default, upon request of
the Trustee, it will forthwith pay to the Trustee all sums so held in trust.



27









 





          The Company shall, on or before each due date of the principal of, or accrued and unpaid
interest (including Additional Interest, if any) on the Notes, deposit with the Paying Agent a sum
sufficient to pay such principal or accrued and unpaid interest (including Additional Interest, if
any) and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in
writing of any failure to take such action, provided that if such deposit is made on the due date,
such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.




          (b) If the Company shall act as its own Paying Agent, it will, on or before each due date of
the principal of and accrued and unpaid interest (including Additional Interest, if any) on the
Notes, set aside, segregate and hold in trust for the benefit of the holders of the Notes a sum
sufficient to pay such principal and accrued and unpaid interest (including Additional Interest, if
any) so becoming due and will notify the Trustee in writing of any failure to take such action and
of any failure by the Company to make any payment of the principal of and accrued and unpaid
interest (including Additional Interest, if any) on the Notes, when the same shall become due and
payable.




          (c) Anything in this Section 3.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any Paying
Agent hereunder as required by this Section 3.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any Paying Agent to the Trustee,
the Company or such Paying Agent shall be released from all further liability with respect to such
sums.




          (d) Anything in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 3.04 is subject to Section 11.03 and Section 11.04.




          Section 3.05. Existence. Subject to Article 10, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence.




          Section 3.06. Rule 144A Information Requirement and Annual Reports.




          (a) At any time the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the
Company shall, so long as any of the Notes shall, at such time, constitute “Restricted Securities”
within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and
shall, upon written request, provide to any holder, beneficial owner or prospective purchaser of
such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to facilitate the resale of such Notes pursuant to Rule 144A under the Securities
Act. The Company shall take such further action as any holder or beneficial owner of such Notes
may reasonably request to the extent required from time to time to enable such holder or beneficial
holder to sell such Notes in accordance with Rule 144A under the Securities Act, as such rule may
be amended from time to time.




          (b) The Company will deliver to the Trustee within fifteen (15) days after the filing of the
same with the Commission, copies of the quarterly and annual reports and of the



28









 






information, documents and other reports, if any, which the Company is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act, and shall otherwise comply with
the requirements of Trust Indenture Act Section 314(a).




          (c) Delivery of such reports, information and documents to the Trustee is for informational
purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on an Officers’ Certificate).




          (d) If, at any time during the six-month period beginning on, and including, the date which is
six months after the date of original issuance of the Notes, the Company fails to timely file any
document or report that the Company is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act, as applicable (other than current reports on Form 8-K), or the Notes
are not otherwise freely tradable by holders other than the Company’s affiliates (as a result of
restrictions pursuant to U.S. securities law or the terms of this Indenture or the Notes), the
Company shall pay Additional Interest on the Notes. Such Additional Interest will accrue on the
Notes at an annual rate of 0.50% per annum of the principal amount of Notes outstanding for each
day during such period for which the Company’s failure to file continues; provided that the Company
shall have 14 days, in the aggregate, to cure any such late filings before any Additional Interest
shall accrue.




          (e) If, at any time after the 365th day after the last date of original issuance of the Notes
pursuant to the Purchase Agreement, (i) the restrictive legend on the Notes has not been removed in
accordance with Section 2.06(c) or 2.12, and (ii) the Notes are not freely tradable pursuant to
Rule 144 without volume restrictions by holders other than the Company’s affiliates (without
restrictions pursuant to U.S. securities law or the terms of this Indenture or the Notes), the
Company shall pay Additional Interest on the Notes. Such Additional Interest will accrue on the
Notes at an annual rate of 0.50% per annum of the principal amount of Notes outstanding for each
day after the 365th day after the last date of original issuance of the Notes until (i) the
restrictive legend on the Notes has been removed in accordance with Section 2.06(c) or 2.12, and
(ii) the Notes are freely tradable pursuant to Rule 144 without volume restrictions by holders
other than the Company’s affiliates (without restrictions pursuant to U.S. securities law or the
terms of this Indenture or the Notes).




          (f) Additional Interest payable in accordance with Section 3.06(d) or 3.06(e) will be payable
in arrears on each Interest Payment Date following accrual in the same manner as regular interest
on the Notes.




          Section 3.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the principal of, or
interest on, the Notes as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture; and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not, by resort to any such law, hinder, delay



29









 






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.




          Section 3.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver to
the Trustee within 120 calendar days after the end of each Fiscal Year of the Company (beginning
with the Fiscal Year ending on January 31, 2010) an Officers’ Certificate stating whether or not
the signer thereof has knowledge of any failure by the Company to comply with all conditions and
covenants then required to be performed under this Indenture and, if so, specifying each such
failure and the nature thereof.




          In addition, the Company shall deliver to the Trustee, as soon as possible and in any event
within 30 days after the Company becomes aware of the occurrence of any Event of Default or
Default, an Officers’ Certificate setting forth the details of such Event of Default or Default,
its status and the action which the Company proposes to take with respect thereto.




          Section 3.09. Further Instruments and Acts. Upon request of the Trustee or as necessary, the
Company will execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of this Indenture.




          Section 3.10. Additional Interest Notification. If Additional Interest is payable by the Company,
the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating the amount
of such Additional Interest that is payable and the date on which such Additional Interest is
payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust
Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest
is payable. If the Company has paid Additional Interest directly to the Persons entitled to them,
the Company shall deliver to the Trustee an Officers’ Certificate setting forth the particulars of
such payment.




ARTICLE 4

Lists of Noteholders and Reports by the Company and the Trustee




          Section 4.01. Lists of Noteholders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee, semi-annually, not more than fifteen (15) days after each
March 31 and September 30 in each year beginning with March 31, 2010, and at such other times as
the Trustee may request in writing, within thirty (30) days after receipt by the Company of any
such request (or such lesser time as the Trustee may reasonably request in order to enable it to
timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may
reasonably require of the names and addresses of the Noteholders as of a date not more than fifteen
(15) days (or such other date as the Trustee may reasonably request in order to so provide any such
notices) prior to the time such information is furnished, except that no such list need be
furnished so long as the Trustee is acting as Note Registrar.




          Section 4.02. Preservation and Disclosure of Lists.




          (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Noteholders contained in the





30












 




most recent list furnished to it as provided in Section 4.01 or maintained by the Trustee in its capacity as Note
Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section
4.01 upon receipt of a new list so furnished.




          (b) The rights of Noteholders to communicate with other Noteholders with respect to their
rights under this Indenture or under the Notes and the corresponding rights and duties of the
Trustee, shall be as provided by the Trust Indenture Act.




          (c) Every Noteholder, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Noteholders
made pursuant to the Trust Indenture Act.




          Section 4.03. Reports by Trustee.




          (a) Within sixty (60) days after April 1 of each year commencing with the year 2010, the
Trustee shall transmit to Noteholders such reports dated as of April 1 of each year in which such
reports are made concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.




          (b) A copy of such report shall, at the time of such transmission to Noteholders, be filed by
the Trustee with each stock exchange and automated quotation system upon which the Notes are listed
and with the Company. The Company will notify the Trustee in writing within a reasonable time when
the Notes are listed on any stock exchange or automated quotation system and when any such listing
is discontinued.




          Section 4.04. Reports by Company.




          (a) The Company shall file with the Trustee and the Commission, and transmit to Noteholders,
such information, documents and other reports and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days
after the same is filed with the Commission.




          (b) Delivery of such reports, information and documents to the Trustee is for informational
purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on an Officers’ Certificate).




ARTICLE 5

Defaults and Remedies




          Section 5.01. Events of Default. The following events shall be Events of Default with respect
to the Notes:





31









 









     (a) default in any payment of interest, including any Additional Interest, on any Note
when due and payable and the default continues for a period of 30 days;




     (b) default in the payment of principal of or any other amount under any Note when due
and payable on the Maturity Date, upon conversion, upon required repurchase, upon
declaration of acceleration or otherwise;




     (c) failure by the Company to comply with its obligation to convert the Notes in
accordance with this Indenture upon exercise of a holder’s conversion right;




     (d) failure by the Company to comply with its obligations under Article 10;




     (e) failure by the Company to comply with its notice obligations under Section
14.01(b);




     (f) failure by the Company for 60 days to comply with any of its other agreements
(other than a covenant or warranty or default in whose performance or whose breach is
elsewhere in this Section specifically provided for) contained in the Notes or the Indenture
after written notice of such default from the Trustee or the holders of at least 25% in
principal amount of the Notes then outstanding has been received by the Company;




     (g) a default or defaults under any bond, debenture, note or other evidence of Debt
(other than Non-Recourse Debt) by the Company or any subsidiary of the Company or under any
mortgage, indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Debt for money borrowed (other than Non-Recourse Debt) of the
Company or any such subsidiary with a principal amount then outstanding in excess of $10
million, whether such Debt now exists or shall hereafter be created, which default or
defaults shall constitute a failure to pay any portion of the principal of such Debt when
due and payable after the expiration of any applicable grace period with respect thereto and
shall have resulted in such Debt becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable or constitutes the failure to
pay any portion of the principal of such Debt when due and payable at maturity or by
acceleration;




     (h) a default or defaults under any bond, debenture, note or other evidence of
Non-Recourse Debt by the Company or any subsidiary of the Company or under any mortgage,
indenture or instrument under which there may be issued or by which there may be secured or
evidenced any Non-Recourse Debt of the Company or any such subsidiary with a principal
amount then outstanding in excess of 20% of the aggregate principal or similar amount of all
the outstanding Non-Recourse Debt of the Company and its subsidiaries, whether such
Non-Recourse Debt now exists or shall hereafter be created, which default or defaults shall
constitute a failure to pay any portion of the principal of such Non-Recourse Debt when due
and payable after the expiration of any applicable grace period with respect thereto or
shall have resulted in such Non-Recourse Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable;



32









 






     (i) the Company or any of its Significant Subsidiaries shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with respect to the
Company or any of their respective Significant Subsidiaries or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of the
Company or any of its Significant Subsidiaries or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay its debts as
they become due; or




     (j) an involuntary case or other proceeding shall be commenced against the Company or
any of its Significant Subsidiaries seeking liquidation, reorganization or other relief with
respect to the Company or any of its Significant Subsidiaries or their respective debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar official of
the Company or any of its Significant Subsidiaries or any substantial part of its property,
and such involuntary case or other proceeding shall remain undismissed and unstayed for a
period of ninety (90) consecutive days.



          In case one or more Events of Default shall have occurred and be continuing (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), then, and in each and every such case
(other than an Event of Default specified in Section 5.01(i) or Section 5.01(j) with respect to the
Company), unless the principal of all of the Notes shall have already become due and payable,
either the Trustee or the holders of at least 25% in aggregate principal amount of the Notes then
outstanding determined in accordance with Section 7.04, by notice in writing to the Company (and to
the Trustee if given by Noteholders), may declare 100% of the principal of, and accrued and unpaid
interest (including Additional Interest, if any) on, all the Notes to be due and payable
immediately, and upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Notes contained to the contrary notwithstanding. If
an Event of Default specified in Section 5.01(i) or Section 5.01(j) occurs and is continuing with
respect to the Company, the principal of all the Notes and accrued and unpaid interest (including
Additional Interest, if any) shall be immediately due and payable. This provision, however, is
subject to the conditions that if, at any time after the principal of the Notes shall have been so
declared due and payable, and before any judgment or decree for the payment of the monies due shall
have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay installments of accrued and unpaid interest (including
Additional Interest, if any) upon all Notes and the principal of any and all Notes that shall have
become due otherwise than by acceleration (with interest on overdue installments of accrued and
unpaid interest (including Additional







33









 







Interest, if any, and to the extent that payment of such interest is enforceable under applicable law) and on such principal at the rate borne by the Notes
during the period of such Default) and amounts due to the Trustee pursuant to Section 6.06, and if
(1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction
and (2) any and all Events of Defaults under this Indenture, other than the nonpayment of principal
of and accrued and unpaid interest (including Additional Interest, if any) on Notes that shall have
become due solely by such acceleration, shall have been cured or waived pursuant to Section 5.07,
then and in every such case the holders of a majority in aggregate principal amount of the Notes
then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or
Events of Default with respect to the Notes and rescind and annul such declaration and its
consequences and 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 or
rescission and annulment shall extend to or shall affect any subsequent Default or Event of
Default, or shall impair any right consequent thereon.




          The Company shall notify the Responsible Officer of the Trustee in writing, promptly upon
becoming aware thereof, of any Event of Default by delivering to the Trustee a statement specifying
such Event of Default and any action the Company has taken, is taking or proposes to take with
respect thereto.




          In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined adversely to the Trustee, then and
in every such case the Company, the Noteholders, and the Trustee shall, subject to any
determination in such proceeding, be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company, the Noteholders, and the Trustee
shall continue as though no such proceeding had been instituted.




