Exhibit
4.1


 


EXECUTION COPY




 





 


LA QUINTA PROPERTIES,
INC.


 


$325,000,000


 


8 7/8% SENIOR NOTES DUE
2011


 












 


INDENTURE


 


Dated as of March 19,
2003


 












 


U.S. BANK TRUST NATIONAL
ASSOCIATION,


as Trustee




 





 

















 


This INDENTURE,
dated as of March 19, 2003, is entered into by and among La Quinta
Properties, Inc., a Delaware corporation (the “Company”), La Quinta
Corporation, a Delaware corporation (“Parent Guarantor”), and U.S. Bank Trust
National Association, as Trustee (the “Trustee”).


 


The Company,
Parent Guarantor and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the 8 7/8% Senior Notes
due 2011 (the “Notes”):


 


ARTICLE 1.


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.                                                 Definitions


 


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


 


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


 


“Additional Guarantor”
means any Restricted Subsidiary or other Person (other than Parent Guarantor)
that guarantees the Notes under the terms of this Indenture and its successor,
if any.


 


“Additional
Interest” has the meaning set forth in any Registration Rights
Agreement and relating to amounts to be paid in the event the Company fails to
satisfy certain conditions set forth therein. 
For all purposes of this Indenture, the term “interest” shall include
Additional Interest, if any, with respect to the Notes.


 


“Additional
Notes” means any Notes (other than Initial Notes and Exchange Notes
and Notes issued under Sections 2.06, 2.07, 2.10 and 3.06 hereof) issued
under this Indenture in accordance with Sections 2.02, 2.15 and 4.09
hereof, as part of the same series as the Initial Notes or as an additional
series.


 


“Adjusted Total Assets”
means the sum of (a) Consolidated Net Tangible Assets,
(b) Consolidated Current Liabilities and (c) accumulated depreciation
and amortization to the extent included in calculating Consolidated Net
Tangible Assets.


 


“Affiliate” of any
specified Person means any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with the specified
Person. For purposes of this definition, “control,” including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control
with,” as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of the Person, whether through the ownership of voting securities,
by agreement or otherwise. No Person (other than Parent Guarantor or any
Restricted Subsidiary) in whom an Unrestricted Subsidiary makes an Investment
in connection with a Qualified CMBS Transaction shall be deemed to be an
Affiliate of Parent Guarantor or any Restricted Subsidiary solely by reason of
such Investment.


 


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


 


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


 


“Asset Sale”
means:


 


(a)                                  the
sale, lease (other than operating leases in respect of facilities which are
ancillary to the operation of Hospitality-Related Business properties or
assets of Parent Guarantor


 

















 


or any Restricted Subsidiary), conveyance, transfer or
other disposition of any property or assets of Parent Guarantor or any
Restricted Subsidiary, including by way of a sale and leaseback transaction or
a Qualified CMBS Transaction;


 


(b)                                 the
issuance or sale of Equity Interests of any Restricted Subsidiary, other than
common equity interests (including Class B Common Stock) of the Company;
or


 


(c)                                  any
Event of Loss.


 


Notwithstanding
the foregoing provisions, the following shall not constitute an Asset Sale:


 


(1)                                  the
sale, lease, conveyance or other disposition of personal property held for sale
in the ordinary course of business;


 


(2)                                  the
sale, lease, conveyance or other disposal of damaged, worn out or other
obsolete property in the ordinary course of business as long as the property is
no longer necessary for the proper conduct of the business of Parent Guarantor
or such Restricted Subsidiary, as applicable;


 


(3)                                  the
sale, lease, conveyance, transfer or other disposition of assets by Parent
Guarantor to any Restricted Subsidiary or by any Restricted Subsidiary to
Parent Guarantor or to another Restricted Subsidiary;


 


(4)                                  the
exchange of one or more lodging facilities and/or other real estate assets held
by Parent Guarantor or any Restricted Subsidiary for one or more lodging
facilities and/or other real estate assets of any Person; provided, however, if any
other assets are received by Parent Guarantor or the Restricted Subsidiary in
that exchange, the other consideration must be in cash or Cash Equivalents and
the cash or Cash Equivalent consideration shall be deemed to be cash proceeds
of an Asset Sale for the purposes of calculating “Net Proceeds” and applying
Net Proceeds, if any, as set forth in Section 4.12 hereof; provided further, however,
that Parent Guarantor’s Board of Directors must have determined that the terms
of any exchange or acquisition involving consideration in excess of
$10.0 million are fair and reasonable and, in the case of exchanges
involving consideration in excess of $20.0 million, that the fair market
value of the assets received by Parent Guarantor or the Restricted Subsidiary,
as described in an opinion of an independent qualified appraiser, are equal to
or greater than the fair market value of the assets exchanged, sold or issued
by Parent Guarantor or such Restricted Subsidiary;


 


(5)                                  any
Restricted Payment, permitted under the provisions of Section 4.10 hereof;


 


(6)                                  the
sale, lease, conveyance or other disposition of all or substantially all of the
assets of Parent Guarantor or the Company in compliance with the provisions
of  Sections 4.18 and 5.01 hereof;


 


(7)                                  the
sale, lease, conveyance or other disposition of any property or assets of the
Telematrix business (including the Capital Stock of those entities constituting
the TeleMatrix business), assets recorded on the balance sheet of Parent
Guarantor as being held-for-sale, and any assets related to the
healthcare business reflected in such balance sheet, as of December 31,
2002; and


 


(8)                                  any
transaction or series of related transactions that would otherwise be an Asset
Sale where the fair market value of the assets sold, leased, conveyed or
otherwise disposed of was less than $5.0 million or an Event of Loss or
related series of Events of Loss under which the aggregate value of property or
assets involved in such Event of Loss or Events of Loss is less than $5.0 million.


 


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“Assumed Indebtedness”
means, with respect to any specified Person:


 


(a)                                  Indebtedness
of any other Person existing at the time the other Person merged with or into
or became a subsidiary of the specified Person; and


 


(b)                                 Indebtedness
encumbering any asset acquired by the specified Person, in each case excluding
Indebtedness incurred in connection with, or in contemplation of that other
Person merging with or into or becoming a subsidiary of, the specified Person.


 


“Attributable
Debt” in respect of a sale and leaseback transaction means, at the
time of determination, the present value of the obligation of the lessee for
net rental payments during the remaining term of the lease included in such
sale and leaseback transaction including any period for which such lease has
been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.


 


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


 


“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial ownership of any
particular “person” (as such term is used in Section 13(d)(3) of the Exchange
Act), such “person” shall be deemed to have beneficial ownership of all
securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition.


 


“Board of
Directors” means:


 


(1)                                  with
respect to a corporation, the board of directors of the corporation;


 


(2)                                  with
respect to a partnership, the board of directors of the general partner of the
partnership; and


 


(3)                                  with
respect to any other Person, the board or committee of such Person serving a
similar function.


 


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


 


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


 


“Capital Lease Obligation”
means, at the time any determination of the obligation is to be made, the
amount of the liability in respect of a capital lease that would at the time be
so required to be capitalized on the balance sheet in accordance with GAAP.


 


“Capital Stock”
means any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, including, without
limitation, with respect to limited liability companies, partnerships,
partnership interests, whether general or limited, and any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, such partnership or
limited liability company.


 


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“Cash Equivalents”
means:


 


(a)                                  securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the U.S. government having
maturities of not more than six months from the date of acquisition;


 


(b)                                 (1) certificates
of deposit and eurodollar time deposits with maturities of six months or
less from the date of acquisition, (2) bankers acceptances with maturities
not exceeding six months from the date of acquisition and (3) overnight
bank deposits, in each case with any domestic commercial bank having capital
and surplus in excess of $500 million;


 


(c)                                  repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (a) and (b) entered into
with any financial institution meeting the qualifications specified in
clause (b) above;


 


(d)                                 commercial
paper or commercial paper master notes having a rating of at least P-1 or the
equivalent of that rating by Moody’s Investors Service, Inc. or at least
A-1 or the equivalent of that rating by Standard & Poor’s Corporation
and in each case maturing within six months after the date of acquisition;
and


 


(e)                                  money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (a) through (d) of this definition.


 


“Change of Control”
means the occurrence of any of the following:


 


(a)                                  the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of Parent Guarantor or the Company to any other
“person” or “group,” as that term is used in Section 13(d)(3) of the
Exchange Act;


 


(b)                                 the
adoption of a plan relating to the liquidation or dissolution of Parent
Guarantor or the Company;


 


(c)                                  the
acquisition by any Person or group, as that term is used in
Section 13(d)(3) of the Exchange Act, of a direct or indirect interest in
more than 50% of the voting power of the voting stock of Parent Guarantor or
the Company by way of purchase, merger or consolidation or otherwise, other
than a creation of a holding company that does not involve a change in the
beneficial ownership of Parent Guarantor or the Company as a result of the
transaction;


 


(d)                                 the
merger or consolidation with or into another Person or merger of another Person
into Parent Guarantor or the Company with the effect that immediately after
that transaction the existing stockholders immediately before the transaction
hold, directly or indirectly, less than 50% of the total voting power of all
securities generally entitled to vote in the election of directors, managers or
trustees of the Person surviving the merger or consolidation; or


 


(e)                                  the
first day on which a majority of the members of Parent Guarantor’s Board of
Directors are not Continuing Directors.


 


“Class B Common Stock”
means the Class B common stock, par value $0.01 per share, of the Company
having such rights and privileges as constituted on the Issue Date.


 


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


 


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


 


“Commission”
means the U.S. Securities and Exchange Commission and any successor entity
thereto.


 


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 “Comparable Treasury Issue” means the
United States Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the Notes that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.


 


“Comparable Treasury Price”
means, with respect to any redemption date:


 


(a)                                  the
average of the bid and ask prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third business day
preceding such redemption date, as set forth in the most recently published
statistical release designated “H.15(519)” (or any successor release) published
by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to
constant maturity under the caption “Treasury Constant Maturities;” or


 


(b)                                 if
such release (or any successor release) is not published or does not contain
such prices on such business day, the average of the Reference Treasury Dealer
Quotations for such redemption date.


 


“Consolidated Cash Flow”
means, with respect to any Person for any period, the Consolidated Net Income
of that Person for the period, plus:


 


(a)                                  an
amount equal to any extraordinary loss, plus any net loss realized in
connection with an Asset Sale, to the extent the losses were deducted in
computing Consolidated Net Income; plus


 


(b)                                 provisions
for taxes based on the income or profits of the Person for the period, to the
extent the provision for taxes was included in computing Consolidated Net
Income; plus


 


(c)                                  Consolidated
Interest Expense of the Person for the period to the extent the expense was
deducted in computing Consolidated Net Income; plus


 


(d)                                 Consolidated
Depreciation and Amortization Expense of the Person for the period, to the
extent deducted in computing Consolidated Net Income; plus


 


(e)                                  noncash
items decreasing the Consolidated Net Income for the period, including any
expense related to stock option grants and similar compensation and adjustments
required by Financial Accounting Standard 133; minus


 


(f)                                    noncash
items increasing the Consolidated Net Income for the period,


 


in each case, on a consolidated basis for the Person and its Restricted
Subsidiaries, and determined in accordance with GAAP.


 


Notwithstanding
the foregoing, the provision for taxes on the income or profits of, the
depreciation and amortization of and the interest expense of, a Restricted Subsidiary,
other than the Company, of the referent Person shall be added to Consolidated
Net Income to compute Consolidated Cash Flow (a) only to the extent, and
in the same proportion, that the Net Income of the Restricted Subsidiary was
included in calculating the Consolidated Net Income of that Person,
(b) only if a corresponding amount would be permitted at the date of
determination to be dividended to that Person by the Restricted Subsidiary
without prior governmental approval (that has not been obtained), and
(c) without direct or indirect restriction under the terms of its charter
and all agreements, instruments, judgments, decrees, orders, statutes, rules
and governmental regulations applicable to that Restricted Subsidiary or its
stockholders. Any calculation of the Consolidated Cash Flow of an individual
hotel property shall be calculated in a manner consistent with the foregoing.


 


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“Consolidated Current Liabilities”
as of the date of determination means the aggregate amount of liabilities of
Parent Guarantor and the Restricted Subsidiaries, determined on a consolidated
basis, which may properly be classified as current liabilities, including taxes
payable as accrued, on a consolidated basis, after eliminating:


 


(a)                                  all
intercompany items between Parent Guarantor and any Restricted Subsidiary; and


 


(b)                                 all
current maturities of long-term Indebtedness,


 


all as determined in accordance with GAAP, consistently applied.


 


“Consolidated Depreciation and Amortization
Expense” means, with respect to any Person for any period,
the total amount of depreciation and amortization expense, including
amortization of goodwill, restricted stock compensation and other intangibles
but excluding amortization of prepaid cash expenses that were paid in a prior
period, and the total amount of non-cash charges, other than non-cash charges,
that represent an accrual or reserve for cash charges in future periods or
which involved a cash expenditure in a prior period of such Person and its
Restricted Subsidiaries for the period on a consolidated basis as determined in
accordance with GAAP.


 


“Consolidated Interest Expense”
means, with respect to any Person for any period, without duplication, the sum
of (a) interest expense, whether paid or accrued, to the extent the
expense was deducted in computing Consolidated Net Income, including
amortization of original issue discount, non-cash interest payments, the
interest component of Capital Lease Obligations, imputed interest with respect
to Attributable Debt and net payments (if any) pursuant to Interest Rate and
Currency Obligations, but excluding amortization of deferred financing fees,
less interest earned on cash or Cash Equivalents, (b) commissions,
discounts and other fees and charges paid or accrued with respect to letters of
credit and bankers acceptance financing and (c) interest for which such
Person or its Restricted Subsidiary is liable, whether or not actually paid,
pursuant to Indebtedness or under a guarantee of Indebtedness of any other
Person, in each case, calculated for such Person and its Restricted
Subsidiaries for the period on a consolidated basis as determined in accordance
with GAAP.


 


“Consolidated Net Income”
means, with respect to any Person for any period, the aggregate of the Net
Income of such Person and its Restricted Subsidiaries for the period, on a
consolidated basis, determined in accordance with GAAP (it being understood
that the net income of Restricted Subsidiaries other than the Company shall be
consolidated with that of a Person only to the extent of the proportionate
interest of such Person in such Restricted Subsidiaries), except that the
following shall be excluded:


 


(a)                                  the
Net Income of any Person that is not a Restricted Subsidiary or that is accounted
for by the equity method of accounting shall be excluded, whether or not
distributed to Parent Guarantor or a Restricted Subsidiary, except that Net
Income of any Person that is a Permitted Venture and that is accounted for by
the equity method of accounting shall be included to the extent such Net Income
is actually distributed to Parent Guarantor or a Restricted Subsidiary;


 


(b)                                 the
Net Income of any Person that is a Restricted Subsidiary and that is restricted
from declaring or paying dividends or other distributions, directly or
indirectly, by operation of the terms of its charter, any applicable agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
or otherwise shall be included only to the extent of the amount of dividends or
distributions paid to the referent Person or a Restricted Subsidiary; and


 


(c)                                  the
cumulative effect of changes in accounting principles shall be excluded.


 


“Consolidated Net Tangible Assets”
as of any date of determination, means the total amount of assets, less
accumulated depreciation and amortization, allowances for doubtful receivables,
other applicable reserves and other similar items properly deducted in
determining net assets, which would appear on a consolidated balance sheet of Parent
Guarantor and the Restricted Subsidiaries, determined on a consolidated basis
in accordance


 


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with GAAP, and after giving effect to purchase accounting and after
deducting therefrom Consolidated Current Liabilities and, to the extent
otherwise included, the amounts of:


 


(a)                                  minority
interests in consolidated Subsidiaries (other than the Company) held by Persons
other than Parent Guarantor or any Restricted Subsidiary;


 


(b)                                 excess
of cost over fair value of assets of businesses acquired, as determined in good
faith by Parent Guarantor’s Board of Directors;


 


(c)                                  any
revaluation or other write-up in book value of assets after the Issue Date as a
result of a change in the method of valuation in accordance with GAAP
consistently applied;


 


(d)                                 unamortized
debt discount and expenses and other unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, copyrights, licenses,
organization or developmental expenses and other intangible items;


 


(e)                                  treasury
stock; and


 


(f)                                    cash
set apart and held in a sinking or other analogous fund established for the
purpose of redemption or other retirement of Capital Stock to the extent the
obligation is not reflected in Consolidated Current Liabilities.


 


“Continuing Directors”
means, as of any date of determination, any member of Parent Guarantor’s Board
of Directors who:


 


(a)                                  was
a member of Parent Guarantor’s Board of Directors on the date of this
Indenture; or


 


(b)                                 was
nominated for election or elected to Parent Guarantor’s Board of Directors with
the affirmative vote of at least a majority of the Continuing Directors who
were members of Parent Guarantor’s Board of Directors at the time of the
nomination or election.


 


“Corporate
Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 12.02 hereof, or such other address as to which the
Trustee may give notice to the Company.


 


“Credit Agreement”
means the Credit Agreement, dated as of June 6, 2001, as subsequently
amended to the Issue Date, entered into by and among Parent Guarantor, the
Company, the guarantors named therein and the agents and lenders party thereto,
and any other senior debt facilities or commercial paper facilities with banks
or other lenders or investors providing for borrowings, receivables financings
(including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such receivables)
or letters of credit, in each case as amended, modified, supplemented,
restructured, renewed, restated, or extended, from time to time on one or more
occasions.


 


“Credit Facilities”
means one or more debt facilities or agreements (including, without limitation,
the Credit Agreement) or commercial paper facilities, in each case with banks
or other lenders or investors providing for revolving credit loans, term loans,
notes, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced, restructured, restated or
refinanced (including any agreement to extend the maturity thereof and adding
additional lenders, borrowers or guarantors) in whole or in part from time to
time under the same or any other agent, lender or group of lenders and
including increasing the amount of available borrowings thereunder; provided,
however, that such increase is permitted pursuant to Section 4.09
hereof.


 


“Custodian”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03(c) hereof as Custodian
with respect to the Notes, and any and all successors


 


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thereto appointed as custodian hereunder and having become such
pursuant to the applicable provisions of this Indenture.


 


“Default”
means with respect to the Notes, any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default with respect to
the Notes.


 


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


 


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


 


“Disqualified Stock”
means any Capital Stock that, by its terms (or by the terms of any security
into which it is convertible, or for which it is exchangeable, in each case at
the option of the holder of the Capital Stock), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder of the
Capital Stock, in whole or in part, on or prior to the date that is
123 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the Holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale shall not constitute Disqualified Stock if the terms
of such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with the provisions of Section 4.10 hereof.


 


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


 


“Equity
Interests” means Capital Stock and all warrants, options or other
rights to acquire Capital Stock, but excluding any debt security that is
convertible into or exchangeable for Capital Stock.


 


“Equity
Offering” means an offering by the Company of Equity Interests
(other than Disqualified Stock) however designated and whether voting or non-voting
or an equity contribution by a direct or indirect parent company to the common
equity of the Company.


 


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


 


“Event of Loss”
means, with respect to any property or asset (tangible or intangible, real or
personal), any of the following: (a) any loss, destruction or damage of
the property or asset or (b) any actual condemnation, seizure or taking by
the power of eminent domain or otherwise of the property or asset, or
confiscation of the property or asset or the requisition of the use of the
property or asset.


 


“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, including any successor legislation and rules and
regulations.


 


“Exchange
Notes” means Notes registered under the Securities Act to be
exchanged for Notes not so registered, pursuant to and as set forth in a
Registration Rights Agreement relating to such an exchange.


 


“Exchange Offer”
has the meaning set forth in a Registration Rights Agreement relating to an
exchange of Notes registered under the Securities Act for Notes not so
registered.


 


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“Exchange
Offer Registration Statement” has the meaning set forth in a
Registration Rights Agreement.


 


“Existing Indebtedness”
means the Indebtedness of Parent Guarantor and the Company in existence on the
Issue Date, after giving effect to the use of proceeds of the sale of the
Initial Notes and excluding, for this purpose, amounts outstanding under the
Credit Agreement and other Indebtedness outstanding pursuant to Section
4.09(b)(2) as in effect on the date hereof.


 


“Existing Notes”
means the Company’s:  (a) 7.82% Notes
due September 2026 (puttable after September 2003), (b) 7.51% Medium Term Notes
due September 2003, (c) 7.25% Senior Notes due March 2004,
(d) 7.114% Notes, (e) 7.60% Medium Term Notes due September 2005, (e)
7.62% Medium Term Notes due September 2005, (f) 7.62% Medium Term Notes
due September 2005, (g) 7.63% Medium Term Notes due September 2005,
(h) 7.40% Senior Notes due September 2005, (i) 7.30% Medium Term Notes due
November 2006, (j) 7.27% Medium Term Notes due February 2007, (k)
7.00% Notes due August 2007, (l) 7.33% Medium Term Notes due
April 2008, (m) 8.625% Medium Term Notes due August 2015, and (n) 8.25%
Medium Term Notes due September 2015.


 


“Existing Preferred Stock”
means Preferred Stock of the Company issued and outstanding on the date hereof.


 


“Fixed Charge Coverage Ratio”
means with respect to any Person for any period, the ratio of the Consolidated
Cash Flow of that Person for the period to the Fixed Charges of such Person for
the period. If Parent Guarantor or any Restricted Subsidiary incurs, assumes,
guarantees, redeems or repays any Indebtedness, other than revolving credit
borrowings that provide working capital in the ordinary course of business, or
issues or redeems Preferred Stock after the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated but before the date
on which the event for which the calculation of the Fixed Charge Coverage Ratio
is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio
shall be calculated giving pro forma effect to such incurrence, assumption,
guarantee, redemption or repayment of Indebtedness, or the issuance or
redemption of Preferred Stock, as if the same had occurred at the beginning of
the applicable four-quarter reference period. In addition, for purposes of
calculating the Fixed Charge Coverage Ratio:


 


(a)                                  acquisitions
that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be given pro forma effect (calculated in accordance with
Regulation S-X promulgated under the Securities Act) as if they had
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect
to clause (c) of the proviso set forth in the definition of
Consolidated Net Income;


 


(b)                                 the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded; and


 


(c)                                  the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges shall not be obligations of the
specified Person or any of its Restricted Subsidiaries following the
Calculation Date.


