Exhibit 4.1


 


EXECUTION VERSION


 




 





 


 


CORPORATE
OFFICE PROPERTIES, L.P., as Issuer


 


 


CORPORATE
OFFICE PROPERTIES TRUST, as Guarantor


 


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Trustee


 










 


INDENTURE


 


Dated
as of


April 7,
2010


 










 


 


4.25%
Exchangeable Senior Notes due 2030


 


 




 





 





















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  ISSUE, DESCRIPTION,
  EXECUTION, REGISTRATION AND TRANSFER OF NOTES

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Designation
  Amount and Issue of Notes

  	
   

  	
  10

  
	
  Section 2.02

  	
  Form of
  Notes

  	
   

  	
  10

  
	
  Section 2.03

  	
  Date
  and Denomination of Notes; Payments of Interest

  	
   

  	
  11

  
	
  Section 2.04

  	
  Execution
  of Notes

  	
   

  	
  12

  
	
  Section 2.05

  	
  Exchange
  and Registration of Transfer of Notes; Restrictions on Transfer

  	
   

  	
  13

  
	
  Section 2.06

  	
  Mutilated,
  Destroyed, Lost or Stolen Notes

  	
   

  	
  17

  
	
  Section 2.07

  	
  Temporary
  Notes

  	
   

  	
  18

  
	
  Section 2.08

  	
  Cancellation
  of Notes

  	
   

  	
  18

  
	
  Section 2.09

  	
  CUSIP
  Numbers

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  REDEMPTION AND REPURCHASE
  OF NOTES

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Optional
  Redemption of Notes

  	
   

  	
  19

  
	
  Section 3.02

  	
  Notice
  of Optional Redemption; Selection of Notes

  	
   

  	
  19

  
	
  Section 3.03

  	
  Payment
  of Notes Called for Redemption by the Issuer

  	
   

  	
  21

  
	
  Section 3.04

  	
  Sinking
  Fund

  	
   

  	
  21

  
	
  Section 3.05

  	
  Repurchase
  of Notes at Option of the Noteholder on Specified Dates

  	
   

  	
  21

  
	
  Section 3.06

  	
  Repurchase
  of Notes at Option of Noteholders Upon a Fundamental Change

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  PARTICULAR COVENANTS OF
  THE ISSUER

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment
  of Principal, Premium and Interest

  	
   

  	
  27

  
	
  Section 4.02

  	
  Maintenance
  of Office or Agency

  	
   

  	
  27

  
	
  Section 4.03

  	
  Appointments
  to Fill Vacancies in Trustee’s Office

  	
   

  	
  28

  
	
  Section 4.04

  	
  Provisions
  as to Paying Agent

  	
   

  	
  28

  
	
  Section 4.05

  	
  Existence

  	
   

  	
  29

  
	
  Section 4.06

  	
  Rule 144A
  Information Requirement

  	
   

  	
  29

  
	
  Section 4.07

  	
  Stay,
  Extension and Usury Laws

  	
   

  	
  29

  
	
  Section 4.08

  	
  Compliance
  Certificate

  	
   

  	
  29

  
	
  Section 4.09

  	
  Additional
  Interest Notice

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  NOTEHOLDERS’ LISTS AND
  REPORTS BY THE TRUSTEE

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Noteholders’
  Lists

  	
   

  	
  30

  
	
  Section 5.02

  	
  Preservation
  and Disclosure of Lists

  	
   

  	
  30

  
	
  Section 5.03

  	
  Reports
  by Trustee

  	
   

  	
  30

  
					



 


i





















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  REMEDIES OF THE TRUSTEE
  AND NOTEHOLDERS ON AN EVENT OF DEFAULT

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events
  of Default

  	
   

  	
  31

  
	
  Section 6.02

  	
  Payments
  of Notes on Default; Suit Therefor

  	
   

  	
  33

  
	
  Section 6.03

  	
  Application
  of Monies Collected by Trustee

  	
   

  	
  34

  
	
  Section 6.04

  	
  Proceedings
  by Noteholders

  	
   

  	
  35

  
	
  Section 6.05

  	
  Proceedings
  by Trustee

  	
   

  	
  35

  
	
  Section 6.06

  	
  Remedies
  Cumulative and Continuing

  	
   

  	
  35

  
	
  Section 6.07

  	
  Direction
  of Proceedings and Waiver of Defaults by Majority of Noteholders

  	
   

  	
  36

  
	
  Section 6.08

  	
  Notice
  of Defaults

  	
   

  	
  36

  
	
  Section 6.09

  	
  Undertaking
  to Pay Costs

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  THE TRUSTEE

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties
  and Responsibilities of Trustee

  	
   

  	
  37

  
	
  Section 7.02

  	
  Reliance
  on Documents, Opinions, etc.

  	
   

  	
  38

  
	
  Section 7.03

  	
  No
  Responsibility for Certain Items

  	
   

  	
  39

  
	
  Section 7.04

  	
  Trustee,
  Paying Agents, Exchange Agents or Registrar May Own Notes

  	
   

  	
  39

  
	
  Section 7.05

  	
  Monies
  to Be Held in Trust

  	
   

  	
  39

  
	
  Section 7.06

  	
  Compensation
  and Expenses of Trustee; Indemnification

  	
   

  	
  40

  
	
  Section 7.07

  	
  Officers’
  Certificate as Evidence

  	
   

  	
  40

  
	
  Section 7.08

  	
  Conflicting
  Interests of Trustee

  	
   

  	
  40

  
	
  Section 7.09

  	
  Eligibility
  of Trustee

  	
   

  	
  40

  
	
  Section 7.10

  	
  Resignation
  or Removal of Trustee

  	
   

  	
  41

  
	
  Section 7.11

  	
  Acceptance
  by Successor Trustee

  	
   

  	
  41

  
	
  Section 7.12

  	
  Succession
  by Merger

  	
   

  	
  42

  
	
  Section 7.13

  	
  Preferential
  Collection of Claims

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  THE NOTEHOLDERS

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Action
  by Noteholders

  	
   

  	
  43

  
	
  Section 8.02

  	
  Proof
  of Execution by Noteholders

  	
   

  	
  43

  
	
  Section 8.03

  	
  Absolute
  Owners

  	
   

  	
  43

  
	
  Section 8.04

  	
  Issuer-Owned
  Notes Disregarded

  	
   

  	
  43

  
	
  Section 8.05

  	
  Revocation
  of Consents; Future Noteholders Bound

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  SUPPLEMENTAL INDENTURES

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Supplemental
  Indentures Without Consent of Noteholders

  	
   

  	
  44

  
	
  Section 9.02

  	
  Supplemental
  Indenture With Consent of Noteholders

  	
   

  	
  45

  
	
  Section 9.03

  	
  Effect
  of Supplemental Indenture

  	
   

  	
  46

  
	
  Section 9.04

  	
  Notation
  on Notes

  	
   

  	
  46

  
	
  Section 9.05

  	
  Evidence
  of Compliance of Supplemental Indenture to Be Furnished to Trustee

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  CONSOLIDATION, MERGER,
  SALE, CONVEYANCE AND LEASE

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Issuer
  May Consolidate on Certain Terms

  	
   

  	
  47

  
	
  Section 10.02

  	
  Issuer
  Successor to Be Substituted

  	
   

  	
  47

  
	
  Section 10.03

  	
  Guarantor
  May Consolidate on Certain Terms

  	
   

  	
  48

  
					



 


ii





















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.04

  	
  Guarantor
  Successor to Be Substituted

  	
   

  	
  48

  
	
  Section 10.05

  	
  Assumption
  by Guarantor

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  SATISFACTION AND DISCHARGE
  OF INDENTURE

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Discharge
  of Indenture

  	
   

  	
  49

  
	
  Section 11.02

  	
  Deposited
  Monies to Be Held in Trust by Trustee

  	
   

  	
  49

  
	
  Section 11.03

  	
  Paying
  Agent to Repay Monies Held

  	
   

  	
  49

  
	
  Section 11.04

  	
  Return
  of Unclaimed Monies

  	
   

  	
  50

  
	
  Section 11.05

  	
  Reinstatement

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  NO PERSONAL LIABILITY

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  No
  Personal Liability of Trustees, Officers, Employees and Shareholders

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  EXCHANGE OF NOTES

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Exchange

  	
   

  	
  50

  
	
  Section 13.02

  	
  Exchange
  Procedures

  	
   

  	
  53

  
	
  Section 13.03

  	
  Adjustment
  of Exchange Rate

  	
   

  	
  56

  
	
  Section 13.04

  	
  Sufficient
  Shares to be Delivered

  	
   

  	
  63

  
	
  Section 13.05

  	
  Effect
  of Reclassification, Consolidation, Merger or Sale

  	
   

  	
  63

  
	
  Section 13.06

  	
  Certain
  Covenants

  	
   

  	
  64

  
	
  Section 13.07

  	
  Responsibility
  of Trustee

  	
   

  	
  64

  
	
  Section 13.08

  	
  Notice
  to Noteholders Prior to Certain Actions

  	
   

  	
  65

  
	
  Section 13.09

  	
  Shareholder
  Rights Plans

  	
   

  	
  65

  
	
  Section 13.10

  	
  Ownership
  Limit

  	
   

  	
  65

  
	
  Section 13.11

  	
  Tax
  Effect

  	
   

  	
  65

  
	
  Section 13.12

  	
  Taxes
  on Shares Issued

  	
   

  	
  66

  
	
  Section 13.13

  	
  Reservation
  of Shares, Shares to Be Fully Paid; Compliance with Governmental
  Requirements; Listing of Common Shares

  	
   

  	
  66

  
	
  Section 13.14

  	
  Calculation
  in Respect of Notes

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
  MEETINGS OF NOTEHOLDERS

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 14.01

  	
  Purposes
  for Which Meetings May Be Called

  	
   

  	
  66

  
	
  Section 14.02

  	
  Call,
  Notice and Place of Meetings

  	
   

  	
  67

  
	
  Section 14.03

  	
  Persons
  Entitled to Vote at Meetings

  	
   

  	
  67

  
	
  Section 14.04

  	
  Quorum;
  Action

  	
   

  	
  67

  
	
  Section 14.05

  	
  Determination
  of Voting Rights; Conduct and Adjournment of Meetings

  	
   

  	
  68

  
	
  Section 14.06

  	
  Counting
  Votes and Recording Action of Meetings

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 15

  	
  GUARANTEE

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 15.01

  	
  Guarantee

  	
   

  	
  69

  
	
  Section 15.02

  	
  Execution
  and Delivery of Guarantee

  	
   

  	
  70

  
	
  Section 15.03

  	
  Limitation
  of Guarantor’s Liability; Certain Bankruptcy Events

  	
   

  	
  70

  
	
  Section 15.04

  	
  Application
  of Certain Terms and Provisions to the Guarantor

  	
   

  	
  71

  
					



 


iii





















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 16

  	
  MISCELLANEOUS PROVISIONS

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 16.01

  	
  Provisions
  Binding on Issuer’s and Guarantor’s Successors

  	
   

  	
  71

  
	
  Section 16.02

  	
  Official
  Acts by Successor Corporation

  	
   

  	
  71

  
	
  Section 16.03

  	
  Addresses
  for Notices, etc.

  	
   

  	
  71

  
	
  Section 16.04

  	
  Governing
  Law; Waiver of Jury Trial

  	
   

  	
  72

  
	
  Section 16.05

  	
  Evidence
  of Compliance with Conditions Precedent, Certificates to Trustee

  	
   

  	
  72

  
	
  Section 16.06

  	
  Legal
  Holidays; Days

  	
   

  	
  73

  
	
  Section 16.07

  	
  Trust
  Indenture Act

  	
   

  	
  73

  
	
  Section 16.08

  	
  No
  Security Interest Created

  	
   

  	
  73

  
	
  Section 16.09

  	
  Benefits
  of Indenture

  	
   

  	
  73

  
	
  Section 16.10

  	
  Table
  of Contents, Headings, etc.

  	
   

  	
  73

  
	
  Section 16.11

  	
  Authenticating
  Agent

  	
   

  	
  73

  
	
  Section 16.12

  	
  Execution
  in Counterparts

  	
   

  	
  74

  
	
  Section 16.13

  	
  Severability

  	
   

  	
  74

  
	
  Section 16.14

  	
  Force
  Majeure

  	
   

  	
  74

  
	
  Section 16.15

  	
  USA PATRIOT Act

  	
   

  	
  74

  
					



 


	
  Schedule
  A

  	
  Share
  Price per Share Pursuant to Section 3.06(g)

  
	
  Exhibit A

  	
  Form of
  Note, including Notation of Guarantee

  



 


iv





















 


CROSS-REFERENCE
TABLE*


 


	
  Trust Indenture Act

  	
   

  	
  Indenture

  Section

  
	
  310(a)(1)

  	
   

  	
   

  	
  7.09

  
	
  (a)(2)

  	
   

  	
   

  	
  7.09

  
	
  (a)(3)

  	
   

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
   

  	
  7.08

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
   

  	
  7.13

  
	
  (b)

  	
   

  	
   

  	
  7.13

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
   

  	
  5.01

  
	
  (b)

  	
   

  	
   

  	
  5.02

  
	
  (c)

  	
   

  	
   

  	
  5.02

  
	
  313(a)

  	
   

  	
   

  	
  5.03

  
	
  (b)

  	
   

  	
   

  	
  5.03

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
   

  	
  5.03

  
	
  314(a)

  	
   

  	
   

  	
  4.09,
  5.04

  
	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
   

  	
  N.A.

  
	
  (c)(2)

  	
   

  	
   

  	
  N.A.

  
	
  (c)(3)

  	
   

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
   

  	
  N.A.

  
	
  (f)

  	
   

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
   

  	
  6.08

  
	
  (c)

  	
   

  	
   

  	
  6.05

  
	
  (d)

  	
   

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
   

  	
  6.09

  
	
  316(a)(1)(A)

  	
   

  	
   

  	
  6.07

  
	
  (a)(1)(B)

  	
   

  	
   

  	
  6.07

  
	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  317(a)(1)

  	
   

  	
   

  	
  N.A.

  
	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
  318(a)

  	
   

  	
   

  	
  N.A.

  



 






N.A.  means not applicable.


 


*              This Cross-Reference Table
is not part of the Indenture.


 


v

















 


INDENTURE


 


INDENTURE dated as of April 7,
2010 among Corporate Office Properties, L.P., a Delaware limited partnership
(hereinafter called the “Issuer”),
Corporate Office Properties Trust, a Maryland real estate investment trust
(hereinafter called the “Guarantor”),
each having its principal office at 6711 Columbia Gateway Drive, Suite 300,
Columbia, Maryland 21046, and Wells Fargo Bank, National Association, a
national banking association, as trustee hereunder (hereinafter called the “Trustee”).


 


Each party agrees as follows
for the benefit of the other parties and for the equal and ratable benefit of
the holders of the Issuer’s 4.25% Exchangeable Senior Notes due 2030 (hereinafter
called the “Notes”) guaranteed by the
Guarantor.


 


ARTICLE 1


 


DEFINITIONS


 


Section 1.01           Definitions. 
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01.  All other terms used in this Indenture that
are defined in the Trust Indenture Act or which are by reference therein
defined in the Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires) shall have the respective meanings
assigned to such terms in the Trust Indenture Act and in the Securities Act as
in force at the date of the execution of this Indenture.  The words “herein,”
“hereof,” “hereunder”
and words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other Subdivision.  The terms defined in this
Article include the plural as well as the singular.


 


“Additional Interest”
shall have the meaning specified for Registration Default Damages in
Section 7 of the Registration Rights Agreement.


 


“Additional Interest Notice”
shall have the meaning specified in Section 4.09.


 


“Additional Notes”
shall have the meaning specified in Section 2.01.


 


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


 


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


 


“Agent Members”
shall have the meaning specified in Section 2.05(b)(v).