          Section 5.02. Additional Interest. Notwithstanding anything in this Indenture or in the Notes
to the contrary (except as provided in Section 3.06(d) or 3.06(e)), if the Company so elects, the
sole remedy of Noteholders for an Event of Default relating to any obligation to file reports as
required under Section 3.06(d) or 3.06(e) shall, for the first 365 days after the occurrence of
such an Event of Default (which will be the 60th day after written notice is provided to the
Company in accordance with Section 5.01(f)), consist exclusively of the right to receive Additional
Interest on the Notes at an annual rate equal to (x) 0.25% of the outstanding principal amount of
the Notes for the first 180 days an Event of Default is continuing in such 365-day period and (y)
0.50% of the outstanding principal amount of the Notes for the remaining 185 days an Event of
Default is continuing in such 365-day period. Additional Interest shall be payable in arrears on
each Interest Payment Date following the occurrence of such Event of Default in the same manner as
regular interest on the Notes. The Company may elect to pay Additional Interest as the sole remedy
under this Section 5.02 by giving notice to the holders, the Trustee and Paying Agent of such
election on or before the close of business on the 5th Business Day after the date on which such
Event of Default otherwise would occur. If the Company fails to timely give such notice or pay
Additional Interest, the Notes will be immediately subject to acceleration as provided in Section
5.01. On the 366th day after such Event of Default (if such violation is not cured or waived prior
to such 366th day), the Notes will be subject to acceleration as provided in Section 5.01. This
Section 5.02 shall not affect the rights of the Noteholders in the event of the occurrence of any
other Event of Default. In the event the Company does not elect to pay Additional Interest upon an
Event of Default in accordance with this Section, the Notes will be subject to acceleration as
provided in Section 5.01.




          Section 5.03. Payments of Notes on Default; Suit Therefor. In the event that the Trustee or
the holders of not less than 25% in aggregate principal amount of the Notes then






34









 







outstanding hereunder have declared the principal of and accrued and unpaid interest (including Additional
Interest, if any) on, the Notes, to be due and payable immediately in accordance with Section 5.01,
and the Company shall have failed forthwith to pay such amounts, the Trustee, in its own name and
as trustee of an express trust, after being furnished suitable indemnity pursuant to Section 6.01,
shall be entitled and empowered to institute any actions or proceedings at law or in equity for the
collection of the sums so due and unpaid (including such further amounts as shall be sufficient to
cover the reasonable costs and expenses of collection, including reasonable compensation to the
Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred by the Trustee
hereunder other than through its negligence or bad faith), and may prosecute any such action or
proceeding to judgment or final degree, and may enforce any such judgment or final decree against
the Company and collect in the manner provided by law out of the property of the Company wherever
situated the monies adjudged or decreed to be payable.




          In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company under Title 11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Company, the property of the
Company, or in the event of any other judicial proceedings relative to the Company, upon the Notes,
or to the creditors or property of the Company, the Trustee, irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this
Section 5.03, shall be entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal and accrued and unpaid interest
(including Additional Interest, if any) and other amounts payable in respect of the Notes, and, in
case of any judicial proceedings, to file such proofs of claim and other papers or documents and to
take such other actions as it may deem necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Noteholders allowed in such judicial proceedings
relative to the Company on the Notes, its creditors, or its property, and to collect and receive
any monies or other property payable or deliverable on any such claims, and to distribute the same
after the deduction of any amounts due the Trustee under Section 6.06; and any receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby
authorized by each of the Noteholders to make such payments to the Trustee, as administrative
expenses, and, in the event that the Trustee shall consent to the making of such payments directly
to the Noteholders, to pay to the Trustee any amount due it for reasonable compensation, expenses,
advances and disbursements, including agents and counsel fees and including any other amounts due
to the Trustee under Section 6.06 hereof, incurred by it up to the date of such distribution. To
the extent that such payment of reasonable compensation, expenses, advances and disbursements out
of the estate in any such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies,
securities and other property which the holders of the Notes may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or arrangement or
otherwise.




          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Noteholder any plan of reorganization,






35









 







arrangement, adjustment or composition affecting the Noteholder or the rights of any Noteholder thereof, or to authorize
the Trustee to vote in respect of the claim of any Noteholder in any such proceeding.




          All rights of action and of asserting claims under this Indenture, or under any of the Notes,
may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for 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 any proceedings brought by the Trustee (and in any proceedings involving the interpretation
of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the holders of the Notes, and it shall not be necessary to make any holders of the
Notes parties to any such proceedings.




          Section 5.04. Application of Monies Collected by Trustee. Any monies collected by the Trustee
pursuant to this Article 5 with respect to the Notes shall be applied in the order following, at
the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of
the several Notes, and stamping thereon 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 6.06;




     Second, in case the principal of and other amounts under the outstanding Notes shall
not have become due and be unpaid, to the payment of interest on the Notes (including
Additional Interest, if any) in default in the order of the maturity of the installments of
such interest, with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the rate borne by the Notes, such
payments to be made ratably to the Persons entitled thereto;




     Third, in case the principal of and other amounts under the outstanding Notes shall
have become due, by declaration or otherwise, and be unpaid to the payment of the whole
amount (including, if applicable, the delivery of shares of Common Stock (and cash in lieu
of fractional shares) upon conversion) then owing and unpaid upon the Notes for principal,
such other amounts and interest (including Additional Interest, if any), with interest on
the overdue principal, such other amounts (to the extent that such interest has been
collected by the Trustee), and upon overdue installments of interest at the rate borne by
the Notes, and in case such monies shall be insufficient to pay in full the whole amounts so
due and unpaid upon the Notes, then to the payment of such principal, such other amounts and
interest without preference or priority of principal or such other amounts over interest, or
of interest over principal, such other amounts or of any installment of interest over any
other installment of interest, or of any Note over any other Note, ratably to the aggregate
of such principal, such other amounts and accrued and unpaid interest; and



36









 






     Fourth, to the payment of the remainder, if any, to the Company or as any court of
competent jurisdiction may direct.



          Section 5.05. Proceedings by Noteholders. No holder of any Note shall have any right by
virtue of or by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture, or for the
appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless
also the holders of not less than 25% in aggregate principal amount of the Notes then outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such security or indemnity
reasonably satisfactory to it against any loss, liability or expense to be incurred therein or
thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no
direction that, in the opinion of the Trustee, is inconsistent with such written request shall have
been given to the Trustee by the holders of a majority in principal amount of the Notes outstanding
pursuant to Section 5.08; it being understood and intended, and being expressly covenanted by the
taker and holder of every Note with every other taker and holder and the Trustee, that no one or
more Noteholders 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 Noteholder, or
to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Noteholders (except as otherwise provided herein). For the protection and
enforcement of this Section 5.05, each and every Noteholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.




          Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any Noteholder to receive payment of the principal of, other amounts under and accrued and
unpaid interest (including Additional Interest, if any) on such Note, on or after the respective
due dates expressed or provided in such Note or in this Indenture, or to institute suit for the
enforcement of any such payment on or after such respective dates against the Company shall not be
impaired or affected without the consent of such Noteholder.




          Anything in this Indenture or the Notes to the contrary notwithstanding, the holder of any
Note, without the consent of either the Trustee or the holder of any other Note, in its own behalf
and for his own benefit, may enforce, and may institute and maintain any proceeding suitable to enforce, its rights of
conversion as provided herein.




          Section 5.06. Proceedings by Trustee. In case of an Event of Default the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.





37









 








          Section 5.07. Remedies Cumulative and Continuing. Except as provided in the last paragraph of
Section 2.07, all powers and remedies given by this Article 5 to the Trustee or to the Noteholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any holder of any of the
Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any
such right or power, or shall be construed to be a waiver of any such Default or any acquiescence
therein; and, subject to the provisions of Section 5.05, every power and remedy given by this
Article 5 or by law to the Trustee or to the Noteholders may be exercised from time to time, and as
often as shall be deemed expedient by the Trustee or by the Noteholders.




          Section 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders. The
holders of a majority in aggregate principal amount of the Notes at the time outstanding determined
in accordance with Section 7.04 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 Notes; provided, however, that (a) such direction shall
not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such direction. The
Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights
of any other holder or that would involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Notes at the time outstanding determined in
accordance with Section 7.04 may, on behalf of the holders of all of the Notes waive any past
Default or Event of Default hereunder and its consequences except (i) a Default in the payment of
accrued and unpaid interest (including Additional Interest, if any) on, or the principal of or
other amounts under, the Notes when due which has not been cured pursuant to the provisions of
Section 5.01, (ii) failure by the Company to deliver shares of Common Stock (and cash in lieu of
fractional shares) upon conversion of the Notes; or (iii) a default in respect of a covenant or
provision hereof which under Article 9 cannot be modified or amended without the consent of each
holder of an outstanding Note affected thereby. Upon any such waiver the Company, the Trustee and
the holders of the Notes shall be restored to their former positions and rights hereunder, but no
such waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as
permitted by this Section 5.08, said Default or Event of Default shall for all purposes of the
Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon.




          Section 5.09. Notice of Defaults. The Trustee shall, within ninety (90) days after the
occurrence and continuance of a Default of which a Responsible Officer has actual knowledge, mail
to all Noteholders as the names and addresses of such holders appear upon the Note Register, notice
of all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or
waived before the giving of such notice; and provided that, except in the case of a Default in the
payment of the principal of, accrued and unpaid interest (including Additional Interest, if any) on
or other amounts due under any of the Notes, then in any such event the Trustee shall be protected
in withholding such notice if and so long as a committee of trust







38









 







officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the Noteholders.




          Section 5.10. Undertaking to Pay Costs. All parties to this Indenture agree, and each holder
of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made by such party litigant; provided that
the provisions of this Section 5.10 (to the extent permitted by law) shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding
determined in accordance with Section 7.04, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of, other amounts under and accrued and unpaid interest
(including Additional Interest, if any) on any Note on or after the due date expressed in such Note
or to any suit for the enforcement of the conversion rights in accordance with the provisions of
Article 13 or Article 14.




ARTICLE 6

Concerning the Trustee




          Section 6.01. Duties and Responsibilities of Trustee. The Trustee, except during an Event of
Default, undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default
occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any of the holders unless such holders
have offered to the Trustee indemnity or security reasonably satisfactory to it against loss,
liability or expense.




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





     (a) prior to the occurrence of an Event of Default and after the curing or waiving of
all Events of Default which may have occurred:




     (i) the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture and, after it has been qualified thereunder,
the Trust Indenture Act, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this Indenture
and the Trust Indenture Act against the Trustee; and



39









 






     (ii) in the absence of bad faith and willful misconduct on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture; but,
in the case of any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);



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




          (c) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of not less than a
majority in principal amount of the Notes at the time outstanding determined as provided in
Section 7.04 relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture;




          (d) whether or not therein provided, every provision of this Indenture relating to the
conduct or affecting the liability of, or affording protection to, the Trustee shall be
subject to the provisions of this Section;




          (e) the Trustee shall not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to payment) or notice effected
by the Company or any Paying Agent or any records maintained by any co-registrar with
respect to the Notes;




          (f) if any party fails to deliver a notice relating to an event the fact of which,
pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may
conclusively rely on its failure to receive such notice as reason to act as if no such event
occurred, unless such Responsible Officer of the Trustee had actual knowledge of such event;




          (g) in the absence of written investment direction from the Company, all cash received
by the Trustee shall be placed in a non-interest bearing trust account. In no event shall
the Trustee be liable for the selection of investments or for investment losses incurred
thereon or for losses incurred as a result of the liquidation of any such investment prior
to its stated maturity or the failure of the party directing such investments prior to its
stated maturity or the failure of the party directing such investment to provide timely
written investment direction, and the Trustee shall have no obligation to invest or reinvest
any amounts held hereunder in the absence of such written investment direction from the
Company; and






40









 









     (h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying
Agent, Conversion Agent or transfer agent hereunder, the rights and protections afforded to
the Trustee pursuant to this Article 6 shall also be afforded to such Custodian, Note
Registrar, Paying Agent, Conversion Agent or transfer agent.



          None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers.




          Section 6.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section
6.01:





     (a) the Trustee may conclusively rely and shall be fully protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, note, coupon or other paper or document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties;




     (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof
be herein specifically prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;




     (c) the Trustee may consult with counsel of its selection and require an Opinion of
Counsel and any advice of such counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;




     (d) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the Noteholders
pursuant to the provisions of this Indenture, unless such Noteholders shall have offered to
the Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby;




     (e) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company, personally or by
agent or attorney at the expense of the Company and shall incur no liability of any kind by
reason of such inquiry or investigation;




     (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians, nominees or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of any agent,
custodian, nominee or attorney appointed by it with due care hereunder;



41









 






     (g) the permissive rights of the Trustee enumerated herein shall not be construed as
duties;




     (h) 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
Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such Certificates or Opinions which
by any provisions hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);




     (i) the Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers’ authorized at such time to take
specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by
any person authorized to sign Officers’ Certificates, including any person specified as so
authorized in any such certificate previously delivered and not superseded;




     (j) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate;




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




     (l) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder.



          In no event shall the Trustee be liable for any consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action other than through the
Trustee’s willful misconduct or gross negligence. The Trustee shall not be charged with knowledge
of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible
Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of
such Default or Event of Default shall have been given to the Trustee by the Company or by any
holder of the Notes at the Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture; and the permissive rights of the Trustee enumerated herein shall not be
construed as duties.




          Section 6.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the







42









 







same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes
or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of funds made by it in accordance with this Indenture or at
the direction of the Company. Except for information provided by the Trustee concerning the
Trustee, the Trustee shall have no responsibility for any information in any offering memorandum,
prospectus or other disclosure material distributed with respect to the Notes.




          Section 6.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes. The
Trustee, any Paying Agent, any Conversion Agent or Note Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would have if it were
not Trustee, Paying Agent, Conversion Agent or Note Registrar.




          Section 6.05. Monies to be Held in Trust. Subject to the provisions of Section 11.04, all
monies received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as may be agreed from
time to time by the Company and the Trustee.