 


“Fixed Charges”
means, with respect to any Person for any period, the sum of:


 


(a)                                  Consolidated
Interest Expense of that Person and its Restricted Subsidiaries for the period
to the extent the expense was deducted in computing Consolidated Net Income;
and


 


9

















 


(b)                                 the
product of:


 


(1)                                  all
cash dividend or distribution payments on any series of Preferred Stock of that
Person or its Restricted Subsidiaries, other than (1) Preferred Stock
owned by that Person or its Restricted Subsidiaries and (2) the Existing
Preferred Stock; multiplied by


 


(2)                                  a
fraction, the numerator of which is one and the denominator of which is one
minus the then-current combined federal, state and local statutory tax rate of
that Person, expressed as a decimal, in each case, on a consolidated basis and
in accordance with GAAP; provided, however, if the cash dividend or
distribution on the Preferred Stock is deductible for federal tax purposes,
then the fraction shall be equal to one.


 


“Franchise Arrangement”
means contracts, agreements and other arrangements between Parent Guarantor or
any Restricted Subsidiary and Franchisees pursuant to which Parent Guarantor or
such Restricted Subsidiary has the right to receive royalty, service,
marketing, reservation or other fees, income and compensation in the ordinary
course of business of Parent Guarantor or such Restricted Subsidiary.


 


“Franchisees”
means Persons that are owners or operators of hotels, motels, inns, lodges,
lodging facilities, conference centers, resorts and similar businesses under
Franchise Arrangements with Parent Guarantor or a Restricted Subsidiary.


 


“Funds From Operations”
for any period means the Consolidated Net Income of Parent Guarantor for such
period excluding gains or losses from debt restructurings and sales of
depreciable operating property, plus depreciation on real estate assets and
amortization related to real estate assets and other non-cash charges related
to real estate assets after adjustments for unconsolidated partnerships and
joint ventures, plus minority interests, if applicable (it being understood
that the accounts of Restricted Subsidiaries other than the Company shall be
consolidated only to the extent of Parent Guarantor’s proportionate interest
therein).


 


“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in other statements by another entity as have
been approved by a significant segment of the accounting profession, as in
effect from time to time; provided, however, that any change in GAAP
that would cause Parent Guarantor or a Restricted Subsidiary to record an
existing item as a liability upon that entity’s balance sheet, which item was
not previously required by GAAP to be so recorded, shall not constitute an
incurrence of Indebtedness for purposes hereof.


 


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


 


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


 


“Government Securities”
means direct obligations of, or obligations guaranteed by, the United States of
America for the payment of which obligations or guarantee the full faith and
credit of the United States of America is pledged.


 


“guarantee” means
a guarantee (other than by endorsement of negotiable instruments for collection
in the ordinary course of business) or otherwise incurring, assuming or
becoming liable for the payment of any principal, premium or interest, direct
or indirect, in any manner (including, without limitation, letters of credit
and reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligation of another Person (including agreements to
keep-well and to purchase assets, goods, securities or services).


 


“Guarantor”
means any of Parent Guarantor and the Additional Guarantors, if any.


 


10

















 


“Hospitality-Related Business”
means any business in which Parent Guarantor or any Restricted Subsidiary is
engaged on the Issue Date and the lodging business and other businesses
necessary for, incident to, connected with, related to or arising out of the
lodging business, including developing, owning, operating, managing and
franchising lodging facilities, restaurants and other food-service facilities,
convention or meeting facilities or other related activities and any additions
or improvements thereon.


 


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


 


 “Indebtedness” means, with respect to any
specified Person, any indebtedness of such Person, whether or not contingent:


 


(a)                                  in
respect of borrowed money;


 


(b)                                 evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);


 


(c)                                  in
respect of banker’s acceptances;


 


(d)                                 representing
Capital Lease Obligations;


 


(e)                                  representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable; or


 


(f)                                    representing
any Interest Rate and Currency Obligations,


 


if and to the
extent any of the preceding items (other than letters of credit and Interest
Rate and Currency Obligations) would appear as a liability upon a balance sheet
of the specified Person prepared in accordance with GAAP. In addition, the term
“Indebtedness” includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the guarantee
by the specified Person of any Indebtedness of any other Person; provided,
however, that a Person shall not be deemed to have incurred any
Indebtedness (or be liable with respect to such Indebtedness) by virtue of
Standard Securitization Undertakings.


 


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


 


“Independent Investment Banker”
means a Reference Treasury Dealer appointed by the Company with the consent of
the Trustee.


 


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


 


“Initial
Notes” means $325.0 million aggregate principal amount of Notes issued
under this Indenture on the date hereof.


 


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


 


“Interest Rate and Currency
Obligations” means, with respect to any Person, the
obligations of that Person under (a) fixed rate-to-floating
rate or floating rate-to-fixed rate interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and
(b) other agreements or arrangements designed to protect that Person
against fluctuations in interest rates or currency exchange rates.


 


“Investment Grade Rating”
means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and
BBB- (or the equivalent) by S&P.


 


11

















 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
guarantees or other obligations), advances or capital contributions (excluding
advances on commissions and travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as investments
on a balance sheet prepared in accordance with GAAP, but excluding additions to
or capital expenditures made with respect to property, plant and equipment. If
Parent Guarantor or any Restricted Subsidiary sells or otherwise disposes of
any Equity Interests of any direct or indirect Restricted Subsidiary such that,
after giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary, Parent Guarantor or such selling Restricted Subsidiary
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.10(d).  The
acquisition by Parent Guarantor or any Restricted Subsidiary of a Person that
holds an Investment in a third Person shall be deemed to be an Investment by
Parent Guarantor or such Restricted Subsidiary in such third Person in an
amount equal to the fair market value of the Investment held by the acquired
Person in such third Person in an amount determined as provided in Section
4.10(d) hereof.


 


“Issue Date”
means March 19, 2003.


 


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


 


“Lien” means, with
respect to any asset, or income or profits therefrom, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of the
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature of a conditional sale or title retention agreement, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction.


 


“Letter of
Transmittal” means the letter of transmittal, or its electronic
equivalent in accordance with the Applicable Procedures, to be prepared by the
Company and sent to all Holders of the Initial Notes or any Additional Notes
for use by such Holders in connection with an Exchange Offer.


 


“Moody’s” means
Moody’s Investors Service, Inc. and its successors.


 


“Net Income”
means, with respect to any Person, the net income (loss) of that Person,
determined as provided by GAAP and before any reduction in respect of Preferred
Stock dividends as reflected in minority interest or otherwise paid by Parent
Guarantor or any Restricted Subsidiary, but excluding, any gain (but not loss),
together with any related provision for taxes on the gain (but not loss)
realized in connection with any Asset Sale, and also excluding any
extraordinary gain (but not loss), together with any related provision for
taxes on the extraordinary gain (but not loss).


 


“Net Proceeds”
means the aggregate cash proceeds received by Parent Guarantor or any
Restricted Subsidiary in respect of any Asset Sale, net of (a) the direct
costs relating to the Asset Sale, including, without limitation, legal,
accounting and investment banking fees and sales commissions, (b) any
relocation expenses incurred as a result of the sale, (c) taxes paid or payable
as a result of the sale, after taking into account any available tax credits or
deductions and any tax sharing arrangements, (d) amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets the subject of the Asset Sale and (e) any reserve for adjustment in
respect of the sale price of the asset or assets.


 


“Non-Recourse Indebtedness”
means Indebtedness (a) as to which none of Parent Guarantor or any
Restricted Subsidiary (1) provides credit support of any kind, including
any undertaking, agreement or instrument that would constitute Indebtedness,
other than pursuant to Standard Securitization Undertakings, (2) is
directly or indirectly liable pursuant to a guarantee or otherwise, other than
pursuant to Standard Securitization Undertakings, or (3) constitutes the
lender, (b) no Default with respect to which, including any rights that
the


 


12

















 


Holders thereof may have to take enforcement action against an
Unrestricted Subsidiary, would permit (upon notice, lapse of time or both) any
holder of any Indebtedness of Parent Guarantor or any Restricted Subsidiary to
declare a Default on such other Indebtedness or cause the payment of such other
Indebtedness to be accelerated or become payable before its stated maturity and
(c) as to which the lenders have been notified in writing that they shall
not have any recourse to the stock or assets of Parent Guarantor or any
Restricted Subsidiary, other than pursuant to Standard Securitization
Undertakings.


 


“Obligations”
means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“Officer”
means the Chief Executive Officer, the President, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer, the Secretary or any Vice President of
the Company.


 


“Officers’
Certificate” means a certificate signed by two Officers of the
Company, at least one of whom shall be the principal executive officer,
principal financial officer or the principal accounting officer of the Company,
and delivered to the Trustee.


 


“Opinion of
Counsel” means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. 
The counsel may be an employee of or counsel to the Company, an
Affiliate of the Company or the Trustee.


 


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


 


“Permitted Investments”
means any


 


(a)                                  Investments
in Parent Guarantor;


 


(b)                                 Investments
in any Restricted Subsidiary;


 


(c)                                  Investments
in Cash Equivalents;


 


(d)                                 Investments
by Parent Guarantor or any Restricted Subsidiary in a Person, if as a result of
such Investment (1) the Person becomes a Restricted Subsidiary, or
(2) the Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
Parent Guarantor or any Restricted Subsidiary;


 


(e)                                  Investments
in Permitted Ventures so long as the aggregate amount of Investments
outstanding at any time pursuant to this clause (e) does not exceed
the greater of (1) $50.0 million or (2) 5.0% of Consolidated Net
Tangible Assets;


 


(f)                                    Investments
to acquire Trust Certificates;


 


(g)                                 Investments
made in connection with executing and administering Parent Guarantor’s
supplemental retirement plan as in effect on the Issue Date;


 


(h)                                 an
Investment by Parent Guarantor or any Restricted Subsidiary acquired as a
result of a transfer of assets to an Unrestricted Subsidiary in connection with
a Qualified CMBS Transaction.


 


“Permitted
Liens” means:


 


(a)                                  Liens
to secure Indebtedness permitted to be incurred under Section 4.09(b)(2) and
Liens to secure guarantees of such Indebtedness;


 


13

















 


(b)                                 Liens
for taxes, assessments or governmental charges or levies on the property of
Parent Guarantor or any Restricted Subsidiary if the same shall not at the time
be delinquent or thereafter can be paid without penalty, or are being contested
in good faith and by appropriate proceeding; provided, however, that any
reserve or other appropriate provision that shall be required in conformity
with GAAP shall have been made therefor;


 


(c)                                  Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and
other similar Liens, on the property of Parent Guarantor or any Restricted
Subsidiary arising in the ordinary course of business and securing payment of
obligations that are not more than 60 days past due or are being contested
in good faith and by appropriate actions;


 


(d)                                 Liens
on the property of Parent Guarantor or any Restricted Subsidiary incurred in
the ordinary course of business to secure performance of obligations with
respect to statutory or regulatory requirements, performance or return-of-money
bonds, surety bonds or other obligations of a like nature and incurred in a
manner consistent with industry practice, in each case which are not incurred
in connection with the borrowing of money, the obtaining of advances or credit
or the payment of the deferred purchase price of property and which do not in
the aggregate impair in any material respect the use of property in the
operation of the business of Parent Guarantor and the Restricted Subsidiaries
taken as a whole;


 


(e)                                  Liens
on property at the time Parent Guarantor or any Restricted Subsidiary acquired
such property, including any acquisition by means of a merger or consolidation
with or into Parent Guarantor or any Restricted Subsidiary; provided,
however,
that any such Lien may not extend to any other property of Parent Guarantor or
any Restricted Subsidiary; provided further, however, that such Liens
shall not have been incurred in anticipation of or in connection with the
transaction or series of transactions pursuant to which such property was
acquired by Parent Guarantor or any Restricted Subsidiary;


 


(f)                                    Liens
on the property of a Person at the time such Person becomes a Restricted
Subsidiary; provided,
however, that any such Lien may not extend to any other property of
Parent Guarantor or any other Restricted Subsidiary that is not a direct
Subsidiary of such Person; provided further, however, that any such
Lien was not incurred in anticipation of or in connection with the transaction
or series of transactions pursuant to which such Person became a Restricted
Subsidiary;


 


(g)                                 pledges
or deposits by, or letters of credit posted in lieu thereof, Parent Guarantor
or any Restricted Subsidiary under workers’ compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection
with bids, tenders, contracts (other than for the payment of Indebtedness) or
leases to which Parent Guarantor or any Restricted Subsidiary is party, or
deposits, or letters of credit posted in lieu thereof, to secure public or
statutory obligations of Parent Guarantor or any Restricted Subsidiary, or
deposits for the payment of rent, in each case incurred in the ordinary course
of business;


 


(h)                                 utility
easements, building restrictions and such other encumbrances or charges against
real property as are of a nature generally existing with respect to properties
of a similar character;


 


(i)                                     Liens
existing on the dates of issuance of the Notes not otherwise described in
clauses (a) through (h) above;


 


(j)                                     Liens
incurred to secure Indebtedness of an Unrestricted Subsidiary, which
Indebtedness is permitted to be incurred under this Indenture; and


 


(k)                                  Liens
on the property of Parent Guarantor or any Restricted Subsidiary to secure any
Permitted Refinancing, in whole or in part, of any Indebtedness secured by
Liens referred to in


 


14

















 


clause (e),
(f) or (i) above; provided, however, that any such Lien
shall be limited to all or part of the same property that secured such
Indebtedness being refinanced, and the aggregate principal amount of
Indebtedness that is secured by such Lien shall not be increased to an amount
greater than the sum of:


 


(1)                               the
outstanding principal amount, or, if greater, the committed amount, of the
Indebtedness secured by Liens described under clause (e), (f) or
(i) above, as the case may be, at the time the original Lien became a
Permitted Lien under this Indenture; and


 


(2)                               an
amount necessary to pay any fees and expenses, including premiums and
defeasance costs, incurred by Parent Guarantor or such Restricted Subsidiary in
connection with such Permitted Refinancing;


 


(l)                                     Liens
incurred in connection with Qualified CMBS Transactions;


 


(m)                               Liens
to secure Interest Rate and Currency Obligations; and


 


(n)                                 Liens
not otherwise permitted by clauses (a) through (m) above encumbering
property having an aggregate fair market value not in excess of 15% of
Consolidated Net Tangible Assets, as determined based on the consolidated
balance sheet of Parent Guarantor as of the end of the most recent fiscal
quarter ending at least 45 days prior to the date any such Lien shall be
incurred.


 


“Permitted Refinancing”
means Refinancing Indebtedness or Refinancing Disqualified Stock, as the case
may be, to the extent:


 


(a)                                  the
principal amount of Refinancing Indebtedness or the liquidation preference
amount of Refinancing Disqualified Stock, as the case may be, does not exceed
the principal amount of Indebtedness or the liquidation preference amount of
Disqualified Stock, as the case may be, so extended, refinanced, renewed,
replaced, defeased or refunded, plus the amount of premiums and reasonable
expenses incurred in connection with the refinancing;


 


(b)                                 in
the case of Refinancing Indebtedness other than with respect to the 7.114%
Notes or Trust Certificates, the Refinancing Indebtedness has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;


 


(c)                                  in
the case of Refinancing Disqualified Stock, the Disqualified Stock has a
Weighted Average Life to Mandatory Redemption equal to or greater than the
Weighted Average Life to Mandatory Redemption of the Disqualified Stock being
extended, refinanced, renewed, replaced, defeased or refunded;


 


(d)                                 if
the Indebtedness or the Disqualified Stock, as the case may be, being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated or junior
in right of payment, by its terms, to the Notes, the Refinancing Indebtedness
or Refinancing Disqualified Stock, as the case may be, is subordinated or
junior in right of payment to the Notes on terms at least as favorable to the
Holders of Notes as those contained in the documentation governing the
Indebtedness or the Disqualified Stock, as the case may be, being extended,
refinanced, renewed, replaced, defeased or refunded; and


 


(e)                                  the
Refinancing Indebtedness or Refinancing Disqualified Stock is incurred or
issued either by Parent Guarantor or by a Restricted Subsidiary who is the
obligor on the Indebtedness or Disqualified Stock being extended, refinanced,
renewed, replaced, defeased or refunded.


 


15

















 


“Permitted Venture”
means any Person that owns, operates or develops a Hospitality-Related
Business pursuant to Franchise Arrangements.


 


“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.


 


“Pledge
Agreement” means that Pledge and Security Agreement, dated as of
June 6, 2001, by and among the Company, Parent Guarantor, the Subsidiary
Grantors listed therein and Canadian Imperial Bank of Commerce, as Collateral
Agent, as the same may be amended and supplemented from time to time.


 


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


 


“Preferred Stock”
means (a) any Equity Interest, other than the Class B Common Stock,
with preferential right in the payment of dividends or distributions or upon
liquidation, and (b) any Disqualified Stock.


 


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


 


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


 


“Qualified CMBS Transaction”
means any transaction or series of transactions entered into by Parent
Guarantor or any Restricted Subsidiary pursuant to which Parent Guarantor or
such Restricted Subsidiary sells, conveys or otherwise transfers to an
Unrestricted Subsidiary any real estate assets or mortgage receivables (whether
now existing or arising in the future) of Parent Guarantor or any Restricted
Subsidiary, and any assets related thereto, including, without limitation, all
collateral securing such real estate assets or mortgage receivables, all
contracts and guarantees or other obligations in respect of such real estate
assets or mortgage receivables, proceeds of such real estate assets or mortgage
receivables, and other assets that are customarily transferred in connection
with asset securitization transactions involving real estate assets or mortgage
receivables.


 


“Rating Agencies”
means Moody’s and S&P.


 


“Reference Treasury Dealer” means
Lehman Brothers Inc. or any other investment banking firm of national
reputation and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a “Primary Treasury Dealer”), the Company shall substitute
therefor another Primary Treasury Dealer.


 


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


 


“Refinancing Disqualified Stock”
means Disqualified Stock issued in exchange for, or the proceeds of which are
used, to extend, refinance, renew, replace, defease or refund, Disqualified
Stock or Indebtedness permitted to be issued or incurred under the tests set
forth in Section 4.09(a) or Indebtedness referred to in clauses (3), (5), (7)
and (9) of Section 4.09(b).


 


“Refinancing Indebtedness”
means Indebtedness issued in exchange for, or the proceeds of which are used to
extend, refinance renew, replace, defease or refund, Disqualified Stock or
Indebtedness (including the 7.114% Notes and the Trust Certificates) permitted
to be issued or incurred under the tests set forth in Section 4.09(a) or
Indebtedness referred to in clauses (3), (5), (7) and (9) of
Section 4.09(b).


 


16

















 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as
of the Issue Date, among the Company, Parent Guarantor and the initial
purchasers named therein, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one
or more registration rights agreements between the Company and the other
parties thereto, as such agreement(s) may be amended, modified or supplemented
from time to time, relating to rights given by the Company to the purchasers of
Additional Notes to register such Additional Notes, or exchange such Additional
Notes for registered Notes, under the Securities Act.


 


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


 


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


 


“Regulation S
Global Note” means a Global Note in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with and registered in the name of the Depositary or its nominee that shall be
issued in a denomination equal to the outstanding principal amount of the Notes
sold for initial resale in reliance on Rule 904.


 


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


 


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


 


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


 


“Restricted
Investment” means an Investment other than a Permitted Investment.


 


“Restricted
Subsidiary” means any Subsidiary of Parent Guarantor (including the
Company) that is not an Unrestricted Subsidiary.


 


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


 


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


 


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


 


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


 


“Securities
Act” means the U.S. Securities Act of 1933, as amended, and the
rules and regulations thereunder, including any successor legislation and rules
and regulations.


 


“7.114% Notes”
means the 7.114% Exercisable Put Option Notes due August 15, 2011,
including all related contractual rights and obligations.


 


“Shelf
Registration Statement” has the meaning set forth in any
Registration Rights Agreement relating to registering Notes under the
Securities Act.


 


“S&P” means
Standard & Poor’s Ratings Services and its successors.


 


“Significant
Subsidiary” means any Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.


 


17

















 


“Standard Securitization
Undertakings” means representations, warranties, covenants
and indemnities entered into by Parent Guarantor or any Restricted Subsidiary
that are reasonably customary in connection with a Qualified CMBS Transaction
by the parent or sponsoring entity.


 


“Stated
Maturity” means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.


 


“Subsidiary”
means, with respect to any Person:


 


(1)                                  any
corporation, association or other business entity of which more than 50% of the
voting power of the outstanding voting stock is owned, directly or indirectly,
by such Person, by such Person and one or more subsidiaries of such Person or
by one or more subsidiaries of such Person, or the accounts of which would be
consolidated with those of such Person in its consolidated financial statements
in accordance with GAAP, if such statements were prepared as of such date; and


 


(2)                                  any
partnership (a) in which such Person or one or more Subsidiaries of such
Person is, at the time, a general partner and owns alone or together with
Parent Guarantor or any Restricted Subsidiary a majority of the partnership
interest; or (b) in which such Person or one or more Subsidiaries of such
Person is, at the time, a general partner and which is controlled by such
Person in a manner sufficient to permit its financial statements to be
consolidated with the financial statements of such Person in conformity with GAAP
and the financial statements of which are so consolidated.


 


 “Tax” means any tax, duty, levy, impost,
assessment or other governmental charge (including penalties, interest and any
other liabilities related thereto).


 


“TIA”
means the U.S. Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder, including any successor legislation and rules and
regulations.


 


“Treasury Rate” means,
with respect to any redemption date, the rate per annum equal to the yield to
maturity of the Comparable Treasury Issue, compounded semi-annually, assuming a
price for such Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such redemption
date.


 


“Trust Certificates”
means the 7.114% Exercisable Put Option Securities due August 15, 2004
issued by the trust which holds the 7.114% Notes.