 


“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global Note or
beneficial interest therein, the rules and procedures of DTC or any
successor Depository, in each case to the extent applicable to such transaction
and as in effect from time to time.


 


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


 

















 


“Benefited Party”
shall have the meaning specified in Section 15.01.


 


“Bid Solicitation Agent”
means, as of the date hereof, Corporate Office Properties, L.P.; provided, however, that the Issuer may appoint another
Person (including, with its agreement, the Trustee) as the Bid Solicitation
Agent without prior notice to the Noteholders.


 


“Board of Trustees”
means the board of trustees of the Guarantor or a committee of such board duly
authorized to act for it hereunder.


 


“Business Day”
means each Monday, Tuesday, Wednesday, Thursday and Friday, other than a day on
which banking institutions in The City of New York or in the city in which the
Corporate Trust Office or Paying Agent are located are authorized or obligated
by law or executive order to close.


 


“Capital Stock”
for any corporation or trust means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock or beneficial interests issued by that
corporation or trust.


 


“Cash Percentage”
shall have the meaning specified in Section 13.02(k).


 


“Cash Percentage Notice”
shall have the meaning specified in Section 13.02(k).


 


“Change of Control”
means the occurrence at such time after the original issuance of the Notes when
any of the following has occurred:


 


(i)            a “person” or “group” within the meaning of
Section 13(d)(3) of the Exchange Act, files a Schedule TO or any
schedule, form or report under the Exchange Act disclosing that such person or
group has become the direct or indirect “beneficial owner,” as defined in
Rule 13d-3 under the Exchange Act, of shares of Common Shares representing
more than 50% of the Voting Stock of the Guarantor; or


 


(ii)           consummation of any consolidation or merger of the
Guarantor pursuant to which the Common Shares will be converted into cash,
securities or other property or any sale, lease or other transfer in one
transaction or a series of transactions of all or substantially all of the
consolidated assets of the Guarantor and its subsidiaries, taken as a whole, to
any Person other than one or more of the Guarantor’s subsidiaries (any such
consolidation, merger, transaction or series of transactions being referred to
herein as an “Event”); provided,
however, that any such Event where the holders of more than 50% of
the shares of common equity, representing more than 50% of the Voting Stock of
the Guarantor, immediately prior to such event, own, directly or indirectly,
more than 50% of all classes of common equity, representing more than 50% of
the Voting Stock, of the continuing or surviving person or transferee or the
parent thereof immediately after such event shall not constitute a Fundamental
Change under this clause (ii).


 


“Close of Business”
means 5:00 p.m., New York City time.


 


“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.


 


“Common Shares”
means, subject to Section 13.05, the common shares of beneficial interest
of the Guarantor, par value $0.01 per share, at the date of this Indenture or
shares of any class or classes resulting from any reclassification or
reclassifications thereof and that have no preference in respect of


 


2

















 


dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Guarantor and that are not subject to redemption by the
Guarantor; provided that if at any time there shall
be more than one such resulting class, the shares of each such class then so
issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.  Pursuant to
Section 13.05, following a Merger Event, references to Common Shares in
this Indenture shall be deemed references to Reference Property.


 


“Common Units”
means the common limited partnership units of the Issuer.


 


“Corporate Trust Office”
or other similar term, means the designated office of the Trustee at which, at
any particular time, its corporate trust business as it relates to this
Indenture shall be administered, which office is, at the date as of which this
Indenture is dated, located at Wells Fargo Bank, National Association, 625
Marquette Avenue, MAC N9311-110, Minneapolis, MN 55479, Attention:  Corporate Trust Services, or at any other
time at such other address as the Trustee may designate from time to time by
notice to the Issuer.


 


“CUSIP” means
the Committee on Uniform Securities Identification Procedures.


 


“Custodian”
means Wells Fargo Bank, National Association, as custodian with respect to the
Notes in global form, or any successor entity thereto.


 


“Daily Exchange Value”
means, for each of the 20 consecutive Trading Days during the Observation
Period, 5% of the product of (x) the applicable Exchange Rate and
(y) the Daily VWAP of the Common Shares on such Trading Day.


 


“Daily Settlement Amount,”
for each of the 20 consecutive Trading Days during the Observation Period,
shall consist of:


 


(i)            cash equal to the lower of (x) $50 and
(y) the Daily Exchange Value; and


 


(ii)           if the Daily Exchange Value exceeds $50, a number of
Common Shares (the “Daily Share Amount”)
equal to (x) the difference between the Daily Exchange Value and $50,
divided by (y) the Daily VWAP for such Trading Day, subject to the
Issuer’s right to deliver cash in lieu of all or a portion of such Common
Shares in accordance with Section 13.02(k) and subject to 13.02(l).


 


“Daily VWAP”
means, for each of the 20 consecutive Trading Days during the applicable
Observation Period, the per share volume-weighted average price as displayed
under the heading “Bloomberg VWAP” on Bloomberg page “OFC.N <equity>
AQR” (or its equivalent successor if such page is not available) in
respect of the period from the scheduled open of trading until the scheduled close
of trading of the primary trading session on such Trading Day (or if such
volume-weighted average price is unavailable, the market value of one Common
Share on such Trading Day determined, using a volume-weighted average method,
by a nationally recognized independent investment banking firm retained for
this purpose by the Issuer). The Daily VWAP will be determined without regard
to after hours trading or any other trading outside of the regular trading
session trading hours.


 


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


 


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


 


3
















 


“Depositary”
means the clearing agency registered under the Exchange Act that is designated
to act as the Depositary for the Global Notes. 
DTC shall be the initial Depositary, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, “Depositary”
shall mean or include such successor.


 


“Discharge Amount”
shall have the meaning specified in Section 11.01.


 


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


 


“Dividend Threshold Amount”
shall have the meaning specified in Section 13.03(d).


 


“DTC” means The
Depository Trust Company.


 


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


 


“Event of Default”
means any event specified in Section 6.01 as an Event of Default.


 


“Ex-Dividend Date”
means the first date upon which Common Shares trade on the applicable exchange
or in the applicable market, regular way, without the right to receive the
issuance or distribution in question.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.


 


“Exchange Agent”
means the exchange agent appointed by the Issuer to act as set forth in
Article 13, which, initially, shall be the Trustee.


 


“Exchange Consideration”
shall have the meaning specified in Section 13.01(g).


 


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


 


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


 


“Exchange Obligation”
shall have the meaning specified in Section 13.01(a).


 


“Exchange Price”
means as of any date $1,000 divided by the Exchange Rate as of such date.


 


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


 


“Exchange Trigger Price”
shall have the meaning specified in Section 13.01(c).


 


“Fundamental Change”  means either a Change of Control or a
Termination of Trading.  Notwithstanding
the foregoing, a transaction or series of transactions set forth in
clause (ii) of the definition of Change of Control shall not
constitute a Fundamental Change if at least 90% of the consideration received
or to be received by the holders of Common Shares (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters’ appraisal
rights) in connection with such transaction or transactions otherwise
constituting a Fundamental Change under such clause (ii) consists of
shares of common stock or depositary receipts evidencing interests in ordinary
shares or common equity traded on a U.S. national securities exchange (“Publicly Traded Securities”), and as a result of such
transaction or transactions, the Notes become exchangeable or convertible into
cash and, if applicable, such Publicly Traded Securities. For purposes of this
definition, any transaction or event that constitutes a


 


4

















 


Fundamental Change under
both clause (i) and clause (ii) of the definition of Change
of Control will be deemed to be solely a Fundamental Change under
clause (ii) of such definition.


 


“Fundamental Change Issuer
Notice” shall have the meaning specified in Section 3.06(b).


 


“Fundamental Change
Repurchase Date” shall have the meaning specified in
Section 3.06(a).


 


“Fundamental Change
Repurchase Notice” shall have the meaning specified in
Section 3.06(a)(i).


 


“Fundamental Change
Repurchase Price” shall have the meaning specified in
Section 3.06(a).


 


“Global Note”
shall have the meaning specified in Section 2.02.


 


“Guarantee”
means the full and unconditional guarantee provided by the Guarantor in respect
of the Notes as made applicable to the Notes in accordance with the provisions
of Section 15.01 hereof.


 


“Guarantee Obligations”
shall have the meaning specified in Section 15.01.


 


“Guarantor”
means the corporation named as the “Guarantor” in
the first paragraph of this Indenture, and, subject to the provisions of
Article 10, shall include its successors and assigns.


 


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


 


“Initial Notes”
shall have the meaning specified in Section 2.01.


 


“Initial Purchasers”
means each of J.P. Morgan Securities Inc., RBC Capital Markets Corporation and
KeyBanc Capital Markets Inc.


 


“Interest Payment Date”
means April 15 and October 15 of each year, beginning on
October 15, 2010.


 


“Issuer” means
the limited partnership named as the “Issuer” in the
first paragraph of this Indenture, and, subject to the provisions of
Article 10, shall include its successors and assigns.


 


“Issuer Put Right Notice”
shall have the meaning specified in Section 3.05(b).


 


“Issuer Put Right Notice
Date” shall have the meaning specified in Section 3.05(b).


 


“Last Reported Sale Price”
means, with respect to the Common Shares or any other security for which a Last
Reported Sale Price must be determined, on any date, the closing sale price per
share of the Common Shares or unit of such other security (or, if no closing
sale price is reported, the average of the bid and ask prices or, if more than
one in either case, the average of the average bid and the average ask prices)
on such date as reported in composite transactions for the principal U.S.
securities exchange on which the Common Shares or such other security is listed
for trading.  If the Common Shares or
such other security are not listed for trading on a United States national or
regional securities exchange on the relevant date, the Last Reported Sale Price
shall be the last quoted bid price per Common Share or such other security in
the over the counter market on the relevant date, as reported by the Pink OTC
Markets, Inc. or a similar organization. 
If the Common Shares or such other security is not so quoted, the Last
Reported Sale Price shall be the average of the mid point of the last bid and
ask prices for the Common Shares or such other security on the relevant date
from each of at least three nationally recognized


 


5

















 


independent investment
banking firms selected from time to time by the Board of Trustees for that
purpose.  The Last Reported Sale Price
shall be determined without reference to extended or after hours trading.


 


“Market Disruption Event”
means the occurrence or existence on any Trading Day for the Common Shares of
any suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the applicable stock exchange or otherwise)
in the Common Shares or in any options, contracts or future contracts relating
to the Common Shares, and such suspension or limitation occurs or exists at any
time within the 30 minutes prior to the closing time of the relevant exchange
on such Trading Day; provided, however,
that for the purposes of determining amounts due upon exchange only, “Market Disruption Event” as it is used to determine whether
a Trading Day has occurred, means (i) a failure by the primary United
States national or regional securities exchange or market on which the Common
Shares are listed or admitted for trading to open for trading during its
regular trading session or (ii) the occurrence or existence prior to
1:00 p.m., New York City time, on any Scheduled Trading Day for the Common
Shares for more than one half-hour period in the aggregate during regular trading
hours of any suspension or limitation imposed by trading (by reason of
movements in price exceeding limits permitted by the relevant stock exchange or
otherwise) in the Common Shares or in any options, contracts or future
contracts relating to the Common Shares.


 


“Maturity Date”
means April 15, 2030, unless the Notes are earlier repurchased, exchanged
or redeemed.


 


“Measurement Period”
shall have the meaning specified in Section 13.01(b).


 


“Merger Event”
shall have the meaning specified in Section 13.05.


 


“Nonrecourse Indebtedness”
means, with respect to a Person, indebtedness for borrowed money in respect of
which recourse for payment is contractually limited to specific assets of such
Person encumbered by a lien securing such indebtedness; provided
such contractual limitation to specific assets may include customary exceptions
for fraud, misapplication of funds, environmental indemnities, voluntary
bankruptcy, involuntary bankruptcy and other similar exceptions to recourse
liability.


 


“Note” or “Notes” means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including the Initial Notes,
any Additional Notes and any Global Note.


 


“Note Register”
shall have the meaning specified in Section 2.05(a).


 


“Note Registrar”
shall have the meaning specified in Section 2.05(a).


 


“Noteholder”
means any Person in whose name at the time a particular Note is registered on
the Note Register.


 


“Observation Period”
with respect to any Note surrendered for exchange means:


 


(i)            if the relevant
Exchange Date occurs prior to November 15, 2029 (other than in the case of
an exchange following a notice of redemption as described in clause
(ii) below), the 20 consecutive Trading Day period beginning on and
including the third Trading Day after the Exchange Date; and


 


(ii)           if the
relevant Exchange Date occurs on or after the date of issuance of a notice of
redemption as described in Section 3.01 but prior to the relevant
Redemption Date, the 20


 


6

















 


consecutive Trading Days beginning on
and including the 22nd Scheduled Trading Day immediately preceding such
Redemption Date; and


 


(iii)          if the
relevant Exchange Date occurs on or after November 15, 2029, the 20
consecutive Trading Days beginning on and including the 22nd Scheduled Trading
Day immediately preceding April 15, 2030.


 


“Offering Memorandum”
means the Issuer’s and the Guarantor’s offering memorandum dated March 31,
2010 relating to the Notes unconditionally guaranteed by the Guarantor.


 


“Officer” means
any person holding any of the following positions with the Guarantor:  the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President (whether or not designated
by a number or numbers or word or words added before or after the title “Vice
President”), the Chief Financial Officer, the Treasurer and the Secretary.


 


“Officers’ Certificate,”
when used with respect to the Issuer, means a certificate signed by any two
Officers or by one such Officer and any Assistant Treasurer or Assistant
Secretary of the Guarantor.


 


“Open of Business”
means 9:00 a.m., New York City time.


 


“Opinion of Counsel”
means an opinion in writing signed by legal counsel, who may be an employee of
or counsel to the Issuer, or other counsel reasonably acceptable to the
Trustee.


 


“Outstanding,”
when used with reference to Notes and subject to the provisions of
Section 8.04, means, as of any particular time, all Notes authenticated
and delivered by the Trustee under this Indenture, except:


 


(a)           Notes theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;


 


(b)           Notes, or portions thereof, (i) for the
redemption or repurchase of which monies in the necessary amount shall have
been deposited in trust with the Trustee or with any Paying Agent (other than
the Issuer or the Guarantor) or (ii) which shall have been otherwise
discharged in accordance with Article 11;


 


(c)           Notes paid pursuant to Section 2.06 and Notes in
lieu of which, or in substitution for which, other Notes shall have been authenticated
and delivered pursuant to the terms of Section 2.06; and


 


(d)           Notes exchanged pursuant to Article 13, and Notes
paid or redeemed or repurchased pursuant to Article 3.


 


“Patriot Act”
shall have the meaning specified in Section 16.15.


 


“Paying Agent”
shall have the meaning specified in Section 2.08.


 


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


 


“Predecessor Note”
of any particular Note means every previous Note evidencing all or a portion of
the same debt as that evidenced by such particular Note, and, for the purposes
of this definition, any


 


7

















 


Note authenticated and
delivered under Section 2.06 in lieu of a lost, destroyed or stolen Note
shall be deemed to evidence the same debt as the lost, destroyed or stolen Note
that it replaces.


 


“Publicly Traded Securities”
shall have the meaning assigned to it in the definition of Fundamental Change.


 


“Purchase Agreement”
means the Purchase Agreement, dated as of March 31, 2010, among the
Issuer, the Guarantor and the Representatives (as defined therein) of the
Initial Purchasers.


 


“Put Right Repurchase Date”
shall have the meaning assigned to it in Section 3.05(a).


 


“Put Right Repurchase
Notice” shall have the meaning assigned to it in
Section 3.05(a)(i).


 


“Put Right Repurchase Price”
shall have the meaning assigned to it in Section 3.05(a).