          Section 6.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder in any capacity (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as shall have been
determined to have been caused by its own gross negligence, willful misconduct or bad faith. The
Company also covenants to indemnify the Trustee in any capacity under this Indenture and any other
document or transaction entered into in connection herewith and its agents and any authenticating
agent for, and to hold them harmless against, any loss, liability, claim, damage, expense or taxes
incurred without gross negligence, willful misconduct or bad faith on the part of the Trustee, its
officers, directors, agents or employees, or such agent or authenticating agent, as the case may
be, and arising out of or in connection with the acceptance or administration of this trust or in
any other capacity hereunder, including the costs and expenses of defending themselves against any
claim of liability in the premises. The obligations of the Company under this Section 6.06 to
compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements
and advances shall be secured by a lien prior to that of the Notes upon all property and funds held
or collected by the Trustee as such, except, subject to the effect of Section 5.04, funds held in
trust herewith for the benefit of the holders of particular Notes prior to the date of the accrual
of such unpaid compensation or identifiable claim. The Trustee’s right to receive payment of any
amounts due under this Section 6.06 shall not be subordinate to any other liability or Debt of the
Company. The obligation of the Company under this Section 6.06 shall survive the satisfaction






43









 







and discharge of this Indenture and the earlier resignation or removal or the Trustee. The Company
need not pay for any settlement made without its consent, which consent shall not be unreasonably
withheld. The indemnification provided in this Section 6.06 shall extend to the officers,
directors, agents and employees of the Trustee.




          When the Trustee and its agents and any authenticating agent incur expenses or render services
after an Event of Default specified in Section 5.01(i) or Section 5.01(j) with respect to the
Company occurs, the expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy, insolvency or similar laws.




          Section 6.07. Officers’ Certificate as Evidence. Except as otherwise provided in Section
8.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, willful misconduct, recklessness and bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such Officers’ Certificate, in the absence of gross
negligence, willful misconduct, recklessness and bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.




          Section 6.08. Conflicting Interests of Trustee. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.




          Section 6.09. Eligibility of Trustee. There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.




          Section 6.10. Resignation or Removal of Trustee.




          (a) The Trustee may at any time resign by giving written notice of such resignation to the
Company and by mailing, at the expense of the Company, notice thereof to the Noteholders at their
addresses as they shall appear on the Note Register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been
so appointed and have accepted appointment sixty (60) days after the mailing of such notice of
resignation to the Noteholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any





44












 




Noteholder who has been a bona fide holder of a Note or Notes for at least six months may, subject to the provisions of Section 5.10, on behalf of itself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.





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




     (i) the Trustee shall fail to comply with Section 6.08 within a reasonable time after written request therefor by the Company or by any Noteholder who has been a bona fide holder of a Note or Notes for at least six (6) months, or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Noteholder, or




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


then, in any such case, the Company may by a Board Resolution remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 5.10, any Noteholder who has been a
bona fide holder of a Note or Notes for at least six (6) months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.




          (c) The holders of a majority in aggregate principal amount of the Notes at the time
outstanding, as determined in accordance with Section 7.04, may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed as successor trustee unless within ten
(10) days after notice to the Company of such nomination the Company objects thereto, in which case
the Trustee so removed or any Noteholder, upon the terms and conditions and otherwise as in Section
6.10(a) provided, may petition any court of competent jurisdiction for an appointment of a
successor trustee.




          (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 6.11.




          Section 6.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in
Section 6.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if





45









 







originally named as trustee herein; but, nevertheless, on the written request of the Company
or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 6.06, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of
any such successor trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such rights and powers.
Any trustee ceasing to act shall, nevertheless, retain a lien upon all property and funds held or
collected by such trustee as such, except for funds held in trust for the benefit of holders of
particular Notes, to secure any amounts then due it pursuant to the provisions of Section 6.06.




          No successor trustee shall accept appointment as provided in this Section 6.11 unless at the
time of such acceptance such successor trustee shall be qualified under the provisions of Section
6.08 and be eligible under the provisions of Section 6.09.




          Upon acceptance of appointment by a successor trustee as provided in this Section 6.11, each
of the Company and the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
Noteholders at their addresses as they shall appear on the Note Register. If the Company fails to
mail such notice within ten (10) days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the Company.




          Section 6.12. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation or
other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or other entity succeeding to all or substantially all of the corporate
trust business of the Trustee (including the administration of this Indenture), shall be the
successor to the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that in the case of any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be qualified under the provisions of Section 6.08 and eligible
under the provisions of Section 6.09.




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




46









 








          Section 6.13. Limitation on Rights of Trustee as Creditor. If and when the Trustee shall be
or become a creditor of the Company, the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company.




          Section 6.14. Trustee’s Application for Instructions from the Company. Any application by the
Trustee for written instructions from the Company (other than with regard to any action proposed to
be taken or omitted to be taken by the Trustee that affects the rights of the holders of the Notes
under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed
to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such
action shall be taken or such omission shall be effective. The Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall not be less than
three (3) Business Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any earlier date), unless,
prior to taking any such action (or the effective date in the case of any omission), the Trustee
shall have received written instructions in response to such proposal specifying the action to be
taken or omitted.




ARTICLE 7

Concerning the Noteholders




          Section 7.01. Action By Noteholders. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Noteholders in person or by agent or proxy appointed in
writing, or (b) by the record of the Noteholders voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article 8, or (c) by a
combination of such instrument or instruments and any such record of such a meeting of Noteholders
and, except as herein otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. Whenever the Company or the
Trustee solicits the taking of any action by the holders of the Notes, the Company or the Trustee
may fix, but shall not be required to, in advance of such solicitation, a date as the record date
for determining Noteholders entitled to take such action. The record date if one is selected shall
be not more than fifteen (15) days prior to the date of commencement of solicitation of such
action. Any request, demand, authorization, direction, notice consent, waiver or other action by a
holder of any Note shall bind every future holder of the same Note, and the holder of every Note
issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted, or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.




47









 








          Section 7.02. Proof of Execution by Noteholders. Subject to the provisions of Section 6.01,
Section 6.02 and Section 8.05, proof of the execution of any instrument by a Noteholder or his
agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar.
The record of any Noteholders’ meeting shall be proved in the manner provided in Section 8.06.




          Section 7.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating
agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose
name such Note shall be registered upon the Note Register to be, and may treat it as, the absolute
owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of, other amounts under and
accrued and unpaid interest (including Additional Interest, if any) on such Note, for conversion of
such Note and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent
nor any Conversion Agent nor any Note Registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being, or upon its order, shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for
monies payable upon any such Note. Notwithstanding anything to the contrary in this Indenture or
the Notes following an Event of Default, any holder of a beneficial interest in a Global Note may
directly enforce against the Company, without the consent, solicitation, proxy, authorization or
any other action of the Depositary or any other Person, such holder’s right to exchange such
beneficial interest for a Note in definitive form in accordance with the provisions of this
Indenture.




          Section 7.04. Company-owned Notes Disregarded. In determining whether the holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes that are owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Company
shall be disregarded and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are
so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 7.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the
pledgee is not the Company, or a Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an
Officers’ Certificate listing and identifying all Notes, if any, known by the Company to be owned
or held by or for the account of any of the above described Persons; and, subject to Section 6.01,
the Trustee shall be entitled to accept such Officers’ Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Notes not listed therein are outstanding for the
purpose of any such determination.




48









 








          Section 7.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 7.01, of the taking of any action by
the holders of the percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any holder of a Note that is shown by the evidence to be
included in the Notes the holders of which have consented to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 7.02, revoke such action so far as concerns such Note. Except as aforesaid, any such
action taken by the holder of any Note shall be conclusive and binding upon such holder and upon
all future holders and owners of such Note and of any Notes issued in exchange or substitution
therefor or upon registration of transfer, irrespective of whether any notation in regard thereto
is made upon such Note or any Note issued in exchange or substitution therefor or upon registration
of transfer thereof.




ARTICLE 8

Noteholders’ Meetings




          Section 8.01. Purpose of Meetings. A meeting of Noteholders may be called at any time and
from time to time pursuant to the provisions of this Article 8 for any of the following purposes:





     (a) to give any notice to the Company or to the Trustee or to give any directions to
the Trustee permitted under this Indenture, or to consent to the waiving of any Default or
Event of Default hereunder and its consequences, or to take any other action authorized to
be taken by Noteholders pursuant to any of the provisions of Article 5;




     (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions
of Article 6;




     (c) to consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 9.02; or




     (d) to take any other action authorized to be taken by or on behalf of the holders of
any specified aggregate principal amount of the Notes under any other provision of this
Indenture or under applicable law.



          Section 8.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of
Noteholders to take any action specified in Section 8.01, to be held at such time and at such place
as the Trustee shall determine. Notice of every meeting of the Noteholders, setting forth the time
and the place of such meeting and in general terms the action proposed to be taken at such meeting
and the establishment of any record date pursuant to Section 7.01, shall be mailed to holders of
such Notes at their addresses as they shall appear on the Note Register. Such notice shall also be
mailed to the Company. Such notices shall be mailed not less than twenty (20) nor more than ninety
(90) days prior to the date fixed for the meeting.




          Any meeting of Noteholders shall be valid without notice if the holders of all Notes then
outstanding are present in person or by proxy or if notice is waived before or after the





49









 







meeting by the holders of all Notes outstanding, and if the Company and the Trustee are either
present by duly authorized representatives or have, before or after the meeting, waived notice.




          Section 8.03. Call of Meetings by Company or Noteholders. In case at any time the Company,
pursuant to a resolution of its Board of Directors, or the holders of at least 10% in aggregate
principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting
of Noteholders, by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within
twenty (20) days after receipt of such request, then the Company or such Noteholders may determine
the time and the place for such meeting and may call such meeting to take any action authorized in
Section 8.01, by mailing notice thereof as provided in Section 8.02.




          Section 8.04. Qualifications for Voting. To be entitled to vote at any meeting of Noteholders
a Person shall (a) be a holder of one or more Notes on the record date pertaining to such meeting
or (b) be a Person appointed by an instrument in writing as proxy by a holder of one or more Notes.
The only Persons who shall be entitled to be present or to speak at any meeting of Noteholders
shall be the Persons entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its counsel.




          Section 8.05. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Noteholders, in regard to proof of the holding of Notes and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.




          The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Noteholders as provided in Section
8.03, in which case the Company or the Noteholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the holders of a majority in principal amount of the Notes
represented at the meeting and entitled to vote at the meeting.




          Subject to the provisions of Section 7.04, at any meeting of Noteholders each Noteholder or
proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or
represented by it; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on
behalf of other Noteholders. Any meeting of Noteholders duly called pursuant to the provisions of
Section 8.02 or Section 8.03 may be adjourned from time to time by the holders of a majority of the
aggregate principal amount of Notes represented at the meeting, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.




50









 








          Section 8.06. Voting. The vote upon any resolution submitted to any meeting of Noteholders
shall be by written ballot on which shall be subscribed the signatures of the Noteholders or of
their representatives by proxy and the principal amount of the Notes held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Noteholders shall be prepared
by the secretary of the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 8.02. The record shall show the principal amount of
the Notes voting in favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting.




          Any record so signed and verified shall be conclusive evidence of the matters therein stated.




          Section 8.07. No Delay of Rights by Meeting. Nothing contained in this Article 8 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Noteholders or
any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or to the Noteholders
under any of the provisions of this Indenture or of the Notes.




ARTICLE 9

Supplemental Indentures




          Section 9.01. Supplemental Indentures Without Consent of Noteholders. The Company, when
authorized by the resolutions of the Board of Directors, and the Trustee, at the Company’s expense,
may from time to time and at any time enter into an indenture or indentures supplemental hereto for
one or more of the following purposes:





     (a) to cure any ambiguity, omission, defect or inconsistency in this Indenture in a
manner that does not individually or in the aggregate adversely affect the rights of any
Noteholder in any respect;




     (b) to provide for the assumption by a Successor Company of the obligations of the
Company under the Indenture pursuant to Article 10;




     (c) to add guarantees with respect to the Notes;




     (d) to secure the Notes;




     (e) to add to the covenants of the Company for the benefit of the holders or surrender
any right or power conferred upon the Company;



51









 






     (f) to make any other change that does not adversely affect the rights of any holder;
provided that any amendment to conform the terms of the Notes to the description contained
in the Offering Circular shall not be deemed to be adverse to any Noteholder; or




     (g) to comply with any requirements of the Commission in connection with the
qualification of the Indenture under the Trust Indenture Act.



          Upon the written request of the Company, accompanied by a Board Resolution authorizing the
execution of such supplemental indenture, the Trustee is hereby authorized to join with the Company
in the execution of any such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance, transfer and assignment
of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion,
enter into any supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.




          Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed
by the Company and the Trustee without the consent of the holders of any of the Notes at the time
outstanding.