 


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


 


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


 


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


 


“Unrestricted Subsidiary”
means any Subsidiary that is, or has been, designated by Parent Guarantor’s
Board of Directors as an Unrestricted Subsidiary under a board resolution, but
only to the extent that the Subsidiary:


 


18

















 


(1)                                  has
no Indebtedness other than Non-Recourse Indebtedness;


 


(2)                                  except
with respect to an Unrestricted Subsidiary in connection with a Qualified CMBS
Transaction, is not party to any agreement, contract, arrangement or
understanding with Parent Guarantor or any Restricted Subsidiary unless the
terms of any such agreement, contract, arrangement or understanding are no less
favorable to Parent Guarantor or the Restricted Subsidiary than those that
might be obtained at the same time from Persons who are not affiliates of
Parent Guarantor;


 


(3)                                  is
a Person with respect to which neither Parent Guarantor nor any Restricted
Subsidiary has any direct or indirect obligation (A) to subscribe for
additional Equity Interests or (B) to maintain or preserve that Person’s
financial condition or to cause that Person to achieve any specified levels of
operating results, other than under agreements relating to the management of
hotels entered into between Restricted Subsidiaries and Unrestricted
Subsidiaries in the ordinary course of the Subsidiaries’ business, consistent
with past practice; and


 


(4)                                  has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of Parent Guarantor or any Restricted Subsidiary, other than
pursuant to Standard Securitization Undertakings.


 


Any designation by
Parent Guarantor’s Board of Directors made after the Issue Date shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
board resolution giving effect to that designation and an Officer’s Certificate
certifying that the designation complied with the foregoing conditions and was
permitted by the provisions of Section 4.10 hereof.  If, at any time, any Unrestricted Subsidiary would fail to meet
the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter
cease to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of that Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary as of that date, and, if the Indebtedness is not permitted to be
incurred as of that date under the provisions of Section 4.09 hereof, such
event shall constitute a Default of the covenant.


 


Parent Guarantor’s
Board of Directors may at any time designate any Unrestricted Subsidiary to be
a Restricted Subsidiary, but the designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of any outstanding
Indebtedness of the Unrestricted Subsidiary, and the designation shall only be
permitted if (a) the Indebtedness is permitted under the provisions of
Section 4.09 hereof and (b) no Default or Event of Default would be in
existence following the designation.


 


The Company may
not under any circumstances be designated as an Unrestricted Subsidiary.


 


“Voting
Stock” of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.


 


“Weighted Average Life to Mandatory
Redemption” means, when applied to any Disqualified Stock at
any date, the number of years obtained by dividing (a) the sum of the
products obtained by multiplying (1) the amount of each then-remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the amount by
(2) the number of years, calculated to the nearest one-twelfth, that
shall elapse between that date and the making of the payment, by (b) the
then outstanding liquidation preference amount of the Disqualified Stock.


 


“Weighted Average Life To Maturity”
means, when applied to any Indebtedness at any date, the number of years
obtained by dividing (a) the sum of the products obtained by multiplying
(1) the amount of each then-remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at final
maturity, in respect of the amount, by (2) the number of years,
calculated to the nearest one twelfth, that shall elapse between that date and
the making of the payment, by (b) the then outstanding principal amount of
the Indebtedness.


 


19

















 


Section 1.02.                                                 Other
Definitions


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Acceleration
  Notice”

  	
   

  	
  6.02

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.14

  
	
  “Asset
  Sale Offer”

  	
   

  	
  4.12(d)

  
	
  “Authentication
  Order”

  	
   

  	
  2.02(d)

  
	
  “Benefited
  Party”

  	
   

  	
  10.01

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.18(a)

  
	
  “Change
  of Control Amount”

  	
   

  	
  4.18(a)

  
	
  “Company”

  	
   

  	
  Preamble

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03(b)

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.12(c)

  
	
  “incur”

  	
   

  	
  4.09(a)

  
	
  “incurrence”

  	
   

  	
  4.09(a)

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “losses”

  	
   

  	
  7.07

  
	
  “Notes”

  	
   

  	
  Preamble

  
	
  “Offer
  Amount”

  	
   

  	
  3.09(b)(ii)

  
	
  “Offer
  Period”

  	
   

  	
  3.09(c)

  
	
  “Offer
  to Purchase”

  	
   

  	
  3.09(a)

  
	
  “Parent
  Guarantor”

  	
   

  	
  Preamble

  
	
  “Paying
  Agent”

  	
   

  	
  2.03(a)

  
	
  “Purchase Date”

  	
   

  	
  3.09(c)

  
	
  “Registrar”

  	
   

  	
  2.03(a)

  
	
  “Restricted
  Payments”

  	
   

  	
  4.10(a)

  
	
  “Security
  Register”

  	
   

  	
  3.03

  



 


Section 1.03.                                                 Incorporation
by Reference of Trust Indenture Act.


 


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


 


(b)                                 The
following TIA terms used in this Indenture have the following meanings:


 


“indenture
securities” means the Notes;


 


“indenture
security holder” means a Holder of a Note;


 


“indenture to
be qualified” means this Indenture;


 


“indenture
trustee” or “institutional trustee” means the Trustee;
and


 


“obligor” on the
Notes means the Company and any successor obligor upon the Notes.


 


(c)                                  All
other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule under the TIA and
not otherwise defined herein have the meanings so assigned to them either in
the TIA, by another statute or Commission rule, as applicable.


 


Section 1.04.                                                 Rules of
Construction.


 


(a)                                  Unless
the context otherwise requires:


 


20

















 


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


 


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


 


(iii)                               “or” is not exclusive;


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE 2.



THE NOTES


 


Section 2.01.                                                 Form and
Dating.


 


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


 


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


 


21

















 


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


 


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


 


Section 2.02.                                                 Execution
and Authentication.


 


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


 


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


 


(c)                                  A
Note shall not be valid until authenticated by the manual signature of the
Trustee.  The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.  The form of Trustee’s certificate of authentication
to be borne by the Note shall be substantially as set forth in Exhibit A
hereto.


 


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


 


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


 


Section 2.03.                                                 Registrar
and Paying Agent.


 


(a)                                  The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and an office or agency where
Notes may be presented for payment (“Paying Agent”).  The Registrar shall keep a register of the Notes and of their
transfer and exchange.  The Company may
appoint one or more co-registrars and one or more additional paying
agents.  The term “Registrar” includes
any co-registrar and the term “Paying Agent” includes any additional
paying agent.  The Company may enter
into an appropriate agency agreement with any Agent not party to this
Indenture, which may incorporate the provisions of the TIA.  Such Agreement shall implement the
provisions of this Indenture that relate to such Agent.  The Company may change any Paying Agent or
Registrar without notice to any Holder. 
The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. 
If the Company fails to appoint or maintain another entity as Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.  The Company, Parent Guarantor or any of
their Subsidiaries may act as Paying Agent or Registrar.


 


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


 


22

















 


(c)                                  The
Company initially appoints the Trustee to act as Registrar and Paying Agent,
agent for service of notices and demands in connection with the Global Note and
to act as Custodian with respect to the Global Notes, and the Trustee hereby
agrees so to initially act.


 


Section 2.04.                                                 Paying
Agent to Hold Money in Trust.


 


The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal, premium, if any,
or interest on the Notes, and shall notify the Trustee of any Default by the Company
in making any such payment.  While any
such Default continues, the Trustee may require a Paying Agent to pay all funds
held by it relating to the Notes to the Trustee.  The Company at any time may require a Paying Agent to pay all
funds held by it relating to the Notes to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company, Parent Guarantor or a Subsidiary) shall have
no further liability for such funds.  If
the Company, Parent Guarantor or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
funds held by it as Paying Agent.  Upon
any Event of Default under Sections 6.01(ix) and (x) hereof relating to the
Company or Parent Guarantor, the Trustee shall serve as Paying Agent for the
Notes.


 


Section 2.05.                                                 Holder
Lists.


 


The Trustee shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of all Holders and shall otherwise
comply with TIA §312(a).  If the Trustee
is not the Registrar, the Company shall furnish or cause to be furnished to the
Trustee at least seven Business Days before each Interest Payment Date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date or such shorter time as the Trustee may allow, as the Trustee
may reasonably require of the names and addresses of the Holders and the
Company shall otherwise comply with TIA §312(a).


 


Section 2.06.                                                 Transfer
and Exchange.


 


(a)                                  Transfer and Exchange of Global
Notes.  A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.  The Company shall exchange Global Notes for
Definitive Notes if:  (1) the
Company delivers to the Trustee a notice from the Depositary that the
Depositary is unwilling or unable to continue to act as Depositary for the
Global Notes or that it has ceased to be a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by
the Company within 120 days after the date of such notice from the Depositary;
(2) the Company at its option determines that the Global Notes shall be
exchanged for Definitive Notes and delivers a written notice to such effect to
the Trustee; or (3) a Default or Event of Default shall have occurred and be
continuing.  Upon the occurrence of any
of the preceding events in clauses (1), (2) or (3) above, Definitive Notes
shall be issued in denominations of $1,000 or integral multiples thereof and in
such names as the Depositary shall instruct the Trustee in writing.  Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10
hereof.  Except as provided above, every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note
or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note.  A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a), and
beneficial interests in a Global Note may not be transferred and exchanged
other than as provided in Section 2.06(b), (c) or (f) hereof.


 


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


 


(i)                                     Transfer
of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form


 


23

















 


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


 


(ii)                                  All
Other Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and exchanges
of beneficial interests that are not subject to Section 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to the Registrar either
(A)(1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) if permitted under Section 2.06(a) hereof,
(1) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (B)(1) above.  Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal delivered
by the Holder of such beneficial interests in the Restricted Global Notes.  Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.


 


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


 


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


 


(B)                                if
the transferee shall take delivery in the form of a beneficial interest in a
Regulation S Global Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in item (2)
thereof.


 


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


 


(A)                              such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement


 


24

















 


and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer, makes any
and all certifications in the applicable Letter of Transmittal (or is deemed to
have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights Agreement;


 


(B)                                such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)                                such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the
Registrar receives the following:


 


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


 


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


 


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


 


If any such
transfer is effected pursuant to clause (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall execute
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to clause (B) or (D) above.


 


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


 


(c)                                  Transfer or Exchange of Beneficial
Interests for Definitive Notes.


 


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


 


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


 


25

















 


Restricted Definitive Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (2)(a) thereof;


 


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


 


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


 


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


 


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


 


(F)                                 if
such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item 3(c)
thereof,


 


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


 


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


 


(A)                              such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such Registration
Rights Agreement;


 


26

















 


(B)                                such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)                                such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


(iii)                               Beneficial Interests
in Unrestricted Global Notes to Unrestricted Definitive Notes.  Subject to Section 2.06(a) hereof, if any
holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note, then, upon satisfaction of the
applicable conditions set forth in Section 2.06(b)(ii) hereof, the Trustee
shall reduce or cause to be reduced in a corresponding amount pursuant to
Section 2.06(h) hereof the aggregate principal amount of the applicable
Unrestricted Global Note, and the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate and deliver an Unrestricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such beneficial
interest in instructions delivered to the Registrar by the Depositary and the
applicable Participant or Indirect Participant on behalf of such holder.  Any Unrestricted Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall designate in such
instructions.  The Trustee shall deliver
such Unrestricted Definitive Notes to the Persons in whose names such Notes are
so registered.  Any Unrestricted
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend.


 


27

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(F)                                 if
such Restrictive Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certification in item 3(c)
thereof,


 


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


 


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


 


(A)                              such
exchange or transfer is effected pursuant to a Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, makes such certifications in the applicable Letter of Transmittal (or
is deemed to have made such


 


28

















 


certifications if delivery is made through the Applicable Procedures)
as may be required by such Registration Rights Agreement;


 


(B)                                such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)                                such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(e)                                  Transfer and Exchange of Definitive
Notes for Definitive Notes. 
Upon request by a holder of Definitive Notes and such holder’s
compliance with the provisions of this Section 2.06(e), the Registrar


 


29

















 


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


 


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


 


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


 


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


 


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


 


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


 


(A)                              such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, makes such certifications in the applicable Letter of Transmittal (or
is deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights Agreement;


 


(B)                                any
such transfer is effected pursuant to a Shelf Registration Statement in
accordance with a Registration Rights Agreement;


 


(C)                                any
such transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the
Registrar receives the following:


 


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


 


(2)                                  if
the holder of such Restricted Definitive Notes proposes to transfer such Notes
to a Person who shall take delivery thereof in the form of an


 


30

















 


Unrestricted Definitive Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;


 


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


 


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


 


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


 


(f)                                    Exchange Offer.  Upon the occurrence of an Exchange Offer in
accordance with a Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the applicable Restricted Global Notes
(A) tendered for acceptance by Persons that make any and all
certifications in the applicable Letters of Transmittal (or are deemed to have
made such certifications if delivery is made through the Applicable Procedures)
as may be required by such Registration Rights Agreement, and (B) accepted for
exchange in the Exchange Offer and (ii) Unrestricted Definitive Notes in
an aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes tendered for acceptance by Persons who made the foregoing
certification and accepted for exchange in the Exchange Offer.  Concurrently with the issuance of such
Notes, the Trustee shall reduce or cause to be reduced in a corresponding
amount the aggregate principal amount of the applicable Restricted Global
Notes, and the Company shall execute and the Trustee shall authenticate and
deliver to the Persons designated by the Holders of Restricted Definitive Notes
so accepted Unrestricted Definitive Notes in the appropriate principal amount.


 


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


 


(i)                                     Private
Placement Legend.


 


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


 


THE NOTES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR OTHER SECURITIES LAWS.  NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS
THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.  THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
ITS NOTE IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT


 


31

















 


PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD
OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION DATE”), OFFER,
SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A INSIDE THE UNITED STATES,
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE
TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE
IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE.  THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.  AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.


 


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


 


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


 


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


 


UNLESS AND UNTIL
IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY


 


32

















 


NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE  REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.”


 


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


 


(i)                                     General Provisions Relating to
Transfers and Exchanges.


 


(i)                                     No
service charge shall be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.12, 4.18 and 9.05
hereof).


 


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


 


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


 


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


 


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


 


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


 


33

















 


(vii)                           To permit registrations of
transfers and exchanges, the Company shall execute, and the Trustee shall
authenticate, Global Notes and Definitive Notes upon the Company’s order or at
the Registrar’s request.


 


(viii)                        The Registrar shall not be
required to register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.


 


(ix)                                The
Trustee shall authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.


 


Section 2.07.                                                 Replacement
Notes.


 


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


 


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


 


Section 2.08.                                                 Outstanding
Notes.


 


(a)                                  The
Notes outstanding at any time shall be the entire principal amount of Notes
represented by all the Global Notes and Definitive Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for cancellation,
those subject to reductions in beneficial interests effected by the Trustee in
accordance with Section 2.06 hereof, and those described in this Section 2.08
as not outstanding.  Except as set forth
in Section 2.09 hereof, a Note shall not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note; provided, however, that
Notes held by the Company or a Subsidiary of the Company shall be deemed not to
be outstanding for purposes of Section 3.07(b) hereof.


 


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


 


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


 


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


 


Section 2.09.                                                 Treasury
Notes.


 


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


 


34

















 


Section 2.10.                                                 Temporary
Notes.


 


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


 


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


 


Section 2.11.                                                 Cancellation.


 


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


 


Section 2.12.                                                 Defaulted
Interest.


 


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


 


Section 2.13.                                                 CUSIP or
ISIN Numbers.


 


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


 


Section 2.14.                                                 Additional
Interest.


 


If Additional
Interest is payable by the Company pursuant to a Registration Rights Agreement
and paragraph 1 of the Notes, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such Additional Interest
that is payable and (ii) the date on which such interest is payable pursuant to
Section 4.01 hereof.  Unless and until a
Responsible Officer of the Trustee receives such a certificate or instruction
or direction from the Holders in accordance with the terms of this Indenture,
the Trustee may assume without inquiry that no Additional Interest is
payable.  The foregoing shall not prejudice
the rights of the Holders with respect to their


 


35

















 


entitlement to Additional Interest as otherwise set forth in this
Indenture or the Notes and pursuing any action against the Company directly or
otherwise directing the Trustee to take any such action in accordance with the
terms of this Indenture and the Notes. 
If the Company has paid Additional Interest directly to the Persons
entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate
setting forth the details of such payment.


 


Section 2.15.                                                 Issuance
of Additional Notes.


 


The Company shall
be entitled, subject to its compliance with Section 4.09 hereof, to issue
Additional Notes under this Indenture which shall have identical terms as the
Initial Notes issued on the date hereof, other than with respect to the date of
issuance, issue price and rights under a related Registration Rights Agreement,
if any.  The Initial Notes issued on the
date hereof, any Additional Notes and all Exchange Notes issued in exchange
therefor shall be treated as a single class for all purposes under this
Indenture, including without limitation, directions, waivers, amendments,
consents, redemptions and Offers to Purchase.


 


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


 


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


 


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


 


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


 


Section 2.16.                                                 Record
Date.


 


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


 


ARTICLE 3.


 


REDEMPTION
AND PREPAYMENT


 


Section 3.01.                                                 Notices
to Trustee.


 


If the Company
elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it shall furnish to the Trustee, at least 45 days but not
more than 90 days before a redemption date (or such shorter period as
allowed by the Trustee), an Officers’ Certificate setting forth (i) the
applicable section of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.


 


Section 3.02.                                                 Selection
of Notes to Be Redeemed.


 


If less than all
of the Notes are to be redeemed at any time, the Trustee shall select the Notes
to be redeemed among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which
the Notes are listed or, if the Notes are not so listed, on a pro rata
basis, by lot or in accordance with any other method the Trustee deems fair and
appropriate (and in compliance with applicable legal requirements).  However, no Notes of a principal amount of
$1,000 or less shall be redeemed in part, and, if a partial redemption of Notes
is made with the proceeds of a public offering of common equity securities of
Parent Guarantor and/or the Company, selection of the Notes or portions of the
Notes for redemption shall be made by the Trustee only on a proportional basis
or on as nearly a proportional basis as is practicable (except as required by
the


 


36

















 


procedures of DTC), unless that method is otherwise prohibited.  In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days
prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.


 


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


 


Section 3.03.                                                 Notice of
Redemption.


 


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


 


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


 


(a)                                  the
redemption date;


 


(b)                                 The
appropriate calculation of the redemption price, but need not include the
redemption price itself. The actual redemption price, calculated as described
above, shall be set forth in an Officers’ Certificate delivered to the Trustee
no later than two (2) Business Days prior to the redemption date unless clause
(b) of the definition of “Comparable Treasury Price” is applicable, in
which case such Officer’s Certificate should be delivered on the redemption
date;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


37

















 


Section 3.04.                                                 Effect of
Notice of Redemption.


 


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


 


Section 3.05.                                                 Deposit
of Redemption Price.


 


On or prior to
11:00 a.m. Eastern time on the Business Day prior to any redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and, if applicable, accrued and
unpaid interest on all Notes to be redeemed on that date.  The Trustee or the Paying Agent shall
promptly, and in any event within two (2) Business Days after the redemption
date, return to the Company any money deposited with the Trustee or the Paying
Agent by the Company in excess of the amounts necessary to pay the redemption
price of, and, accrued and unpaid interest, if any, on all Notes to be
redeemed.


 


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


 


Section 3.06.                                                 Notes
Redeemed in Part.


 


Upon surrender of
a Note that is redeemed in part, the Company shall issue and, upon the
Company’s written request, the Trustee shall authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.


 


Section 3.07.                                                 Optional
Redemption.


 


(a)                                  At
any time prior to March 15, 2007, the Company may redeem all or any portion of
the Notes, at once or over time, after giving the required notice under this
Indenture at a redemption price equal to the greater of:


 


(1)                                  100%
of the principal amount of the Notes to be redeemed, and


 


(2)                                  the
sum of the present values of (A) the redemption price of the Notes at
March 15, 2007 (as set forth below) and (B) the remaining scheduled
payments of interest from the redemption date through March 15, 2007, but
excluding accrued and unpaid interest through the redemption date, discounted
to the redemption date (assuming a 360-day year consisting of twelve
30-day months), at the Treasury Rate plus 50 basis points,


 


plus, in either case, accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date).


 


(b)                                 In
addition, before March 15, 2006, subject, if applicable, to the provisions
contained in the Credit Agreement prohibiting the purchase of Notes by the
Company, unless and until any Indebtedness outstanding under the Credit
Agreement is repaid in full, the Company may redeem, on any one or more
occasions, with the net cash proceeds of one or more public offerings of common
equity, including Class B Common Stock, of the Company and/or Parent
Guarantor (within 60 days of the consummation of any public Equity
Offering), up to


 


38

















 


35% of the aggregate principal amount of the Notes at a redemption
price equal to 108.875% of the principal amount of the Notes issued under this
Indenture, plus accrued and unpaid interest thereon, if any, to the redemption
date; provided,
however, that, in order to redeem the Notes with the net cash
proceeds of a public Equity Offering, at least 65% of the aggregate principal
amount of the Notes originally issued under this Indenture must remain
outstanding immediately following any such redemption.


 


(c)                                  On
or after March 15, 2007, the Company may redeem all or a part of the Notes upon
notice in accordance with Section 3.03 hereof, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued
and unpaid interest thereon to the redemption date, if redeemed during the
12-month period beginning on March 15 of the years indicated below: 


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2007

  	
   

  	
  104.438

  	
  %

  
	
  2008

  	
   

  	
  102.219

  	
  %

  
	
  2009 and
  thereafter

  	
   

  	
  100.000

  	
  %

  






 


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


 


Section 3.08.                                                 Mandatory
Redemption.


 


Except as set
forth in Sections 4.12 and 4.18 hereof, the Company shall not be required to
make mandatory redemption or sinking fund payments with respect to, or offers
to purchase, the Notes.


 


Section 3.09.                                                 Offers To
Purchase.