 


“Record Date,”
with respect to the payment of interest on any Interest Payment Date, shall
have the meaning specified in Section 2.03, and with respect to
Section 13.03, shall have the meaning specified in Section 13.03(g).


 


“Recourse Indebtedness”
means indebtedness for borrowed money other than Nonrecourse Indebtedness.


 


“Redemption Date”
means, with respect to any Note or portion thereof to be redeemed in accordance
with the provisions of Section 3.01 hereof, the date fixed for such
redemption in accordance with the provisions of Section 3.01 hereof.


 


“Redemption Price”
has the meaning provided in Section 3.01 hereof.


 


“Reference Property”
shall have the meaning specified in Section 13.05.


 


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of
April 7, 2010, among the Issuer, the Guarantor and the Initial Purchasers,
as amended from time to time in accordance with its terms.


 


“Responsible Officer”
means, when used with respect to the Trustee, any officer within the corporate
trust department 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 such person’s knowledge of or familiarity with the particular subject.


 


“Restricted Notes Legend”
shall have the meaning specified in Section 2.05(c).


 


“Restricted Securities”
shall have the meaning specified in Section 2.05(c).


 


“Restricted Shares Legend”
shall have the meaning specified in Section 2.05(c).


 


“Rule 144A”
means Rule 144A as promulgated under the Securities Act as it may be
amended from time to time hereafter.


 


“Scheduled Trading Day” means (i) a day that is scheduled
to be a Trading Day on the primary United States national securities exchange
or market on which the Common Stock is listed or admitted for trading or
(ii) if the Common Stock is not so listed or admitted for trading,
“Scheduled Trading Day” shall mean a Business Day.


 


8

















 


“Securities Act”
means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.


 


“Share Price”
means the price paid per Common Share in connection with a Fundamental Change
pursuant to which Additional Shares shall be added to the Exchange Rate as set
forth in Section 13.01(e)(ii), which shall be equal to (i) if holders
of Common Shares receive only cash in such Fundamental Change, the cash amount
paid per Common Share and (ii) in all other cases, the average of the Last
Reported Sale Prices of the Common Shares over the five consecutive Trading Day
period ending on the Trading Day preceding the Effective Date of the
Fundamental Change.


 


“Significant Subsidiary”
means a subsidiary that is a “significant subsidiary” as defined under
Rule 1-02(w) of Regulation S-X under the Exchange Act.


 


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


 


“Stated Maturity,”
with respect to any Note or any installment of principal thereof or interest
thereon, means the date established by or pursuant to this Indenture or such
Note as the fixed date on which the principal of such Note or such installment
of principal or interest is due and payable.


 


 “Subsidiary” means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other equity interest entitled
(without regard to the occurrence of any contingency) to vote in the election
of trustees, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other subsidiaries
of that Person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or managing general partner of which is such
Person or a subsidiary of such Person or (b) the only general partners of
which are such Person or of one or more subsidiaries of such Person (or any
combination thereof).


 


“Termination of Trading”
means the Common Shares (or other common stock into which the Notes are then
exchangeable or convertible) are neither listed nor quoted on a U.S. national
securities exchange (or any successor thereto).


 


“Trading Day”
means a day on which (i) trading in Common Shares generally occurs on the
New York Stock Exchange or, if Common Shares are not then listed on the New
York Stock Exchange, on the principal other United States national or regional
securities exchange on which Common Shares are then listed or, if Common Shares
are not then listed on a United States national or regional securities
exchange, on the principal other market on which Common Shares are then traded,
and (ii) there is no Market Disruption Event; provided
that if the Common Shares (or other security for which a closing sale price
must be determined) are not so listed or traded, Trading Day shall mean any
Business Day.


 


“Trading Price”
with respect to the Notes, on any date of determination, means the average of
the secondary market bid quotations obtained by the Bid Solicitation Agent for
$2.0 million principal amount of Notes at approximately 3:30 p.m., New
York City time, on such determination date from three independent nationally
recognized securities dealers selected by the Issuer; provided
that if three such bids cannot reasonably be obtained by the Bid Solicitation
Agent, but two such bids are obtained, then the average of the two bids shall
be used, and if only one such bid can reasonably be obtained by the Bid
Solicitation Agent, that one bid shall be used. 
If the Bid Solicitation Agent cannot reasonably obtain at least one bid
for $2.0 million principal amount of Notes from a nationally recognized
securities dealer, then the Trading Price per $1,000 principal amount of Notes
will be deemed to be less than 98% of the product of the Last Reported Sale
Price of the Common Shares and the Exchange Rate.


 


9

















 


“Transfer” shall
have the meaning specified in Section 2.05(c).


 


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


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as it was in force at the
date of this Indenture; provided that
if the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the extent required by
such amendment, the Trust Indenture Act of 1939 as so amended.


 


“Trustee” means
Wells Fargo Bank, National Association, and its successors and any corporation
resulting from or surviving any consolidation or merger to which it or its
successors may be a party and any successor trustee at the time serving as
successor trustee hereunder.


 


“Valuation Period”
shall have the meaning specified in Section 13.03(c).


 


“Voting Stock”
of a Person means Capital Stock of such Person of the class or classes pursuant
to which the holders thereof have the right to vote on the election of the
board of directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).


 


ARTICLE 2


 


ISSUE,
DESCRIPTION, EXECUTION, REGISTRATION AND TRANSFER OF NOTES


 


Section 2.01           Designation
Amount and Issue of Notes.  The Notes shall be designated
as “4.25% Exchangeable Senior Notes due 2030.”
Upon the execution of this Indenture, and from time to time thereafter, Notes
may be executed by the Issuer and delivered to the Trustee for authentication,
and the Trustee shall thereupon authenticate and deliver Notes upon a written
order of the Issuer, such order signed by two Officers or by an Officer and
either an Assistant Treasurer of the Guarantor or any Assistant Secretary of
the Guarantor, without any further action by the Issuer hereunder.


 


The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited.  The aggregate principal amount of Notes
initially issued (including upon exercise of the Initial Purchasers’ option set
forth in Section 3 of the Purchase Agreement) shall be
$240,000,000.  The Issuer may, without
the consent of the Noteholders, issue additional Notes (the “Additional Notes”) from time to time in the future, with the
same terms and the same CUSIP number as the Notes originally issued under this
Indenture (the “Initial Notes”) in an unlimited
principal amount, provided that such Additional
Notes must be part of the same issue as and fungible with the Initial Notes for
United States federal income tax purposes. 
The Initial Notes and any such Additional Notes will constitute a single
series of debt securities, and in circumstances in which this Indenture
provides for the Noteholders to vote or take any action, the Noteholders of
Initial Notes and the Noteholders of any such Additional Notes will vote or
take that action as a single class.


 


Section 2.02           Form of
Notes.  The Notes, the Guarantee and the Trustee’s
certificate of authentication to be borne by such Notes shall be substantially
in the form set forth in Exhibit A hereto.  The terms and provisions contained in the
form of Note attached as Exhibit A hereto shall constitute, and are
hereby expressly made, a part of this Indenture and, to the extent applicable,
the Issuer and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.


 


10

















 


Any of the Notes may have such letters, numbers or
other marks of identification and such notations, legends, endorsements or
changes as the officers executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required by the Custodian, the
Depositary or by the National Association of Securities Dealers, Inc. or
as may be required for the Notes to be tradable on any market developed for
trading of securities pursuant to Rule 144A or as may be required to
comply with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange
or automated quotation system on which the Notes may be listed, or to conform
to usage, or to indicate any special limitations or restrictions to which any
particular Notes are subject.


 


So long as the Notes are eligible for book-entry
settlement with the Depositary, or unless otherwise required by law, or
otherwise contemplated by Section 2.05(b), all of the Notes will be
represented by one or more Notes in global form registered in the name of the
Depositary or the nominee of the Depositary (a “Global Note”).  The transfer and exchange of beneficial
interests in any such Global Note shall be effected through the Depositary in
accordance with this Indenture and the Applicable Procedures.  Except as provided in Section 2.05(b),
beneficial owners of a Global Note shall not be entitled to have certificates
registered in their names, will not receive or be entitled to receive physical
delivery of certificates in definitive form and will not be considered
Noteholders of such Global Note.


 


Any Global Note shall represent such of the
Outstanding Notes as shall be specified therein and shall provide that it shall
represent the aggregate amount of Outstanding Notes from time to time endorsed
thereon and that the aggregate amount of Outstanding Notes represented thereby
may from time to time be increased or reduced to reflect redemptions,
repurchases, exchanges, or transfers permitted hereby.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of Outstanding Notes
represented thereby shall be made by the Note Registrar or the Custodian, at
the direction of the Trustee, in such manner and upon instructions given by the
Noteholder of such Notes in accordance with this Indenture.  Payment of the principal of, premium, if any,
and interest and Additional Interest, if any, on any Global Note shall be made
to the Noteholder of such Note.


 


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


 


The Person in whose name any Note (or its Predecessor
Note) is registered on the Note Register at the Close of Business on any Record
Date with respect to any Interest Payment Date shall be entitled to receive the
interest payable on such Interest Payment Date. 
Notwithstanding the foregoing, any Note or portion thereof surrendered
for exchange during the period from the Close of Business on the Record Date
for any Interest Payment Date to the Close of Business on the applicable
Interest Payment Date must be accompanied by payment, in immediately available
funds or other funds acceptable to the Issuer, of an amount equal to the
interest otherwise payable on such Interest Payment Date on the principal
amount being exchanged; provided, however, that no such payment need be made (1) if a
Noteholder exchanges its Notes in connection with a redemption and the Issuer
has specified a Redemption Date that is after a Record Date and on or prior to
the Business Day immediately succeeding such Interest Payment Date, (2) if
a Noteholder exchanges its Notes in connection with a Fundamental Change and
the Issuer has specified a Fundamental Change Repurchase Date that is after a
Record Date and on or prior to such Interest Payment Date or (3) to the
extent of any overdue interest, if any overdue interest exists at the time of
exchange with respect to such Note. 
Interest shall be payable at the office of the Issuer maintained by the
Issuer for such purposes, which shall initially be an office or agency of the
Trustee.  The Issuer shall pay interest
(i) on any Notes in certificated form by check mailed to the address of
the Person entitled


 


11

















 


thereto as it appears in
the Note Register; provided, however, that a Noteholder of any Notes in certificated
form in the aggregate principal amount of more than $5.0 million may specify by
written notice to the Issuer that it pay interest by wire transfer of
immediately available funds to the account specified by the Noteholder in such
notice and (ii) on any Global Note by wire transfer of immediately
available funds to the account of the Depositary or its nominee.  If a payment date is not a Business Day,
payment shall be made on the next succeeding Business Day, and no additional
interest shall accrue thereon.  The term
“Record Date” with respect to any
Interest Payment Date shall mean the April 1 or October 1 preceding
the applicable April 15 or October 15 Interest Payment Date,
respectively.


 


Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any April 15 or October 15
(herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Noteholder registered as such on the
relevant Record Date, and such Defaulted Interest shall be paid by the Issuer,
at its election in each case, as provided in clause (a) or (b) below:


 


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


 


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


 


Section 2.04           Execution
of Notes.  The Notes shall be signed in the name and on
behalf of the Issuer by the manual or facsimile signature of an Officer.  Only such Notes as shall bear thereon a
certificate of authentication substantially in the form set forth on the form
of Note attached as Exhibit A hereto, executed manually by the
Trustee (or an authenticating agent appointed by the Trustee as provided by
Section 16.11), shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. 
Such certificate by the Trustee (or such an authenticating agent) upon
any Note executed by the Issuer shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the
Noteholder is entitled to the benefits of this Indenture.


 


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In case any Officer who shall have signed any of the
Notes shall cease to be such Officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Issuer, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such Officer, and any
Note may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Note, shall be the proper Officers, although at
the date of the execution of such Note any such person was not such an Officer.


 


Section 2.05           Exchange
and Registration of Transfer of Notes; Restrictions on Transfer.


 


(a)           The Issuer
shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Issuer
designated pursuant to Section 4.02 being herein sometimes collectively
referred to as the “Note Register”)
in which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Notes and of transfers of
Notes.  The Note Register shall be in
written form or in any form capable of being exchanged into written form within
a reasonably prompt period of time.  The
Trustee is hereby appointed “Note Registrar”
for the purpose of registering Notes and transfers of Notes as herein
provided.  The Issuer may appoint one or
more co-registrars in accordance with Section 4.02.


 


Upon surrender for registration of transfer of any
Note to the Note Registrar or any co-registrar, and satisfaction of the
requirements for such transfer set forth in this Section 2.05, the Issuer
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.


 


Notes may be exchanged for other Notes of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at any such office or agency maintained
by the Issuer pursuant to Section 4.02. 
Whenever any Notes are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Notes which the
Noteholder making the exchange is entitled to receive bearing registration
numbers not contemporaneously outstanding.


 


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


 


All Notes presented or surrendered for registration of
transfer or for exchange, redemption, or repurchase shall (if so required by
the Issuer or the Note Registrar) be duly endorsed, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Issuer, and the Notes shall be duly executed by the Noteholder thereof or its
attorney duly authorized in writing.


 


No service charge shall be made to any Noteholder for
any registration of, transfer or exchange of Notes, but the Issuer may require
payment by the Noteholder of a sum sufficient to cover any tax, assessment or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes.


 


In the event of any redemption in part, the Issuer
shall not be required to:  (i) issue
or register the transfer or exchange of any Note during a period beginning at
the Open of Business 15 days before any selection of Notes for redemption and
ending at the Close of Business on the date of such mailing or
(ii) register the transfer or exchange of any Note so selected for
redemption, in whole or in part, except the unredeemed portion of any Note
being redeemed in part.


 


(b)           The
following provisions shall apply only to Global Notes:


 


13

















 


(i)            Each Global
Note authenticated under this Indenture shall be registered in the name of the
Depositary or a nominee thereof and delivered to such Depositary or a nominee
thereof or Custodian therefor, and each such Global Note shall constitute a
single Note for all purposes of this Indenture.


 


(ii)           Notwithstanding
any other provision in this Indenture, no Global Note may be exchanged in whole
or in part for Notes registered, and no transfer of a Global Note in whole or
in part may be registered, in the name of any Person other than the Depositary
or a nominee thereof unless (1) the Depositary (x) has notified the
Issuer that it is unwilling or unable to continue as Depositary for such Global
Note or (y) has ceased to be a clearing agency registered under the
Exchange Act, and a successor depositary has not been appointed by the Issuer
within 90 days, (2) an Event of Default has occurred and is continuing or
(3) the Issuer, in its sole discretion, notifies the Trustee in writing
that it no longer wishes to have all the Notes represented by Global
Notes.  Any Global Note exchanged
pursuant to clause (1) or (2) above shall be so exchanged in whole
and not in part and any Global Note exchanged pursuant to clause (3) above
may be exchanged in whole or from time to time in part as directed by the
Issuer.  Any Note issued in exchange for
a Global Note or any portion thereof shall be a Global Note; provided that any such Note so issued that is registered in
the name of a Person other than the Depositary or a nominee thereof shall not
be a Global Note.


 


(iii)          Notes issued
in exchange for a Global Note or any portion thereof pursuant to clause
(ii) above shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to that of
such Global Note or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as the Depositary shall
designate and shall bear any legends required hereunder.  Any Global Note to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Note Registrar.  With regard to any Global Note to be
exchanged in part, either such Global Note shall be so surrendered for exchange
or, if the Trustee is acting as Custodian for the Depositary or its nominee
with respect to such Global Note, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged, by means
of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the
Trustee shall authenticate and make available for delivery the Note issuable on
such exchange to or upon the written order of the Depositary or an authorized
representative thereof.


 


(iv)          In the event
of the occurrence of any of the events specified in clause (ii) above, the
Issuer will promptly make available to the Trustee a reasonable supply of
certificated Notes in definitive, fully registered form, without interest
coupons.