          Section 9.02. Supplemental Indentures With Consent of Noteholders. With the consent
(evidenced as provided in Article 7) of the holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding (determined in accordance with Article 7 and including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes), the Company, when authorized by the resolutions of the Board of Directors, and
the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or any supplemental indenture or of modifying
in any manner the rights of the holders of the Notes; provided, however, that no such supplemental
indenture shall:





     (a) reduce the percentage in aggregate principal amount of Notes the holders of which
must consent to an amendment;




     (b) reduce the rate, or extend the stated time for payment, of interest (including
Additional Interest, if any) on any Note;




     (c) reduce the principal of or other amount payable under, or extend the Maturity Date
of, any Note;




     (d) make any change that adversely affects the conversion rights of any Noteholder
under Article 13 or Article 14;




     (e) reduce the Designated Event Purchase Price of any Note or amend or modify in any
manner adverse to the holders of the Notes the Company’s obligation to make such payments,
whether through an amendment or waiver of provisions in the covenants, definitions or
otherwise;



52









 






     (f) change the place or currency of payment of principal or interest (including
Additional Interest, if any) or other amount payable in respect of any Note;




     (g) impair the right of any holder to receive payment of principal of and interest
(including Additional Interest, if any) on or other amount payable under such holder’s Notes
on or after the due dates therefor or to institute suit for the enforcement of any payment
on or with respect to such holder’s Note;




     (h) adversely affect the ranking of the Notes as the senior unsubordinated debt of the
Company; or




     (i) make any change in the provisions of this Article 9 that require each holder’s
consent or in the waiver provisions in Section 5.01 and Section 5.08,


in each case without the consent of each holder of an outstanding Note affected.




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




          It shall not be necessary for the consent of the Noteholders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof. After an amendment under the Indenture becomes
effective, the Company shall mail to the holders a notice briefly describing such amendment.
However, the failure to give such notice to all the holders, or any defect in the notice, will not
impair or affect the validity of the amendment.




          Section 9.03. Effect of Supplemental Indentures. Any supplemental indenture executed pursuant
to the provisions of this Article 9 shall comply with the Trust Indenture Act, as then in effect,
provided that this Section 9.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is in fact required
under the terms of the Trust Indenture Act, nor shall it constitute any admission or acknowledgment
by any party to such supplemental indenture that any such qualification is required prior to the
time such qualification is in fact required under the terms of the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this Article 9, this
Indenture shall be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and immunities under this Indenture of
the Trustee, the Company and the Noteholders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.




          Section 9.04. Notation on Notes. Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 9 may bear a




53









 







notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Notes so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may, at the Company’s expense, be prepared and
executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by
the Trustee pursuant to Section 15.11) and delivered in exchange for the Notes then outstanding,
upon surrender of such Notes then outstanding.




          Section 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to the Trustee.
In addition to the documents required by Section 15.05, the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 9.




ARTICLE 10

Consolidation, Merger, Sale, Conveyance and Lease




          Section 10.01. Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of
Section 10.02, the Company shall not consolidate with, merge with or into, or convey, transfer or
lease all or substantially all of its assets and properties to another Person, unless:





     (a) the resulting, surviving or transferee Person (the “Successor Company”) if not the
Company shall be a corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the
Notes and this Indenture; and




     (b) immediately after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing.



          Upon any such consolidation, merger, conveyance, transfer or lease the resulting, surviving or
transferee (by conveyance, lease or otherwise) Person (if not the Company) shall succeed to, and
may exercise every right and power of, the Company under this Indenture.




          For purposes of this Section 10.01, the sale, lease, conveyance, assignment, transfer, or
other disposition of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and assets of the Company
on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.




          Section 10.02. Successor Corporation to be Substituted. In case of any such consolidation,
merger, conveyance, transfer or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest
(including Additional Interest, if any) on all of the Notes, the due and punctual




54









 







settlement of the conversion of the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Company, such Successor Company
shall succeed to and be substituted for the Company and the Company shall be released from those
obligations, with the same effect as if it had been named herein as the party of the first part.
Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of such Successor
Company instead of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Notes which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Notes which such Successor
Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the
Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as
the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though
all of such Notes had been issued at the date of the execution hereof. In the event of any such
consolidation, merger, conveyance, transfer or lease, the Person named as the “Company” in the
first paragraph of this Indenture or any successor which shall thereafter have become such in the
manner prescribed in this Article 10 may be dissolved, wound up and liquidated at any time
thereafter and such Person shall be released from its liabilities as obligor and maker of the Notes
and from its obligations under this Indenture.




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




          Section 10.03. Officers’ Certificate and Opinion of Counsel to be Given Trustee. No merger,
consolidation, sale transfer or lease shall be effective unless the Trustee shall receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, conveyance, transfer or lease and any such assumption complies with the provisions of this
Article 10.




ARTICLE 11

Satisfaction and Discharge of Indenture




          Section 11.01. Discharge of Indenture. When (a) the Company shall deliver to the Note
Registrar for cancellation all Notes theretofore authenticated (other than any Notes that have been
destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been
authenticated and delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Notes Registrar for cancellation shall have become due and payable,
whether on the Maturity Date or on any earlier Designated Event Purchase Date or otherwise, and the
Company shall deposit with the Trustee, in trust, cash or cash and shares of Common Stock, if
applicable, sufficient to pay at maturity all of the Notes (other than any Notes that shall have
been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes
shall have been authenticated and delivered) not theretofore canceled or delivered to the Trustee
for cancellation, including principal and accrued and unpaid interest (including Additional
Interest, if any) due thereon, and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of further





55









 







effect except as to (i) the right of holders to receive payments of principal of and accrued
and unpaid interest (including Additional Interest, if any) and, if applicable, any shares of
Common Stock (and cash in lieu of fractional shares) on the Notes and the other rights, duties and
obligations of Noteholders, as beneficiaries hereof with respect to the amounts, if any, so
deposited with the Trustee, (ii) the rights, obligations and immunities of the Trustee hereunder
and (iii) the obligations of the Company under Section 6.06, and the Trustee, on written demand of
the Company accompanied by an Officers’ Certificate and an Opinion of Counsel as required by
Section 15.05 and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Company, however, hereby agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee and to compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Notes.




          Section 11.02. Deposited Monies to be Held in Trust by Trustee. Subject to Section 11.04, all
monies deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by
it to the payment, either directly or through any Paying Agent (including the Company if acting as
its own Paying Agent), to the holders of the particular Notes for the payment of which such monies
have been deposited with the Trustee, of all sums due thereon for principal and accrued and unpaid
interest (including Additional Interest, if any).




          Section 11.03. Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this
Indenture, all monies then held by any Paying Agent of the Notes (other than the Trustee) shall,
upon written request of the Company, be repaid to it or paid to the Trustee, and thereupon such
Paying Agent shall be released from all further liability with respect to such monies.




          Section 11.04. Return of Unclaimed Monies. Subject to the requirements of applicable law, any
monies deposited with or paid to the Trustee for payment of the principal of, other amounts payable
under or accrued and unpaid interest (including Additional Interest, if any) on, Notes and not
applied but remaining unclaimed by the Noteholders for two years after the date upon which the
principal of, other amounts payable under, or accrued and unpaid interest (including Additional
Interest, if any) on such Notes, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee on written request and all liability of the Trustee shall
thereupon cease with respect to such monies; and the holder of any of the Notes shall thereafter
look only to the Company for any payment which such holder may be entitled to collect unless an
applicable abandoned property law designates another Person. The Trustee shall, promptly after
such payment of the principal of, and any accrued and unpaid interest (including Additional
Interest, if any), on Notes, as described in this Section 11.04 and upon written request of the
Company, return to the Company any funds in excess of the amount required for such payment.




          Section 11.05. Reinstatement. If (i) the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 11.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application and (ii)
the holders of at least a majority in principal amount of the then outstanding Notes so request by
written notice to the Trustee, the Company’s obligations under this Indenture shall be revived and
reinstated as though no deposit had occurred pursuant to Section 11.01 until such




56









 







time as the Trustee or the Paying Agent is permitted to apply all such money in accordance
with Section 11.02; provided, however, that if the Company makes any payment of interest on or
principal of any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Noteholders to receive such payment from the money held by the
Trustee or Paying Agent.




ARTICLE 12

Immunity of Incorporators, Shareholders, Officers and Directors




          Section 12.01. Indenture and Notes Solely Corporate Obligations. No recourse for the payment
of the principal of, or accrued and unpaid interest (including Additional Interest, if any) on, any
Note, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon
any obligation, covenant or agreement of the Company in this Indenture or in any supplemental
indenture or in any Note, or because of the creation of any debt represented thereby, shall be had
against any past, present or future incorporator, shareholder, employee, agent, officer or director
or Subsidiary of the Company as such or of any successor corporation, either directly or through
the Company or any successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.




ARTICLE 13

Conversion




          Section 13.01. Right of Convert.




          (a) Subject to and upon compliance with the provisions of this Article 13, each Noteholder
shall have the right, at such holder’s option, to convert all or any portion (if the portion to be
converted is $1,000 principal amount or an integral multiple thereof) of such Note at any time
prior to the close of business on the second Scheduled Trading Day immediately preceding the
Maturity Date at a rate (the “Conversion Rate”) of 71.8894 shares of Common Stock (subject to
adjustment by the Company as provided in Section 13.01(b) and 13.03) per $1,000 principal amount
Note. The Notes may not be converted after the close of business on the second Scheduled Trading
Day immediately preceding the Maturity Date.




          (b) (i) If the Company is a party to any transaction or event that constitutes a Make-Whole
Fundamental Change, and a Noteholder surrenders its Notes in connection with a Make-Whole
Fundamental Change, the Conversion Rate applicable to each $1,000 principal amount of Notes that
are surrendered for conversion shall be increased by an additional number of shares of Common Stock
(the “Additional Shares”) as described below; provided, that if, at the effective time of a
Make-Whole Fundamental Change, the Reference Property is comprised entirely of cash, then, for any
conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the amounts
deliverable by the Company shall be calculated based solely on the Stock Price for the Make-Whole
Fundamental Change and shall be deemed to be an amount equal to the Conversion Rate (including any
adjustment for Additional Shares) multiplied by such Stock Price; in such event, the amounts
deliverable by the





57









 







Company shall be determined and paid to holders in cash on the third Business Day following
the Conversion Date; provided, further that no increase will be made in the case of a Make-Whole
Fundamental Change if at least 90% of the consideration paid for the Common Stock (excluding cash
payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in
such Make-Whole Fundamental Change transaction consists of shares of capital stock traded on a U.S.
national securities exchange or approved for quotation on a United States system of automated
dissemination of quotations of securities prices similar to NASDAQ Global Market prior to its
designation as a national securities exchange (or that will be so traded or quoted immediately
following the transaction) and as a result of such transaction the Notes become convertible based
on the Conversion Rate determined on the basis of shares of such capital stock. A conversion of
Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental
Change if the notice of conversion of the Notes is received by the Conversion Agent from, and
including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the
Business Day immediately prior to the related Designated Event Purchase Date (or, in the case of an
event that would have been a Fundamental Change but for the exception in clause (2)(ii) of the
definition thereof the 35th calendar day immediately following the Effective Date of such
Make-Whole Fundamental Change). The Company shall give notice in writing to all record Noteholders
and the Trustee of the Make-Whole Fundamental Change and issue a press release no later than 35
Business Days prior to the anticipated Effective Date of the Make-Whole Fundamental Change (the
“Make-Whole Fundamental Change Notice”).





     (ii) The number of Additional Shares by which the Conversion Rate will be increased
pursuant to this Section 13.01(b) shall be determined by reference to the table attached as
Schedule A hereto, based on the date on which the Make-Whole Fundamental Change occurs or
becomes effective (the “Effective Date”), and the Stock Price; provided that if the actual
Stock Price is between two Stock Price amounts in the table or the Effective Date is between
two Effective Dates in the table, the number of Additional Shares shall be determined by a
straight-line interpolation between the number of Additional Shares set forth for the next
higher and next lower Stock Price amounts and the two nearest Effective Dates, as
applicable, based on a 365-day year; provided further that if (1) the Stock Price is greater
than $100.00 per share of Common Stock (subject to adjustment in the same manner as set
forth in Section 13.03), or (2) the Stock Price is less than $10.91 per share of Common
Stock (subject to adjustment in the same manner as set forth in Section 13.03), then, in
each case, no adjustment to the Conversion Rate in respect of Additional Shares will be made
pursuant to this Section 13.01(b). Notwithstanding the foregoing, in no event will the
total number of shares of Common Stock issuable upon the conversion exceed 91.6590 per
$1,000 principal amount of Notes (subject to adjustment in the same manner as set forth in
Section 13.03).




     (iii) The Stock Prices set forth in the first row of the table in Schedule A hereto
shall be adjusted by the Company as of any date on which the Conversion Rate of the Notes is
adjusted (except for any adjustment pursuant to this Section 13.01(b)). The adjusted Stock
Prices shall equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Conversion Rate in effect
immediately prior to the adjustment giving rise to the Stock Price adjustment and the
denominator of which is the Conversion Rate as so adjusted. The number of



58









 






Additional Shares within the table shall be adjusted in the same manner as the
Conversion Rate as set forth in Section 13.03 (except for any adjustment pursuant to this
Section 13.01(b)).




     (iv) For the avoidance of doubt, if a holder surrenders its Notes to the Company prior
to the effective date of a Make-Whole Fundamental Change, and the Make-Whole Fundamental
Change does not occur, the holder will not be entitled to an increased Conversion Rate in
connection with such conversion.




     Section 13.02. Conversion Procedure.



          (a) Upon any conversion of any Notes, on the third Business Day immediately following the
Conversion Date, the Company shall deliver a number of shares of Common Stock equal to (i) the
aggregate principal amount of such Notes to be converted divided by $1,000, multiplied by (ii) the
Conversion Rate in effect as of such Conversion Date; provided that the Company will deliver cash
in lieu of fractional shares of Common Stock as set forth pursuant to clause (j) below; provided,
further for any conversion that occurs on or after the record date immediately preceding the
Maturity Date, we will deliver such shares on the Maturity Date.