 


(a)                                  In
the event that, pursuant to Section 4.12 or 4.18 hereof, the Company shall be
required to commence an Asset Sale Offer or Change of Control Offer (each, an “Offer to
Purchase”), it shall follow the procedures specified below.


 


(b)                                 The
Company shall commence the Offer to Purchase by sending, by first-class mail,
with a copy to the Trustee, to each Holder, at such Holder’s address appearing
in the Security Register a notice, the terms of which shall govern the Offer to
Purchase, stating:


 


(i)                                     that
the Offer to Purchase is being made pursuant to this Section 3.09 and Section
4.12 or 4.18, as the case may be, and, in the case of a Change of Control
Offer, that a Change of Control has occurred, the transaction or transactions
that constitute the Change of Control, and that a Change of Control Offer is
being made pursuant to Section 4.18 hereof;


 


(ii)                                  the
principal amount of Notes required to be purchased pursuant to Section 4.12 or
4.18 hereof (the “Offer Amount”), the purchase price, the Offer Period and the
Purchase Date (each as defined below);


 


(iii)                               except as provided in
clause (ix), that all Notes timely tendered and not withdrawn shall be accepted
for payment;


 


(iv)                              that
any Note not tendered or accepted for payment shall continue to accrue
interest;


 


(v)                                 that,
unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Offer to Purchase shall cease to accrue interest after
the Purchase Date;


 


39

















 


(vi)                              that
Holders electing to have a Note purchased pursuant to the Offer to Purchase may
elect to have Notes purchased in integral multiples of $1,000 only;


 


(vii)                           that Holders electing to
have a Note purchased pursuant to the Offer to Purchase shall be required to
surrender the Note, with the form entitled “Option of Holder to Elect Purchase”
on the reverse of the Note completed, or transfer by book-entry transfer, to
the Company, a Depositary, if appointed by the Company, or a Paying Agent, if
any, at the address specified in the notice before the close of business on the
third Business Day before the Purchase Date;


 


(viii)                        that Holders shall be entitled
to withdraw their election if the Company, the Depositary or the Paying Agent,
as the case may be, receives, not later than the expiration of the Offer
Period, a telegram, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note (or portions thereof) the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased;


 


(ix)                                that,
in the case of an Asset Sale Offer, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company so that only Notes in denominations of
$1,000 or integral multiples thereof shall be purchased);


 


(x)                                   that
Holders whose Notes were purchased in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer)


 


(xi)                                any
other procedures that Holders must follow in order to tender their Notes (or
portions thereof) for payment.


 


(c)                                  The
Offer to Purchase shall remain open for a period of at least 30 days but no
more than 60 days following its commencement, except to the extent that a
longer period is required by applicable law (the “Offer Period”).  No later than five (5) Business Days after
the termination of the Offer Period (the “Purchase Date”), the Company shall
purchase the Offer Amount or, if less than the Offer Amount has been tendered,
all Notes tendered in response to the Offer to Purchase.  Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.


 


(d)                                 On
or prior to the Purchase Date, the Company shall, to the extent lawful:


 


(i)                                     accept
for payment (on a pro rata basis to the extent necessary in connection with an
Asset Sale Offer) the Offer Amount of Notes or portions of Notes properly tendered
pursuant to the Offer to Purchase, or if less than the Offer Amount has been
tendered, all Notes tendered;


 


(ii)                                  deposit
with the Paying Agent an amount equal to the Offer Amount in respect of all
Notes or portions of Notes properly tendered; and


 


(iii)                               deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions of
Notes being purchased by the Company and that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this
Section 3.09.


 


(e)                                  The
Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any event not later than five (5) Business Days after the Purchase Date)
deliver to each tendering Holder of Notes properly tendered and accepted by the
Company for purchase the Purchase Amount for such Notes, and the Company shall
promptly execute and issue a new Note, and the Trustee, upon receipt of an
Authentication Order shall authenticate and deliver (or cause to be transferred
by book-entry) such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered; provided, however, that each such new
Note shall be in a principal amount of $1,000 or an integral multiple of
$1,000.  Any Note not so accepted shall
be promptly


 


40

















 


mailed or delivered by the Company to the Holder thereof.  The Company shall publicly announce the
results of the Offer to Purchase on the Purchase Date.


 


(f)                                    If
the Purchase Date is on or after a Regular Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid to
the Person in whose name a Note is registered at the close of business on such
Regular Record Date, and no additional interest shall be payable to Holders who
tender Notes pursuant to the Offer to Purchase.


 


(g)                                 The
Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the Offer
to Purchase.  To the extent that the
provisions of any securities laws or regulations conflict with
Section 4.12 or 4.18, as applicable, this Section 3.09 or other provisions
of this Indenture, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
Section 4.12 or 4.18, as applicable, this Section 3.09 or such other provision
by virtue of such compliance.


 


(h)                                 Other
than as specifically provided in this Section 3.09, any purchase pursuant to
this Section 3.09 shall be made in accordance with the provisions of Section
3.01 through 3.06 hereof.


 


ARTICLE 4.


 


COVENANTS


 


Section 4.01.                                                 Payment
of Notes.


 


The Company shall
pay or cause to be paid the principal of, premium, if any, and interest on, the
Notes on the dates and in the manner provided in this Indenture and the
Notes.  Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company, Parent Guarantor or a Subsidiary thereof, holds as of
11:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.  Such Paying Agent shall return to the Company promptly, and in
any event, no later than five (5) Business Days following the date of payment,
any money (including accrued interest) that exceeds such amount of principal,
premium, if any, and interest paid on the Notes. The Company shall pay
Additional Interest, if any, in the same manner, on the dates and in the
amounts set forth in a Registration Rights Agreement, the Notes and this
Indenture.  If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.


 


The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods), from time to time on demand at the same rate to the
extent lawful.


 


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


 


Section 4.02.                                                 Maintenance
of Office or Agency.


 


(a)                                  The
Company shall maintain in the Borough of Manhattan, The City of New York, an
office or agency (which may be an office or drop facility of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
presented or surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served.  The Company
shall give prompt written notice to the Trustee of any change in the location
of such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the


 


41

















 


Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.


 


(b)                                 The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations.  The Company shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


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


 


Section 4.03.                                                 Reports.


 


(a)                                  Notwithstanding
that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, so long as any Notes are
outstanding the Company and Parent Guarantor shall file with the Commission, to
the extent such submissions are accepted for filing with the Commission, and
shall furnish to the Trustee, within 15 days after it is or would have been
required to be filed with the Commission:


 


(1)                                  all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company
and Parent Guarantor were required to file such Forms, including a
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and, with respect to the annual information only, a report on the
annual financial statements by the Company’s and Parent Guarantor’s certified
independent accountants; and


 


(2)                                  all
information that would be required to be filed with the Commission on Form 8-K
if the Company and Parent Guarantor were required to file such reports.


 


(b)                                 In
addition, following the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, whether or not required by the Commission, the
Company and Parent Guarantor shall file a copy of all of the information and
reports referred to in clauses (a)(1) and (a)(2) above with the Commission for
public availability within the time periods specified in the Commission’s rules
and regulations (unless the Commission shall not accept such a filing) and make
such information available to securities analysts and prospective investors
upon request.


 


(c)                                  For
so long as any Notes remain outstanding and the Company and/or Parent
Guarantor, as the case may be, does not have or shall cease to have a class of
equity securities registered under Section 12(g) of the Exchange Act or is not
or shall cease to be subject to Section 15(d) of the Exchange Act, the Company
and Parent Guarantor shall furnish to the Holders, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.


 


(d)                                 If
Parent Guarantor has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by
this Section shall include a reasonably detailed presentation, either on the
face of the financial statements or in the footnotes thereto, and in
Management’s Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of Parent
Guarantor and its Restricted Subsidiaries (including the Company) separate from
the financial condition and results of operations of the Unrestricted
Subsidiaries of Parent Guarantor.


 


Section 4.04.                                                 Compliance
Certificate.


 


(a)                                  Each
of the Company and Parent Guarantor shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers’ Certificate stating that a
review of the activities of the Company, Parent Guarantor and their
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company, Parent Guarantor and their Subsidiaries have kept, observed, performed
and fulfilled their obligations under this Indenture, and further stating, as
to each such


 


42

















 


Officer signing such certificate, that to the best of his or her
knowledge, the Company, Parent Guarantor and their Subsidiaries have kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event
of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, or interest on the Notes
is prohibited or if such event has occurred, a description of the event and
what action the Company is taking or proposes to take with respect thereto.


 


(b)                                 The
Company shall otherwise comply with TIA §314(a)(2).


 


(c)                                  The
Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice in the form of an Officers’ Certificate of any Default
or Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.


 


Section 4.05.                                                 Taxes.


 


The Company and
Parent Guarantor shall pay, and shall cause each of their Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies,
except such as are being contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders.


 


Section 4.06.                                                 Stay,
Extension and Usury Laws.


 


Each of the
Company and Parent Guarantor 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 wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and each of the
Company and Parent Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it shall not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.


 


Section 4.07.                                                 Corporate
Existence.


 


Subject to Article
5 hereof, each of the Company and Parent Guarantor shall do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, and the corporate, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company, Parent Guarantor
or any such Restricted Subsidiary; provided, however, that the Company and
Parent Guarantor shall not be required to preserve the corporate, partnership
or other existence of any Restricted Subsidiary, if the Board of Directors of
each of the Company and Parent Guarantor shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company,
Parent Guarantor and the Restricted Subsidiaries, taken as a whole, and that
the loss thereof is not adverse in any material respect to the Holders of the
Notes, or that such preservation is not necessary in connection with any
transaction not prohibited by this Indenture.


 


Section 4.08.                                                 Payments
for Consent.


 


Parent Guarantor
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to or for the benefit of any Holder for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes or the guarantees unless such
consideration is offered to be paid or agreed to be paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.


 


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Section 4.09.                                                 Incurrence
of Indebtedness and Issuance of Certain Capital Stock. 


 


(a)                                  Parent
Guarantor shall not, and shall not permit any Subsidiary to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to (collectively, “incur” or an
“incurrence” of) any Indebtedness (including Assumed Indebtedness), or issue,
any shares of Disqualified Stock and Parent Guarantor shall not permit any
Restricted Subsidiary (other than the Company) to issue any Preferred Stock; provided,
however, the Company or any Guarantor may incur Indebtedness
(including Assumed Indebtedness) or issue shares of Disqualified Stock if the
Fixed Charge Coverage Ratio of Parent Guarantor for its most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which the additional Indebtedness is incurred
or the Disqualified Stock is issued would have been at least 2.0 to 1.0,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or
the Disqualified Stock had been issued, as the case may be, at the beginning of
that four-quarter period.


 


(b)                                 The
provisions of Section 4.09(a) hereof shall not apply to:


 


(1)                       the
incurrence by Parent Guarantor’s Unrestricted Subsidiaries of Non-Recourse
Indebtedness; provided, however, that if any of such Indebtedness ceases
to be Non-Recourse Indebtedness of an Unrestricted Subsidiary, that event shall
be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary;


 


(2)                       the
incurrence by Parent Guarantor or the Company of Indebtedness under Credit
Facilities in an aggregate principal amount not to exceed $225.0 million
at any one time outstanding, minus any Net Proceeds that have been applied to
permanently reduce the outstanding amount of Indebtedness under the provisions
of Section 4.12(c)(1);


 


(3)                       the
incurrence by Parent Guarantor and the Company of Existing Indebtedness;


 


(4)                       the
incurrence by the Company or Guarantors of Indebtedness under Interest Rate and
Currency Obligations that do not increase Indebtedness of Parent Guarantor or
the Guarantors, as the case may be, other than as a result of fluctuations in
interest or foreign currency exchange rates;


 


(5)                       the
incurrence or the issuance by the Company or a Guarantor of Refinancing
Indebtedness or Refinancing Disqualified Stock; provided, however, that the
Refinancing Indebtedness or Refinancing Disqualified Stock must be a Permitted
Refinancing;


 


(6)                       the
incurrence by Parent Guarantor or any Restricted Subsidiary of intercompany
Indebtedness between or among Parent Guarantor and/or any Restricted
Subsidiary; provided,
however, that (1) all intercompany Indebtedness incurred by the
Company or any Guarantor shall be subordinated in right of payment to the
payment in full of Obligations under the Notes and the guarantees of the Notes,
(2) a subsequent issuance or transfer of Equity Interests that results in
any of the Indebtedness being held by a Person other than a Restricted
Subsidiary and any sale or other transfer of any of the Indebtedness to a
Person that is not either Parent Guarantor or a Restricted Subsidiary shall be
deemed, in each case, to constitute an incurrence of the Indebtedness by Parent
Guarantor or a Restricted Subsidiary, as the case may be;


 


(7)                       the
incurrence of Indebtedness represented by the Notes issued on the Issue Date
and any guarantee of the Notes;


 


44

















 


(8)                       the
incurrence by Parent Guarantor or any Restricted Subsidiary, in the ordinary
course of business and consistent with industry practice at the time, of
surety, performance or appeal bonds or letters of credit in connection with
obligations under workers’ compensation laws, unemployment insurance laws or
similar legislation or in connection with public or statutory obligations of
Parent Guarantor or any Restricted Subsidiary;


 


(9)                       the
incurrence of Indebtedness by Parent Guarantor or any Subsidiary arising from
agreements providing for indemnification, adjustment of purchase price or
similar obligations; or from guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of Parent Guarantor or any
Restricted Subsidiary pursuant to such agreements, in any case incurred in
connection with the disposition of any business, assets or Restricted
Subsidiary (other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or Restricted Subsidiary
for the purpose of financing such acquisition), in a principal amount not to
exceed the total consideration actually received by Parent Guarantor and any
Restricted Subsidiary on a consolidated basis in connection with such
disposition;


 


(10)                 the guarantee of
Indebtedness of Parent Guarantor or a Restricted Subsidiary that was permitted
to be incurred by another provision of this covenant; and


 


(11)                 the incurrence by
Parent Guarantor or any Additional Guarantor of Indebtedness (in addition to
Indebtedness permitted by any other clause of this paragraph) in an aggregate
principal amount at any time outstanding not to exceed $50.0 million
collectively; provided, however, that $15.0 million of this amount
may be incurred by non-Guarantor Restricted Subsidiaries.


 


(c)                                  For
purposes of determining compliance with the covenant set forth in this Section
4.09, in the event that an item of proposed Indebtedness meets the criteria of
more than one of the categories described in clauses (1) through (11)
above as of the date of incurrence thereof or is entitled to be incurred pursuant
to Section 4.09(a) hereof as of the date of incurrence thereof, Parent
Guarantor shall, in its sole discretion, classify (or later reclassify in whole
or in part, in its sole discretion) such item of Indebtedness in any manner
that complies with this covenant. Indebtedness under Credit Facilities
outstanding on the Issue Date shall be deemed to have been incurred on such
date in reliance on the exception provided by Section 4.09(b)(2) hereof.
Accrual of interest or dividends, the accretion of accreted value or
liquidation preference and the payment of interest or dividends in the form of
additional Indebtedness or Disqualified Stock shall not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of
this Section 4.09.


 


Section 4.10.                                                 Restricted
Payments.


 


(a)                                  Parent
Guarantor shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly:


 


(1)                          declare
or pay any dividend or make any distribution on account of Equity Interests of
Parent Guarantor or any Restricted Subsidiary, other than: (1) dividends
or distributions payable in Equity Interests (other than Disqualified Stock) of
Parent Guarantor and/or the Company and (2) dividends or distributions by
any Restricted Subsidiary, except that to the extent that a portion of that
dividend or distribution is paid to a holder of Equity Interests of a
Restricted Subsidiary other than Parent Guarantor or another Restricted
Subsidiary, the portion of that dividend or distribution is not greater than that
holder’s proportional interest in that class of Equity Interests in that
Restricted Subsidiary;


 


(2)                          purchase,
redeem or otherwise acquire or retire for value any Equity Interests of Parent
Guarantor or any Restricted Subsidiary or other Affiliate of Parent


 


45

















 


Guarantor, other
than any Equity Interests owned by Parent Guarantor or any Restricted
Subsidiary, other than the redemption of Class B Common Stock at par
and/or the exchange of all outstanding shares of Class B Common Stock into
or for Equity Interests of Parent Guarantor;


 


(3)                          purchase,
redeem or otherwise acquire or retire for value any Indebtedness of Parent
Guarantor or any Restricted Subsidiary that is subordinated or junior in right
of payment, by its terms, to the Notes or any guarantee of the Notes before the
scheduled final maturity or sinking fund payment dates for payment of principal
and interest in accordance with the original documentation for the subordinated
or junior Indebtedness; or


 


(4)                          make any
Investment;


 


(all the payments and other actions described in clauses
(1) through (4) above being collectively referred to as “Restricted
Payments”), unless, at the time of the Restricted Payment:


 


(A)                              no
Default or Event of Default shall have occurred and be continuing or would
occur as a consequence of the Restricted Payment;


 


(B)                                Parent
Guarantor would, at the time of the Restricted Payment and after giving pro
forma effect thereto as if the Restricted Payment had been made at the beginning
of the applicable four-quarter period, have been permitted to incur at least
$1.00 of additional Indebtedness under the tests set forth in Section 4.09(a)
hereof; and


 


(C)                                the
Restricted Payment, together with the aggregate of all other Restricted Payments
made by Parent Guarantor and the Restricted Subsidiaries after the date of this
Indenture, excluding Restricted Payments permitted by clauses (2), (3), (4),
(5) and (7)(A) of Section 4.10(b) below, is less than the sum,
without duplication, of:


 


(i)                                     95%
of the aggregate amount of the Funds From Operations (or, if the Funds From
Operations is a loss, minus 100% of the amount of such loss) accrued on a
cumulative basis during the period (taken as one accounting period) beginning
on the first day of the fiscal quarter immediately prior to the Issue Date to
the end of the most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment; plus


 


(ii)                                  100%
of the aggregate net proceeds (including the fair market value of non-cash
proceeds as determined in good faith by the Board of Directors of Parent
Guarantor) received by Parent Guarantor and/or the Company from the issue or
sale, in either case, since the Issue Date of either (a) Equity Interests
of Parent Guarantor and/or the Company or (b) debt securities of Parent
Guarantor and/or the Company that have been converted or exchanged into those
Equity Interests (other than Equity Interests or convertible or exchangeable
debt securities sold to Parent Guarantor or any Restricted Subsidiary and other
than Disqualified Stock or debt securities that have been converted or
exchanged into Disqualified Stock); plus


 


(iii)                               in case, after the Issue
Date, any Unrestricted Subsidiary has been redesignated a Restricted Subsidiary
under the terms of this Indenture or has been merged, consolidated or
amalgamated with or into, or transfers or conveys assets to, or is liquidated
into Parent Guarantor or a Restricted Subsidiary thereof and, only if no
Default or Event of Default shall have occurred and be continuing or would
occur as a consequence of the Restricted Payment, the lesser of (a) the
book value (determined in accordance with GAAP) at the date of the
redesignation, combination or transfer of the aggregate Investments made by
Parent Guarantor and the Restricted Subsidiaries in the Unrestricted Subsidiary
(or of the assets transferred or conveyed, as applicable) and (b) the fair
market value of the Investment in the Unrestricted Subsidiary at the time of the
redesignation, combination or transfer (or of the assets transferred or
conveyed, as applicable), in each case as determined in good faith by the Board
of


 


46

















 


Directors of Parent Guarantor, whose determination
shall be conclusive and evidenced by a resolution of the Board of Directors
and, in each case, after deducting any Indebtedness incurred by the
Unrestricted Subsidiary so designated or combined or with the assets so
transferred or conveyed; plus


 


(iv)                              100%
of any dividends, distributions or interest actually received in cash by Parent
Guarantor or a Restricted Subsidiary after the Issue Date from (a) all
Unrestricted Subsidiaries, (b) a Person that is not a Subsidiary or
(c) a Person that is accounted for on the equity method.


 


(b)                                 The
foregoing provisions shall not prohibit the following:


 


(1)                                the
payment of any dividend within 60 days after the date of declaration of
the dividend, if at the date of declaration the payment would have complied
with the provisions of this Indenture;


 


(2)                                the
redemption, purchase, retirement or other acquisition of any Equity Interests
of Parent Guarantor or a Restricted Subsidiary in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a Subsidiary of
Parent Guarantor) of other Equity Interests of Parent Guarantor and/or the
Company (other than any Disqualified Stock); provided, however, that the
amount of any proceeds that is utilized for the redemption, repurchase,
retirement or other acquisition shall be excluded from Section
4.10(a)(C)(ii) hereof;


 


(3)                                the
defeasance, redemption, repayment or purchase of Indebtedness of Parent
Guarantor or any Restricted Subsidiary that is subordinate or junior in right
of payment, by its terms, to the Notes and any guarantee of the Notes in a
Permitted Refinancing;


 


(4)                                the
defeasance, redemption, repayment or purchase of Indebtedness of Parent
Guarantor or any Restricted Subsidiary that is subordinate or junior in right
of payment, by its terms, to the Notes and any guarantee of the Notes with the
proceeds of a substantially concurrent sale (other than to a Subsidiary of
Parent Guarantor) of Equity Interests (other than Disqualified Stock) of Parent
Guarantor and/or the Company; provided, however, the amount of any
proceeds that is utilized for the defeasance, redemption, repayment or purchase
shall be excluded from Section 4.10(a)(C)(ii) hereof;


 


(5)                                the
purchase, redemption or other acquisition or retirement for value of any Equity
Interests of Parent Guarantor and/or the Company to fulfill obligations under
any management equity subscription agreement, stock option agreement or stock-based
award; provided,
however, the aggregate price paid for all the purchased, redeemed,
acquired or retired Equity Interests shall not exceed $5.0 million in any
12-month period;


 


(6)                                payments
or distributions to dissenting stockholders pursuant to applicable law pursuant
to or in connection with a consolidation, merger or transfer of assets that
complies with the provisions of this Indenture applicable to mergers,
consolidations and transfers of all or substantially all of the property or
assets of Parent Guarantor or the Company;


 


(7)                                (A) the
making of any Permitted Investment described in clauses (a), (b), (c), (d),
(f), (g) and (h) of the definition of Permitted Investments and (B) the
making of any Permitted Investment described in clause (e) of the
definition of Permitted Investments;


 


47

















 


(8)                                dividends
or distributions paid or payable on Existing Preferred Stock;


 


(9)                                payments
that would otherwise be Restricted Payments, in an aggregate amount not to
exceed $50.0 million collectively; provided that at the time of, and after
giving effect to, the proposed payment, Parent Guarantor could have incurred at
least $1.00 of additional Indebtedness under Section 4.09(a); and


 


(10)                          the
Company may declare or pay any dividend or make any distribution that is
necessary to maintain its status as a REIT under the Code if the aggregate
principal amount of all outstanding Indebtedness of Parent Guarantor and the
Restricted Subsidiaries is less than 80% of Adjusted Total Assets;


 


provided, however,
in the case of clauses (1), (2), (3), (4), (5), (6), (7)(B), (8), (9) and
(10) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence of such payments.