 


(v)           Neither any
members of, or participants in, the Depositary (“Agent
Members”) nor any other Persons on whose behalf Agent Members may
act shall have any rights under this Indenture with respect to any Global Note
registered in the name of the Depositary or any nominee thereof, and the
Depositary or such nominee, as the case may be, may be treated by the Issuer,
the Trustee and any agent of the Issuer or the Trustee as the absolute owner
and Noteholder of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other Person on whose behalf
an Agent Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a Noteholder.


 


14
















 


(vi)          At such time
as all interests in a Global Note have been redeemed, repurchased, exchanged,
or canceled for Notes in certificated form, such Global Note shall, upon
receipt thereof, be canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the
Custodian.  At any time prior to such
cancellation, if any interest in a Global Note is redeemed, repurchased,
exchanged, or canceled for Notes in certificated form, the principal amount of
such Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be
appropriately reduced, and an endorsement shall be made on such Global Note, by
the Note Registrar or the Custodian, at the direction of the Trustee, to
reflect such reduction.


 


(c)           Every Note
(and all securities issued in exchange therefor or in substitution thereof)
that bears or is required under this Section 2.05(c) to bear the
Restricted Notes Legend and any certificate for Common Shares that bears or is
required under this Section 2.05(c) to bear the Restricted Shares
Legend (collectively, the “Restricted Securities”)
shall be subject to the restrictions on Transfer set forth in this
Section 2.05(c) (including those set forth in such legends) unless
such restrictions on Transfer shall be waived by written consent of the Issuer,
and the holder of each such Restricted Security, by such Noteholder’s
acceptance thereof, agrees to be bound by all such restrictions on Transfer.  As used in this Section 2.05(c), the
term “Transfer” means any sale, pledge, loan,
transfer or other disposition whatsoever of any Restricted Security or any
interest therein.


 


Until the Maturity Date for the Notes any certificate
evidencing a Restricted Security that is a Note shall bear a legend in
substantially the following form (the “Restricted Notes Legend”),
or unless otherwise agreed by the Issuer in writing, with written notice
thereof to the Trustee:


 


NEITHER THIS SECURITY NOR THE
COMMON SHARES OF BENEFICIAL INTEREST ISSUABLE ON EXCHANGE OF THIS SECURITY HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.  NEITHER THIS SECURITY NOR THE COMMON SHARES
OF BENEFICIAL INTEREST ISSUABLE ON EXCHANGE OF THIS SECURITY, NOR ANY INTEREST
OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.  THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE
144A”)); (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY OR ANY COMMON SHARES OF BENEFICIAL INTEREST ISSUABLE ON
EXCHANGE OF THIS SECURITY, PRIOR TO THE TIME AT WHICH THIS SECURITY MAY BE
RESOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), ONLY (a) TO CORPORATE OFFICE PROPERTIES, L.P.  (THE “ISSUER”), (b) UNDER A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (c) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE UNDER RULE 144A, IN COMPLIANCE WITH
RULE 144A TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE


 


15

















 


TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR (d) UNDER ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING RULE 144), SUBJECT
TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER UNDER CLAUSE (d) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


THIS LEGEND WILL BE REMOVED ON
THE EARLIER OF THE TRANSFER OF THIS SECURITY UNDER CLAUSE 2(b) ABOVE OR ON
ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION).


 


Until the time at which such security may be sold
pursuant to Rule 144 under the Securities Act (or any successor provision),
any certificate evidencing Common Shares issued upon exchange of any Note shall
bear a legend in substantially the following form (the “Restricted
Shares Legend”), unless such Common Shares have been sold pursuant
to a registration statement that has been declared effective under the
Securities Act (and which continues to be effective at the time of such
Transfer) or pursuant to Rule 144 under the Securities Act or any similar
provision then in force, or unless otherwise agreed by the Issuer in writing,
with written notice thereof to the Trustee:


 


THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.  NEITHER THIS SECURITY, NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.  THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE
144A”)); (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY, PRIOR TO THE TIME AT WHICH THIS SECURITY MAY BE
RESOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), ONLY (a) TO CORPORATE OFFICE PROPERTIES, L.P.  (THE “ISSUER”), (b) UNDER A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (c) UNDER
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (INCLUDING RULE 144), SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER UNDER CLAUSE (c) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.


 


16

















 


THIS LEGEND WILL BE REMOVED ON
THE EARLIER OF THE TRANSFER OF THIS SECURITY UNDER CLAUSE 2(b) ABOVE OR ON
ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION).


 


Any such Common Shares as to which such restrictions
on Transfer shall have expired in accordance with their terms or as to which
the conditions for removal of the Restricted Shares Legend set forth therein
have been satisfied may, upon surrender of the certificates representing such
Common Shares for exchange in accordance with the procedures of the transfer
agent for the Common Shares, be exchanged for a new certificate or certificates
for a like number of Common Shares, which shall not bear the Restricted Shares
Legend required by this Section 2.05(c).


 


(d)           Any
Restricted Securities purchased or owned by the Issuer or any Affiliate thereof
may not be resold by the Issuer or such Affiliate unless registered under the
Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which results in such Notes
or Common Shares, as the case may be, no longer being “restricted securities”
(as defined under Rule 144).


 


(e)           The Trustee
shall have no responsibility or obligation to any Agent Members or any other
Person with respect to the accuracy of the books or records, or the acts or
omissions, of the Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Notes or with respect to
the delivery to any Agent Member or other Person (other than the Depositary) of
any notice (including any notice of redemption) or the payment of any amount,
under or with respect to such Notes.  All
notices and communications to be given to the Noteholders and all payments to
be made to Noteholders under the Notes shall be given or made only to or upon
the order of the registered Noteholders (which shall be the Depositary or its
nominee in the case of a Global Note). 
The rights of beneficial owners in any Global Note shall be exercised
only through the Depositary subject to the customary procedures of the
Depository.  The Trustee may conclusively
rely and shall be fully protected in relying upon information furnished by the
Depositary with respect to its Agent Members.


 


The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Note (including any transfers between or
among Agent Members in any Global Indenture) other than to require delivery of
such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.


 


Section 2.06           Mutilated, Destroyed, Lost or Stolen Notes. 
In case any Note shall become mutilated or be destroyed, lost or stolen,
the Issuer in its discretion may execute, and upon its written request the
Trustee or an authenticating agent appointed by the Trustee shall authenticate
and make available for delivery, a new Note, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen.  In every case, the applicant for
a substituted Note shall furnish to the Issuer, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or connected with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Issuer, to
the Trustee and, if applicable, to such authenticating agent evidence to their
satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.


 


17

















 


Following receipt by the Trustee or such
authenticating agent, as the case may be, of reasonable security or indemnity
as may be required and satisfactory evidence, as described in the preceding
paragraph, the Trustee or such authenticating agent may authenticate any such
substituted Note and make available for delivery such Note.  Upon the issuance of any substituted Note,
the Issuer may require the payment by the Noteholder of a sum sufficient to
cover any tax, assessment or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith.  In case any Note which has matured or is
about to mature or has been called for redemption or has been properly tendered
for repurchase on a Fundamental Change Repurchase Date (and not withdrawn) or
has been tendered for repurchase on a Repurchase Date (and not withdrawn), as
the case may be, or is to be exchanged pursuant to this Indenture, shall become
mutilated or be destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Note, pay or authorize the payment of or exchange or authorize the
exchange of the same (without surrender thereof except in the case of a
mutilated Note), as the case may be, if the applicant for such payment or
exchange shall furnish to the Issuer, to the Trustee and, if applicable, to
such authenticating agent such reasonable security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or in connection with such substitution, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the Issuer,
the Trustee and, if applicable, any Paying Agent or Exchange Agent evidence to
their satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.


 


Every substitute Note issued pursuant to the
provisions of this Section 2.06 by virtue of the fact that any Note is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Note shall be found
at any time, and shall be entitled to all the benefits of (but shall be subject
to all the limitations set forth in) this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.  To the extent permitted by law, all Notes
shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment or exchange
or redemption or repurchase of mutilated, destroyed, lost or stolen Notes and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment or exchange or redemption or repurchase of negotiable
instruments or other securities without their surrender.


 


Section 2.07           Temporary Notes.  Pending the
preparation of Notes in certificated form, the Issuer may execute and the
Trustee or an authenticating agent appointed by the Trustee shall, upon the
written request of the Issuer, authenticate and deliver temporary Notes
(printed or lithographed).  Temporary
Notes shall be issuable in any authorized denomination, and substantially in
the form of the Notes in certificated form, but with such omissions, insertions
and variations as may be appropriate for temporary Notes, all as may be determined
by the Issuer.  Every such temporary Note
shall be executed by the Issuer and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially the same
manner, and with the same effect, as the Notes in certificated form.  Without unreasonable delay, the Issuer will
execute and deliver to the Trustee or such authenticating agent Notes in
certificated form and thereupon any or all temporary Notes may be surrendered
in exchange therefor, at each office or agency maintained by the Issuer
pursuant to Section 4.02 and the Trustee or such authenticating agent
shall authenticate and make available for delivery in exchange for such
temporary Notes an equal aggregate principal amount of Notes in certificated
form.  Such exchange shall be made by the
Issuer at its own expense and without any charge therefor.  Until so exchanged, the temporary Notes shall
in all respects be entitled to the same benefits and subject to the same limitations
under this Indenture as Notes in certificated form authenticated and delivered
hereunder.


 


Section 2.08           Cancellation of Notes.  All Notes
surrendered for the purpose of payment, redemption, repurchase, exchange or
registration of transfer shall, if surrendered to the Issuer or any paying agent
to whom Notes may be presented for payment (the “Paying Agent”)
or Exchange Agent,


 


18

















 


which shall initially be
the Trustee, or any Note Registrar, be surrendered to the Trustee and promptly
canceled by it or, if surrendered to the Trustee, shall be promptly canceled by
it and no Notes shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. 
The Trustee shall dispose of such canceled Notes in accordance with its
customary procedures.  If the Issuer
shall acquire any of the Notes, such acquisition shall not operate as a
redemption, repurchase or satisfaction of the indebtedness represented by such
Notes unless and until the same are delivered to the Trustee for cancellation.


 


Section 2.09           CUSIP Numbers.  The Issuer in
issuing the Notes may use CUSIP numbers (if then generally in use), and, if so,
the Trustee shall use CUSIP numbers in notices of redemption as a convenience
to Noteholders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers. 
The Issuer will promptly notify the Trustee in writing of any change in
the CUSIP numbers.


 


ARTICLE 3


 


REDEMPTION AND
REPURCHASE OF NOTES


 


Section 3.01           Optional Redemption of Notes.


 


The Issuer shall have the right to redeem the Notes
for cash, in whole or in part, (i) prior to April 20, 2015, if the
Issuer determines it is necessary to redeem the Notes in order to preserve the
Guarantor’s status as a real estate investment trust and (ii) at any time
or from time to time, on or after April 20, 2015, in each case upon the
notice set forth in Section 3.02 at a redemption price (“Redemption Price”) equal to 100% of the principal amount of
the Notes to be redeemed plus unpaid interest, if any, accrued thereon to, but
excluding, the Redemption Date; provided, however that if the Redemption Date falls after a Record
Date and on or prior to the corresponding Interest Payment Date, the Issuer
will pay the full amount of accrued and unpaid interest, if any, on such
Interest Payment Date to the Noteholder of record at the Close of Business on
the corresponding Record Date (instead of the Noteholder surrendering its Notes
for redemption) and the Redemption Price shall be equal to 100% of the
principal amount of the Notes to be redeemed. 
In connection with any redemption by the Issuer pursuant to clause
(i) in this Section 3.01(a), the Issuer shall provide the Trustee
with an Officers’ Certificate evidencing that the Board of Trustees has, in
good faith, made the determination that it is necessary to redeem the Notes in
order to preserve the Guarantor’s status as a real estate investment trust.


 


Section 3.02           Notice of Optional Redemption; Selection of Notes. 
In case the Issuer shall desire to exercise the right to redeem all or
any part of the Notes pursuant to Section 3.01, it shall fix a date for
redemption and it or, at its written request received by the Trustee not fewer
than ten days prior (or such shorter period of time as may be acceptable to the
Trustee) to the date the notice of redemption is to be delivered, the Trustee
in the name of and at the expense of the Issuer, shall deliver or cause to be
delivered a notice of such redemption not fewer than 30 days nor more than 60
days prior to the Redemption Date to each Noteholder so to be redeemed in whole
or in part at its last address as the same appears on the Note Register; provided that if the Issuer makes such request of the
Trustee, it shall, together with such request, also give written notice of the
Redemption Date to the Trustee, provided further
that the text of the notice shall be prepared by the Issuer.  Such delivery shall be by first-class mail
or, in the case of Global Notes, pursuant to the Applicable Procedures.  The notice, if delivered in the manner herein
provided, shall be conclusively presumed to have been duly given, whether or
not any such Noteholder receives such notice. 
In any case, failure to give such notice by mail or by electronic


 


19

















 


transmission or any
defect in the notice to the Noteholder of any Note designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note.


 


Each such notice of redemption shall specify:  (i) the aggregate principal amount of
Notes to be redeemed, (ii) the CUSIP number or numbers of the Notes being
redeemed, (iii) the Redemption Date (which shall be a Business Day),
(iv) the Redemption Price at which Notes are to be redeemed, (v) the
place or places of payment and that payment will be made upon presentation and
surrender of such Notes, (vi) that interest accrued and unpaid to, but
excluding, the Redemption Date will be paid as specified in said notice, and
that on and after said date interest thereon or on the portion thereof to be
redeemed will cease to accrue, (vii) that the Noteholder has a right to
exchange the Notes called for redemption, (viii) the Exchange Rate on the
date of such notice and (ix) the time and date on which the right to
exchange such Notes or portions thereof pursuant to this Indenture will
expire.  If fewer than all the Notes are
to be redeemed, the notice of redemption shall identify the Notes to be
redeemed (including CUSIP numbers, if any). 
In case any Note is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that, on and after the Redemption Date, upon surrender
of such Note, a new Note or Notes in principal amount equal to the unredeemed
portion thereof will be issued.


 


Whenever any Notes are to be redeemed, the Issuer will
give the Trustee written notice of the Redemption Date, together with an
Officers’ Certificate as to the aggregate principal amount of Notes to be
redeemed, not fewer than 30 days (or such shorter period of time as may be
acceptable to the Trustee) prior to the Redemption Date.


 


On or prior to the Redemption Date specified in the
notice of redemption given as provided in this Section 3.02, the Issuer
will deposit with the Paying Agent (or, if the Issuer is acting as its own
Paying Agent, set aside, segregate and hold in trust as provided in
Section 4.04(b)) an amount of money in immediately available funds sufficient
to redeem on the Redemption Date all the Notes (or portions thereof) so called
for redemption (other than those theretofore surrendered for exchange) at the
appropriate Redemption Price; provided that
if such payment is made on the Redemption Date, it must be received by the
Paying Agent, by 11:00 a.m., New York City time, on such date.  The Issuer shall be entitled to retain any
interest, yield or gain on amounts deposited with the Paying Agent pursuant to
this Section 3.02 in excess of amounts required hereunder to pay the
Redemption Price.  If any Note called for
redemption is exchanged pursuant hereto prior to such Redemption Date, any
money deposited with the Paying Agent or so segregated and held in trust for
the redemption of such Note shall be paid to the Issuer or, if then held by the
Issuer, shall be discharged from such trust.