          (b) Before any holder of a Note shall be entitled to a conversion as set forth above, such
holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such holder is not entitled as set forth in Section 13.02(h) and, if
required, pay all taxes or duties, if any, and (ii) in the case of a Note issued in definitive
form, (A) complete and manually sign and deliver an irrevocable written notice to the Conversion
Agent in the form on the reverse of such definitive Note (or a facsimile thereof) (a “Conversion
Notice”) at the office of the Conversion Agent and shall state in writing therein the principal
amount of Notes surrendered for conversion and the name or names (with addresses) in which such
holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon
conversion of the Notes to be registered, (B) surrender such Notes, duly endorsed to the Company or
in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the
Conversion Agent, (C) if required, pay funds equal to interest payable on the next Interest Payment
Date to which such holder is not entitled as set forth in Section 13.02(h), and (D) if required,
pay all taxes or duties, if any. A Note shall be deemed to have been converted immediately prior
to the close of business on the date (the “Conversion Date”) that the holder has complied with the
requirements set forth in this Section 13.02(b).




          No Conversion Notice with respect to any Notes may be delivered by a holder thereof if such
holder has also tendered a Designated Event Purchase Notice and not validly withdrawn such
Designated Event Purchase Notice in accordance with the applicable provisions of Section 14.01.




          If more than one Note shall be converted at one time by the same holder, the number of shares
of Common Stock deliverable upon conversion shall be computed on the basis of the aggregate
principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so
converted to the Company.




59









 








          (c) Delivery of the shares of Common Stock upon conversion shall be made by the Company in no
event later than the date specified in Section 13.02(a). The Company shall make such delivery by
issuing, or causing to be issued, and delivering to the Conversion Agent or to such holder, or such
holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the
number of full shares of Common Stock to which such holder shall be entitled as part of such
conversion (together with any cash in lieu of fractional shares).




          (d) In case any Note shall be surrendered for partial conversion, the Company shall execute
and the Trustee shall authenticate and deliver to or upon the written order of the holder of the
Note so surrendered, without charge to such holder, a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the portion of the Notes not surrendered for conversion.




          (e) The Company shall pay all stamp and other duties, if any, which may be imposed by the
United States or any political subdivision thereof or taxing authority thereof or therein with
respect to the issuance of shares of Common Stock upon the conversion. However, the holder shall
pay any such tax which is due because the holder requests any shares of Common Stock to be issued
in a name other than the holder’s name. The Conversion Agent may refuse to deliver the
certificates representing the shares of Common Stock being issued in a name other than the holder’s
name until the Trustee receives a sum sufficient to pay any tax which will be due because the
shares are to be issued in a name other than the holder’s name. Nothing herein shall preclude any
tax withholding required by law or regulations.




          (f) Except as provided in Section 13.03, no adjustment shall be made for dividends on any
shares issued upon conversion by the Company with respect to any Note as provided in this Article.




          (g) Upon the conversion with respect to an interest in a Global Note, the Trustee, or the
Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the
reduction in the principal amount represented thereby. The Company shall notify the Trustee in
writing of any Notes surrendered for conversion through any Conversion Agent other than the
Trustee.




          (h) Upon conversion, a Noteholder shall not receive any separate cash payment for accrued and
unpaid interest (including Additional Interest, if any) except as set forth below. The Company’s
settlement of the conversion as described above shall be deemed to satisfy its obligation to pay
the principal amount of the Note and accrued and unpaid interest (including Additional Interest, if
any) to, but not including, the Conversion Date. As a result, accrued and unpaid interest
(including Additional Interest, if any) to, but not including, the Conversion Date shall be deemed
to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the preceding
sentence, if Notes are converted after the close of business on a record date, holders of such
Notes as of the close of business on the record date will receive the interest (including
Additional Interest, if any) payable on such Notes on the corresponding Interest Payment Date
notwithstanding the conversion. Notes surrendered for conversion during the period from the close
of business on any regular record date to the opening of business on the corresponding Interest
Payment Date must be accompanied by payment of an





60









 







amount equal to the interest (including Additional Interest, if any) payable on such Notes;
provided, however, that no such payment need be made (i) if the Company has specified a Designated
Event Purchase Date that is after a record date and on or prior to the corresponding Interest
Payment Date; (ii) in respect of any conversion that occurs after the record date immediately
preceding the Maturity Date; or (iii) to the extent of any overdue interest existing at the time of
conversion with respect to such Note. Except as described above, no payment or adjustment will be
made for accrued interest (including Additional Interest, if any) on the Notes converted.




          (i) Each conversion shall be deemed to have been effected as to any such Notes (or portion
thereof) surrendered for conversion on the relevant Conversion Date. The person in whose name the
certificate or certificates for the number of shares of Common Stock that shall be issuable upon
such conversion shall become the holder of record of such shares of Common Stock as of the close of
business on such Conversion Date; provided, however, that no surrender of Notes on any date when
the stock transfer books of the Company shall be closed shall be effective to constitute the Person
or Persons entitled to receive the shares of Common Stock as the record holder or holders of such
shares of Common Stock on such date, but such surrender shall be effective to constitute the Person
or Persons entitled to receive such shares of Common Stock as the record holder or holders thereof
for all purposes at the close of business on the next succeeding day on which such stock transfer
books are open; such conversion shall be at the Conversion Rate in effect on the Conversion Date
that such Notes shall have been surrendered for conversion, as if the stock transfer books of the
Company had not been closed. Upon the conversion with respect to the Notes, such Person shall no
longer be a Noteholder.




          (j) No fractional shares of Common Stock shall be issued upon conversion of any Note or Notes.
If more than one Note shall be surrendered for conversion at one time by the same holder, the
number of full shares that shall be issued by the Company shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so surrendered. Instead of
any fractional share of Common Stock that would otherwise be issued with respect to any Note or
Notes (or specified portions thereof), the Company shall pay a cash adjustment in respect of such
fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction
of the Last Reported Sale Price of the Common Stock on the relevant Conversion Date.




          Section 13.03. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time
to time by the Company as follows:




          (a) In case the Company shall issue shares of Common Stock as a dividend or distribution to
all holders of the outstanding Common Stock on shares of Common Stock, or if the Company effects a
share split or share combination, the Conversion Rate shall be adjusted based on the following
formula:




	 	 	 	 	 	 	 
	PVR’ = PVR0
      
	 	x
      	 	OS’	 	 
	 	 	OS0	 	 
	 
      
	 	 	 	 	 	 







61











 





	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Conversion Rate in effect immediately prior
to the Ex-Date for such dividend or distribution
or the effective date of such share split or
share combination, as the case may be;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Conversion Rate in effect immediately after
the Ex-Date for such dividend or distribution, or
the effective date of such share split or share
combination, as the case may be;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the Ex-Date for such
dividend or distribution or the effective date of
such share split or combination, as the case may
be;
	 
	 	 	 	 
	OS’

	 	=
	 	the number of shares of Common Stock outstanding
immediately after such dividend, distribution,
share split or combination, as the case may be.






          Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the
Ex-Date fixed for such dividend or distribution, or the effective date for such share split or
share combination. If any dividend or distribution of the type described in this Section 13.03(a)
is declared but not so paid or made, or the outstanding shares of Common Stock are not split or
combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of
the date the Board of Directors determines not to pay such dividend or distribution, or split or
combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that
would then be in effect if such dividend, distribution, share split or share combination had not
been declared. In no event (except for share combinations) shall the Conversion Rate be decreased
pursuant to this Section 13.03(a).




          (b) In case the Company shall distribute to all or substantially all holders of its
outstanding shares of Common Stock any rights or warrants entitling them for a period expiring not
more than 60 calendar days after the record date of such distribution to subscribe for or purchase
shares of the Common Stock, at a price per share less than less than the average of the Last
Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and
including, the Trading Day immediately preceding the declaration date for such distribution, the
Conversion Rate shall be adjusted based on the following formula:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	PVR’
	 	=
	 	PVR0
	 	x
	 	OS0 + X	 	 
	 

	 	 	 	 	 	 

OS0 + Y
	 	 






	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Conversion Rate in effect immediately prior
to the Ex-Date for such distribution;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Conversion Rate in effect immediately after
the Ex-Date for such distribution;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the Ex-Date for such
distribution;






62









 






	 	 	 	 	 
	X

	 	=
	 	the total number of shares of Common Stock
issuable pursuant to such rights or warrants; and
	 
	 	 	 	 
	Y

	 	=
	 	the number of shares of Common Stock equal to the
aggregate price payable to exercise such rights
or warrants divided by the average of the Last
Reported Sale Prices of Common Stock over the ten
consecutive Trading Day period ending on, and
including, the Trading Day immediately preceding
the Ex-Date for such distribution.






          Such adjustment shall be successively made whenever any such rights or warrants are
distributed and shall become effective immediately after the opening of business on the Ex-Date for
such distribution. The Company shall not issue any such rights or warrants in respect of shares of
the Common Stock held in treasury by the Company. To the extent that shares of the Common Stock
are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on the basis of delivery of only the number of shares
of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such Ex-Date
for such distribution had not been fixed.




          In determining whether any rights or warrants entitle the holders to subscribe for or purchase
shares of the Common Stock at less than such Last Reported Sale Price of the Common Stock, and in
determining the aggregate offering price of such shares of the Common Stock, there shall be taken
into account any consideration received by the Company for such rights or warrants and any amount
payable on exercise or conversion thereof, the value of such consideration, if other than cash, to
be determined by the Board of Directors. In no event shall the Conversion Rate be decreased
pursuant to this Section 13.03(b).




          (c) In case the Company shall distribute shares of its capital stock, evidences of its
indebtedness or its other assets or property other than (i) dividends or distributions referred to
in Section 13.03(a) and Section 13.03(b), (ii) dividends or distributions paid exclusively in cash,
and (iii) Spin-Offs to which the provisions set forth below in this Section 13.03(c) shall apply
(any of such shares of capital stock, indebtedness, or other asset or property hereinafter in this
Section 13.03(c) called the “Distributed Property”), to all or substantially all holders of its
Common Stock, then, in each such case the Conversion Rate shall be adjusted based on the following
formula:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	PVR’
	 	=
	 	PVR0
	 	x
	 	SP0	 	 
	 

	 	 	 	 	 	 

SP0 - FMV
	 	 






	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Conversion Rate in effect immediately prior
to the Ex-Date for such distribution;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Conversion Rate in effect immediately after
the Ex-Date for such distribution;






63









 






	 	 	 	 	 
	SP0

	 	=
	 	the average of the Last Reported Sale Prices of
the Common Stock over the ten consecutive Trading
Day period ending on the Trading Day immediately
preceding the Ex-Date relating to such
distribution; and
	 
	 	 	 	 
	FMV

	 	=
	 	the fair market value (as determined by the Board
of Directors) of the shares of capital stock,
evidences of indebtedness, assets or property
distributed with respect to each outstanding
share of Common Stock on the Ex-Date for such
distribution.






          Such adjustment shall become effective immediately prior to the opening of business on the
Ex-Date for such distribution; provided that if “FMV” as set forth above is equal to or greater
than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Noteholder shall receive on the date on which the Distributed Property
is distributed to holders of Common Stock, for each $1,000 principal amount of Notes, the amount of
Distributed Property such holder would have received had such holder owned a number of shares of
Common Stock equal to the Conversion Rate in effect on the record date for such distribution,
without being required to surrender the Notes for conversion. If such distribution is not so paid
or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be
in effect if such dividend or distribution had not been declared. If the Board of Directors
determines “FMV” for purposes of this Section 13.03(c) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market over the
same period used in computing the Last Reported Sale Prices of the Common Stock over the ten
consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such
distribution.




          With respect to an adjustment pursuant to this Section 13.03(c) where there has been a payment
of a dividend or other distribution on the Common Stock in shares of capital stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other business unit of the
Company (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City
time, on the 10th Trading Day immediately following, and including, the effective date of the
Spin-Off will be increased based on the following formula:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	PVR’
	 	=
	 	PVR0
	 	x
	 	FMV0 + MP0	 	 
	 

	 	 	 	 	 	 

MP0
	 	 






	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Conversion Rate in effect immediately prior
to the 10th Trading Day immediately following,
and including, the effective date of the
Spin-Off;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Conversion Rate in effect immediately after
the 10th Trading Day immediately following, and
including, the effective date of the Spin-Off;
	 
	 	 	 	 
	FMV0

	 	=
	 	the average of the Last Reported Sale Prices of
the capital stock or similar equity interest
distributed to holders of Common Stock applicable
to one share of Common Stock over the first ten
consecutive Trading Day period immediately
following, and including, the effective date of
the Spin-Off; and






64









 






	 	 	 	 	 
	MP0

	 	=
	 	the average of the Last Reported Sale Prices of
Common Stock over the first ten consecutive
Trading Day period, immediately following, and
including the effective date of the Spin-Off.






          Such adjustment to the Conversion Rate shall occur after the close of business on the tenth
Trading Day immediately following, and including, the effective date of the Spin-Off; provided that
in respect of any conversion within the ten Trading Days following, and including, the effective
date of any Spin-Off, references within this paragraph (c) to ten Trading Days shall be deemed
replaced with such lesser number of Trading Days as have elapsed between the effective date of such
Spin-Off and the Conversion Date in determining the applicable Conversion Rate.




          Rights or warrants distributed by the Company to all holders of Common Stock, entitling the
holders thereof to subscribe for or purchase shares of the Company’s capital stock, including
Common Stock (either initially or under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with
such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of
future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this
Section 13.03 (and no adjustment to the Conversion Rate under this Section 13.03 will be required)
until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be
deemed to have been distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this Section 13.03(c). If any such right or warrant, including
any such existing rights or warrants distributed prior to the date of this Indenture, are subject
to events, upon the occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the date of the occurrence of
any and each such event shall be deemed to be the date of distribution and Ex-Date with respect to
new rights or warrants with such rights (and a termination or expiration of the existing rights or
warrants without exercise by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under
this Section 13.03 was made, (1) in the case of any such rights or warrants that shall all have
been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be
readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been issued.