 


(c)                                  In
determining whether any Restricted Payment is permitted by the covenant set
forth in this Section 4.10, Parent Guarantor may allocate or reallocate all or
any portion of the Restricted Payment among clauses (1) through
(10) of Section 4.10(b) or among the clauses in Section 4.10(a), through
and including clauses (A), (B) and (C), provided, however, that at
the time of, and after giving effect to, the allocation or reallocation, all
the Restricted Payments, or allocated portions of the Restricted Payments, must
be permitted under one or more of the various provisions of the foregoing
covenant.


 


(d)                                 The
amount of all Restricted Payments (other than cash) shall be the fair market
value (evidenced in the case of Restricted Payments in excess of
$10.0 million by a resolution of the Board of Directors of Parent
Guarantor described in an Officer’s Certificate delivered to the Trustee) on
the date of the Restricted Payment of the asset(s) proposed to be transferred
by Parent Guarantor or the Restricted Subsidiary, as the case may be, pursuant
to the Restricted Payment. Not later than (a) the end of any calendar
quarter in which any Restricted Payment is made or (b) the making of a
Restricted Payment which, when added to the sum of all previous Restricted
Payments made in a calendar quarter, would cause the aggregate of all
Restricted Payments made in the quarter to exceed $10.0 million, the Company
shall deliver to the Trustee an Officer’s Certificate stating that the
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.10 were computed, which calculations
may be based upon the latest available consolidated financial statements of
Parent Guarantor.


 


Section 4.11.                                                 Liens.


 


Parent Guarantor
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, incur or suffer to exist, any Lien (other than Permitted Liens)
upon any of its property (including Capital Stock of a Restricted Subsidiary),
whether owned at the Issue Date or thereafter acquired, or any interest therein
or any income or profits therefrom, securing Indebtedness or Attributable Debt
unless it has made or shall make effective provision whereby the Notes or the
applicable guarantee shall be secured by such Lien equally and ratably with
(or, if such other Indebtedness constitutes subordinated Indebtedness, prior
to) all other Indebtedness of Parent Guarantor or any Restricted Subsidiary
secured by such Lien for so long as such other Indebtedness is secured by such
Lien.


 


Section 4.12.                                                 Asset
Sales.


 


(a)                                  Parent
Guarantor shall not, and shall not permit any Restricted Subsidiary to, conduct
an Asset Sale, unless:


 


(1)                                Parent
Guarantor or such Restricted Subsidiary, as the case may be, receives
consideration at the time of the Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of and, in the case of one or a
series of related Asset Sales of $10.0 million or more, to be evidenced by
a resolution of Parent Guarantor’s Board of Directors described in an Officer’s
Certificate delivered to the Trustee; and


 


48

















 


(2)                                at
least 75% of the consideration therefor received by Parent Guarantor or such
Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents; provided, however, that the principal amount of the
following shall be deemed to be cash for purposes of this provision:


 


(A)                      any
liabilities of Parent Guarantor or such Restricted Subsidiaries, as shown on
Parent Guarantor’s or such Restricted Subsidiary’s most recent balance sheet or
in the related footnotes thereto (other than liabilities that by their terms
rank junior in right of payment to the Notes or any guarantee of the Notes),
that are assumed by the transferee of those assets; and


 


(B)                        any Notes
or other obligations received by Parent Guarantor or any such Restricted
Subsidiary from a transferee that are converted by Parent Guarantor or the
Restricted Subsidiary into cash within 90 days after the closing of the
Asset Sale (to the extent of the cash received).


 


(b)                                 Notwithstanding
the foregoing, the restriction in clause (a)(2) above shall not apply with
respect to mortgages, notes receivable or other securities received by Parent
Guarantor or any Restricted Subsidiary from a transferee of any assets to the
extent those mortgages, notes receivable or other securities are Investments
permitted to be made by Parent Guarantor or the Restricted Subsidiary under the
covenant set forth in Section 4.10 hereof.


 


(c)                                  Within
365 days after the receipt of Net Proceeds from an Asset Sale, Parent
Guarantor or the Restricted Subsidiaries may apply those Net Proceeds at their option:


 


(1)                   to permanently
repay, and reduce related commitments under, any Credit Facility or the
Existing Notes, which, in the case of repayments of Indebtedness under any
Credit Facility, shall effect a permanent reduction in the amount of
Indebtedness that may be incurred under Section 4.09(b)(2); or


 


(2)                   invest the Net
Proceeds in property or assets, including Investments permitted under
clause (e) of the definition of Permitted Investments, used in a
Hospitality-Related Business, provided that Parent Guarantor or such
Restricted Subsidiary shall have complied with this clause (2) if,
within 365 days after the Asset Sale, Parent Guarantor or such Restricted
Subsidiary, as applicable, shall have commenced and not completed or abandoned an
investment in compliance with this clause (2) and shall have segregated
the Net Proceeds from the general funds of Parent Guarantor and its
Subsidiaries for that purpose and the investment is substantially completed
within 365 days after the first anniversary of the Asset Sale.


 


Any Net Proceeds
from an Asset Sale that are not applied or invested as provided above shall be
deemed to constitute “Excess Proceeds.”


 


(d)                                 When
the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company
shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and other
Indebtedness that ranks by its terms equally in right of payment with the Notes
and the terms of which contain substantially similar requirements with respect
to the application of proceeds from sales of assets or in connection with
securitizations as are set forth in this Indenture to purchase on a
proportional basis the maximum principal amount of Notes, that is an integral
multiple of $1,000, that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the principal amount of the Notes
plus accrued and unpaid interest thereon, if any, to the Purchase Date, in
accordance with the procedures set forth in this Indenture. To the extent that
the aggregate amount of Notes and other such Indebtedness tendered under such
Asset Sale Offer is less than the Excess Proceeds, any remaining Excess
Proceeds may be used for any purpose not otherwise prohibited by this
Indenture, including general


 


49

















 


corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds available
for purchase of such Notes, the Trustee shall select the Notes to be purchased
in the manner set forth in Section 3.02 hereof. When the offer to purchase is
completed, the amount of Excess Proceeds shall be reset at zero. Pending the
final application of any Net Proceeds from an Asset Sale under this Section
4.12(d), Parent Guarantor or any Restricted Subsidiary may temporarily reduce
Indebtedness under Credit Facilities or otherwise invest the Net Proceeds in
Cash Equivalents.


 


(e)                                  The
Company shall comply, to the extent applicable, with the requirements of
Rule 14e-1 under the Exchange Act and other securities laws and
regulations under the Exchange Act to the extent those laws and regulations are
applicable in connection with any offer to purchase and the purchase of Notes
as described above. To the extent that the provisions of any securities laws or
regulations conflict with the above-described provisions of this
Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under such
provisions of this Indenture by virtue of compliance.


 


Section 4.13.                                                 Dividend
and Other Payment Restrictions Affecting Subsidiaries.


 


Parent Guarantor
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any contractual encumbrance or restriction on the ability of any Restricted
Subsidiary to:


 


(a)                             (1) pay
dividends or make any other distributions to Parent Guarantor or any Restricted
Subsidiary (A) on its Capital Stock or (B) with respect to any other
interest or participation in, or measured by, its profits, or (2) pay any
Indebtedness owed to Parent Guarantor or any Restricted Subsidiary;


 


(b)                            make
loans or advances or capital contributions to Parent Guarantor or any
Restricted Subsidiary; or


 


(c)                             sell,
lease or transfer any of its properties or assets to Parent Guarantor or any
Restricted Subsidiary,


 


except for those
encumbrances or restrictions existing under or by reasons of:


 


(1)                             Existing
Indebtedness or other instruments governing Equity Interests, in each case as
in effect on the date of this Indenture;


 


(2)                             any
Credit Facility, except that the encumbrances or restrictions contained in that
facility, as amended, modified, supplemented, restructured, renewed, restated,
refunded, replaced or refinanced or extended from time to time on one or more
occasions, must not be materially more restrictive, taken as a whole, than
those contained in the Credit Agreement as in effect on the Issue Date;


 


(3)                             this
Indenture and the Notes;


 


(4)                             applicable
law;


 


(5)                             any
instrument governing Indebtedness or Equity Interests of either (A) a
Restricted Subsidiary formed to own, operate or develop a Hospitality-Related
Business in which Parent Guarantor or any Restricted Subsidiary, directly or
indirectly, owns less than 80% of the Capital Stock of such Restricted
Subsidiary or (B) a Person Parent Guarantor or any Restricted Subsidiary
acquires or of any Person that becomes a Restricted Subsidiary as in effect at
the time of the acquisition or the Person becoming a Restricted Subsidiary
(except to the extent the Indebtedness was incurred in connection with or in
contemplation of the acquisition or that Person becoming a Restricted
Subsidiary), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of


 


50

















 


the Person, so acquired; provided, however, that the
Consolidated Cash Flow of that Person to the extent of such restriction is not
taken into account in determining whether the acquisition was permitted by the
terms of this Indenture;


 


(6)                             restrictions
of the nature described in clause (c) above by reason of customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with past practice;


 


(7)                             purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (c) above on the
property so acquired;


 


(8)                             Permitted
Refinancings, except that the encumbrance or restrictions contained in the
agreements governing the Permitted Refinancings must not be materially more
restrictive, taken as a whole, than those contained in the agreements governing
the Indebtedness or Disqualified Stock being refinanced; or


 


(9)                             customary
restrictions in security agreements or mortgages securing Indebtedness of a
Restricted Subsidiary to the extent the restrictions restrict the transfer of
the property subject to such security agreements and mortgages.


 


Section 4.14.                                                 Transactions
with Affiliates.


 


Parent Guarantor
shall not, and shall not permit any Restricted Subsidiary to, sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an “Affiliate Transaction”), unless:


 


(a)                             the
Affiliate Transaction is on terms that are no less favorable to Parent
Guarantor or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by Parent Guarantor or the Restricted
Subsidiary on an arm’s length basis with an unrelated Person;


 


(b)                            the
Company delivers to the Trustee:


 


(1)                             with
respect to any Affiliate Transaction involving aggregate payments in excess of
$10.0 million, an Officer’s Certificate certifying that the Affiliate
Transaction complies with clause (a) above and the Affiliate
Transaction is approved by a majority of the disinterested members of Parent
Guarantor’s Board of Directors; and


 


(2)                             with
respect to any Affiliate Transaction involving aggregate payments in excess of
$20.0 million, an opinion as to the fairness to Parent Guarantor or the
Restricted Subsidiary from a financial point of view issued, by an investment
banking firm of national standing or a qualified appraiser selected by the
Company.


 


The following
shall not be deemed Affiliate Transactions:


 


(A)                         any
employment, deferred compensation, stock option, long-term or stock-based
awards, noncompetition, consulting or similar agreement Parent Guarantor or any
Restricted Subsidiary enters into in the ordinary course of business and
consistent with the industry practice at the time of Parent Guarantor or any
Restricted Subsidiary;


 


(B)                           transactions
between or among Parent Guarantor and/or any Restricted Subsidiary;


 


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(C)                           customary
transactions in connection with a Qualified CMBS Transaction; and


 


(D)                          Restricted
Payments permitted by the provisions described above under the provisions of
Section 4.10 hereof.


 


Section 4.15.                                                 Sale and
Leaseback Transactions.


 


Parent Guarantor
shall not, and shall not permit any Restricted Subsidiary to, enter into any
sale and leaseback transaction; provided, however, that the Company or any
Guarantor may enter into a sale and leaseback transaction if:


 


(a)                             the
gross cash proceeds of that sale and leaseback transaction are at least equal
to the fair market value and in the case of sale and leaseback transactions
involving $10.0 million or more, is as determined in good faith by the
Board of Directors of Parent Guarantor and set forth in an Officers’
Certificate delivered to the Trustee, of the property that is the subject of
that sale and leaseback transaction;


 


(b)                            the
Company or that Guarantor could have incurred Indebtedness in an amount equal
to the Attributable Debt relating to such sale and leaseback transaction under
the provisions of Section 4.09 hereof;


 


(c)                             the
Company or the Guarantor applies an amount equal to the Attributable Debt
relating to such sale and leaseback transaction to either:


 


(1)                             to
permanently repay, and reduce related commitments under, first, any Credit Facility
or the Existing Notes and, second, under any other senior Indebtedness
including the Notes; or


 


(2)                             invest
net proceeds in property or assets, including Investments permitted under
clause (e) of the definition of Permitted Investments, used in a Hospitality-Related
Business, provided
that Parent Guarantor or such Restricted Subsidiary shall have
complied with this clause (b) if, within 365 days after the sale
and leaseback transaction, Parent Guarantor or such Guarantor, as applicable,
shall have commenced and not completed or abandoned an investment in compliance
with this clause (2) and shall have segregated the proceeds from the
general funds of Parent Guarantor and its Subsidiaries for that purpose and the
investment is substantially completed within 365 days after the first
anniversary of the sale and leaseback transaction; and


 


(d)                            at
the time of entering into such transaction, the property or other assets that
are the subject of the sale and leaseback transaction could have been subjected
to a Lien securing Indebtedness in a principal amount equal to the Attributable
Debt with respect to such sale and leaseback transaction under clause (n) of
the definition of “Permitted Liens.”


 


Section 4.16.                                                 Line of
Business.


 


For so long as any
Notes are outstanding, Parent Guarantor shall not, and shall not permit any
Restricted Subsidiary to, engage in any business or activity other than a
Hospitality-Related Business.


 


Section 4.17.                                                 Designation
of Restricted and Unrestricted Subsidiaries.


 


The Board of
Directors of Parent Guarantor may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if the designation would not cause a Default or Event
of Default. For purposes of making the determination as to whether the
designation would cause a Default or Event of Default, all outstanding
Investments by Parent Guarantor and the Restricted Subsidiaries (except to the
extent repaid in cash) in the Subsidiary so designated shall be deemed to be
Restricted Payments at the time of the designation and shall reduce the amount
available for Restricted Payments in an amount equal to the greatest of
(a) the net book value of the


 


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Investments at the time of the designation, (b) the fair market
value of the Investments at the time of the designation and (c) the
original fair market value of the Investments at the time they were made. The
designation shall only be permitted if the Restricted Payment would be
permitted at the time and if the Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary. Any designation of a Restricted
Subsidiary to be an Unrestricted Subsidiary by Parent Guarantor’s Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of Parent Guarantor’s Board of Directors
giving effect to the designation and an Officer’s Certificate certifying that
the designation complied with the foregoing conditions.


 


Section 4.18.                                                 Repurchase
at the Option of Holders Upon a Change of Control.


 


(a)                                  Upon
the occurrence of a Change of Control, the Company shall, within 10 days of a
Change of Control, make an offer (the “Change of Control Offer”) pursuant to the
procedures set forth in Section 3.09 hereof. 
Each Holder shall have the right to accept such offer and require the
Company to repurchase all or any portion (equal to $1,000 or an integral
multiple of $1,000) of such Holder’s Notes pursuant to the Change of Control
Offer at a purchase price, in cash (the “Change of Control Amount”), equal to 101%
of the aggregate principal amount of Notes repurchased, plus accrued and unpaid
interest on the Notes repurchased to the Purchase Date.


 


(b)                                 The
Company shall not be required to make a Change of Control Offer upon a Change
of Control if a third party makes a Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes or portions of Notes validly tendered and not withdrawn
under the Change of Control Offer.


 


Section 4.19.                                                 Additional
Guarantees.


 


(a)                                  Before
any Restricted Subsidiary, other than the Company, incurs any Indebtedness
(including any guarantee of Indebtedness, but excluding any guarantee of Credit
Facilities or Indebtedness incurred by a non-guarantor Restricted Subsidiary
pursuant to Section 4.09(b)(11) or issues any Disqualified Stock, for so long
as such Indebtedness or Disqualified Stock is outstanding, it must execute and
deliver to the Trustee both (1) a supplemental indenture under which such
Restricted Subsidiary shall guarantee, on an unsecured senior basis, all of the
Obligations with respect to the Notes, and (2) an Opinion of Counsel to
the effect that the supplemental indenture has been duly executed and
delivered. Parent Guarantor may, at any time and from time to time, cause a
Restricted Subsidiary to guarantee the Notes and be thereafter treated as an
Additional Guarantor.


 


(b)                                 In
the event of (1) a sale or other disposition of all or substantially all
of the assets of any Additional Guarantor, which sale or other disposition is
otherwise in compliance with the terms of this Indenture, by way of merger,
consolidation or otherwise, (2) a sale or other disposition of all of the
Capital Stock of any Additional Guarantor, or (3) a designation of any
Restricted Subsidiary that is an Additional Guarantor as an Unrestricted
Subsidiary in accordance with the applicable provisions of this Indenture, then
the Additional Guarantor (in the event of a sale or other disposition, by way
of a merger, consolidation or otherwise, of all of the Capital Stock of
Additional Guarantor or a designation as an Unrestricted Subsidiary) or the
corporation acquiring the property (in the event of a sale or other disposition
of all or substantially all of the assets of Additional Guarantor) shall be
automatically and unconditionally released and relieved of any obligations
under its guarantee.


 


Section 4.20.                                                 Security
Interest.


 


For so long as any
of the Existing Notes are secured under the Pledge Agreement or otherwise, the
Notes shall be also secured equally and ratably with the Existing Notes.  Except to the extent that the provisions of
§ 3.14(d) of the TIA (incorporated into this Indenture) afford the Holders
of the Notes any additional rights, the rights of the Holders of the Notes with
respect to collateral under the Pledge Agreement shall be as set forth therein.


 


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Section 4.21.                                                 Covenant
Termination.


 


In the event that:


 


(a)                                  the
Notes have received Investment Grade Ratings from both Rating Agencies
(notwithstanding that the Notes may later cease to have an Investment Grade
Rating from either or both of the Rating Agencies); and


 


(b)                                 no
Default or Event of Default has occurred and is continuing under this Indenture
at the time the Investment Grade Ratings are received,


 


then, Parent
Guarantor and the Restricted Subsidiaries shall be released from their
obligations to comply with the provisions of 
Sections 4.09, 4.10, 4.12, 4.13, 4.14, 4.15(b), 4.16 and 5.01(a)(4)
hereof.


 


ARTICLE 5.


 


SUCCESSORS


 


Section 5.01.                                                 Merger,
Consolidation or Sale of Assets of the Company and Guarantors.


 


(a)                                  Neither
the Company nor any Guarantor may consolidate or merge with or into (whether or
not the Company or such Guarantor, as the case may be, is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of the properties or assets of the Company or any
Guarantor in one or more related transactions, to another Person unless:


 


(1)                                  the
Company or such Guarantor, as the case may be, is the surviving Person or the
Person formed by or surviving the consolidation or merger (if other than the
Company or such Guarantor, as the case may be) or to which the sale, transfer
or other disposition shall have been made is a Person organized or existing
under the laws of the United States, any state of the United States or the
District of Columbia;


 


(2)                                  the
Person formed by or surviving any such consolidation or merger (if other than
the Company or such Guarantor, as the case may be) or the Person to which the
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all of the obligations of the Company or such Guarantor, as
the case may be, pursuant to a supplemental indenture under the Notes or the
guarantee, as the case may be, and this Indenture;


 


(3)                                  immediately
after the transaction no Default or Event of Default exists; and


 


(4)                                  except
with respect to a consolidation or merger of the Company with or into a
Guarantor, the Company or such Guarantor, as the case may be, or any Person
formed by or surviving any such consolidation or merger, or to which the sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made, shall, at the time of the transaction and after giving pro forma effect
thereto as if the transaction had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional
Indebtedness under the tests as set forth in Section 4.09(a) hereof.


 


(b)                                 Except
as set forth with respect to Additional Guarantors in Section 4.19 hereof, upon
any consolidation, merger, lease, conveyance or transfer in accordance with the
foregoing, the successor Person formed by the consolidation or into which the
Company or such Guarantor, as the case may be, are merged or to which the
lease, conveyance or transfer is made shall succeed to, and be substituted for
the Company or such


 


54

















 


Guarantor, as the case may be, and may exercise all of the rights and
powers under this Indenture with the same effect as if the successor had been
named as the Company or such Guarantor, as the case may be, therein and
thereafter (except in the case of a lease) the predecessor Person shall be
relieved of all further obligations and covenants under this Indenture and the
Notes or the guarantee, as the case may be.


 


Section 5.02.                                                 Successor
Corporation Substituted.


 


Each surviving
Person shall succeed to, and be substituted for, and may exercise every right
and power of the Company or a Guarantor, as applicable, under this Indenture; provided,
however, that in the case of:


 


(a)                                  a
sale, transfer, assignment, conveyance or other disposition of the type
contemplated by Section 5.01(a) above (unless such sale, transfer, assignment,
conveyance or other disposition is of all or substantially all of the assets of
the Company and the Restricted Subsidiaries, taken as a whole, or in the case
of a Guarantor, such sale, transfer, assignment, conveyance or other
disposition is of all or substantially all of the assets of such Guarantor or
all of the Capital Stock of such Guarantor to a Person that is not (either
before or after giving effect to such transactions) a Subsidiary of the Company
or to any Guarantor), or


 


(b)                                 a
lease of the type contemplated by Section 5.01(a) above,


 


the predecessor
company shall not be released from any of the obligations or covenants under this
Indenture, including with respect to the payment of the Notes and obligations
under the guarantees.