 


If less than all of the Outstanding Notes are to be
redeemed, the Trustee shall select the Notes or portions thereof of the Global
Note or the Notes in certificated form to be redeemed (in principal amounts of
$1,000 or multiples thereof) by lot, on a pro rata basis or by another method
the Trustee deems fair and appropriate (in such manner as complies with
Applicable Procedures).  If any
certificated Note selected for redemption is submitted for exchange in part
after such selection, the portion of such certificated Note submitted for
exchange shall be deemed (so far as may be possible) to be the portion to be
selected for redemption.  The Notes (or
portions thereof) so selected for redemption shall be deemed duly selected for
redemption for all purposes hereof, notwithstanding that any such Note is
submitted for exchange in part before the provision of the notice of
redemption.


 


Upon any redemption of less than all of the Outstanding
Notes, the Issuer and the Trustee may (but need not), solely for purposes of
determining the pro rata allocation among such Notes that are unexchanged and
Outstanding at the time of redemption, treat as Outstanding any Notes
surrendered for exchange during the period of 15 days preceding the provision
of a notice of redemption and may (but


 


20

















 


need not) treat as
Outstanding any Note authenticated and delivered during such period in exchange
for the unexchanged portion of any Note exchanged in part during such period.


 


Section 3.03           Payment of Notes Called for Redemption by the Issuer. 
If notice of redemption has been given as provided in Section 3.02,
the Notes or portion of Notes with respect to which such notice has been given
shall, unless exchanged pursuant to the terms hereof, become due and payable on
the Redemption Date and at the place or places stated in such notice at the
Redemption Price, and unless the Issuer shall default in the payment of such
Notes at the Redemption Price, interest on the Notes or portion of Notes so
called for redemption shall cease to accrue on and after the Redemption Date
and, after the Close of Business, on the second Business Day immediately
preceding the Redemption Date (unless the Issuer shall default in the payment
of the Redemption Price) such Notes shall cease to be exchangeable pursuant to
this Indenture and, except as provided in Section 7.05 and
Section 11.02, to be entitled to any benefit or security under this
Indenture, and the Noteholders thereof shall have no right in respect of such
Notes except the right to receive the Redemption Price thereof.  On presentation and surrender of such Notes
at a place of payment in said notice specified, the said Notes or the specified
portions thereof shall be paid and redeemed by the Issuer at the Redemption
Price, together with interest accrued thereon to, but excluding, the Redemption
Date.


 


Upon presentation of any Note redeemed in part only,
the Issuer shall execute and the Trustee shall authenticate and make available
for delivery to the Noteholder thereof, at the expense of the Issuer, a new
Note or Notes, of authorized denominations, in principal amount equal to the
unredeemed portion of the Notes so presented.


 


Section 3.04           Sinking Fund.  There shall
be no sinking fund provided for the Notes.


 


Section 3.05           Repurchase of Notes at Option of the Noteholder on
Specified Dates.


 


(a)           At the
option of the Noteholder thereof, Notes shall be repurchased by the Issuer in
accordance with the provisions herein on each of April 15, 2015,
April 15, 2020 or April 15, 2025 (each, a “Put Right
Repurchase Date”) at a repurchase price per Note equal to 100% of
the aggregate principal amount of the Notes being repurchased, together with any
accrued and unpaid interest up to, but not including, such Put Right Repurchase
Date (the “Put Right Repurchase Price”).


 


Repurchases of Notes by the Issuer pursuant to this
Section 3.05 shall be made, at the option of the Noteholder thereof, upon:


 


(i)            delivery to
the Trustee (or other Paying Agent appointed by the Issuer) by the Noteholder
of a written notice of purchase (a “Put Right Repurchase
Notice”) in the form set forth on the reverse of the Note at any
time from the Open of Business on the date that is 25 Business Days prior to
the applicable Put Right Repurchase Date until the Close of Business on the
fifth Business Day prior to such Put Right Repurchase Date stating:


 


(A)          if
certificated, the certificate numbers of the Notes to be delivered for
repurchase;


 


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


 


(C)           that the
Notes are to be repurchased as of the applicable Put Right Repurchase Date
pursuant to the terms and conditions specified in the Notes and in this
Indenture; and


 


21

















 


(ii)           delivery of
such Note to the Paying Agent prior to, on or after the Put Right Repurchase
Date (together with all necessary endorsements) at the offices of the Paying
Agent, such delivery being a condition to receipt by the Noteholder of the Put
Right Repurchase Price therefor; provided that
such Put Right Repurchase Price shall be so paid pursuant to this
Section 3.05 only if the Note so delivered to the Trustee (or other Paying
Agent appointed by the Issuer) shall conform in all respects to the description
thereof in the related Put Right Repurchase Notice.


 


The Issuer shall repurchase from the Noteholder
thereof, pursuant to this Section 3.05, a portion of a Note if the
principal amount of such portion is $1,000 or an integral multiple of
$1,000.  Provisions of this Indenture
that apply to the repurchase of all of a Note also apply to the repurchase of
such portion of such Note.


 


Any repurchase by the Issuer contemplated pursuant to
the provisions of this Section 3.05 shall be consummated by the delivery
of the consideration to be received by the Noteholder promptly following the
later of the Put Right Repurchase Date and the time of delivery of the Note.


 


The Trustee (or other Paying Agent appointed by the
Issuer) shall promptly notify the Issuer of the receipt by it of any Put Right
Repurchase Notice or written notice of withdrawal thereof in accordance with
the provisions of Section 3.05(d).


 


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


 


(b)           In
connection with any purchase of Notes pursuant to this Section 3.05, the
Issuer shall give written notice of the Put Right Repurchase Date to the
Noteholders (the “Issuer Put Right Notice”).


 


The Issuer Put Right Notice shall be sent by
first-class mail to the Trustee and to each Noteholder at least 25 Business
Days prior to the applicable Put Right Repurchase Date (the “Issuer Put Right Notice Date”).  Each Issuer Put Right Notice shall include a
form of Put Right Repurchase Notice to be completed by a Noteholder and shall
state:


 


(i)            the Put
Right Repurchase Price and the Exchange Price;


 


(ii)           the name and
address of the Paying Agent and the Exchange Agent;


 


(iii)          that Notes
as to which a Put Right Repurchase Notice has been given may be exchanged in
accordance with Article 13 only if the applicable Put Right Repurchase
Notice has been withdrawn in accordance with the terms of this Indenture;


 


(iv)          that Notes
must be surrendered to the Paying Agent to collect payment;


 


(v)           that the Put
Right Repurchase Price for any Note as to which a Put Right Repurchase Notice
has been given and not withdrawn will be paid promptly following the later of
the Put Right Repurchase Date and the time of surrender of such Note as
described in subclause (iv) above;


 


22

















 


(vi)          the
procedures the Noteholder must follow to exercise rights under this
Section 3.05 and a brief description of those rights;


 


(vii)         briefly, the
exchange rights of the Notes;


 


(viii)        the
procedures for withdrawing a Put Right Repurchase Notice (including pursuant to
the terms of Section 3.05(d));


 


(ix)           that, unless
the Issuer defaults in making payment on Notes for which a Put Right Repurchase
Notice has been submitted, interest on the Notes in respect of which a Put
Right Repurchase Notice has been delivered and not withdrawn will cease to
accrue on the Put Right Repurchase Date; and


 


(x)            the CUSIP
number of the Notes.


 


At the Issuer’s request, the Trustee shall give such
Issuer Put Right Notice in the Issuer’s name and at the Issuer’s expense; provided, however, that,
in all cases, the text of such Issuer Put Right Notice shall be prepared by the
Issuer.


 


(c)           Upon receipt
by the Trustee (or other Paying Agent appointed by the Issuer) of the Put Right
Repurchase Notice specified in Section 3.05(b)(i), the Noteholder of the
Note in respect of which such Put Right Repurchase Notice was given shall
(unless such Put Right Repurchase Notice is withdrawn as specified in
Section 3.05(d)) thereafter be entitled to receive solely the Put Right
Repurchase Price with respect to such Note. 
Such Put Right Repurchase Price shall be paid to such Holder, subject to
receipt of funds by the Paying Agent, promptly following the later of
(x) the applicable Put Right Repurchase Date (provided the conditions in
Section 3.05(b) have been satisfied) and (y) the time of
delivery of such Note to the Paying Agent by the Noteholder thereof in the
manner required by Section 3.05(a)(ii). 
Notes in respect of which a Put Right Repurchase Notice has been given
by the Noteholder thereof may not be exchanged pursuant to Article 13 on
or after the date of the delivery of such Put Right Repurchase Notice, unless
such Put Right Repurchase Notice has first been validly withdrawn as specified
in Section 3.05(d).


 


(d)           A Put Right
Repurchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Put Right
Repurchase Notice at any time prior to 10:00 a.m. New York City time on
the Business Day prior to the Put Right Repurchase Date specifying:


 


(i)            if
certificated Notes have been issued, the certificate numbers of the withdrawn
Notes;


 


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


 


(iii)          the
principal amount, if any, of such Notes that remains subject to the original
Put Right Repurchase Notice, which portion must be in principal amounts of
$1,000 or an integral multiple of $1,000;


 


provided, however, that
if the Notes are in the form of a Global Note, the notice must comply with the
Applicable Procedures.


 


23

















 


A written notice of withdrawal of a Put Right
Repurchase Notice shall be in the form set forth in the preceding paragraph.


 


Upon receipt of a written notice of withdrawal, the
Paying Agent shall promptly return to the Noteholders thereof any Notes in
respect of which a Put Right Repurchase Notice has been withdrawn in accordance
with the provisions of this Section 3.05(d).


 


(e)           There shall
be no repurchase of any Notes pursuant to this Section 3.05 if there has
occurred (prior to, on or after, as the case may be, the giving, by the
Noteholders of such Notes, of the required Put Right Repurchase Notice) and is
continuing an Event of Default with respect to the Notes (other than a Default
in the payment of the Put Right Repurchase Price with respect to such
Notes).  The Paying Agent will promptly
return to the respective Noteholders thereof any Notes held by it during the
continuance of an Event of Default with respect to Notes (other than a Default
in the payment of the Put Right Repurchase Price with respect to such Notes),
in which case, upon such return, the Put Right Repurchase Notice with respect
thereto shall be deemed to have been withdrawn.


 


(f)            Prior to 11:00 a.m.
(New York City time) on the Put Right Repurchase Date, the Issuer shall deposit
with the Trustee (or other Paying Agent appointed by the Issuer or if the
Issuer is acting as its own Paying Agent, set aside, segregate and hold in
trust in accordance with Section 4.04(b)) an amount (in immediately
available funds if deposited on such Business Day) sufficient to pay the
aggregate Put Right Repurchase Price of all the Notes or portions thereof which
are to be purchased as of the Put Right Repurchase Date.  The manner in which the deposit required by
this Section 3.05(f) is made by the Issuer shall be at the option of
the Issuer; provided that such deposit shall be made
in a manner such that the Trustee or a Paying Agent shall have immediately
available funds on the Put Right Repurchase Date.


 


If the Trustee (or other Paying Agent appointed by the
Issuer) holds, in accordance with the terms hereof, money sufficient to pay the
Put Right Repurchase Price of any Note, then, on the Put Right Repurchase Date,
such Note will cease to be Outstanding and the rights of the Noteholder in
respect thereof shall terminate (other than the right to receive the Put Right
Repurchase Price as aforesaid).


 


To the extent that the aggregate amount of cash
deposited by the Issuer pursuant to this Section 3.05(f) exceeds the
aggregate Put Right Repurchase Price of the Notes or portions thereof that the
Issuer is obligated to purchase, then promptly after the Put Right Repurchase
Date the Trustee or a Paying Agent, as the case may be, shall return any such
excess cash to the Issuer.


 


(g)           Notwithstanding
anything in this Section 3.05 to the contrary, if any of the Notes are in
the form of a Global Note, the repurchase of such Notes (including the delivery
or withdrawal thereof by the Holder) shall be made in accordance with the
Applicable Procedures and the Put Right Repurchase Notice, the Issuer Put Right
Notice and any notice of withdrawal shall be modified to the extent necessary
to accord therewith.


 


Section 3.06           Repurchase of Notes at
Option of Noteholders Upon a Fundamental Change.


 


(a)           If a
Fundamental Change occurs at any time, then each Noteholder shall have the
right, at such Noteholder’s option, to require the Issuer to repurchase all of
such Noteholder’s Notes or any portion thereof that is a multiple of $1,000
principal amount, for cash on the date (the “Fundamental
Change Repurchase Date”) specified by the Issuer that is not less
than 20 Business Days and not more than 35 Business Days after the date of the
Fundamental Change Issuer Notice at a repurchase price equal to 100% of the
principal amount thereof, together with accrued and unpaid interest thereon to,
but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).


 


24
















 


Repurchases of Notes under this Section 3.06
shall be made, at the option of the Noteholder thereof, upon:


 


(i)            delivery to
the Trustee (or other Paying Agent appointed by the Issuer) by a Noteholder of
a duly completed notice (the “Fundamental Change Repurchase
Notice”) in the form set forth on the reverse of the Note prior to
the Close of Business on the Fundamental Change Repurchase Date stating:


 


(A)          if
certificated, the certificate numbers of Notes to be delivered for repurchase;


 


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


 


(C)           that the
Notes are to be repurchased by the Issuer pursuant to the applicable provisions
of the Notes and this Indenture; and


 


(ii)           delivery of
the Notes to the Paying Agent at any time after delivery of the Fundamental
Change Repurchase Notice (together with all necessary endorsements) at offices
of the Paying Agent, such delivery being a condition to receipt by the
Noteholder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall
be so paid pursuant to this Section 3.06 only if the Note so delivered to
the Trustee (or other Paying Agent appointed by the Issuer) shall conform in
all respects to the description thereof in the related Fundamental Change
Repurchase Notice.


 


Any repurchase by the Issuer contemplated pursuant to
the provisions of this Section 3.06 shall be consummated by the delivery
of the consideration to be received by the Noteholder promptly following the
later of the Fundamental Change Repurchase Date and the time of delivery of the
Note.


 


The Trustee (or other Paying Agent appointed by the
Issuer) shall promptly notify the Issuer of the receipt by it of any
Fundamental Change Repurchase Notice or written notice of withdrawal thereof in
accordance with the provisions of Section 3.06(c).


 


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


 


(b)           On or before
the twentieth day after the occurrence of any Fundamental Change, the Issuer
shall provide to all Noteholders of record and the Trustee and Paying Agent a
notice (the “Fundamental Change Issuer Notice”)
of the occurrence of such Fundamental Change and of the repurchase right at the
option of the Noteholders arising as a result thereof.  Such notice shall be by first-class
mail.  Each Fundamental Change Issuer
Notice shall specify:


 


(i)            the events
causing the Fundamental Change;


 


(ii)           the date of
the Fundamental Change;


 


25

















 


(iii)          that the
Noteholder must exercise the repurchase right on or prior to the Close of
Business on the Fundamental Change Repurchase Date;


 


(iv)          the
Fundamental Change Repurchase Price;


 


(v)           the
Fundamental Change Repurchase Date;


 


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


 


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


 


(viii)        that the
Notes with respect to which a Fundamental Change Repurchase Notice has been
delivered by a Noteholder may be exchanged only if the Noteholder withdraws the
Fundamental Change Repurchase Notice in accordance with the terms of this
Indenture; and


 


(ix)           the
procedures that Noteholders must follow to require the Issuer to repurchase
their Notes.


 


No failure of the Issuer to give the foregoing notices
and no defect therein shall limit the Noteholders’ repurchase rights or affect
the validity of the proceedings for the repurchase of the Notes pursuant to
this Section 3.06.


 


(c)           A
Fundamental Change Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the Paying Agent in accordance with the
Fundamental Change Issuer Notice at any time prior to the Close of Business on
the Business Day prior to the Fundamental Change Repurchase Date, specifying:


 


(i)            the
principal amount of the Notes with respect to which such notice of withdrawal
is being submitted;


 


(ii)           if
certificated Notes have been issued, the certificate numbers of the withdrawn
Notes; and


 


(iii)          the
principal amount, if any, of such Notes that remains subject to the original
Fundamental Change Repurchase Notice, which portion must be in principal
amounts of $1,000 or an integral multiple of $1,000.