          In no event shall the Conversion Rate be decreased pursuant to this Section 13.03(c).




          For purposes of this Section 13.03(c), Section 13.03(a) and Section 13.03(b), any dividend or
distribution to which this Section 13.03(c) is applicable that also includes shares of





65











 




Common Stock to which Section 13.03(a) applies and/or also includes rights or warrants to
subscribe for or purchase shares of Common Stock to which Section 13.03(b) applies shall be deemed
instead to be (1) a dividend or distribution of the Distributed Property other than such shares of
Common Stock to which Section 13.03(a) applies and/or other than such rights or warrants to which
Section 13.03(b) applies and any Conversion Rate adjustment required by this Section 13.03(c) with
respect to such dividend or distribution shall then be made immediately followed by (2) a dividend
or distribution of such shares of Common Stock or such rights or warrants (and any further
Conversion Rate adjustment required by Section 13.03(a) and/or Section 13.03(b) with respect to
such dividend or distribution shall then be made), except (A) the Ex-Date of such dividend or
distribution shall under this Section 13.03(c) be substituted as “the Ex-Date” within the meaning
of Section 13.03(a) and Section 13.03(b) and (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed “outstanding immediately prior to the Ex-Date for such
dividend or distribution, or the effective date of such share split or share combination, as the
case may be” within the meaning of Section 13.03(a) or “outstanding immediately prior to the
Ex-Date for such distribution” within the meaning of Section 13.03(b).




          (d) In case the Company shall pay a dividend or make a distribution consisting exclusively of
cash to all or substantially all holders of its Common Stock, the Conversion Rate shall be adjusted
based on the following formula:




	 	 	 
	 PVR’
= PVR0 X 

	 	SP0  
 SP0
- C





	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Conversion Rate in effect immediately prior
to the Ex-Date for such distribution;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Conversion Rate in effect immediately after
the Ex-Date for such distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the Last Reported Sale Price of the Common Stock
on the Trading Day immediately preceding the
Ex-Date for such distribution; and
	 
	 	 	 	 
	C

	 	=
	 	the amount in cash per share the Company
distributes to holders of Common Stock.






          Such adjustment shall become effective immediately after the opening of business on the
Ex-Date for such dividend or distribution; provided that if the portion of the cash so distributed
applicable to one share of the Common Stock is equal to or greater than SP0 as set forth
above, in lieu of the foregoing adjustment, adequate provision shall be made so that each
Noteholder shall receive on the date on which such cash dividend is distributed to holders of
Common Stock, for each $1,000 principal amount of Notes, the amount of cash such holder would have
received had such holder owned a number of shares equal to the Conversion Rate on the record date
for such distribution, without being required to surrender the Notes for conversion. If such
dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be
the Conversion Rate that would then be in effect if such dividend or




66









 







distribution had not been declared. In no event shall the Conversion Rate be decreased
pursuant to this Section 13.03(d).




          For the avoidance of doubt, for purposes of this Section 13.03(d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become convertible into more
than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to
this Section 13.03(d), references in this Section to one share of Common Stock or Last Reported
Sale Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a
unit consisting of the number of shares of each class of Common Stock into which the Notes are then
exercisable equal to the numbers of shares of such class issued in respect of one share of Common
Stock in such reclassification. The above provisions of this paragraph shall similarly apply to
successive reclassifications.




          (e) In case the Company or any of its Subsidiaries makes a payment in respect of a tender
offer or exchange offer for the Common Stock, to the extent that the cash and value of any other
consideration included in the payment per share of Common Stock exceeds the average of the Last
Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period commencing on,
and including, the Trading Day next succeeding the last date on which tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended), the Conversion Rate shall be
increased based on the following formula:




	 	 	 
	 PVR’
= PVR0 X 

	 	AC + (SP’ x OS’)  
 OS0
x SP’





	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Conversion Rate in effect on the date such tender or exchange offer expires;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer
expires;
	 
	 	 	 	 
	AC

	 	=
	 	the aggregate value of all cash and any other consideration (as determined by the Board of Directors)
paid or payable for shares of Common Stock purchased in such tender or exchange offer;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange
offer expires;
	 
	 	 	 	 
	OS’

	 	=
	 	the number of shares of Common Stock outstanding immediately after the date such tender or exchange
offer expires (after giving effect to such tender offer or exchange offer); and
	 
	 	 	 	 
	SP’

	 	=
	 	the average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day
period commencing on, and including, the Trading Day next succeeding the date such tender or exchange
offer expires,






          Such adjustment shall become effective immediately after close of business on the Trading Day
next succeeding the date such tender or exchange offer expires. If the Company or




67









 







its Subsidiary is obligated to purchase shares of Common Stock pursuant to any such tender or
exchange offer, but the Company or its Subsidiary is permanently prevented by applicable law from
effecting all or any such purchases or all or any portion of such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if
such tender or exchange offer had not been made or had only been made in respect of the purchases
that had been effected. In no event shall the Conversion Rate be decreased pursuant to this
Section 13.03(e).




          (f) For purposes of this Section 13.03 the term “record date” shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the Common Stock (or other
applicable security) is exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of shareholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).




          (g) In addition to those required by clauses (a), (b), (c), (d), and (e) of this Section
13.03, and to the extent permitted by applicable law, the Company from time to time may increase
the Conversion Rate by any amount for a period of at least 20 calendar days if the Board of
Directors determines that such increase would be in the Company’s best interest. In addition, the
Company may also (but is not required to) increase the Conversion Rate to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock in connection with any
dividend or distribution of shares (or rights to acquire shares) or similar event. Whenever the
Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to the
holder of each Note at its last address appearing on the Note Register provided for in Section 2.06
a notice of the increase at least fifteen days prior to the date the increased Conversion Rate
takes effect, and such notice shall state the increased Conversion Rate and the period during which
it will be in effect.




          (h) All calculations and other determinations under this Article 13 shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a
share, as the case may be. No adjustment shall be made for the Company’s issuance of Common Stock
or convertible or exchangeable securities or rights to purchase Common Stock or convertible or
exchangeable securities, other than as provided in this Section 13.03. No adjustment shall be made
to the Conversion Rate unless such adjustment would require a change of at least 1% in the
Conversion Rate then in effect at such time. The Company shall carry forward any adjustments that
are less than 1% of the Conversion Rate, take such carry-forward adjustments into account in any
subsequent adjustment and make such carried forward adjustments, regardless of whether the
aggregate adjustment is less than 1% within one year of the first such adjustment carried forward,
upon a Designated Event, or upon maturity, unless any such adjustment has already been made.




          (i) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. The Trustee and Conversion Agent may conclusively rely on the
accuracy of the Conversion Rate adjustment provided by the Company.




68









 







Unless and until a Responsible Officer of the Trustee shall have received such Officers’
Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion
Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is
still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice
of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date
on which each adjustment becomes effective and shall mail such notice of such adjustment of the
Conversion Rate to the holder of each Note at his last address appearing on the Note Register
provided for in Section 2.06 of this Indenture, within twenty (20) days of the effective date of
such adjustment. Failure to deliver such notice shall not affect the legality or validity of any
such adjustment.





     (j) The applicable Conversion Rate will not be adjusted:




     (i) upon the issuance of any shares of the Common Stock pursuant to any present or
future plan providing for the reinvestment of dividends or interest payable on the Company’s
securities and the investment of additional optional amounts in shares of the Common Stock
under any plan;




     (ii) upon the issuance of any shares of the Common Stock or restricted stock units or
options or rights (including shareholder appreciation rights) to purchase those shares
pursuant to any present or future employee, director or consultant benefit plan or program
of or assumed by the Company or any of the Company’s Subsidiaries;




     (iii) upon the issuance of any shares of the Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible securities not described in
clause (ii) of this subsection and outstanding as of the date the Notes were first issued;




     (iv) for a change in the par value of the Common Stock;




     (v) for accrued and unpaid interest, including Additional Interest, if any; or




     (vi) for any transactions described in this Section 13.03 if Noteholders participate
(as a result of holding the Notes, and at the same time as holders of Common Stock
participate) in such transactions as if such Noteholders held a number shares of Common
Stock equal to the Conversion Rate at the time such adjustment would be required, multiplied
by the principal amount (expressed in thousands) of Notes held by such Noteholders, without
having to surrender their Notes for conversion.



          (k) For purposes of this Section 13.03, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.




          Section 13.04. Shares to Be Fully Paid. Upon conversion of Notes, the Company shall provide,
free from preemptive rights, out of its authorized but unissued shares or shares held in treasury,
sufficient shares of Common Stock to settle the conversion of Notes.




69









 








          Section 13.05. Certain Other Adjustments. To the extent not otherwise covered by Section
13.03, whenever a provision of this Indenture requires the calculation of Last Reported Sale Prices
over a span of multiple days, the Board of Directors will make appropriate adjustments to such Last
Reported Sale Prices and the Conversion Rate or the amount due upon conversion to account for any
adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to
the Conversion Rate where the applicable record date of the event occurs, at any time during the
period from which such Last Reported Sale Prices are to be calculated. Any such adjustment in
accordance with the provisions of this Section 13.05 shall be determined in good faith by the Board
of Directors in order to give effect to the intent of Section 13.05 and the other provisions of
this Article 13 and to avoid unjust or inequitable results.




          Section 13.06. Effect of Reclassification, Consolidation, Merger or Sale.




          If any of the following events occur, namely (i) any reclassification or change of the
outstanding shares of Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a split, subdivision or combination),
(ii) any consolidation, merger or combination of the Company with another Person, or (iii) any sale
or conveyance of all or substantially all of the property and assets of the Company to any other
Person, in either case as a result of which holders of Common Stock shall be entitled to receive
cash, securities or other property or assets with respect to or in exchange for such Common Stock
(any such event a “Merger Event”), then:




          (a) the Company or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force
at the date of execution of such supplemental indenture if such supplemental indenture is then
required to so comply) permitted under Section 9.01(a) providing for the conversion and settlement
of the Notes as set forth in this Indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article and the Trustee may conclusively rely on the determination by the Company of
the equivalency of such adjustments. If, in the case of any Merger Event, the Reference Property
includes shares of stock or other securities and assets of a corporation other than the successor
or purchasing corporation, as the case may be, in such reclassification, change, consolidation,
merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by
such other corporation and shall contain such additional provisions to protect the interests of the
holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the
foregoing, including to the extent required by the Board of Directors and practicable the
provisions providing for the repurchase rights set forth in Article 14 herein.




          In the event the Company shall execute a supplemental indenture pursuant to this Section
13.06, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating
the reasons therefore, the kind or amount of cash, securities or property or asset that will
constitute the Reference Property after any such Merger Event, any adjustment to be made with
respect thereto and that all conditions precedent have been complied with, and shall promptly mail
notice thereof to all Noteholders.




70









 








          (b) Notwithstanding the provisions of Section 13.02(a), and subject to the provisions of
Section 13.01, at the effective time of such Merger Event, the right to convert a Note will be
changed into a right to convert such Note as set forth in this Indenture into the kind and amount
of shares of stock, other securities or other property or assets (including cash or any combination
thereof) that a holder of a number of shares of Common Stock equal to the Conversation Rate in
effect prior to such Merger Event would have owned or been entitled to receive (the “Reference
Property”) upon such Merger Event. For purposes of determining the constitution of Reference
Property, the type and amount of consideration that a holder of Common Stock would have been
entitled to in the case of reclassifications, consolidations, mergers, sales or conveyance of
assets or other transactions that cause the Common Stock to be converted into the right to receive
more than a single type of consideration (determined based in part upon any form of shareholder
election) will be deemed to be the weighted average of the types and amounts of consideration
received by the holders of Common Stock that affirmatively make such an election. The Company
shall not become a party to any such transaction unless its terms are consistent with this Section
13.06. None of the foregoing provisions shall affect the right of a holder of Notes to surrender
its Notes for conversion to the Company in accordance with the provisions of Article 13 hereof
prior to the effective date of the Merger Event.




          (c) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Noteholder, at his address appearing on the Note Register provided for in this
Indenture, within twenty (20) days after execution thereof. Failure to deliver such notice shall
not affect the legality or validity of such supplemental indenture.




          (d) The above provisions of this Section shall apply to successive Merger Events.




          Section 13.07. Certain Covenants.




          (a) Before taking any action which would cause an adjustment reducing the Conversion Rate
below the then par value, of the shares of Common Stock issuable upon the conversion of the Notes,
the Company will take all corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue shares of such Common Stock at such
adjusted Conversion Rate.




          The Company covenants that all shares of Common Stock issued upon conversion of the Notes will
be fully paid and non-assessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.




          (b) The Company covenants that, if any shares of Common Stock to be provided for the purpose
of conversion of the Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon such
conversion, the Company will in good faith and as expeditiously as possible, to the extent then
permitted by the rules and interpretations of the Commission (or any successor thereto), endeavor
to secure such registration or approval, as the case may be.




          (c) The Company further covenants that if at any time the Common Stock shall be listed on any
other national securities exchange or automated quotation system the



71









 






Company will, if permitted and required by the rules of such exchange or automated quotation
system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or
automated quotation system, all Common Stock issuable upon the conversion of the Notes.