 


ARTICLE 6.


 


DEFAULTS
AND REMEDIES


 


Section 6.01.                                                 Events of
Default.


 


Each of the
following constitutes an “Event of Default” with respect to the Notes:


 


(i)                                     default
for 30 days in the payment when due of interest, if any, on the Notes;


 


(ii)                                  default
in payment when due of the principal of or premium, if any, on the Notes at
maturity, upon redemption or otherwise, including the failure to make a payment
to purchase Notes tendered pursuant to a Change of Control Offer or an Asset
Sale Offer;


 


(iii)                               failure by Parent
Guarantor or any Restricted Subsidiary to comply with the provisions of Section
5.01 hereof;


 


(iv)                              failure
by Parent Guarantor or any Restricted Subsidiary for 30 days in the
performance of any other covenant, warranty or agreement in this Indenture or
the Notes after written notice shall have been given to the Company by the
Trustee or to the Company and the Trustee by Holders of at least 25% in principal
amount of the Notes then outstanding;


 


(v)                                 for
so long as any of the Existing Notes remain outstanding, a payment default
resulting from the failure to pay at maturity any Indebtedness of Parent
Guarantor or any Restricted Subsidiary in an aggregate principal amount greater
than $10.0 million;


 


(vi)                              a
default under any Indebtedness by Parent Guarantor or any Restricted Subsidiary
that results in acceleration of the maturity of such Indebtedness, or failure
to pay any such Indebtedness at maturity, in an aggregate amount greater than
$10.0 million;


 


(vii)                           failure by Parent Guarantor
or any Restricted Subsidiary to pay final judgments rendered against them
(other than judgment liens without recourse to any of Parent Guarantor’s


 


55

















 


or any Restricted Subsidiary’s assets or property
other than assets or property securing Non-Recourse Indebtedness) aggregating
in excess of $20.0 million, which judgments are not paid, discharged or
stayed for a period of 60 days, except for judgments as to which a
reputable insurance company has accepted full liability;


 


(viii)                        except as permitted by this
Indenture, any guarantee by an Additional Guarantor that is a Significant
Subsidiary with respect to the Notes shall be held in a judicial proceeding to
be unenforceable or invalid or shall cease for any reason to be in full force
and effect or Parent Guarantor or any Additional Guarantor that is a
Significant Subsidiary (in both cases, including its successors and assigns),
or any Person acting on behalf of such Guarantor (or its successors and
assigns), shall deny or disaffirm its obligations or shall fail to comply with
any obligations under its guarantee;


 


(ix)                                the
Company, Parent Guarantor, any of Parent Guarantor’s Significant Subsidiaries,
or any group of Parent Guarantor’s Subsidiaries that, when taken together,
would constitute a Significant Subsidiary or Parent Guarantor, pursuant to or
within the meaning of any Bankruptcy Law:


 


(A)                              commences
a voluntary case or gives notice of intention to make a proposal under any
Bankruptcy Law;


 


(B)                                consents
to the entry of an order for relief against it in an involuntary case or
consents to its dissolution or winding up;


 


(C)                                consents
to the appointment of a receiver, interim receiver, receiver and manager,
liquidator, trustee or custodian of it or for all or substantially all of its
property;


 


(D)                               makes
a general assignment for the benefit of its creditors;


 


(E)                                 admits
in writing its inability to pay its debts as they become due or otherwise
admits its insolvency; or


 


(F)                                 seeks
a stay of proceedings against it or proposes or gives notice or intention to
propose a compromise, arrangement or reorganization of any of its debts or
obligations under any Bankruptcy Law; and


 


(x)                                   a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:


 


(A)                              is
for relief against the Company, Parent Guarantor, any of Parent Guarantor’s
Significant Subsidiaries, or any group of Parent Guarantor’s Subsidiaries that,
when taken together, would constitute a Significant Subsidiary or Parent
Guarantor, in an involuntary case; or


 


(B)                                appoints
a receiver, interim receiver, receiver and manager, liquidator, trustee or
custodian of the Company, Parent Guarantor, or any of Parent Guarantor’s
Significant Subsidiaries, any group of Parent Guarantor’s Subsidiaries that,
when taken together, would constitute a Significant Subsidiary or Parent
Guarantor, or for all or substantially all of the property of the Company, any
of Parent Guarantor’s Significant Subsidiaries, any group of Parent Guarantor’s
Subsidiaries that, when taken together, would constitute a Significant
Subsidiary or Parent Guarantor;


 


56

















 


(C)                                orders
the liquidation of the Company, Parent Guarantor, any of Parent Guarantor’s
Significant Subsidiaries, any group of Parent Guarantor’s Subsidiaries that,
when taken together, would constitute a Significant Subsidiary or Parent
Guarantor; or


 


(D)                               orders
the presentation of any plan or arrangement, compromise or reorganization of
the Company, Parent Guarantor, any of Parent Guarantor’s Significant
Subsidiaries or any group of Parent Guarantor’s Subsidiaries that, when taken
together, would constitute a Significant Subsidiary or Parent Guarantor;


 


and such order or
decree remains unstayed and in effect for 60 consecutive days.


 


Section 6.02.                                                 Acceleration.


 


If any Event of Default (other than those of the type described in
Section 6.01(ix) or (x)) occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of outstanding Notes may, declare the
principal of all the Notes, together with all accrued and unpaid interest, and
premium, if any, to be due and payable by notice in writing to the Company and
the Trustee specifying the respective Event of Default and that such notice is
a notice of acceleration (the “Acceleration Notice”), and the same shall
become immediately due and payable.


 


In the case of an
Event of Default specified in Section 6.01(ix)
or (x) hereof, all outstanding Notes shall become due and payable
immediately without further action or notice by the Trustee or the
Holders.  Holders may not enforce this
Indenture or the Notes except as provided in this Indenture.


 


At any time after a declaration of acceleration with respect to the
Notes, the Holders of a majority in principal amount of the Notes then
outstanding (by notice to the Trustee) may rescind and cancel such declaration
and its consequences if:


 


(a)                                  the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction;


 


(b)                                 all existing Defaults and Events of Default have
been cured or waived except nonpayment of principal of or interest on the Notes
that has become due solely by reason of such declaration of acceleration;


 


(c)                                  to the extent the payment of such interest is
lawful, interest (at the same rate specified in the Notes) on overdue
installments of interest and overdue payments of principal which has become due
otherwise than by such declaration of acceleration has been paid;


 


(d)                                 the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its reasonable expenses,
disbursements and advances; and


 


(e)                                  in the event of the cure or waiver of an Event of
Default of the type described in Section 6.01(ix) or (x), the Trustee has
received an Officers’ Certificate and Opinion of Counsel that such Event of
Default has been cured or waived.


 


In the case of an
Event of Default with respect to the Notes occurring by reason of any willful
action or inaction taken or not taken by the Company or on the Company’s behalf
with the intention of avoiding payment of the premium that the Company would
have been required to pay if the Company had then elected to redeem the Notes
pursuant to Section 3.07 hereof, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.  If an Event
of Default occurs by reason of any willful action or inaction taken or not
taken by the Company or on the Company’s behalf with the intention of avoiding
the premium required upon a redemption of the Notes under Section 3.07(a) or
Section 3.07(c)


 


57

















 


hereof, then the premium specified in Section 3.07(a) or Section
3.07(c) hereof, as applicable, shall also become immediately due and payable to
the extent permitted by law upon acceleration of the Notes.


 


Section 6.03.                                                 Other
Remedies.


 


If an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes
or to enforce the performance of any provision of the Notes or this Indenture.


 


The Trustee may
maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding.  A delay or omission by the Trustee
or any Holder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. 
All remedies shall be cumulative to the extent permitted by law.


 


Section 6.04.                                                 Waiver of
Past Defaults.


 


The Holders of at
least a majority in aggregate principal amount of the Notes then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Notes waive
any existing Default or Event of Default, and its consequences, except a
continuing Default or Event of Default (i) in the payment of the principal
of or interest on the Notes and (ii) in respect of a covenant or provision
which under this Indenture cannot be modified or amended without the consent of
the Holder of each Note affected by such modification or amendment.  Upon any waiver of a Default or Event of Default
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed cured for every purpose of this Indenture, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.


 


Section 6.05.                                                 Control
by Majority.


 


Subject to Section
7.01, Section 7.02(f) (including the Trustee’s receipt of the security or
indemnification described therein) and Section 7.07 hereof, in case an Event of
Default shall occur and be continuing, the Holders of a majority in aggregate
principal amount of the Notes then outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Notes.


 


Section 6.06.                                                 Limitation
on Suits.


 


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


 


(a)                                  such
Holder has previously given to the Trustee written notice of a continuing Event
of Default or the Trustee receives the notice from the Company or Parent
Guarantor;


 


(b)                                 Holders
of at least 25% in aggregate principal amount of the Notes then outstanding
have made written request to the Trustee to pursue a remedy;


 


(c)                                  Holder
of a Note or Holders of Notes offer, and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;


 


(d)                                 the
Trustee shall have failed to comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and


 


(e)                                  during
the 60-day period the Holder of a majority in principal amount of the Notes
then outstanding shall not have given the Trustee a direction inconsistent with
the request.


 


58

















 


The preceding
limitations shall not apply to a suit instituted by a Holder for enforcement of
payment of principal of, and premium, if any, or interest on, a Note on or
after the respective due dates for such payments set forth in such Note.


 


A Holder may not
use this Indenture to affect, disturb or prejudice the rights of another Holder
or to obtain a preference or priority over another Holder.


 


Section 6.07.                                                 Rights of
Holders to Receive Payment.


 


Notwithstanding
any other provision of this Indenture (including, without limitation, Section
6.06 hereof), the right of any Holder to receive payment of principal, premium,
if any, and interest on the Notes held by such Holder, on or after the
respective due dates expressed in the Notes (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.


 


Section 6.08.                                                 Collection
Suit by Trustee.


 


If an Event of
Default specified in Section 6.01 (i) or (ii) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal of,
premium, if any, and interest then due and owing (together with interest on
overdue principal and, to the extent lawful, interest) and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


 


Section 6.09.                                                 Trustee
May File Proofs of Claim.


 


The Trustee shall
be authorized to file such proofs of claim and other papers or documents as may
be 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 the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07  hereof. 
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, 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,
moneys, securities and any other properties that the Holders may be entitled to
receive in such proceeding 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 Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


Section 6.10.                                                 Priorities.


 


If the Trustee
collects any money pursuant to this Article 6, it shall pay out the money in
the following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the Trustee and
the costs and expenses of collection;


 


59

















 


Second:  to Holders for amounts due and unpaid on the
Notes for principal, premium, if any, and interest ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, respectively; and


 


Third:  to the Company or to such party as a court
of competent jurisdiction shall direct.


 


The Trustee may
fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10.


 


Section 6.11.                                                 Undertaking
for Costs.


 


In any suit for
the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court
in its discretion may require the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant.  This Section 6.11
shall not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount
of the then outstanding Notes.


 


ARTICLE 7.


 


TRUSTEE


 


Section 7.01.                                                 Duties of
Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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(3)                                  the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 6.05 hereof.


 


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


 


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


 


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


 


Section 7.02.                                                 Rights of
Trustee.


 


Subject to TIA
§ 315:


 


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


 


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


 


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


 


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


 


(e)                                  The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the
Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.


 


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


 


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


 


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


 


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


 


Section 7.03.                                                 Individual
Rights of Trustee.


 


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


 


Section 7.04.                                                 Trustee’s
Disclaimer.


 


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


 


Section 7.05.                                                 Notice of
Defaults.


 


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


 


Section 7.06.                                                 Reports
by Trustee to Holders.


 


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


 


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


 


Section 7.07.                                                 Compensation
and Indemnity.


 


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


 


The Company shall
indemnify the Trustee (in its capacity as Trustee) or any predecessor Trustee
(in its capacity as Trustee) against any and all losses, claims, damages,
penalties, fines, liabilities or expenses, including incidental and
out-of-pocket expenses and reasonable attorneys fees (for purposes of this
Article 7, “losses”) incurred by it arising out of or in connection with
the acceptance or administration of its duties under this


 


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


 


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


 


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


 


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


 


Section 7.08.                                                 Replacement
of Trustee.


 


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


 


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


 


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


 


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


 


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


 


(d)                                 the
Trustee becomes incapable of acting.


 


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


 


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


 


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


 


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


 


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


 


Section 7.09.                                                 Successor
Trustee by Merger, etc.


 


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


 


Section 7.10.                                                 Eligibility;
Disqualification.


 


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


 


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


 


Section 7.11.                                                 Preferential
Collection of Claims Against Company.


 


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


 


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ARTICLE 8.


 


LEGAL
DEFEASANCE AND COVENANT DEFEASANCE


 


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


 


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


 


Section 8.02.                                                 Legal
Defeasance and Discharge.


 


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


 


Section 8.03.                                                 Covenant
Defeasance.


 


Upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this Section
8.03, each of Parent Guarantor and the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the covenants contained in Sections 4.05 and 4.06
and 4.09 through 4.19 hereof, and the operation of Sections 5.01(a)(4) hereof,
with respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”) and
each Guarantor shall be released from all of its obligations under its
guarantee with respect to such covenants in connection with such outstanding
Notes and the Notes shall thereafter be deemed not “outstanding” for the
purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting
purposes).  For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company and
the Guarantors may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby.  If the Company
exercises under Section 8.01 hereof the option applicable to this Section 8.03,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
payment of the Notes may not be accelerated because of an Event of Default
specified in clause (iii) (with respect to the covenants contained in Sections
4.09, 4.10, 4.12 or 4.18 or Section 5.01(a)(4) hereof), (iv) (with respect to
Sections 4.05, 4.06, 4.11, 4.13 through 4.17, and 4.19 hereof), (v), (vi),
(vii), (ix) and (x) of such Section 6.01 (but in the case of (ix) and (x) of Section
6.01 hereof, with respect to Significant Subsidiaries only) or because of the
Company’s failure to comply with Section 5.01(a)(4) hereof.


 


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Section 8.04.                                                 Conditions
to Legal or Covenant Defeasance.


 


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


 


In order to
exercise Legal Defeasance or Covenant Defeasance:


 


(a)                                  the
Company shall irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as shall be sufficient, in the opinion of
a nationally recognized firm of independent public accountants, to pay the principal
of, and premium, if any, and interest on the outstanding Notes on the Stated
Maturity or on the applicable redemption date, as the case may be, of such
principal or installment of principal of premium, if any, or interest on the
outstanding Notes;


 


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


 


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


 


(d)                                 no
Default or Event of Default shall have occurred and be continuing with respect
to the Notes on the date of such deposit, other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit or
insofar as Events of Default pursuant to Section 6.01(ix) or (x) hereof are
concerned, at any time in the period ending on the 123rd day after the date of
deposit (or greater period of time in which any such deposit of trust funds may
remain subject to bankruptcy or insolvency laws insofar as they apply to the
deposit by the Company);


 


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


 


(f)                                    the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that, as of the date of the opinion, (1) the trust funds shall not be
subject to any rights of Holders of Indebtedness other than the Notes and
(2) assuming no intervening bankruptcy of the Company or Parent Guarantor
between the date of deposit and the 123rd day following such deposit and
assuming that no Holder is an “insider” of the Company or Parent Guarantor
under applicable Bankruptcy Law, after the 123rd day following such deposit,
the trust funds shall not be subject to the effect of any applicable
Bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally under any applicable United States or state  law;


 


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


 


66

















 


(h)                                 the
Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel (which Counsel may be an employee of Parent Guarantor or one of its
Subsidiaries), each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been satisfied.


 


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


 


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


 


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


 


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


 


Section 8.06.                                                 Repayment
to Company.


 


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


 


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


 


Section 8.07.                                                 Reinstatement.


 


If the Trustee or
Paying Agent is unable to apply any cash or non-callable Government Securities
in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such cash
and securities in accordance with Section 8.02 or 8.03 hereof, as the case may
be; provided,
however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the


 


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reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders to receive such payment from the cash and securities
held by the Trustee or Paying Agent.


 


ARTICLE 9.


 


AMENDMENT,
SUPPLEMENT AND WAIVER


 


Section 9.01.                                                 Without
Consent of Holders of Notes.


 


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


 


(a)                                  cure
any ambiguity, defect or inconsistency;


 


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


 


(c)                                  provide
for the assumption of the obligations of the Company or any Guarantor to
Holders in the case of a merger, consolidation or sale of all or substantially
all of the assets of the Company or any Guarantor.


 


(d)                                 make
any change that would provide any additional rights or benefits to the Holders
or that does not adversely affect the legal rights under this Indenture of any
such Holder;


 


(e)                                  release
any Guarantor from guarantees as provided or permitted by the terms of this
Indenture; or


 


(f)                                    comply
with requirements of the SEC in order to effect or maintain the qualification
of this Indenture under the TIA.


 


Section 9.02.                                                 With
Consent of Holders of Notes.


 


Except as provided
below in this Section 9.02, the Company and the Trustee may amend or supplement
this Indenture and the Notes with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes, including Additional
Notes, if any, then outstanding voting as a single class (including consents
obtained in connection with a purchase of or tender offer or exchange offer for
the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default
or Event of Default (except a continuing Default or Event of Default (i) in the
payment of principal, premium, if any, interest, if any, on the Notes and (ii)
in respect of a covenant or provision which under this Indenture cannot be
modified or amended without the consent of the Holder of each Note affected by
such modification or amendment ) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes, including
Additional Notes, if any, then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange
offer for the Notes).


 


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


 


(a)                                  reduce
the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;


 


(b)                                 reduce
the principal of or change the Stated Maturity of any Note or alter the
provisions with respect to the redemption of the Notes, other than provisions
under Sections 4.12 and 4.18 hereof;


 


(c)                                  reduce
the rate of or change the time for payment of interest on any Note;


 


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(d)                                 waive
a Default or Event of Default in the payment of principal of, or interest or
premium, if any, on the Notes, except a rescission of acceleration of the Notes
by the Holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment Default that resulted from such acceleration;


 


(e)                                  make
any Note payable in money other than that stated in such Note;


 


(f)                                    make
any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of,
premium, if any, or interest, if any, on the Notes;


 


(g)                                 waive
a redemption payment with respect to any Note, other than a payment required by
the provisions of Section 4.12 or 4.18 hereof;


 


(h)                                 amend
or modify any provision of this Indenture or the definitions set forth herein
affecting the ranking of the Notes or any guarantee of the Notes in a manner
which adversely affects the Holders in any material respect;


 


(i)                                     voluntarily
release a Guarantor of the Notes except as otherwise provided in this
Indenture;


 


(j)                                     amend
or modify the provisions of Sections 4.12 and 4.18 hereof; or


 


(k)                                  make
any change in the preceding amendment and waiver provisions.


 


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


 


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


 


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


 


Section 9.03.                                                 Compliance
with Trust Indenture Act.


 


Every amendment or
supplement to this Indenture or the Notes shall be set forth in an amended or
supplemental indenture that complies with the TIA as then in effect.


 


Section 9.04.                                                 Revocation
and Effect of Consents.


 


Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder of a Note and every subsequent Holder of
a Note or portion thereof that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion thereof if the Trustee
receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective.  An


 


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amendment, supplement or waiver shall become effective in accordance
with its terms and thereafter shall bind every Holder.


 


Section 9.05.                                                 Notation
on or Exchange of Notes.


 


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


 


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


 


Section 9.06.                                                 Trustee
to Sign Amendments, etc.


 


The Trustee shall
sign any amended or supplemental indenture authorized pursuant to this Article
9 if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee.  The Company may not sign an
amendment or supplemental indenture until the Board of Directors approves
it.  In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive and (subject
to Section 7.01 hereof) shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this Indenture
and that such amended or supplemental indenture is the legal, valid and binding
obligations of the Company enforceable against it in accordance with its terms,
subject to customary exceptions and that such amended or supplemental indenture
complies with the provisions hereof (including Section 9.03 hereof).


 


ARTICLE 10.


 


GUARANTEES


 


Section 10.01.                                          Guarantee.


 


Subject to this
Article 10, the Guarantors hereby unconditionally guarantees to each Holder of
a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns (a) the due and punctual payment of the principal
of, premium, if any, and interest on the Notes, subject to any applicable grace
period, whether at Stated Maturity, by acceleration, redemption or otherwise,
the due and punctual payment of interest on the overdue principal and premium,
if any, and to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee under this Indenture, the Registration Rights Agreement or any other
agreement with or for the benefit of the Holder or the Trustee, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that same shall be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration pursuant to Section 6.02 hereof, redemption or otherwise.  Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.