 


(d)           On or prior
to 11:00 a.m. (New York City time) on the second Business Day prior to the
Fundamental Change Repurchase Date, the Issuer will deposit with the Trustee
(or other Paying Agent appointed by the Issuer, or, if the Issuer is acting as
its own Paying Agent, set aside, segregate and hold in trust as provided in
Section 4.04(b)) an amount of money sufficient to repurchase on the
Fundamental Change Repurchase Date all of the Notes to be repurchased on such
date at the Fundamental Change Repurchase Price.  Subject to receipt of funds and/or Notes by
the Trustee (or other Paying Agent appointed by the Issuer), payment for Notes
surrendered for repurchase (and not withdrawn) prior to the Close of Business
on the Fundamental Change Repurchase Date will be made promptly after the later
of (x) the Fundamental Change Repurchase Date with respect to such Note
(provided the Noteholder has satisfied the conditions to the payment of the Fundamental
Change Repurchase Price in this Section 3.06), and (y) the time of
book entry transfer or the delivery of such Note to the Trustee (or other
Paying Agent appointed by the Issuer) by the Noteholder thereof in the manner
required by this Section 3.06 by mailing checks for the amount payable to
the Noteholders of such Notes entitled thereto as they shall appear in the


 


26

















 


Note
Register, provided, however,
that payments to the Depositary shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.  The Trustee shall, promptly after such
payment and upon written demand by the Issuer, return to the Issuer any funds
in excess of the Fundamental Change Repurchase Price.


 


(e)           If the
Trustee (or other Paying Agent appointed by the Issuer) holds money or
securities sufficient to repurchase on the Fundamental Change Repurchase Date
all the Notes or portions thereof that are to be purchased as of the second
Business Day prior to the Fundamental Change Repurchase Date, then on and after
the Fundamental Change Repurchase Date (i) such Notes will cease to be
Outstanding, (ii) interest will cease to accrue on such Notes, and
(iii) all other rights of the Noteholders of such Notes will terminate,
whether or not book entry transfer of the Notes has been made or the Notes have
been delivered to the Trustee or Paying Agent, other than the right to receive
the Fundamental Change Repurchase Price upon delivery of the Notes.


 


(f)            No Notes may
be purchased pursuant to this Section 3.06 if there has occurred and is
continuing an Event of Default other than an Event of Default that is cured by
the payment of the Fundamental Change Repurchase Price.


 


(g)           Notwithstanding
anything in this Section 3.06 to the contrary, if any of the Notes are in
the form of a Global Note, the repurchase of such Notes (including the delivery
or withdrawal thereof by the Holder) shall be made in accordance with the
Applicable Procedures and the Fundamental Change Repurchase Notice, the
Fundamental Change Issuer Notice and any notice of withdrawal shall be modified
to the extent necessary to accord therewith.


 


ARTICLE 4


 


PARTICULAR
COVENANTS OF THE ISSUER


 


Section 4.01           Payment
of Principal, Premium and Interest.  The Issuer
covenants and agrees that it will duly and punctually pay or cause to be paid
when due the principal of (including the Redemption Price upon redemption or
the repurchase price upon repurchase, in each case pursuant to Article 3),
and premium, if any, and interest and Additional Interest, if any, on each of
the Notes at the places, at the respective times and in the manner provided
herein and in the Notes.


 


Section 4.02           Maintenance
of Office or Agency.  The Issuer will maintain an office or agency,
where the Notes may be surrendered for registration of transfer or exchange or
for presentation for payment or for exchange, redemption or repurchase and
where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served.  As of the
date of this Indenture, such office shall be the Corporate Trust Office and, at
any other time, at such other address as the Trustee may designate from time to
time by prompt written notice to the Issuer. 
The Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency not
designated or appointed by the Trustee. 
If at any time the Issuer shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office.


 


The Issuer may also from time to time designate
co-registrars and one or more 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 Issuer
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.


 


27

















 


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


 


So long as the Trustee is the Note Registrar, the
Trustee agrees to deliver, or cause to be delivered, the notices set forth in
Section 7.10 and the third paragraph of Section 7.11.  If co-registrars have been appointed in
accordance with this Section, the Trustee shall deliver such notices only to
the Issuer and the Noteholders it can identify from its records.


 


Section 4.03           Appointments
to Fill Vacancies in Trustee’s Office.  The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, upon the terms and conditions and otherwise as provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.


 


Section 4.04           Provisions
as to Paying Agent.


 


(a)           If the
Issuer shall appoint a Paying Agent other than the Trustee, or if the Trustee
shall appoint such a Paying Agent, the Issuer will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section 4.04:


 


(i)            that it will
hold all sums held by it as such agent for the payment of the principal of and
premium, if any, or interest and Additional Interest, if any, on the Notes
(whether such sums have been paid to it by the Issuer or by any other obligor
on the Notes) in trust for the benefit of the Noteholders;


 


(ii)           that it will
give the Trustee notice of any failure by the Issuer (or by any other obligor
on the Notes) to make any payment of the principal of and premium, if any, or
interest and Additional Interest, if any, on the Notes when the same shall be
due and payable; and


 


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


 


The Issuer shall, on or before each due date of the
principal of, premium, if any, or interest and Additional Interest, if any, on
the Notes, deposit with the Paying Agent a sum (in funds which are immediately
available on the due date for such payment) sufficient to pay such principal,
premium, if any, or interest and Additional Interest, if any, and (unless such
Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action; provided that
if such deposit is made on the due date, such deposit shall be received by the
Paying Agent by 11:00 a.m. New York City time, on such date.


 


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


 


(c)           Anything in
this Section 4.04 to the contrary notwithstanding, the Issuer may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture,
or for any other reason,


 


28

















 


pay or
cause to be paid to the Trustee all sums held in trust by the Issuer or any
Paying Agent hereunder as required by this Section 4.04, such sums to be
held by the Trustee upon the trusts herein contained and upon such payment by
the Issuer or any Paying Agent to the Trustee, the Issuer or such Paying Agent
shall be released from all further liability with respect to such sums.


 


(d)           Anything in
this Section 4.04 to the contrary notwithstanding, the agreement to hold
sums in trust as provided in this Section 4.04 is subject to
Section 11.02 and Section 11.03.


 


The Trustee shall not be responsible for the actions
of any other Paying Agents (including the Issuer if acting as its own Paying
Agent) and shall have no control of any funds held by such other Paying Agents.


 


Section 4.05           Existence. 
Subject to Article 10, each of the Issuer and the Guarantor will do
or cause to be done all things necessary to preserve and keep in full force and
effect its existence and rights (charter and statutory); provided
that neither the Issuer nor the Guarantor shall be required to preserve any
such right if the Issuer or the Guarantor, as applicable, shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Issuer or the Guarantor, as applicable, and that the loss thereof is not
disadvantageous in any material respect to the Noteholders.


 


Section 4.06           Rule 144A
Information Requirement.  If so required by
Rule 144A the Guarantor and the Issuer will promptly furnish to the
Noteholders, beneficial owners and prospective purchasers of the Notes, upon
their request, the information required to be delivered pursuant to
Rule 144A(d)(4) to facilitate the resale of the Notes pursuant to
Rule 144A.


 


Section 4.07           Stay,
Extension and Usury Laws.  The Issuer covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law or other law which would prohibit or forgive
the Issuer from paying all or any portion of the principal, premium, if any, or
interest and Additional Interest, if any, on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture and the Issuer (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.


 


Section 4.08           Compliance
Certificate.  Within 120 days after the end of each fiscal
year of the Issuer, the Issuer shall deliver to the Trustee a certificate
signed by any of the principal executive officer, principal financial officer
or principal accounting officer of the Issuer, stating whether or not the
signer has knowledge of any Default under this Indenture, and, if so,
specifying each Default and the nature and the status thereof.


 


The Issuer will deliver to the Trustee, promptly upon
becoming aware of (i) any Default in the performance or observance of any
covenant, agreement or condition contained in this Indenture, or (ii) any
Event of Default, an Officers’ Certificate specifying with particularity such
Default or Event of Default and further stating what action the Issuer has
taken, is taking or proposes to take with respect thereto.


 


Section 4.09           Additional
Interest Notice.  In the event that the Issuer is required to
pay Additional Interest to Noteholders pursuant to the Registration Rights
Agreement, the Issuer will provide written notice (“Additional
Interest Notice”) to the Trustee of its obligation to pay Additional
Interest prior to the proposed Interest Payment Date for Additional Interest,
and the Additional Interest Notice


 


29

















 


shall set forth the amount of Additional Interest to be paid by the
Issuer on such Interest Payment Date. 
The Trustee shall not at any time be under any duty or responsibility to
any Noteholder to determine the Additional Interest, or with respect to the
nature, extent or calculation of the amount of Additional Interest when made,
or with respect to the method employed in such calculation of the Additional
Interest.


 


ARTICLE 5


 


NOTEHOLDERS’
LISTS AND REPORTS BY THE TRUSTEE


 


Section 5.01           Noteholders’
Lists.  The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee, semiannually, not more than 15
days after each April 15 and October 15 of each year beginning with
October 15, 2010, and at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the Issuer of any such
request (or such lesser time as the Trustee may reasonably request in order to
enable it to timely provide any notice to be provided by it hereunder), a list
in such form as the Trustee may reasonably require of the names and addresses
of the Noteholders as of a date not more than 15 days (or such other date as
the Trustee may reasonably request in order to so provide any such notices)
prior to the time such information is furnished, except that no such list need
be furnished by the Issuer to the Trustee so long as the Trustee is acting as
the sole Note Registrar.


 


Section 5.02           Preservation
and Disclosure of Lists.


 


(a)           The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Noteholders contained in the
most recent list furnished to it as provided in Section 5.01 or maintained
by the Trustee in its capacity as Note Registrar or co-registrar in respect of
the Notes, if so acting.  The Trustee may
destroy any list furnished to it as provided in Section 5.01 upon receipt
of a new list so furnished.


 


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


 


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


 


Section 5.03           Reports
by Trustee.


 


(a)           Within 60
days after April 15 of each year beginning with April 15, 2011, the
Trustee shall transmit to Noteholders such reports dated as of April 15 of
the year in which such reports are made concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.  In the event that no events have occurred
under the applicable sections of the Trust Indenture Act the Trustee shall be
under no duty or obligation to provide such reports.


 


(b)           A copy of
such report shall, at the time of such transmission to Noteholders, be filed by
the Trustee with each stock exchange and automated quotation system, if any,
upon which the Notes are listed and with the Issuer.  The Issuer will promptly notify the Trustee
in writing if the Notes are listed on any stock exchange or automated quotation
system or de-listed therefrom.


 


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ARTICLE 6


 


REMEDIES OF THE
TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT


 


Section 6.01           Events
of Default.  In case one or more of the following (each,
an “Event of Default”) (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body) shall have occurred and be continuing:


 


(a)           default for
30 days in the payment of any installment of interest under the Notes; or


 


(b)           default in
the payment of the principal amount or any repurchase price or Redemption Price
due with respect to the Notes, when the same becomes due and payable; or


 


(c)           the Issuer
fails to deliver cash, Common Shares or a combination of cash and Common Shares
within 15 days after the due date upon an exchange of Notes, together with any
cash due in lieu of fractional shares, all as described in Article 13; or


 


(d)           the Issuer
fails to comply with any of the Issuer’s other agreements contained in the
Notes or this Indenture upon receipt by the Issuer of notice of such default by
the Trustee or by Noteholders of not less than 25% in aggregate principal
amount of the Notes then Outstanding and the Issuer fails to cure (or obtain a
waiver of) such default within 60 days after the Issuer receives such notice;
or


 


(e)           a default by
the Issuer, the Guarantor or any of their respective subsidiaries in the
payment when due, after the expiration of any applicable grace period, of
principal of, or premium, if any, or interest on, Recourse Indebtedness in the
aggregate principal amount then outstanding of $30.0 million or more, or
acceleration of the Issuer’s or the Guarantor’s respective subsidiaries’
Recourse Indebtedness in the aggregate principal amount of $30.0 million or
more so that it becomes due and payable before the date on which it would
otherwise have become due and payable, if such default is not cured or waived,
or such acceleration is not rescinded, within 60 days after notice to the
Issuer by the Trustee or to the Issuer and the Trustee by Noteholders at least
25% in the aggregate principal amount of the Notes then Outstanding, in
accordance with this Indenture; or


 


(f)            the Issuer
fails to provide timely notice in connection with the events described in and
as contemplated by Section 13.01(e); or


 


(g)           the Issuer,
the Guarantor or any of their Significant Subsidiaries:


 


(i)            commences a
voluntary case or proceeding seeking liquidation, reorganization or other
relief with respect to the Issuer, the Guarantor or such Significant Subsidiary
or its debts or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of the Issuer, the Guarantor or such
Significant Subsidiary or any substantial part of the property of the Issuer,
the Guarantor or such Significant Subsidiary; or


 


(ii)           consents, in
the context of any bankruptcy proceedings as specified in
Section 6.01(g)(i), to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against the Issuer, the Guarantor or such Significant Subsidiary; or


 


31

















 


(iii)          consents, in
the context of any bankruptcy proceedings as specified in
Section 6.01(g)(i), to the appointment of a custodian of it or for all or
substantially of its property; or


 


(iv)          makes a
general assignment for the benefit of creditors; or


 


(h)           an
involuntary case or other proceeding shall be commenced against the Issuer, the
Guarantor or any of their Significant Subsidiaries seeking liquidation,
reorganization or other relief with respect to the Issuer, the Guarantor or any
or their Significant Subsidiaries or their debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official of the
Issuer, the Guarantor or any of their Significant Subsidiaries or any
substantial part of the property of the Issuer, the Guarantor or any of their
Significant Subsidiaries, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 30 days; or


 


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


 


(i)            is for
relief against the Issuer, the Guarantor or any of their Significant
Subsidiaries in an involuntary case or proceeding; or


 


(ii)           appoints a
trustee, receiver, liquidator, custodian or other similar official of the
Issuer, the Guarantor or any of their Significant Subsidiaries or any substantial
part of the property of the Issuer, the Guarantor or any of their Significant
Subsidiaries; or


 


(iii)          orders the
liquidation of the Issuer, the Guarantor or any of their Significant
Subsidiaries; and, in each case in this clause (i), the order or decree remains
unstayed and in effect for 30 days;


 


then, and in each and every such case (other than an
Event of Default specified in Section 6.01(g), 6.01(h) and
6.01(i) with respect to the Issuer), unless the principal of all of the
Notes shall have already become due and payable, either the Trustee or the
Noteholders of at least 25% in aggregate principal amount of the Notes then
Outstanding, by notice in writing to the Issuer and the Guarantor (and to the
Trustee if given by Noteholders), may declare the principal amount of and
premium, if any, and interest and Additional Interest, if any, accrued and
unpaid on all the Notes to be immediately due and payable, and upon any such
declaration the same shall be immediately due and payable.


 


If an Event of Default specified in
Section 6.01(g), 6.01(h) or 6.01(i) occurs with respect to the
Issuer, the principal amount of and premium, if any, and interest and
Additional Interest, if any, accrued and unpaid on all the Notes shall be
immediately and automatically due and payable without necessity of further
action.