          Section 13.08. Responsibility of Trustee. Notwithstanding any provision of this Indenture to
the contrary, the Trustee and any other Conversion Agent shall not at any time be under any duty or
responsibility to any Noteholder to determine the Conversion Rate or whether any facts exist which
may require any adjustment of the Conversion Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same. The Trustee and any
other Conversion Agent shall not be accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock, or of any securities or property, which may at any time
be issued or delivered upon the conversion of any Note; and the Trustee and any other Conversion
Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent
shall be responsible for any failure of the Company to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property or cash upon the surrender of
any Note for the purpose of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.




          Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent
shall be under any responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 13.06 relating either to the kind or amount
of shares of stock or securities or property (including cash) receivable by Noteholders upon the
conversion of the Notes after any event referred to in such Section 13.06 or to any adjustment to
be made with respect thereto, but, subject to the provisions of Section 6.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be protected in relying
upon, the Officers’ Certificate (which the Company shall be obligated to file with the Trustee
prior to the execution of any such supplemental indenture) with respect thereto.




          Section 13.09. Notice to Holders Prior to Certain Actions.





In case:




     (a) the Company shall declare a dividend (or any other distribution) on its Common
Stock that would require an adjustment in the Conversion Rate pursuant to Section 13.03; or




     (b) the Company shall authorize the granting to all of the holders of its Common Stock
of rights or warrants to subscribe for or purchase any share of any class or any other
rights or warrants, or




     (c) of any reclassification of the Common Stock of the Company (other than a
subdivision or combination of its outstanding Common Stock, or a change in par value, or
from par value to no par value, or from no par value to par value), or of any consolidation
or merger to which the Company is a party and for which approval of any



72









 






shareholders of the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company; or




     (d) of the voluntary or involuntary dissolution, liquidation or winding-up of the
Company;


the Company shall cause to be filed with the Trustee and to be mailed to each Noteholder at his
address appearing on the Note Register, provided for in Section 2.06 of this Indenture, as promptly
as possible but in any event at least twenty days prior to the applicable date specified in clause
(x) or (y) below, as the case may be, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is
expected to become effective or occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.




          Section 13.10. Shareholder Rights Plans. To the extent that the Company has a shareholder
rights plan (the “Rights Plan”) in effect upon conversion of any Note, the holders shall receive,
in addition to any shares of Common Stock, the associated rights issued under the Rights Plan or
under any future shareholder rights plan the Company adopts. If the rights have separated from the
Common Stock, expired, terminated or been redeemed or exchanged in accordance with the Rights Plan
prior to any delivery of shares by the Company in respect of any conversion, the Conversion Rate
will be adjusted at the time of separation as if the Company distributed to all holders of the
Common Stock, shares of its capital stock, evidences of indebtedness or assets as set forth in
Section 13.03(c), subject to readjustment in the event of the expiration, termination or redemption
of such rights.




ARTICLE 14

Repurchase of Notes at Option of Holders




          Section 14.01. Repurchase at Option of Holders Upon a Designated Event.




          (a) If a Designated Event occurs at any time, then each Noteholder shall have the right, at
such holder’s option, to require the Company to repurchase all of such holder’s Notes or any
portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the
“Designated Event Purchase Date”) specified by the Company that is not less than twenty (20) days
and not more than thirty-five (35) calendar days after the date of the Designated Event Company
Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof,
together with accrued and unpaid interest (including Additional Interest, if any) thereon to, but
excluding, the Designated Event Purchase Date (unless the Designated Event Purchase Date is between
a regular record date and the corresponding Interest Payment Date to which it relates, in which
case, the Company will pay the full amount of accrued and unpaid interest




73









 







(including Additional Interest, if any) payable on such Interest Payment Date to the
Noteholders of record at the close of business on the corresponding regular record date) (the
“Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash.




          However, notwithstanding the foregoing, Noteholders will not have the right to require the
Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to
deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the
consideration paid for the Common Stock (excluding cash payments for fractional shares and cash
payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction
consists of capital stock traded on a U.S. national securities exchange or approved for quotation
on a United States system of automated dissemination of quotations of securities prices similar to
the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so
traded or quoted immediately following the merger or consolidation) and, as a result of such
transaction, the Notes become convertible based on the Conversion Rate determined on the basis of
shares of such capital stock. In addition, no Notes may be repurchased by the Company at the
option of the holders upon a Designated Event if the principal amount of the Notes has been
accelerated, and such acceleration has not been rescinded, on or prior to the Designated Event
Purchase Date (except in the case of an acceleration resulting from a Default by the Company in the
payment of the Designated Event Purchase Price with respect to such Notes).




          Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder
thereof, upon:





     (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a
holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set
forth on the reverse of the Note on or before the Business Day prior to the Designated Event
Purchase Date; and




     (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent
appointed by the Company) at any time after delivery of the Designated Event Purchase Notice
(together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or
other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery
being a condition to receipt by the holder of the Designated Event Purchase Price therefor;
provided that such Designated Event Purchase Price shall be so paid pursuant to this Section
14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the
Company) shall conform in all respects to the description thereof in the related Designated
Event Purchase Notice.




     The Designated Event Purchase Notice shall state:




     (A) if the Notes are in definitive form, the certificate numbers of Notes to be
delivered for repurchase, or if in global form, such notice must comply with appropriate
procedures of the Depositary;




     (B) the portion of the principal amount of Notes to be repurchased, which must be
$1,000 or an integral multiple thereof, and



74









 






     (C) that the Notes are to be repurchased by the Company pursuant to the applicable
provisions of the Notes and the Indenture.



          Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01
shall be consummated by the delivery of the consideration to be received by the holder promptly
following the later of the Designated Event Purchase Date and the time of the book-entry transfer
or delivery of the Note.




          The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Designated Event Purchase Notice or written notice of withdrawal
thereof in accordance with the provisions of Section 14.01(c).




          Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the holder of such Note without service charge, a
new Note or Notes, containing identical terms and conditions, each in an authorized denomination in
aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal
of the Note so surrendered.




          (b) On or before the tenth day after the effective date of any Designated Event, the Company
shall provide to all holders of record of the Notes and the Trustee and Paying Agent a notice (the
“Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase
right at the option of the holders arising as a result thereof. Such mailing shall be by first
class mail. Simultaneously with providing such notice, the Company shall issue a press release
containing this information, publish a notice containing this information in a newspaper of general
circulation in The City of New York or publish the information on the Company’s website or through
such other public medium as the Company may use at that time.




          Each Designated Event Company Notice shall specify:





     (i) the events causing the Designated Event and whether such Designated Event also
constituted a Fundamental Change;




     (ii) the date of the Designated Event;




     (iii) the last date on which a holder may exercise the repurchase right;




     (iv) the Designated Event Purchase Date;




     (v) the Designated Event Purchase Price;




     (vi) the name and address of the Paying Agent and the Conversion Agent;




     (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion
Rate;




75











 






     (viii) that the holder may surrender the Notes for conversion with respect to which a
Designated Event Purchase Notice has been previously delivered to the Company by a holder
only if the holder withdraws the Designated Event Purchase Notice in accordance with Section
14.01(c);




     (ix) that the holder must exercise the repurchase right on or prior to the close of
business on the Business Day prior to the Designated Event Purchase Date (the “Designated
Event Expiration Time”);




     (x) that the holder shall have the right to withdraw any Notes surrendered prior to the
Designated Event Expiration Time, and




     (xi) the procedures that holders must follow to require the Company to repurchase their
Notes.




	          No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 14.01.






	          (c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at
any time prior to the close of business on the Business Day prior to the Designated Event Purchase
Date, specifying:






     (i) if the Notes are in definitive form, the certificate numbers of the withdrawn
Notes, or if in global form, such notice must comply with appropriate procedures of the
Depositary;




     (ii) the principal amount of the Note with respect to which such notice of withdrawal
is being submitted, and




     (iii) the principal amount, if any, of such Note that remains subject to the original
Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an
integral multiple of $1,000;



          (d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day
following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other
Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to
repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at
the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or
other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not
withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of
(x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied
the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the
time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent
appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing
checks for the amount payable





76









 







to the holders of such Notes entitled thereto as they shall appear in the Note Register,
provided, however, that payments to the Depositary shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after
such payment and upon written demand by the Company, return to the Company any funds in excess of
the Designated Event Purchase Price.




          (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to
repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be
purchased as of the Business Day following the Designated Event Purchase Date, then on and after
the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest,
including any Additional Interest, will cease to accrue on such Notes (whether or not book-entry
transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying
Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right
to receive the Designated Event Purchase Price upon delivery of the Notes).




          (f) In connection with any repurchase under this Section 14.01, the Company shall (a) comply
with Rules 13e-4 and 14e-1 (and any successor provisions thereto) under the Exchange Act, if
applicable and (b) file the related Schedule TO (or any successor schedule, form or report) under
the Exchange Act, if applicable. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Indenture described in this Section 14.01,
compliance by the Company with such laws and regulations shall not in and of itself cause a breach
of the Company’s obligations described in this Section 14.01.




ARTICLE 15

Miscellaneous Provisions




          Section 15.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.




          Section 15.02. Official Acts by Successor Corporation. Any act or proceeding by any provision
of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be the lawful sole successor of the
Company.




          Section 15.03. Addresses for Notices, Etc. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the Noteholders
on the Company shall be deemed to have been sufficiently given or made, for all purposes if given
or served by being deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the Trustee) to Forest
City Enterprises, Inc., 50 Public Square, Terminal Tower, Suite 1100, Cleveland, Ohio 44113-2203,
Attention: General Counsel. Any notice, direction, request or demand hereunder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed to the Corporate Trust Office.




77









 








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




          Any notice or communication mailed to a Noteholder shall be mailed to it by first class mail,
postage prepaid, at his address as it appears on the Note Register and shall be sufficiently given
to it if so mailed within the time prescribed.




          Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.




          Section 15.04. Governing Law. THIS INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND TO BE PERFORMED
THEREIN (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).




          Section 15.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of
Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture after the date hereof, the Company shall
furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with, and an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have
been complied with.




          Each certificate or opinion provided for by or on behalf of the Company in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (1) a statement that the Person making such certificate or opinion has
read such covenant or condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained in such certificate or
opinion is based; (3) a statement that, in the opinion of such Person, he has made such examination
or investigation as is necessary to enable it to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been complied with.




          Section 15.06. Legal Holidays. In any case where any Interest Payment Date, Designated Event
Purchase Date, Conversion Date or Maturity Date will not be a Business Day (or in the case of
Maturity Date, Scheduled Trading Day), then any action to be taken on such date need not be taken
on such date, but may be taken on the next succeeding Business Day (or, in the case of Maturity
Date, the next succeeding Scheduled Trading Day) with the same force and effect as if taken on such
date, and no interest shall accrue for the period from and after such date to the next succeeding
Business Day (or, in the case of Maturity Date, the next succeeding Scheduled Trading Day).




78









 








          Section 15.07. No Security Interest Created. Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction.




          Section 15.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or
implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Conversion
Agent, any authenticating agent, any Note Registrar and their successors hereunder, and the
Noteholders, any benefit or any legal or equitable right, remedy or claim under this Indenture.




          Section 15.09. Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.




          Section 15.10. Authenticating Agent. The Trustee may appoint an authenticating agent which
shall be authorized to act on its behalf and subject to its direction in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Section 2.05, Section 2.06, Section 2.07, and Section 2.08, as
fully to all intents and purposes as though the authenticating agent had been expressly authorized
by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this
Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to
be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any
requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such
authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant
to Section 6.09.




          Any corporation into which any authenticating agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any authenticating agent shall be a party, or any corporation succeeding to the corporate
trust business of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties hereto or the
authenticating agent or such successor corporation.




          Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee shall promptly
appoint a successor authenticating agent (which may be the Trustee), shall give written notice of
such appointment to the Company and shall mail notice of such appointment to all Noteholders as the
names and addresses of such holders appear on the Note Register.




79









 








          The Company agrees to pay to the authenticating agent from time to time reasonable
compensation for its services although the Company may terminate the authenticating agent, if it
determines such agent’s fees to be unreasonable.




          The provisions of Section 6.02, Section 6.03, Section 6.04, Section 7.03 and this Section
15.10 shall be applicable to any authenticating agent.




          Section 15.11. Execution in Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.




          Section 15.12. Waiver Of Jury Trial. Each of the Company and the Trustee hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Indenture, the Notes or the transaction
contemplated hereby.




          Section 15.13. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.





80









 








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




	 	 	 	 	 
	 	FOREST CITY ENTERPRISES, INC.