 


Each Guarantor
hereby agrees that its obligations with regard to its guarantee shall be joint
and several, unconditional, irrespective of the validity or enforceability of
the Notes or the obligations of the Company under this Indenture, the absence
of any action to enforce the same, the recovery of any judgment against the
Company or any other obligor with respect to this Indenture, the Notes or the
Obligations of the Company under this Indenture or the Notes, any action to
enforce the same or any other circumstances (other than complete performance)
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor.  Each Guarantor further, to
the extent permitted by law, waives and relinquishes all claims, rights and
remedies accorded by applicable law to guarantors and agrees not to assert or
take advantage of any such claims, rights or remedies, including, but not limited
to:  (a) any right to require any of the
Trustee, the Holders or the Company (each a “Benefited Party”), as a
condition of payment or performance by such Guarantor, to (1) proceed against
the Company, any other guarantor (including any other Guarantor) of the
Obligations under the guarantees or any other


 


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Person, (2) proceed against or exhaust any security held from the
Company, any such other guarantor or any other Person, (3) proceed against or
have resort to any balance of any deposit account or credit on the books of any
Benefited Party in favor of the Company or any other Person, or (4) pursue any
other remedy in the power of any Benefited Party whatsoever; (b) any defense
arising by reason of the incapacity, lack of authority or any disability or
other defense of the Company including any defense based on or arising out of
the lack of validity or the unenforceability of the Obligations under the
guarantees or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Company from any cause other than payment in
full of the Obligations under the guarantees; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (d) any defense based upon any Benefited Party’s errors or omissions
in the administration of the Obligations under the guarantees, except behavior
which amounts to bad faith; (e)(1) any principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms of the
guarantees and any legal or equitable discharge of such Guarantor’s obligations
hereunder, (2) the benefit of any statute of limitations affecting such
Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to
set-offs, recoupments and counterclaims and (4) promptness, diligence and any
requirement that any Benefited Party protect, secure, perfect or insure any
security interest or lien or any property subject thereto; (f) notices,
demands, presentations, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of the guarantees,
notices of Default under the Notes or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Obligations
under the guarantees or any agreement related thereto, and notices of any
extension of credit to the Company and any right to consent to any thereof; (g)
to the extent permitted under applicable law, the benefits of any “One Action”
rule and (h) any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerate guarantors or sureties, or which
may conflict with the terms of the guarantees. 
Except to the extent expressly provided herein, including Sections 8.02,
8.03 and 10.05 hereof, each Guarantor hereby covenants that its guarantee shall
not be discharged except by complete performance of the obligations contained
in its guarantee and this Indenture.


 


If any Holder or
the Trustee is required by any court or otherwise to return to the Company, the
Guarantors or any custodian, trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors, any amount paid by
either to the Trustee or such Holder, this guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.


 


Each Guarantor
agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. 
Each Guarantor further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Section
6.02 hereof for the purposes of this guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby and (y) in the event of any declaration of
acceleration of such obligations as provided in Section 6.02 hereof, such
obligations (whether or not due and payable) shall forthwith become due and payable
by the Guarantors for the purpose of this guarantee.  The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the guarantee.


 


Section 10.02.                                          Limitation
on Parent Guarantor Liability.


 


(a)                                  Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any
guarantee.  To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that each Guarantor’s liability shall be that amount from time to time equal to
the aggregate liability of such Guarantor under the guarantee, but shall be
limited to the lesser of (a) the aggregate amount of the Company’s
obligations under the Notes and this Indenture or (b) the amount, if any,
which would not have (1) rendered the Guarantor “insolvent” (as such term
is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of
the State of New York) or (2) left it with unreasonably small capital at
the time its guarantee with respect to the Notes was entered into, after giving
effect to the incurrence of existing Indebtedness immediately before such time;
provided,
however, it shall be a presumption in any lawsuit or proceeding in
which a Guarantor is a party that the amount guaranteed pursuant to


 


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the guarantee with respect to the Notes is the amount described in
clause (a) above unless any creditor, or representative of creditors
of the Guarantor, or debtor in possession or Trustee in bankruptcy of the
Guarantor, otherwise proves in a lawsuit that the aggregate liability of the
Guarantor is limited to the amount described in clause (b).


 


(b)                                 In
making any determination as to the solvency or sufficiency of capital of a
Guarantor in accordance with the proviso of Section 10.2(a) hereof, the right
of each Guarantor to contribution from other Guarantors and any other rights
such Guarantor may have, contractual or otherwise, shall be taken into account.


 


Section 10.03.                                          Execution
and Delivery of Guarantee.


 


To evidence its
guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that
a notation of such guarantee in substantially the form included in
Exhibit D attached hereto shall be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of such Guarantor by its President or one
of its Vice Presidents.


 


Each Guarantor
hereby agrees that its guarantee set forth in Section 10.01 hereof shall remain
in full force and effect notwithstanding any failure to endorse on each Note a
notation of such guarantee.


 


If an Officer
whose signature is on this Indenture or on the guarantee no longer holds that
office at the time the Trustee authenticates the Note on which a guarantee is
endorsed, the guarantee shall be valid nevertheless.


 


The delivery of
any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the guarantee set forth in this Indenture on behalf
of Parent Guarantor.


 


Section 10.04.                                          Guarantors
May Consolidate, etc., on Certain Terms.


 


Except as
otherwise provided in Section 10.05 hereof, no Guarantor may consolidate with
or merge with or into (whether or not such Guarantor is the surviving person)
another Person whether or not affiliated with such Guarantor unless:


 


(a)                                  subject
to Section 10.05 hereof, the Person formed by or surviving any such consolidation
or merger (if other than a Guarantor or the Company) unconditionally assumes
all the obligations of such Guarantor, pursuant to a supplemental indenture in
form and substance reasonably satisfactory to the Trustee, under this
Indenture, the guarantee and any Registration Rights Agreements on the terms
set forth herein or therein; and


 


(b)                                 Guarantor
complies with the requirements of Article 5 hereof.


 


In case of any
such consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the guarantee endorsed upon
the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by Guarantor, such successor
Person shall succeed to and be substituted for Guarantor with the same effect
as if it had been named herein as a Guarantor. 
Such successor Person thereupon may cause to be signed any or all of the
guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee.  All the guarantees so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such guarantees had been issued at the
date of the execution hereof.


 


Except as set
forth in Articles 4 and 5 hereof, and notwithstanding clauses (a) and (b)
above, nothing contained in this Indenture or in any of the Notes shall prevent
any consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.


 


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Section 10.05.                                          Releases
Following Sale of Assets.


 


In the event of a
sale or other disposition of all or substantially all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the Capital Stock of any Guarantor, in each case to a
Person that is not (either before or after giving effect to such transactions)
a Subsidiary or a parent of the Company, then such Guarantor (in the event of a
sale or other disposition, by way of merger, consolidation or otherwise, of all
of the Capital Stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all or substantially
all of the assets of such Guarantor) shall be released and relieved of any
obligations under its guarantee; provided that the net proceeds of such
sale or other disposition shall be subject to all applicable provisions of this
Indenture, including without limitation Section 4.12 hereof.  If a Restricted Subsidiary which is a
Guarantor is designated as an Unrestricted Subsidiary in accordance with the
provisions of Section 4.17 hereof, such Guarantor shall be released and
relieved of any obligations under its guarantee.  Upon delivery by the Company to the Trustee of an Officers’
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition or designation was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 4.12 hereof,
the Trustee shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its guarantee.


 


Any guarantor not
released from its obligations under its guarantee shall remain liable for the
full amount of principal of and interest on the Notes and for the other
obligations of any Guarantor under this Indenture.


 


ARTICLE 11.


 


SATISFACTION
AND DISCHARGE


 


Section 11.01.                                          Satisfaction
and Discharge.


 


This Indenture
shall be discharged and shall cease to be of further effect, except as to
surviving rights of registration of transfer or exchange of the Notes, as to
all Notes issued hereunder, when either:


 


(a)                              all
Notes that have been previously authenticated and delivered (except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for whose
payment money has previously been deposited in trust or segregated and held in
trust by the Company and is thereafter repaid to the Company or discharged from
the trust) have been delivered to the Trustee for cancellation; or


 


(b)                                 (i) all
Notes that have not been previously delivered to the Trustee for cancellation
have become due and payable by their terms or have been called for redemption
and the Company has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the benefit of the Holders, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on the Notes not
previously delivered to the Trustee for cancellation or redemption, for
principal, premium, if any, and interest on the Notes to the date of deposit,
in the case of Notes that have become due and payable, or to the Stated
Maturity or redemption date, as the case may be; (ii) the Company has paid
all other sums payable by the Company with respect to the Notes under this
Indenture; and (iii) the Company has delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the Notes at
Maturity or on the redemption date, as the case may be.


 


In addition to the
foregoing:


 


(a)                                  no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit
shall not result in a breach or violation of, or constitute a Default under,
any other instrument to which the Company is a party or by which the Company is
bound; and


 


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(b)                                 the
Company shall have delivered to the Trustee an Officers’ Certificate and
Opinion of Counsel stating that all conditions precedent relating to the
satisfaction and discharge of this Indenture have been satisfied.


 


Section 11.02.                                          Deposited
Cash and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.


 


Subject to Section
11.03 hereof, all cash and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying Trustee,
collectively for purposes of this Section 11.02, the “Trustee”) pursuant to
Section 11.01 hereof in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest but such cash and securities need
not be segregated from other funds except to the extent required by law.


 


Section 11.03.                                          Repayment
to Company.


 


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


 


ARTICLE 12.


 


MISCELLANEOUS


 


Section 12.01.                                          Trust
Indenture Act Controls.


 


If any provision
of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the provision required
by the TIA shall control.


 


Section 12.02.                                          Notices.


 


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


 


If to the Company
or a Guarantor:


 


La Quinta Properties,
Inc.

909 Hidden Ridge, Suite 600

Irving, Texas  75038

Attention:  General Counsel

Facsimile No.:  (214) 492-6616


 


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With a copy to:


 


La Quinta Corporation

909 Hidden Ridge, Suite 600

Irving, Texas  75038

Attention:  General Counsel

Facsimile No.:  (214) 492-6616


 


And a copy to:


 


Goodwin Procter LLP

Exchange Place

53 State Street

Boston, Massachusetts  02109

Attention:  Scott F. Duggan, Esq.

Facsimile No.:  (617) 523-1231


 


If to the Trustee:


 


U.S. Bank Trust National
Association

100 Wall Street, Suite 1600

New York, NY 10005


Attention:  Corporate Trust Services

Facsimile No.:  (646) 835-5613


 


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


 


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


 


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


 


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


 


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


 


Section 12.03.                                          Communication
by Holders of Notes with Other Holders of Notes.


 


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


 


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Section 12.04.                                          Certificate
and Opinion as to Conditions Precedent.


 


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


 


(a)                                  an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and


 


(b)                                 an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.


 


Section 12.05.                                          Statements
Required in Certificate or Opinion.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 12.06.                                          Rules by
Trustee and Agents.


 


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


 


Section 12.07.                                          No
Personal Liability of Directors, Officers, Employees and Shareholders.


 


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


 


Section 12.08.                                          Governing
Law.


 


THE INTERNAL LAW
OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE
AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE


 


76

















 


PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


Section 12.09.                                          No
Adverse Interpretation of Other Agreements.


 


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


 


Section 12.10.                                          Successors.


 


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


 


Section 12.11.                                          Severability.


 


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


 


Section 12.12.                                          Counterpart
Originals


 


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


 


Section 12.13.                                          Table of
Contents, Headings, etc.


 


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


 


Section 12.14.                                          Qualification
of this Indenture.


 


The Company shall
qualify this Indenture under the TIA in accordance with the terms and
conditions of any Registration Rights Agreements and shall pay all reasonable
costs and expenses (including attorneys’ fees and expenses for the Company, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the Notes
and printing this Indenture and the Notes. 
The Trustee shall be entitled to receive from the Company any such
Officers’ Certificates, Opinions of Counsel or other documentation as it may
reasonably request in connection with any such qualification of this Indenture
under the TIA.


 


[Signatures on following page]


 


77

















 


SIGNATURES


 


Dated as of
March 19, 2003.


 


	
   

  	
  Company:

  
	
   

  	
   

  
	
   

  	
  LA QUINTA PROPERTIES,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David L. Rea

  	
   

  
	
   

  	
  Name:

  	
  David L. Rea

  
	
   

  	
  Title:

  	
  Executive Vice
  President and Chief Financial Officer

  
					



 


 


	
   

  	
  Guarantor:

  
	
   

  	
   

  
	
   

  	
  LA QUINTA PROPERTIES,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David L. Rea

  	
   

  
	
   

  	
  Name:

  	
  David L. Rea

  
	
   

  	
  Title:

  	
  Executive Vice
  President and Chief Financial Officer

  
					



 


78

















 


	
   

  	
  Trustee:

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK TRUST NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Cheryl L. Clarke

  	
   

  
	
   

  	
  Name:

  	
  Cheryl L. Clarke

  
	
   

  	
  Title:

  	
  Trust Officer

  
					



 


79

















 


EXHIBIT
A


 


(Face of Note)


 


8 7/8% SENIOR NOTES DUE
2011


 


CUSIP                          


 


No.
                                                                                                                                                                                                                                                                                                                                                                                                                   $                       


 


LA QUINTA PROPERTIES,
INC.


 


promises to pay to
CEDE & CO., INC. or its registered assigns, the principal sum of                                   
Dollars ($                            )
on March 15, 2011.


 


Interest Payment
Dates:  March 15 and September 15,
commencing September 15, 2003.


 


Record
Dates:  March 1 and September 1.


 


A-1

















 


IN WITNESS
WHEREOF, the Company has caused this Note to be signed by its duly authorized
officer.


 


	
   

  	
  LA QUINTA PROPERTIES,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  



 


This is
one of the [Global]


Notes
referred to in the


within-mentioned
Indenture:


 


U.S.
BANK TRUST NATIONAL ASSOCIATION


as
Trustee


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


 


Dated:  March 19, 2003


 


A-2

















 


(Back of Note)


 


8 7/8% SENIOR NOTES DUE 2011


 


[THE
NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR OTHER SECURITIES LAWS.  NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS
THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.  THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
ITS NOTE IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT
PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE
OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND
(Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
“RESALE RESTRICTION TERMINATION DATE”), OFFER, SELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES
TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY, THE TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THIS
TRANSFEROR TO THE TRUSTEE.  THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.  AS USED HEREIN, THE
TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]


 


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


 


UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM,
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO


 


A-3

















 


THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE  REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]


 


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


 


1.                                       Interest.  La
Quinta Properties, Inc., a Delaware corporation (the “Company”), promises to pay
interest (as defined in the Indenture) on the principal amount of this Note at
8 7/8% per annum until maturity and shall pay Additional Interest, if any, as
provided in the Registration Rights Agreement relating to these Notes.  The Company shall pay interest semi-annually
in arrears in cash on March 15 and September 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment
Date”).  Interest on the
Notes shall accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from March 19, 2003; provided, however, that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be September 15, 2003.  The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium,
if any, from time to time at a rate that is 1% per annum in excess of the
interest rate then in effect under the Indenture and this Note; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods), from time to time at the same rate to the extent
lawful.  Interest shall be computed on the basis of a 360-day year
of twelve 30-day months.


 


2.                                       Method of Payment. 
The Company shall pay interest on the Notes (except defaulted interest) to the
Persons in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on March 1 or September 1 preceding the
Interest Payment Date, even if such Notes are cancelled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest.  The Notes shall be
payable as to principal, premium, if any, and interest at the office or agency
of the Company maintained for such purpose, or, at the option of the Company, payment
of interest may be made by check mailed to the Holders at their addresses set
forth in the Security Register; provided, however, that payment by
wire transfer of immediately available funds shall be required with respect to
principal of and interest and premium, if any, on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. 
Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.


 


3.                                       Paying Agent and Registrar.  Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, shall act as Paying Agent and
Registrar.  The Company may change any Paying Agent or Registrar without
notice to any Holder.  The Company,
Parent Guarantor or any of their Subsidiaries may act in any such capacity.


 


4.                                       Indenture.  The Company issued the Notes under an
Indenture, dated as of March 19, 2003 (“Indenture”), among the Company, Parent
Guarantor and the Trustee.  The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code §§ 77aaa-77bbbb). 
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms.  To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.


 


A-4

















 


5.                                       Optional Redemption.


 


(a)                                                       At
any time prior to March 15, 2007, the Company may redeem all or any portion of
the Notes, at once or over time, after giving the required notice under the
Indenture at a redemption price equal to the greater of (i) 100% of the
principal amount of the Notes to be redeemed, and (ii) the sum of the
present values of (1) the redemption price of the Notes at March 15, 2007
(as set forth below) and (2) the remaining scheduled payments of interest
from the redemption date through March 15, 2007, but excluding accrued and
unpaid interest through the redemption date, discounted to the redemption date
(assuming a 360-day year consisting of twelve 30-day months), at the
Treasury Rate plus 50 basis points, plus, in either case, accrued and unpaid
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date).


 


(b)                                                      In
addition, before March 15, 2006, subject to the provisions contained in the
Credit Agreement prohibiting the purchase of Notes by the Company, unless and
until any Indebtedness outstanding under the Credit Agreement is repaid in
full, the Company may redeem, on any one or more occasions, with the net cash
proceeds of one or more public offerings of common equity, including
Class B Common Stock, of the Company and/or Parent Guarantor (within
60 days of the consummation of any public Equity Offering), up to 35% of
the aggregate principal amount of the Notes at a redemption price equal to
108.875% of the principal amount of the Notes issued under the Indenture, plus
accrued and unpaid interest thereon, if any, to the redemption date; provided,
however, that, in order to redeem the Notes with the net cash
proceeds of a public Equity Offering, at least 65% of the aggregate principal
amount of the Notes originally issued under the Indenture must remain
outstanding immediately following any such redemption.


 


(c)                                                       On
or after March 15, 2007, the Company may redeem all or a part of the Notes upon
notice in accordance with Section 3.03 of the Indenture, at the redemption
prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest thereon to the redemption date, if redeemed during
the 12-month period beginning on March 15 of the years indicated below: 


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2007

  	
   

  	
  104.438

  	
  %

  
	
  2008

  	
   

  	
  102.219

  	
  %

  
	
  2009 and
  thereafter

  	
   

  	
  100.000

  	
  %

  






 


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


 


6.                                       Mandatory Redemption.  Except as set forth in Sections 4.12 and
4.18 of the Indenture, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.


 


7.                                       Repurchase at Option of Holder.


 


(a)       Upon the occurrence
of a Change of Control, the Company shall, within 10 days of a change of
control, make an offer, pursuant to the procedures set forth in Section 3.09 of
the Indenture, to all Holders to repurchase all or any portion (equal to $1,000
or an integral multiple of $1,000) of such Holder’s Notes at a purchase price,
in cash, equal to 101% of the aggregate principal amount of the Notes
repurchased, plus accrued and unpaid interest on the Notes repurchased to the
Purchase Date.


 


(b)      If Parent Guarantor
or a Restricted Subsidiary consummates any Asset Sales, Parent Guarantor shall not be required to apply any Net Proceeds
to repurchase Notes in accordance with the Indenture until the aggregate Excess
Proceeds from all Asset Sales following the date the Notes are first issued
exceeds $15.0 million. Thereafter,
the Company shall make an Asset Sale Offer to all Holders of Notes and other
Indebtedness that ranks by its terms equally in right of payment with the Notes
and the terms of which contain substantially similar requirements with respect
to the application of proceeds from sales of assets or in connection with
securitizations as are set forth in the Indenture to purchase on a
proportional basis the maximum principal amount of Notes, that is an integral
multiple of $1,000, that may be purchased out of the Excess Proceeds, at an
offer price in cash equal to


 


A-5

















 


100% of the principal amount of the Notes plus accrued and unpaid
interest thereon, if any, to the Purchase Date in accordance with the
procedures set forth in the Indenture. 
To the extent that the aggregate amount of Notes and other Indebtedness
tendered under such Asset Sale Offer is less than the Excess Proceeds, any
remaining Excess Proceeds may be used for any purpose not otherwise prohibited
by the Indenture, including general corporate purposes.  If the aggregate principal amount of Notes surrendered
by Holders thereof exceeds the amount of Excess Proceeds available for
purchases of such Notes, the Trustee shall select the Notes to be purchased in
the manner set forth in Section 3.02 of the Indenture.


 


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


 


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


 


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


 


11.                                 Amendment, Supplement and Waiver. 
Subject to certain exceptions, the Company and the Trustee may amend or
supplement the Indenture or the Notes with the consent of the Holders of at
least a majority in principal amount of the Notes, including Additional Notes,
if any then outstanding, voting as a single class (including consents obtained
in connection with a purchase of or tender offer or exchange offer for the
Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing
Default or Event of Default (except a continuing Default or Event of Default
(i) in the payment of principal, premium, if any, interest, if any, on the
Notes and (ii) in respect of a covenant or provision which under the Indenture
cannot be modified or amended without the consent of the Holder of each Note
affected by such modification or amendment) or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of at
least a majority in principal amount of the Notes, including Additional Notes,
if any, then outstanding voting as a single class (including consents obtained
in connection with a purchase of or tender offer or exchange offer for the
Notes).  Without the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture or
the Notes to (a) cure any ambiguity, defect or inconsistency; (b) provide for
uncertificated Notes in addition to or in place of certificated Notes (provided
that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Notes
are described in Section 163(f)(2)(B) of the Code); (c) provide for the
assumption of the obligations of the Company or any Guarantor to Holders in the
case of a merger, consolidation or sale of all or substantially all of the
assets of the Company or any Guarantor; (d) make any change that would provide
any additional rights or benefits to the Holders or that does not adversely
affect the legal rights under the Indenture of any such Holder; (e) release
Guarantors from guarantees as provided or permitted by the terms of the
Indenture; or (f) comply with requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA.


 


12.                                  Defaults and Remedies.  Each of the following constitutes an Event
of Default with respect to the Notes: 
(i) default for 30 days in the payment when due of interest,
if any, on the Notes; (ii) default in payment when due of the principal of
or premium, if any, on the Notes at maturity, upon redemption or otherwise,
including the failure to make a payment to purchase Notes tendered pursuant to
a Change of Control Offer or an Asset Sale Offer; (iii) failure by Parent
Guarantor or any Restricted Subsidiary to comply with the provisions of Section
5.01 of the


 


A-6

















 


Indenture; (iv) failure by Parent Guarantor or any Restricted
Subsidiary for 30 days in the performance of any other covenant, warranty
or agreement in the Indenture or the Notes after written notice shall have been
given to the Company by the Trustee or to the Company and the Trustee by
Holders of at least 25% in principal amount of the Notes then outstanding;
(v) for so long as any of the Existing Notes remain outstanding, a payment
default resulting from the failure to pay at maturity any Indebtedness of
Parent Guarantor or any Restricted Subsidiary in an aggregate principal amount
greater than $10.0 million; (vi) a default under any Indebtedness by
Parent Guarantor or any Restricted Subsidiary that results in acceleration of
the maturity of such Indebtedness, or failure to pay any such Indebtedness at
maturity, in an aggregate amount greater than $10.0 million;
(vii) failure by Parent Guarantor or any Restricted Subsidiary to pay
final judgments rendered against them (other than judgment liens without
recourse to any of Parent Guarantor’s or any Restricted Subsidiary’s assets or
property other than assets or property securing Non-Recourse Indebtedness)
aggregating in excess of $20.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days, except for judgments as to
which a reputable insurance company has accepted full liability;
(viii) except as permitted by the Indenture, any guarantee by an
Additional Guarantor that is a Significant Subsidiary with respect to the Notes
shall be held in a judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or Parent Guarantor or an
Additional Guarantor that is a Significant Subsidiary (in both cases, including
its successors and assigns), or any Person acting on behalf of such Guarantor
(or its successors and assigns), shall deny or disaffirm its obligations or
shall fail to comply with any obligations under its guarantee; and (h) certain
events of bankruptcy, insolvency or reorganization affecting the Company,
Parent Guarantor or any of its Significant Subsidiaries as set forth in the
Indenture.