 


If, at any time after the principal amount of and
premium, if any, and interest and Additional Interest, if any, on the Notes
shall have been so declared due and payable, and before any judgment or decree
for the payment of the monies due shall have been obtained or entered as
hereinafter provided, Noteholders of a majority in aggregate principal amount
of the Notes then Outstanding on behalf of the Noteholders of all of the Notes
then Outstanding, by written notice to the Issuer and to the Trustee, may waive
all defaults or Events of Default and rescind and annul such declaration and
its consequences, subject in all respects to Section 6.07, if:  (a) the rescission would not conflict
with any judgment or decree of a court of competent jurisdiction; (b) all
Events of Default, other than the nonpayment of the principal amount and any
accrued and unpaid interest that have become due solely because of such
acceleration, have been cured or waived; (c) interest on overdue
installments of interest (to the extent that


 


32

















 


payment of such interest
is lawful) and on overdue principal, which has become due otherwise than by
such declaration of acceleration, has been paid; and (d) the Issuer has
paid the Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances pursuant to Section 7.06.  No such rescission and annulment shall extend
to or shall affect any subsequent Default or Event of Default, or shall impair
any right consequent thereon.


 


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


 


Section 6.02           Payments
of Notes on Default; Suit Therefor.  The Issuer
covenants that in the case of an Event of Default pursuant to
Section 6.01(a) or 6.01(b), upon demand of the Trustee, the Issuer
will pay to the Trustee, for the benefit of the Noteholders , (i) the
whole amount that then shall be due and payable on all such Notes for principal
and premium, if any, or interest and Additional Interest, if any, as the case
may be, with interest upon the overdue principal and premium, if any, and (to
the extent that payment of such interest is enforceable under applicable law)
upon the overdue installments of accrued and unpaid interest and Additional
Interest, if any, at the rate borne by the Notes and (ii) in addition
thereto, any amounts due the Trustee under Section 7.06.  Until such demand by the Trustee, the Issuer
may pay the principal of and premium, if any, and interest and Additional
Interest, if any, on the Notes to the registered Noteholders, whether or not
the Notes are overdue.


 


In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer or
any other obligor on the Notes and collect in the manner provided by law out of
the property of the Issuer or any other obligor on the Notes wherever situated
the monies adjudged or decreed to be payable.


 


In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Issuer or any other obligor on the
Notes under any Bankruptcy Law, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or such other obligor, the property of the Issuer or
such other obligor, or in the case of any other judicial proceedings relative
to the Issuer or such other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this
Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, accrued and unpaid interest and
Additional Interest, if any, in respect of the Notes, and, in case of any
judicial proceedings, 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 and of the Noteholders allowed in such judicial proceedings relative to
the Issuer or any other obligor on the Notes, its or their creditors, or its or
their property, and to collect and receive any monies or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of any amounts due the Trustee under Section 7.06, and to take
any other action with respect to such claims, including participating as a
member of any official committee of creditors, as it reasonably deems necessary
or advisable, unless prohibited by law or applicable regulations, and any
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,


 


33

















 


custodian or similar
official is hereby authorized by each of the Noteholders 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 Noteholders, to pay to the Trustee any amount
due it for reasonable compensation, expenses, advances and disbursements,
including counsel fees and expenses incurred by it up to the date of such
distribution.  To the extent that such
payment of reasonable compensation, expenses, advances and disbursements out of
the estate in any such proceedings shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities and other property which the
Noteholders may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.


 


All rights of action and of asserting claims under
this Indenture, or under any of the Notes, may be enforced by the Trustee
without the possession of any of the Notes, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the
Noteholders .


 


In any proceedings brought by the Trustee (and in any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Noteholders , and it shall not be necessary to make any Noteholders parties
to any such proceedings.


 


Section 6.03           Application
of Monies Collected by Trustee.  Any monies
collected by the Trustee pursuant to this Article 6, shall be applied, in
the following order, at the date or dates fixed by the Trustee for the
distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:


 


FIRST:  To the
payment of all amounts due the Trustee under Section 7.06;


 


SECOND:  In case
the principal of the Outstanding Notes shall not have become due and be unpaid,
to the payment of accrued and unpaid interest, if any, on the Notes in Default
in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
as provided in Section 6.02 upon the overdue installments of interest,
such payments to be made ratably to the Persons entitled thereto;


 


THIRD:  In case
the principal of the Outstanding Notes shall have become due, by declaration or
otherwise, and be unpaid to the payment of the whole amount then owing and
unpaid upon the Notes for principal and premium, if any, and interest and
Additional Interest, if any, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected by
the Trustee) upon overdue installments of accrued and unpaid interest, as
provided in Section 6.02, and in case such monies shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Notes, then to the
payment of such principal and premium, if any, and interest and Additional
Interest, if any, without preference or priority of principal and premium, if
any, over interest and Additional Interest, if any, or of interest and Additional
Interest, if any, over principal and premium, if any, or of any installment of
interest or Additional Interest, if any, over any other installment of interest
or Additional Interest, if any, or of any Note over any other Note, ratably to
the aggregate of such principal and premium, if any, and accrued and unpaid
interest and Additional Interest, if any; and


 


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


 


34
















 


Section 6.04           Proceedings
by Noteholders.  No Noteholder shall have any right by virtue
of or by reference to any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture, or for the appointment of a receiver, trustee, liquidator, custodian
or other similar official, or for any other remedy hereunder, except in the
case of a Default in the payment of principal, premium, if any, or interest and
Additional Interest, if any, on the Notes, unless (a) such Noteholder
previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof, as hereinbefore provided, (b) the
Noteholders of at least 25% in aggregate principal amount of the Notes then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable security or indemnity as the Trustee may
require against the costs, liabilities or expenses to be incurred therein or
thereby, (c) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding and (d) no direction inconsistent with
such written request shall have been given to the Trustee pursuant to
Section 6.07; it being understood and intended, and being expressly
covenanted by the taker and Noteholder of every Note with every other taker and
Noteholder and the Trustee, that no one or more Noteholders shall have any
right in any manner whatever by virtue of or by reference to any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Noteholder, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Noteholders (except as otherwise provided herein).  For the protection and enforcement of this
Section 6.04, each and every Noteholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.


 


Notwithstanding any other provision of this Indenture
and any provision of any Note, the right of any Noteholder to receive payment
of the principal of (including the Redemption Price or repurchase price upon
redemption or repurchase pursuant to Article 3) and premium, if any, and
accrued interest and Additional Interest, if any, on such Note, on or after the
respective due dates expressed in such Note or in the event of redemption or
repurchase, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Issuer shall not be impaired or
affected without the consent of such Holder.


 


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


 


Section 6.05           Proceedings
by Trustee.  In case of an Event of Default, the Trustee
may, in its discretion, proceed to protect and enforce the rights vested in it
by this Indenture by such appropriate judicial proceedings as are necessary to
protect and enforce any of such rights, either by suit in equity or by action
at law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.


 


Section 6.06           Remedies
Cumulative and Continuing.  All powers and remedies given
by this Article 6 to the Trustee or to the Noteholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any thereof
or of any other powers and remedies available to the Trustee or the Noteholders
, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Noteholder to exercise any right or
power accruing upon any Default or Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any


 


35

















 


such Default or any acquiescence therein, and, subject to the
provisions of Section 6.04, every power and remedy given by this
Article 6 or by law to the Trustee or to the Noteholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Noteholders.


 


Section 6.07           Direction
of Proceedings and Waiver of Defaults by Majority of Noteholders. 
The Noteholders of not less than a majority in aggregate principal
amount of the Notes at the time 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; provided that (a) such direction shall not be in
conflict with any rule of law or with the terms of this Indenture,
(b) the Trustee may take any other action which is not inconsistent with
such direction, (c) the Trustee may decline to take any action that would
benefit some Noteholders to the detriment of other Noteholders and (d) the
Trustee may decline to take any action that would involve the Trustee in
personal liability.


 


The Noteholders of a majority in aggregate principal
amount of the Notes at the time Outstanding may, on behalf of all of the
Noteholders, waive any past Default or Event of Default hereunder and its
consequences except (i) a Default in the
payment of the principal of (including the Redemption Price or repurchase price
upon redemption or repurchase pursuant to Article 3), premium, if any, or
interest and Additional Interest, if any, on the Notes, (ii) a failure by
the Issuer to exchange any Notes as required by this Indenture, (iii) a
Default in the payment of the Redemption Price on the Redemption Date pursuant
to Article 3, (iv) a Default in the payment of the repurchase price
on the Fundamental Change Repurchase Date or the Repurchase Date pursuant to
Article 3 or (v) a Default in respect of a covenant or provisions
hereof which under Article 9 cannot be modified or amended without the
consent of the Noteholders of all Notes then outstanding or each Note affected
thereby.


 


Upon any such waiver, the Issuer, the Trustee and the
Noteholders shall be restored to their former positions and rights hereunder;
but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon. 
Whenever any Default or Event of Default hereunder shall have been
waived as permitted by this Section 6.07, said Default or Event of Default
shall for all purposes of the Notes and this Indenture be deemed to have been
cured and to be not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.


 


Section 6.08           Notice
of Defaults.  The Trustee shall, within 90 days after a
Responsible Officer of the Trustee has knowledge of the occurrence of a
default, provide to all Noteholders notice of all defaults known to a
Responsible Officer, unless such defaults shall have been cured or waived
before the giving of such notice; provided that
except in the case of Default in the payment of the principal of (including the
Redemption Price or repurchase price upon redemption or repurchase pursuant to
Article 3), or interest on any of the Notes, the Trustee shall be
protected in withholding such notice if and so long as a trust committee of
trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Noteholders.


 


Section 6.09           Undertaking
to Pay Costs.  All parties to this Indenture agree, and each
Noteholder by its acceptance thereof shall be deemed to have agreed, that any
court may, in its discretion, require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; provided that the provisions of
this Section 6.09 (to the extent permitted by law) shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Noteholder, or
group of Noteholders, holding in the aggregate more than ten percent in
principal amount of the Notes at the time Outstanding determined in


 


36

















 


accordance with Section 8.04, or to any suit instituted by any
Noteholder for the enforcement of the payment of the principal of (including
the Redemption Price or repurchase price upon redemption or repurchase pursuant
to Article 3), or interest on any Note on or after the due date expressed
in such Note or to any suit for the enforcement of the right to exchange any
Note in accordance with the provisions of Article 13.


 


ARTICLE 7


 


THE TRUSTEE


 


Section 7.01           Duties
and Responsibilities of Trustee.  The Trustee,
prior to the occurrence of an Event of Default and after the curing or waiver
of all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.  In case an Event of Default has occurred
(which has not been cured or waived), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of its own affairs.


 


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


 


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


 


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


 


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


 


(b)           the Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee and/or an Opinion of Counsel,
unless the Trustee was negligent in ascertaining the pertinent facts;


 


(c)           the Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the written direction of the Noteholders of
not less than a majority in principal amount of the Notes at the time
Outstanding determined as provided in Section 8.04 relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture;


 


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


 


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


 


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


 


(g)           the Trustee
shall not be deemed to have knowledge of any Event of Default hereunder unless
a Responsible Officer of the Trustee has actual knowledge thereof or unless the
Trustee shall have been notified in writing of such Event of Default by the
Issuer or a Noteholder.


 


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


 


Section 7.02           Reliance
on Documents, Opinions, etc.  Except as
otherwise provided in Section 7.01:


 


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


 


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


 


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


 


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


 


(e)           the Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note or other paper or document, but
the Trustee may make such further inquiry or investigation


 


38

















 


into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney;


 


(f)            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 by it with due care hereunder;


 


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


 


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


 


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


 


(j)            any
permissive right or authority granted to the Trustee shall not be construed as
a mandatory duty;


 


(k)           in no event
shall the Trustee be responsible or liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action; and


 


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


 


Section 7.03           No
Responsibility for Certain Items.  The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes.  The Trustee shall not be
accountable for the use or application by the Issuer of any Notes or the
proceeds of any Notes authenticated and delivered by the Trustee in conformity
with the provisions of this Indenture.


 


Section 7.04           Trustee,
Paying Agents, Exchange Agents or Registrar May Own Notes. 
The Trustee, any Paying Agent, the Exchange Agent or Note Registrar, in
its individual or any other capacity, may become the owner or pledgee of Notes
with the same rights it would have if it were not Trustee, Paying Agent,
Exchange Agent or Note Registrar.


 


Section 7.05           Monies
to Be Held in Trust.  Subject to the provisions of
Section 11.02, all monies received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they were
received.  Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law.  Except as otherwise
provided herein, the Trustee shall be under no liability for interest on any
money received by it hereunder except as may be agreed in writing from time to
time by the Issuer and the Trustee.


 


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Section 7.06           Compensation
and Expenses of Trustee; Indemnification.  The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) as mutually
agreed to from time to time in writing between the Issuer and the Trustee, and
the Issuer will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence, willful misconduct, recklessness or bad faith.  The Issuer also covenants to indemnify the
Trustee and any predecessor Trustee (or any officer, director or employee of
the Trustee), in any capacity under this Indenture and any authenticating agent
for, and to hold them harmless against, any and all loss, liability, damage,
claim or reasonable expense including taxes (other than taxes based on the
income of the Trustee) incurred without negligence, willful misconduct, recklessness
or bad faith on the part of the Trustee or such officers, directors, employees
or authenticating agent, as the case may be, and arising out of or in
connection with the acceptance or administration of the trusts created by this
Indenture or in any other capacity hereunder, including the reasonable costs
and expenses of defending themselves against any claim (whether asserted by the
Issuer, any Noteholder or any other Person) of liability in the premises.  The obligations of the Issuer under this Section 7.06
to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall be secured by a lien
prior to that of the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Noteholders
of particular Notes.  The obligation of
the Issuer under this Section shall survive the satisfaction and discharge
of this Indenture.


 


When the Trustee and its agents and any authenticating
agent incur expenses or render services after an Event of Default specified in
Section 6.01(g), 6.01(h) or 6.01(i) with respect to the Issuer
occurs, the expenses and the compensation for the services are intended to
constitute reasonable expenses of administration under any bankruptcy,
insolvency or similar laws.


 


Section 7.07           Officers’
Certificate as Evidence.  Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, bad faith, recklessness or
willful misconduct on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers’ Certificate delivered to the Trustee.


 


Section 7.08           Conflicting
Interests of Trustee.  If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.


 


Section 7.09           Eligibility
of Trustee.  There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50 million (or if such Person is a member of a bank holding company system,
its bank holding company shall have a combined capital and surplus of at least
$50 million).  If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of any supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 7.09, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.


 


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Section 7.10           Resignation
or Removal of Trustee.


 


(a)           The Trustee
may at any time resign by giving written notice of such resignation to the
Issuer and to the Noteholders.  Upon
receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Trustees, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so
appointed and have accepted appointment 60 days after the provision of such
notice of resignation to the Noteholders, the resigning Trustee may, upon ten
Business Days’ notice to the Issuer and the Noteholders may petition, at the
expense of the Issuer, any court of competent jurisdiction for the appointment
of a successor trustee, or, if any Noteholder who has been a bona fide holder
of a Note or Notes for at least six months may, subject to the provisions of
Section 6.09, on behalf of itself and all others similarly situated,
petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.


 


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


 


(i)            the Trustee
shall fail to comply with Section 7.08 after written request therefor by
the Issuer or by any Noteholder who has been a bona fide holder of a Note or
Notes for at least six months; or


 


(ii)           the Trustee
shall cease to be eligible in accordance with the provisions of
Section 7.09 and shall fail to resign after written request therefor by
the Issuer or by any such Noteholder; or


 


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


 


then, in any such case, the Issuer may remove the Trustee
upon 30 days written notice and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Trustees, one copy
of which instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or, subject to the provisions of Section 6.09,
any Noteholder who has been a bona fide holder of a Note or Notes for at least
six months may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee; provided that
if no successor Trustee shall have been appointed and have accepted appointment
60 days after either the Issuer or the Noteholders has removed the Trustee, or
the Trustee resigns, the Trustee so removed may petition, at the expense of the
Issuer, any court of competent jurisdiction for an appointment of a successor
trustee.  Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.


 


(c)           Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 7.10 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.


 


(d)           Notwithstanding
the replacement of the Trustee pursuant to this Section, the Issuer’s
obligations under Section 7.06 shall continue for the benefit of the
retiring Trustee.