 	 
	 	By:  	/s/ Robert G. O’Brien
 	 
	 	 	Name:  	Robert G. O’Brien 	 
	 	 	Title:  	Executive Vice President and Chief Financial
Officer 	 
	 
	 	THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A. as Trustee

 	 
	 	By:  	/s/ Linda E. Garcia
 	 
	 	 	Name:  	Linda E. Garcia 	 
	 	 	Title:  	Vice President 	 
	 



[Indenture]














 





SCHEDULE A



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price
	Effective Date	 	$10.91	 	$12.00	 	$13.00	 	$15.00	 	$20.00	 	$25.00	 	$30.00	 	$40.00	 	$50.00	 	$75.00	 	$100.00
	 	 	 
	October 20, 2009
	 	 	19.7696	 	 	 	17.5496	 	 	 	15.8263	 	 	 	13.1949	 	 	 	9.2409	 	 	 	6.9062	 	 	 	5.5548	 	 	 	3.8848	 	 	 	2.9064	 	 	 	1.6433	 	 	 	1.0393	 
	October 15, 2010
	 	 	19.7696	 	 	 	17.0009	 	 	 	15.2235	 	 	 	12.5555	 	 	 	8.6640	 	 	 	6.6029	 	 	 	5.1283	 	 	 	3.5850	 	 	 	2.6989	 	 	 	1.5001	 	 	 	0.9184	 
	October 15, 2011
	 	 	19.7696	 	 	 	16.3185	 	 	 	14.4572	 	 	 	11.7195	 	 	 	7.8909	 	 	 	5.9467	 	 	 	4.7949	 	 	 	3.3688	 	 	 	2.5429	 	 	 	1.4569	 	 	 	0.9233	 
	October 15, 2012
	 	 	19.7696	 	 	 	15.5883	 	 	 	13.5742	 	 	 	10.7067	 	 	 	6.9182	 	 	 	5.1312	 	 	 	4.0918	 	 	 	2.8667	 	 	 	2.1558	 	 	 	1.2242	 	 	 	0.7668	 
	October 15, 2013
	 	 	19.7696	 	 	 	14.8694	 	 	 	12.6244	 	 	 	9.5324	 	 	 	5.7897	 	 	 	4.1765	 	 	 	3.3250	 	 	 	2.3316	 	 	 	1.7606	 	 	 	1.0109	 	 	 	0.6414	 
	October 15, 2014
	 	 	19.7696	 	 	 	14.0481	 	 	 	11.4195	 	 	 	7.9786	 	 	 	4.3164	 	 	 	3.0239	 	 	 	2.3816	 	 	 	1.6770	 	 	 	1.2721	 	 	 	0.7353	 	 	 	0.4690	 
	October 15, 2015
	 	 	19.7696	 	 	 	12.5116	 	 	 	9.2982	 	 	 	5.4436	 	 	 	2.2977	 	 	 	1.5869	 	 	 	1.2683	 	 	 	0.9062	 	 	 	0.6915	 	 	 	0.4056	 	 	 	0.2618	 
	October 15, 2016
	 	 	19.7696	 	 	 	11.4439	 	 	 	5.0337	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
















 






EXHIBIT A




[FORM OF FACE OF NOTE]




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




          THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT); (2) AGREES THAT IT WILL NOT WITHIN THE LATER OF (X) SIX MONTHS (OR, IF THE
COMPANY HAS NOT SATISFIED THE CURRENT PUBLIC INFORMATION REQUIREMENTS OF RULE 144, ONE YEAR) AFTER
THE LAST DATE OF ORIGINAL ISSUANCE OF NOTES (INCLUDING THROUGH THE EXERCISE OF THE OPTION TO
PURCHASE ADDITIONAL NOTES) AND (Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING
OF RULE 144 UNDER THE SECURITIES ACT) OF FOREST CITY ENTERPRISES, INC. (THE “COMPANY”) OFFER,
RESELL, PLEDGE OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE CLASS A COMMON STOCK ISSUABLE
UPON CONVERSION OF SUCH NOTE, EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) UNDER ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE
144 (IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT (AND THAT CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3)
PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSES 2(A), 2(B) AND 2(D) ABOVE), IT
WILL FURNISH TO THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (4)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(D) ABOVE ) PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF
THE NOTE EVIDENCED HEREBY UNDER RULE 144 UNDER THE SECURITIES ACT (OR





A-1 









 







ANY SUCCESSOR PROVISION) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL
BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY
TRANSFER OF THIS NOTE UNDER RULE 144 SUCH THAT THE NOTE IS NO LONGER CONSIDERED “RESTRICTED
SECURITIES” AS DEFINED UNDER RULE 144 (OR ANY SUCCESSOR PROVISION). THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTION.




A-2 









 








FOREST CITY ENTERPRISES, INC.

5.00% Convertible Equity-Linked Senior Notes Due 2016




No. 001




CUSIP No. 345550 AL1

ISIN No. US345550AL16




          Forest City Enterprises, Inc., a corporation duly organized and validly existing under the
laws of the State of Ohio (herein called the “Company,” which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value received hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of Two Hundred Million
Dollars or such other principal amount as shall be set forth on the Schedule I hereto on October
15, 2016.




          This Note shall bear interest at the rate of 5.00% per year from October 26, 2009, or from the
most recent date to which interest had been paid or provided. Interest is payable semi-annually in
arrears on each April 15 and October 15, commencing April 15, 2010, to holders of record at the
close of business on the preceding March 31 and September 30 (whether or not such day is a Business
Day), respectively. Interest payable on each Interest Payment Date shall equal the amount of
interest accrued from and including the immediately preceding Interest Payment Date (or from and
including October 26, 2009 if no interest has been paid hereon) to but excluding such Interest
Payment Date.




          Payment of the principal of and interest accrued (including Additional Interest, if any) on
this Note shall be made at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, or, at the option of the holder of this Note, at the
Corporate Trust Office, in such lawful money of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts; provided, however,
interest (including Additional Interest, if any) may be paid by check mailed to such holder’s
address as it appears in the Note Register; provided, further, however, that, with respect to any
Noteholder with an aggregate principal amount in excess of $1,000,000, at the application of such
holder in writing to the Note Registrar, interest on such holder’s Notes shall be paid by wire
transfer in immediately available funds to such holder’s account in the United States supplied by
such holder from time to time to the Trustee and Paying Agent (if different from the Trustee) not
later than the applicable record date; provided that any payment to the Depositary or its nominee
shall be paid by wire transfer in immediately available funds in accordance with the wire transfer
instruction supplied by the Depositary or its nominee from time to time to the Trustee and Paying
Agent (if different from Trustee).




          Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the holder of this Note the right to receive with
respect to this Note Common Stock of the Company on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth at this place.




A-3 









 








          This Note shall be deemed to be a contract made under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of the State of New York applicable
to contracts entered into and to be performed therein (without regard to the conflicts of laws
provisions thereof).




          This Note shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.




[Remainder of page intentionally left blank]





A-4 









 








          IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.




	 	 	 	 	 
	 	FOREST CITY ENTERPRISES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-5 









 






	 	 	 	 	 



Dated: October 26, 2009




TRUSTEE’S CERTIFICATE OF AUTHENTICATION

THE BANK OF NEW YORK MELLON TRUST

COMPANY, N.A.,

as Trustee, certifies that this is one of the Notes

described in the within-named Indenture.




	 	 	 
	By:
	 	 
	 
	 
	 
	 	Name:
	 
	 	Authorized Officer






A-6 









 






[FORM OF REVERSE OF NOTE]

FOREST CITY ENTERPRISES, INC.




5.00% Convertible Senior Notes due 2016




          This Note is one of a duly authorized issue of Notes of the Company, designated as its 5.00%
Convertible Senior Notes due 2016 (herein called the “Notes”), issued under and pursuant to an
Indenture dated as of October 26, 2009 (herein called the “Indenture”), between the Company and The
Bank of New York Mellon Trust Company, N.A. (herein called the “Trustee”), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal
amount, subject to certain conditions specified in the Indenture.




          In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of, and accrued and unpaid interest (including Additional Interest, if
any) on, all Notes, may be declared, and upon said declaration shall become, due and payable, in
the manner, with the effect and subject to the conditions provided in the Indenture.




          Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Designated Event Purchase Price and the principal amount on the
Maturity Date, as the case may be, to the holder who surrenders a Note to a Paying Agent to collect
such payments in respect of the Note. The Company will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and private debts.




          The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the holders of the Notes, and in other circumstances, with
the consent of the holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures
modifying the terms of the Indenture and the Notes as described therein; provided, however, that no
such supplemental indenture shall make any of the changes set forth in Section 9.02 of the
Indenture, without the consent of each holder of an outstanding Note affected thereby. It is also
provided in the Indenture that, prior to any declaration accelerating the maturity of the Notes,
the holders of a majority in aggregate principal amount of the Notes at the time outstanding may on
behalf of the holders of all of the Notes waive any past Default or Event of Default under the
Indenture and its consequences except as provided in the Indenture. Any such consent or waiver by
the holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this Note and any Notes which
may be issued in exchange or substitution hereof or upon registration of transfer, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.




          No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, and accrued and unpaid interest (including Additional



A-7 









 






Interest, if any) on, this Note, at the place, at the respective times, at the rate and in the
lawful money herein prescribed.




          The Notes are issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. Upon due presentment for registration of transfer of this
Note at the office or agency of the Company in the Borough of Manhattan, The City of New York, a
new Note or Notes of other authorized denominations for an equal aggregate principal amount will be
issued to the transferee in exchange thereof, subject to the limitations provided in the Indenture,
without charge except for any tax, assessments or other governmental charges imposed in connection
therewith.




          The Notes are not subject to redemption prior to maturity through the operation of any sinking
fund.




          Upon the occurrence of a Designated Event, the holder has the right, at such holder’s option,
to require the Company to repurchase all of such holder’s Notes or any portion thereof (in
principal amounts of $1,000 or integral multiples thereof) on the Designated Event Purchase Date at
a price equal to 100% of the principal amount of the Notes such holder elects to require the
Company to repurchase, together with accrued and unpaid interest (including Additional Interest, if
any) to but excluding the Designated Event Purchase Date. The Company or, at the written request
of the Company, the Trustee shall mail to all holders of record of the Notes a notice of the
occurrence of a Designated Event and of the repurchase right arising as a result thereof on or
before the tenth day after the occurrence of any Designated Event.




          (a) Subject to the provisions of the Indenture, the holder shall have the right, at such
holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal
amount or an integral multiple thereof) of such Note at any time prior to the close of business on
the second Scheduled Trading Day immediately preceding the Maturity Date at a Conversion Rate
specified in the Indenture, as adjusted from time to time as provided in the Indenture, upon
surrender of this Note, together with a Conversion Notice, a form of which is attached to the Note,
as provided in the Indenture and this Note, to the Company at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York, or at the option of
such holder, the Corporate Trust Office. The initial Conversion Rate shall be 71.8894 shares for
each $1,000 principal amount of Notes. No fractional shares of Common Stock will be issued upon
conversion of the Note, but an adjustment in cash will be paid to the holder, as provided in the
Indenture, in respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Note or Notes after conversion. No adjustment shall be made for dividends or any
shares issued upon conversion except as provided in the Indenture.




          The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and
any Note Registrar may deem and treat the registered holder hereof as the absolute owner of this
Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or
other writing hereon), for the purpose of receiving payment hereof, or on account hereof, for the
conversion hereof and for all other purposes, and neither the Company nor the Trustee nor any other
authenticating agent nor any Paying Agent nor any other Conversion Agent nor any Note Registrar
shall be affected by any notice to the contrary. All



A-8 









 






payments made to or upon the order of such registered holder shall, to the extent of the sum
or sums paid, satisfy and discharge liability for monies payable on this Note.




          No recourse for the payment of the principal of, or accrued and unpaid interest (including
Additional Interest, if any) on, this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the
Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any
debt represented thereby, shall be had against any incorporator, shareholder, employee, agent,
officer, director or Subsidiary, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor corporation, whether
by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.




          Terms used in this Note and defined in the Indenture are used herein as therein defined.




          Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TENANT (=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 Gift to Minors
Act).




A-9 









 








[FORM OF CONVERSION NOTICE]




To: FOREST CITY ENTERPRISES, INC. (THE “COMPANY”)




          The undersigned registered owner of this Note hereby converts this Note, or the portion hereof
(which is $1,000 principal amount or an integral multiple thereof) below designated, in exchange
for shares of Common Stock (and cash in lieu of fractional shares), in accordance with the terms of
the Indenture referred to in this Note, and directs that the shares issuable and deliverable upon
such conversion, together with any Notes representing any principal amount hereof not converted, be
issued and delivered to the registered holder hereof unless a different name has been indicated
below. If shares or any portion of this Note not converted are to be issued in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of interest accompanies this
Note.




	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature Guarantee





Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers, savings
and loan associations and credit unions) with
membership in an approved signature guarantee
medallion program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, if
shares of Common Stock are to be issued, or Notes to
be delivered, other than to and in the name of the
registered holder.




A-10 









 







Fill in for registration of shares of Common Stock
if to be issued, and Notes if to be delivered, other
than to and in the name of the registered holder:




	 	 	 
	
(Name)

	 	 
	 
	 	 
	
(Street Address)
	 	 
	 
	 	 
	 
	 	 
	(City, State and Zip Code)
	 	 
	Please print name and address
	 	 
	 

	 	Principal amount to be converted
	 

	 	(if less than all): $___,000
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	Social
Security or Other Taxpayer

	 

	 	Identification Number:






A-11 









 






[FORM OF DESIGNATED EVENT PURCHASE NOTICE]




To: Forest City Enterprises, Inc.




          The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Forest City Enterprises, Inc. (the “Company”) as to the occurrence of a Designated Event with
respect to the Company and requests and instructs the Company to repay the entire principal amount
of this Note, or the portion thereof (which is $1,000 principal amount or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture referred to in this Note,
to the registered holder hereof.




	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Social Security or Other Taxpayer Identification Number
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Principal amount to be repaid (if less than all): $_,000
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.






A-12 









 






Schedule 1




FOREST CITY ENTERPRISES, INC.

5.00% Convertible Equity-Linked Senior Notes Due 2016




No. 001




	 	 	 	 	 	 	 
	 	 	 	 	Notation	 	 
	 	 	 	 	Explaining	 	Authorized
	 	 	 	 	Principal Amount	 	Signature of
	Date	 	Principal Amount	 	Recorded	 	Trustee or Custodian
	October 26, 2009
	 	$200,000,000