 


If any Event of Default (other the Events of Default arising from
certain events of bankruptcy or insolvency) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.  Notwithstanding the foregoing, in the case
of an Event of Default arising from certain events of bankruptcy or insolvency
described in the Indenture, all outstanding Notes shall become due and payable
immediately without further action or notice. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture.  Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal, premium, if any, or interest, if any) if and so long as a committee
of its Responsible Officers in good faith determines that withholding notice is
in the interests of the Holders.  The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default or (i) in the
payment of the principal of, or interest on, the Notes and (ii) in respect of a
covenant or provision which under the Indenture cannot be modified or amended
without the consent of the Holder of each Note affected by such modification or
amendment).  The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.


 


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


 


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


 


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


 


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


 


A-7

















 


17.                                 Additional Rights of Holders of
Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes that are Initial Notes shall have all the rights
set forth in the Registration Rights Agreement, dated as of March 19, 2003, among the Company, Parent Guarantor and the parties named
on the signature pages thereto or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes shall have the rights
set forth in one or more Registration Rights Agreements, if any, among the
Company and the other parties thereto, relating to rights given by the Company
to the purchasers of such Additional Notes.


 


18.                                 CUSIP Numbers.  Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes and has directed the Trustee to use CUSIP
numbers in notices of redemption or notices of Offers to Purchase as a
convenience to Holders.  No
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of redemption or notice of an Offer
to Purchase and reliance may be placed only on the other identification numbers
printed thereon and any such redemption or Offer to Purchase shall not be
affected by any defect in or omission of such numbers.


 


The
Company shall furnish to any Holder upon written request and without charge a
copy of the Indenture.  Requests may be
made to: La Quinta Properties, Inc., 909 Hidden Ridge, Suite 600, Irving, Texas  75038, Attention:  Corporate Secretary.


 


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


 


A-8

















 


Option of Holder to Elect Purchase


 


If you want to
elect to have this Note purchased by the Company pursuant to Section 4.12 or
4.18 of the Indenture, check the box below:


 


o                                    Section 4.12


 


o                                    Section 4.18


 


If you want to
elect to have only part of this Note purchased by the Company pursuant to
Section 4.12 or Section 4.18 of the Indenture, state the amount you elect to
have purchased:  $                                  


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  Tax Identification
  No.:  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIGNATURE GUARANTEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signatures must be
  guaranteed by an “eligible guarantor institution” meeting the requirements of
  the Registrar, which requirements include membership or participation in the
  Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
  guarantee program” as may be determined by the Registrar in addition to, or
  in substitution for, STAMP, all in accordance with the Securities Exchange
  Act of 1934, as amended.

  



 


A-9

















 


Assignment Form


 


To assign this
Note, fill in the form below:


 


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


 












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


 


 












 












 












 












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


 


and irrevocably appoint                                                                                                                                                                                  


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


 


 












 


	
  Date: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signatures must be
  guaranteed by an “eligible guarantor institution” meeting the requirements of
  the Registrar, which requirements include membership or participation in the
  Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
  guarantee program” as may be determined by the Registrar in addition to, or
  in substitution for, STAMP, all in accordance with the Securities Exchange
  Act of 1934, as amended.

  
								



 


A-10

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


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


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount 

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal Amount 

  of this Global Note

  	
   

  	
  Principal Amount

  of this Global Note following such 

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized signatory

  of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-11

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF
TRANSFER


 


La
Quinta Properties, Inc.

909 Hidden Ridge, Suite 600

Irving, Texas  75038

Attention:  General Counsel


 


U.S.
Bank Trust National Association

100 Wall Street, Suite 1600

New York, NY 10005


Attention:  Corporate Trust Services

Facsimile No.:  (646) 835-5613


 


Re:                                   8 7/8% Senior Notes due 2011


 


Reference is
hereby made to the Indenture, dated as of March 19, 2003 (the “Indenture”),
among La Quinta Properties, Inc., as issuer (the “Company”), the Guarantors
party thereto and U.S.Bank, National Association, as Trustee.  Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.


 


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


 


[CHECK ALL THAT APPLY]


 


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


 


2.                            o  Check if Transferee will take delivery of a
beneficial interest in the Regulation S Global Note or a Definitive Note
pursuant to Regulation S.  The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and, accordingly, the Transferor hereby further certifies
that (i) the Transfer is not being made to a Person in the United States and
(x) at the time the buy order was originated, the Transferee was outside the
United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(a) of


 


B-1

















 


Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser).  Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note, the Temporary Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.


 


3.                            o  Check and complete if Transferee will take
delivery of a Definitive Note pursuant to any provision of the Securities Act
other than Rule 144A or Regulation S. 
The Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):


 


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


 


or


 


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


 


or


 


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


 


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


 


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


 


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


 


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


 


B-2

















 


accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of
  Transferor]

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
							



 


B-3

















 


ANNEX A TO CERTIFICATE OF
TRANSFER


 


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


 


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


 


(a)                                  o   a beneficial interest in the:


 


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


 


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


 


(b)                                 o   a Restricted
Definitive Note.


 


2.                            After the Transfer the
Transferee will hold:


 


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


 


(a)                                  o   a beneficial interest in the:


 


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


 


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


 


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


 


(b)                                 o   a Restricted Definitive Note; or


 


(c)                                  o   an Unrestricted Definitive Note,


 


in accordance with
the terms of the Indenture.


 


B-4

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF
EXCHANGE


 


La
Quinta Properties, Inc.

909 Hidden Ridge, Suite 600

Irving, Texas  75038

Attention:  General Counsel


 


U.S.
Bank Trust National Association

100 Wall Street, Suite 1600

New York, NY 10005


Attention:  Corporate Trust Services

Facsimile No.:  (646) 835-5613


 


Re:                                  8 7/8% Senior Notes due 2011


 


Reference is
hereby made to the Indenture, dated as of March 19, 2003 (the “Indenture”),
among La Quinta Properties, Inc., as issuer (the “Company”), the Guarantors
party thereto and U.S. Bank Trust National Association, as Trustee.  Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.


 


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


 


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


 


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


 


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


 


C-1

















 


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


 


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


 


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


 


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


 


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


 


C-2

















 


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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
						



 


C-3

















 


EXHIBIT D


 


FORM OF NOTATION OF
GUARANTEE


 


For value
received, each Guarantor (which term includes any successor Person under the
Indenture), jointly and severally, hereby unconditionally guarantees, to the
extent set forth in the Indenture and subject to the provisions in the
Indenture, dated as of March 19, 2003 (the “Indenture”), among La Quinta
Properties, Inc., as issuer (the “Company”), the Guarantor listed on the
signature pages thereto and U.S. Bank Trust National Association, as trustee
(the “Trustee”), (a) the due and punctual payment of the principal of, premium,
if any, and interest, if any, on the Notes, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and premium, if any, and, to the extent permitted by law,
interest, if any, and the due and punctual performance of all other obligations
of the Company to the Holders or the Trustee under the Notes and the Indenture,
all in accordance with the terms of the Notes and the Indenture; and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
maturity, by acceleration pursuant to Section 6.02 of the Indenture, redemption
or otherwise.  The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the guarantee
and the Indenture are expressly set forth in Article 10 of the Indenture and
reference is hereby made to the Indenture for the precise terms of the
guarantee.  Except to the extent
provided in the Indenture, including Sections 8.02, 8.03 and 10.05
thereof, this guarantee shall not be discharged except by complete performance
of the obligations contained herein and in the Indenture.  Each Holder of a Note, by accepting the same
agrees to and shall be bound by such provisions.  Capitalized terms used herein and not defined are used herein as
so defined in the Indenture.


 


[Signature page follows]


 


D-1

















 


 


	
   

  	
  [NAME OF GUARANTOR]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


D-2

















 


TABLE OF
CONTENTS


 


	
   

  
	
  ARTICLE
  1.                                DEFINITIONS
  AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
   

  	
  Definitions

  
	
   

  	
   

  	
   

  
	
  Section 1.02.

  	
   

  	
  Other Definitions

  
	
   

  	
   

  	
   

  
	
  Section 1.03.

  	
   

  	
  Incorporation by
  Reference of Trust Indenture Act

  
	
   

  	
   

  	
   

  
	
  Section 1.04.

  	
   

  	
  Rules of Construction

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2.                                THE
  NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
   

  	
  Form and Dating

  
	
   

  	
   

  	
   

  
	
  Section 2.02.

  	
   

  	
  Execution and
  Authentication

  
	
   

  	
   

  	
   

  
	
  Section 2.03.

  	
   

  	
  Registrar and Paying
  Agent

  
	
   

  	
   

  	
   

  
	
  Section 2.04.

  	
   

  	
  Paying Agent to Hold
  Money in Trust

  
	
   

  	
   

  	
   

  
	
  Section 2.05.

  	
   

  	
  Holder Lists

  
	
   

  	
   

  	
   

  
	
  Section 2.06.

  	
   

  	
  Transfer and Exchange

  
	
   

  	
   

  	
   

  
	
  Section 2.07.

  	
   

  	
  Replacement Notes

  
	
   

  	
   

  	
   

  
	
  Section 2.08.

  	
   

  	
  Outstanding Notes

  
	
   

  	
   

  	
   

  
	
  Section 2.09.

  	
   

  	
  Treasury Notes

  
	
   

  	
   

  	
   

  
	
  Section 2.10.

  	
   

  	
  Temporary Notes

  
	
   

  	
   

  	
   

  
	
  Section 2.11.

  	
   

  	
  Cancellation

  
	
   

  	
   

  	
   

  
	
  Section 2.12.

  	
   

  	
  Defaulted Interest.

  
	
   

  	
   

  	
   

  
	
  Section 2.13.

  	
   

  	
  CUSIP or ISIN Numbers

  
	
   

  	
   

  	
   

  
	
  Section 2.14.

  	
   

  	
  Additional Interest.

  
	
   

  	
   

  	
   

  
	
  Section 2.15.

  	
   

  	
  Issuance of Additional
  Notes.

  
	
   

  	
   

  	
   

  
	
  Section 2.16.

  	
   

  	
  Record Date.

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3.                                REDEMPTION
  AND PREPAYMENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
   

  	
  Notices to Trustee

  
	
   

  	
   

  	
   

  
	
  Section 3.02.

  	
   

  	
  Selection of Notes to
  Be Redeemed

  
	
   

  	
   

  	
   

  
	
  Section 3.03.

  	
   

  	
  Notice of Redemption

  
	
   

  	
   

  	
   

  
	
  Section 3.04.

  	
   

  	
  Effect of Notice of
  Redemption

  
	
   

  	
   

  	
   

  
	
  Section 3.05.

  	
   

  	
  Deposit of Redemption
  Price

  
	
   

  	
   

  	
   

  
	
  Section 3.06.

  	
   

  	
  Notes Redeemed in Part

  
	
   

  	
   

  	
   

  
	
  Section 3.07.

  	
   

  	
  Optional Redemption.

  
	
   

  	
   

  	
   

  
	
  Section 3.08.

  	
   

  	
  Mandatory Redemption

  
	
   

  	
   

  	
   

  
	
  Section 3.09.

  	
   

  	
  Offers To Purchase.

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4.                                COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
   

  	
  Payment of Notes

  
	
   

  	
   

  	
   

  
	
  Section 4.02.

  	
   

  	
  Maintenance of Office
  or Agency

  



 


i

















 


	
  Section 4.03.

  	
   

  	
  Reports

  
	
   

  	
   

  	
   

  
	
  Section 4.04.

  	
   

  	
  Compliance Certificate

  
	
   

  	
   

  	
   

  
	
  Section 4.05.

  	
   

  	
  Taxes

  
	
   

  	
   

  	
   

  
	
  Section 4.06.

  	
   

  	
  Stay, Extension and
  Usury Laws

  
	
   

  	
   

  	
   

  
	
  Section 4.07.

  	
   

  	
  Corporate Existence

  
	
   

  	
   

  	
   

  
	
  Section 4.08.

  	
   

  	
  Payments for Consent

  
	
   

  	
   

  	
   

  
	
  Section 4.09.

  	
   

  	
  Incurrence of
  Indebtedness and Issuance of Certain Capital Stock.

  
	
   

  	
   

  	
   

  
	
  Section 4.10.

  	
   

  	
  Restricted Payments

  
	
   

  	
   

  	
   

  
	
  Section 4.11.

  	
   

  	
  Liens

  
	
   

  	
   

  	
   

  
	
  Section 4.12.

  	
   

  	
  Asset Sales

  
	
   

  	
   

  	
   

  
	
  Section 4.13.

  	
   

  	
  Dividend and Other
  Payment Restrictions Affecting Subsidiaries

  
	
   

  	
   

  	
   

  
	
  Section 4.14.

  	
   

  	
  Transactions with
  Affiliates

  
	
   

  	
   

  	
   

  
	
  Section 4.15.

  	
   

  	
  Sale and Leaseback
  Transactions

  
	
   

  	
   

  	
   

  
	
  Section 4.16.

  	
   

  	
  Line of Business

  
	
   

  	
   

  	
   

  
	
  Section 4.17.

  	
   

  	
  Designation of
  Restricted and Unrestricted Subsidiaries

  
	
   

  	
   

  	
   

  
	
  Section 4.18.

  	
   

  	
  Repurchase at the
  Option of Holders Upon a Change of Control

  
	
   

  	
   

  	
   

  
	
  Section 4.19.

  	
   

  	
  Additional Guarantees.

  
	
   

  	
   

  	
   

  
	
  Section 4.20.

  	
   

  	
  Security Interest

  
	
   

  	
   

  	
   

  
	
  Section 4.21.

  	
   

  	
  Covenant Termination

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5.                                SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
   

  	
  Merger, Consolidation
  or Sale of Assets of the Company and Guarantors

  
	
   

  	
   

  	
   

  
	
  Section 5.02.

  	
   

  	
  Successor Corporation
  Substituted

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6.                                DEFAULTS
  AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
   

  	
  Events of Default

  
	
   

  	
   

  	
   

  
	
  Section 6.02.

  	
   

  	
  Acceleration

  
	
   

  	
   

  	
   

  
	
  Section 6.03.

  	
   

  	
  Other Remedies

  
	
   

  	
   

  	
   

  
	
  Section 6.04.

  	
   

  	
  Waiver of Past
  Defaults

  
	
   

  	
   

  	
   

  
	
  Section 6.05.

  	
   

  	
  Control by Majority

  
	
   

  	
   

  	
   

  
	
  Section 6.06.

  	
   

  	
  Limitation on Suits

  
	
   

  	
   

  	
   

  
	
  Section 6.07.

  	
   

  	
  Rights of Holders to
  Receive Payment

  
	
   

  	
   

  	
   

  
	
  Section 6.08.

  	
   

  	
  Collection Suit by
  Trustee

  
	
   

  	
   

  	
   

  
	
  Section 6.09.

  	
   

  	
  Trustee May File
  Proofs of Claim

  
	
   

  	
   

  	
   

  
	
  Section 6.10.

  	
   

  	
  Priorities

  
	
   

  	
   

  	
   

  
	
  Section 6.11.

  	
   

  	
  Undertaking for Costs

  



 


ii

















 


	
  ARTICLE
  7.                                TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
   

  	
  Duties of Trustee

  
	
   

  	
   

  	
   

  
	
  Section 7.02.

  	
   

  	
  Rights of Trustee

  
	
   

  	
   

  	
   

  
	
  Section 7.03.

  	
   

  	
  Individual Rights of
  Trustee

  
	
   

  	
   

  	
   

  
	
  Section 7.04.

  	
   

  	
  Trustee’s Disclaimer

  
	
   

  	
   

  	
   

  
	
  Section 7.05.

  	
   

  	
  Notice of Defaults

  
	
   

  	
   

  	
   

  
	
  Section 7.06.

  	
   

  	
  Reports by Trustee to
  Holders

  
	
   

  	
   

  	
   

  
	
  Section 7.07.

  	
   

  	
  Compensation and
  Indemnity

  
	
   

  	
   

  	
   

  
	
  Section 7.08.

  	
   

  	
  Replacement of Trustee

  
	
   

  	
   

  	
   

  
	
  Section 7.09.

  	
   

  	
  Successor Trustee by
  Merger, etc.

  
	
   

  	
   

  	
   

  
	
  Section 7.10.

  	
   

  	
  Eligibility;
  Disqualification

  
	
   

  	
   

  	
   

  
	
  Section 7.11.

  	
   

  	
  Preferential
  Collection of Claims Against Company

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8.                                LEGAL
  DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
   

  	
  Option to Effect Legal
  Defeasance or Covenant Defeasance

  
	
   

  	
   

  	
   

  
	
  Section 8.02.

  	
   

  	
  Legal Defeasance and
  Discharge

  
	
   

  	
   

  	
   

  
	
  Section 8.03.

  	
   

  	
  Covenant Defeasance

  
	
   

  	
   

  	
   

  
	
  Section 8.04.

  	
   

  	
  Conditions to Legal or
  Covenant Defeasance

  
	
   

  	
   

  	
   

  
	
  Section 8.05.

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Section 8.06.

  	
   

  	
  Repayment to Company

  
	
   

  	
   

  	
   

  
	
  Section 8.07.

  	
   

  	
  Reinstatement

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9.                                AMENDMENT,
  SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
   

  	
  Without Consent of
  Holders of Notes

  
	
   

  	
   

  	
   

  
	
  Section 9.02.

  	
   

  	
  With Consent of
  Holders of Notes

  
	
   

  	
   

  	
   

  
	
  Section 9.03.

  	
   

  	
  Compliance with Trust
  Indenture Act

  
	
   

  	
   

  	
   

  
	
  Section 9.04.

  	
   

  	
  Revocation and Effect
  of Consents

  
	
   

  	
   

  	
   

  
	
  Section 9.05.

  	
   

  	
  Notation on or
  Exchange of Notes

  
	
   

  	
   

  	
   

  
	
  Section 9.06.

  	
   

  	
  Trustee to Sign Amendments,
  etc.

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10.                          GUARANTEES

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
   

  	
  Guarantee

  
	
   

  	
   

  	
   

  
	
  Section 10.02.

  	
   

  	
  Limitation on Parent
  Guarantor Liability

  
	
   

  	
   

  	
   

  
	
  Section 10.03.

  	
   

  	
  Execution and
  Delivery of Guarantee

  
	
   

  	
   

  	
   

  
	
  Section 10.04.

  	
   

  	
  Guarantors May
  Consolidate, etc., on Certain Terms

  
	
   

  	
   

  	
   

  
	
  Section 10.05.

  	
   

  	
  Releases Following
  Sale of Assets

  



 


iii

















 


	
  ARTICLE 11.                          SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
   

  	
  Satisfaction and
  Discharge

  
	
   

  	
   

  	
   

  
	
  Section 11.02.

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Section 11.03.

  	
   

  	
  Repayment to Company

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12.                          MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
   

  	
  Trust Indenture Act
  Controls

  
	
   

  	
   

  	
   

  
	
  Section 12.02.

  	
   

  	
  Notices

  
	
   

  	
   

  	
   

  
	
  Section 12.03.

  	
   

  	
  Communication by
  Holders of Notes with Other Holders of Notes

  
	
   

  	
   

  	
   

  
	
  Section 12.04.

  	
   

  	
  Certificate and
  Opinion as to Conditions Precedent

  
	
   

  	
   

  	
   

  
	
  Section 12.05.

  	
   

  	
  Statements Required
  in Certificate or Opinion

  
	
   

  	
   

  	
   

  
	
  Section 12.06.

  	
   

  	
  Rules by Trustee and
  Agents

  
	
   

  	
   

  	
   

  
	
  Section 12.07.

  	
   

  	
  No Personal
  Liability of Directors, Officers, Employees and Shareholders

  
	
   

  	
   

  	
   

  
	
  Section 12.08.

  	
   

  	
  Governing Law

  
	
   

  	
   

  	
   

  
	
  Section 12.09.

  	
   

  	
  No Adverse
  Interpretation of Other Agreements

  
	
   

  	
   

  	
   

  
	
  Section 12.10.

  	
   

  	
  Successors

  
	
   

  	
   

  	
   

  
	
  Section 12.11.

  	
   

  	
  Severability

  
	
   

  	
   

  	
   

  
	
  Section 12.12.

  	
   

  	
  Counterpart
  Originals

  
	
   

  	
   

  	
   

  
	
  Section 12.13.

  	
   

  	
  Table of Contents,
  Headings, etc.

  
	
   

  	
   

  	
   

  
	
  Section 12.14.

  	
   

  	
  Qualification of
  this Indenture.

  



 


iv

















 


CROSS-REFERENCE TABLE


 


 


	
  TIA
  Section

  Reference

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.08, 7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  12.03

  
	
  (c)

  	
   

  	
  12.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06, 7.07

  
	
  (c)

  	
   

  	
  7.06, 12.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03, 4.04, 12.02

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1) (c)(2) 

  	
   

  	
  12.04 12.04 

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  12.05

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05, 12.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  12.01

  



 


N.A. means Not
Applicable.


 


Note:  This Cross-Reference Table shall not, for
any purpose, be deemed to be part of this Indenture.