 


Section 7.11           Acceptance
by Successor Trustee.  Any successor trustee appointed as provided
in Section 7.10 shall execute, acknowledge and deliver to the Issuer and
to its predecessor trustee an


 


41

















 


instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Issuer or of the
successor trustee, the trustee ceasing to act shall, upon payment of any amount
then due it pursuant to the provisions of Section 7.06, execute and
deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. 
Upon request of any such successor trustee, the Issuer shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.  Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of
Noteholders of particular Notes, to secure any amounts then due it pursuant to
the provisions of Section 7.06.


 


No successor trustee shall accept appointment as
provided in this Section 7.11 unless, at the time of such acceptance, such
successor trustee shall be qualified under the provisions of Section 7.08
and be eligible under the provisions of Section 7.09.


 


Upon acceptance of appointment by a successor trustee
as provided in this Section 7.11, the Issuer (or the former trustee, at
the written direction of the Issuer) shall deliver or cause to be delivered
notice of the succession of such trustee hereunder to the Noteholders at their
addresses as they shall appear on the Note Register.  If the Issuer fails to deliver such notice
within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be delivered at the expense of the
Issuer.


 


Section 7.12           Succession
by Merger.  Any corporation into which the Trustee may be
merged or exchanged or with which it may be consolidated, or any corporation
resulting from any merger, exchange or consolidation to which the Trustee shall
be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including any trust created by this
Indenture), shall be the successor to the Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that in the case of any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions of
Section 7.09.


 


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


 


Section 7.13           Preferential
Collection of Claims.  If and when the Trustee shall be or become a
creditor of the Issuer (or any other obligor upon the Notes), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of the claims against the Issuer (or any such other obligor).


 


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ARTICLE 8


 


THE NOTEHOLDERS


 


Section 8.01           Action
by Noteholders.  Whenever in this Indenture it is provided
that the Noteholders of a specified percentage in aggregate principal amount of
the Notes may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action, the Noteholders of such
specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
Noteholders in person or by agent or proxy appointed in writing, (b) by
the record of the Noteholders voting in favor thereof at any meeting of
Noteholders, (c) by a combination of such instrument or instruments and
any such record of such a meeting of Noteholders and (d) if Notes are
issued in the form of a Global Note, according to the Applicable
Procedures.  Whenever the Issuer or the
Trustee solicits the taking of any action by the Noteholders , the Issuer or
the Trustee may fix in advance of such solicitation a date as the Record Date
for determining Noteholders entitled to take such action.  The Record Date, if any, shall be not more
than 15 days prior to the date of commencement of solicitation of such action.


 


Section 8.02           Proof
of Execution by Noteholders.  Subject to
the provisions of Sections 7.01 and 7.02, proof of the execution of any
instrument by a Noteholder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee.  The holding of Notes shall be proved by the
registry of such Notes or by a certificate of the Note Registrar.


 


Section 8.03           Absolute
Owners.  The Issuer, the Trustee, any Paying Agent,
any Exchange Agent and any Note Registrar may deem the Person in whose name
such Note shall be registered (including for all purposes the registered holder
of any Global Note) upon the Note Register to be, and may treat it as, the
absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by any
Person other than the Issuer or any Note Registrar) for the purpose of
receiving payment of or on account of the principal of (including the
Redemption Price or repurchase price upon redemption or repurchase pursuant to
Article 3), premium, if any, and interest and Additional Interest, if any,
on such Note, for exchange of such Note, for receipt of notices and for all
other purposes; and neither the Issuer nor the Trustee nor any Paying Agent nor
any exchange agent nor any Note Registrar shall be affected by any notice to
the contrary.  All such payments so made
to any Noteholder for the time being, or upon its order, shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for monies payable upon any such Note.


 


Section 8.04           Issuer-Owned
Notes Disregarded.  In determining whether the Noteholders of the
requisite aggregate principal amount of Outstanding Notes have given any
request, demand, authentication, direction, notice, consent or waiver under
this Indenture, or whether a quorum is present at a meeting of Noteholders,
Notes which are owned by the Issuer or any other obligor on the Notes or any
Affiliate of the Issuer or any other obligor on the Notes shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination; provided that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent, waiver or
other action, only Notes which a Responsible Officer knows are so owned shall
be so disregarded.  Notes so owned which
have been pledged in good faith may be regarded as Outstanding for the purposes
of this Section 8.04 if the pledgee shall establish to the satisfaction of
the Trustee the pledgee’s right to vote such Notes and that the pledgee is not
the Issuer, any other obligor on the Notes or any Affiliate of the Issuer or
any such other obligor.  In the case of a
dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.  Upon request of the Trustee, the Issuer shall


 


43

















 


furnish to the Trustee promptly an Officers’ Certificate listing and
identifying all Notes, if any, known by the Issuer to be owned or held by or
for the account of any of the above described Persons, and, subject to
Section 7.01, the Trustee shall be entitled to accept such Officers’
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are Outstanding for the purpose of any
such determination.


 


Section 8.05           Revocation
of Consents; Future Noteholders Bound.  At any time
prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Noteholders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any Noteholder which is shown by the
evidence to be included in the Notes the Noteholders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Note. 
Except as aforesaid, any such action taken by any Noteholder shall be
conclusive and binding upon such Noteholder and upon all future Noteholders and
owners of such Note and of any Notes issued in exchange or substitution
therefor, irrespective of whether any notation in regard thereto is made upon
such Note or any Note issued in exchange or substitution therefor.


 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


Section 9.01           Supplemental
Indentures Without Consent of Noteholders.  The Issuer,
when authorized by resolution of the Board of Trustees, the Guarantor and the
Trustee may, from time to time, and at any time enter into an indenture or
indentures supplemental without the consent of the Noteholders hereto for one
or more of the following purposes:


 


(a)           to evidence
a successor to the Issuer as obligor or to the Guarantor as guarantor under
this Indenture;


 


(b)           to add to
the covenants of the Issuer or the Guarantor for the benefit of the Noteholders
or to surrender any right or power conferred upon the Issuer or the Guarantor
in this Indenture or in the Notes;


 


(c)           to add
Events of Default for the benefit of the Noteholders;


 


(d)           to amend or
supplement any provisions of this Indenture or the Notes; provided
that no amendment or supplement shall materially adversely affect the interests
of the Noteholders of any Notes then Outstanding, or to impose extra burdens or
responsibilities upon the Trustee without its prior consent;


 


(e)           to secure
the Notes;


 


(f)            to provide
for the acceptance of appointment of a successor Trustee or facilitate the
administration of the trusts under this Indenture by more than one Trustee;


 


(g)           to cure any
ambiguity, defect or inconsistency in this Indenture; provided
that this action shall not adversely affect the interests of the Noteholders in
any material respect;


 


(h)           to
supplement any of the provisions of this Indenture or the Notes to the extent
necessary to permit or facilitate defeasance and discharge of any of the Notes;
provided that the action shall not
adversely affect the interests of the Noteholders in any material respect;


 


44
















 


(i)            to modify
this Indenture and the Notes to increase the Exchange Rate or reduce the
Exchange Price; provided that the increase or
reduction, as the case may be, is in accordance with the terms of the Indenture
or will not adversely affect the interests of the Noteholders; or


 


(j)            to conform
the text of the Indenture or the Notes to any provision of the “Description of
Notes” in the Offering Memorandum.


 


Upon the written request of the Issuer, accompanied by
a copy of the resolutions of the Board of Trustees certified by the Guarantor’s
Secretary or Assistant Secretary authorizing the execution of any supplemental
indenture, the Trustee shall join with the Issuer and the Guarantor in the
execution of any such supplemental indenture, enter into any further
appropriate agreements and make any stipulations that may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.


 


Any supplemental indenture authorized by the
provisions of this Section 9.01 may be executed by the Issuer, the
Guarantor and the Trustee without the consent of the Noteholders of any of the
Notes at the time Outstanding, notwithstanding any of the provisions of
Section 9.02.


 


In addition, without the consent of any Noteholder,
the Guarantor, or a Subsidiary thereof, may directly assume this Indenture and
the Notes as set forth in Section 10.05.


 


Section 9.02           Supplemental
Indenture With Consent of Noteholders.  With the
consent (evidenced as provided in Article 8) of the Noteholders of not
less than a majority in aggregate principal amount of the Notes at the time
Outstanding, the Issuer, when authorized by resolution of the Board of
Trustees, the Guarantor and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or any supplemental indenture or modifying in any
manner the rights of the Noteholders; provided that
no such supplemental indenture shall, without the consent of each Noteholder:


 


(a)           change the
Stated Maturity of the principal of or any installment of interest on the
Notes, reduce the principal amount of, or the rate or amount of interest on, or
any premium payable on redemption of, the Notes, or adversely affect any right
of repayment of the Noteholder, change the place of payment, or the coin or
currency, for payment of principal of or interest on any Note or impair the
right to institute suit for the enforcement of any payment on or with respect
to the Notes;


 


(b)           reduce the
principal amount of the Outstanding Notes necessary to modify or amend this
Indenture, to waive compliance with certain provisions of this Indenture or
certain defaults and their consequences provided in this Indenture, or to
reduce the requirements of quorum or change voting requirements set forth in
this Indenture;


 


(c)           modify or
affect in any manner adverse to the Noteholders the terms and conditions of the
obligations of the Guarantor in respect of the due and punctual payments of
principal and interest;


 


(d)           modify any
of this Section 9.02 or Section 6.07 or any of the provisions
relating to the waiver of certain past defaults or certain covenants, except to
increase the required percentage to effect the action or to provide that
certain other provisions may not be modified or waived without the consent of
the Noteholders;


 


(e)           modify the
provisions of Section 3.05 in a manner adverse to the Noteholders; or


 


45

















 


(f)            adversely
affect the Noteholders’ rights contained in Section 3.06 and
Section 13.01 of this Indenture.


 


Upon the written request of the Issuer, accompanied by
a copy of the resolutions of the Board of Trustees certified by the Guarantor’s
Secretary or Assistant Secretary authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Noteholders as aforesaid, the Trustee shall join with the Issuer and
the Guarantor in the execution of such supplemental indenture and enter into
any further appropriate agreements and make any stipulations that may be
therein contained, but the Trustee shall not be obligated to, but may in its
discretion, enter into any supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.


 


It shall not be necessary for the consent of the
Noteholders under this Section 9.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.


 


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


 


Section 9.04           Notation
on Notes.  Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article 9 may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture.  If the Issuer or the Trustee shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Board of Trustees, to any modification of this Indenture contained in
any such supplemental indenture may, at the Issuer’s expense, be prepared and executed
by the Issuer, authenticated by the Trustee (or an authenticating agent duly
appointed by the Trustee pursuant to Section 16.11) and delivered in
exchange for the Notes then Outstanding, upon surrender of such Notes then
Outstanding.


 


Section 9.05           Evidence
of Compliance of Supplemental Indenture to Be Furnished to Trustee. 
Prior to entering into any supplemental indenture pursuant to this
Article 9, the Trustee shall be provided with an Officers’ Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 9
and is otherwise authorized or permitted by this Indenture.


 


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ARTICLE 10


 


CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


Section 10.01         Issuer
May Consolidate on Certain Terms.  Nothing
contained in this Indenture or in the Notes shall prevent any consolidation or
merger of the Issuer with or into any other Person or Persons (whether or not affiliated
with the Issuer), or successive consolidations or mergers in which either the
Issuer will be the continuing entity or the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance,
transfer or lease of all or substantially all of the property of the Issuer, to
any other Person (whether or not affiliated with the Issuer); provided, however, that
the following conditions are met:


 


(a)           the Issuer
shall be the continuing entity, or the successor entity (if other than the
Issuer) formed by or resulting from any consolidation or merger or which shall
have received the transfer of assets shall be an entity organized under the
laws of the United States, any state thereof or the District of Columbia and
shall expressly assume payment of the principal of and interest on all of the
Notes and the due and punctual performance and observance of all of the
covenants and conditions in this Indenture;


 


(b)           if as a
result of such transaction the Notes become exchangeable into common stock or
other securities issued by a third party, such third party fully and
unconditionally guarantees all obligations under the Notes and this Indenture;


 


(c)           immediately
after giving effect to such transaction, no Event of Default and no event
which, after notice or lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing; and


 


(d)           either the
Issuer or the successor Person, in either case, shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article 10 and that all conditions
precedent herein provided for relating to such transaction have been complied
with.


 


No such consolidation, merger, sale, conveyance,
transfer or lease shall be permitted by this Section 10.01 unless prior
thereto the Guarantor shall have delivered to the Trustee a Guarantor’s
Officers’ Certificate and an Opinion of Counsel, each stating that the
Guarantor’s obligations hereunder shall remain in full force and effect
thereafter or the Guarantor shall have reaffirmed its Guarantee pursuant to a notation
of the Guarantee substantially in the form included in Exhibit A
hereto.


 


Section 10.02         Issuer
Successor to Be Substituted.  Upon any
consolidation by the Issuer with or merger of the Issuer into any other Person
or any sale, conveyance, transfer or lease of all or substantially all of the
properties and assets of the Issuer to any Person in accordance with
Section 10.01, the successor Person formed by such consolidation or into
which the Issuer is merged or to which such sale, conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such
successor Person had been named as the Issuer herein, and thereafter, except in
the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture and the Notes.


 


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


 


47

















 


Section 10.03         Guarantor
May Consolidate on Certain Terms.  Nothing
contained in this Indenture or in the Notes shall prevent any consolidation or
merger of the Guarantor with or into any other Person or Persons (whether or
not affiliated with the Guarantor), or successive consolidations or mergers in
which either the Guarantor will be the continuing entity or the Guarantor or
its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or lease of all or substantially all of the property
of the Guarantor, to any other Person (whether or not affiliated with the
Guarantor); provided, however,
that:


 


(a)           the
Guarantor shall be the continuing entity, or the successor entity (if other
than the Guarantor) formed by or resulting from any consolidation or merger or
which shall have received the transfer of assets shall be an entity organized under
the laws of the United State, any state thereof or the District of Columbia and
shall expressly assume the obligations of the Guarantor under the Guarantee and
the due and punctual performance and observance of all of the covenants and
conditions in this Indenture;


 


(b)           if as a
result of such transaction the Notes become exchangeable into common stock or
other securities issued by a third party, such third party fully and
unconditionally guarantees all obligations under the Notes and this Indenture;


 


(c)           immediately
after giving effect to such transaction, no Event of Default and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and


 


(d)           each of the
Guarantor and the successor Person has delivered to the Trustee an Officers’
Certificate of the Guarantor and an Opinion of Counsel, each stating that such
consolidation, sale, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article 10 and that all conditions
precedent herein provided for relating to such transaction have been complied
with.


 


Section 10.04         Guarantor
Successor to Be Substituted.  Upon any
consolidation or merger or any sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of the Guarantor to any Person
in accordance with Section 10.04, the successor Person formed by such
consolidation or into which the Guarantor is merged or to which such sale,
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Guarantor under this Indenture
with the same effect as if such successor Person had been named as the
Guarantor herein, and thereafter, except in the case of a lease, the predecessor
Person shall be released from all obligations and covenants under this
Indenture.


 


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


 


Section 10.05         Assumption
by Guarantor.  The Guarantor, or a Subsidiary thereof, may
directly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of, any premium and interest and Additional Interest, if any,
on all the Notes and the performance of every covenant of this Indenture on the
part of the Issuer to be performed or observed. 
Upon any such assumption, the Guarantor or such Subsidiary shall succeed
to, and be substituted for and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if the Guarantor or such
Subsidiary had been named as the Issuer herein and the Issuer shall be released
from all obligations and covenants with respect to the Notes.  No such assumption shall be permitted unless
the Guarantor has delivered to the Trustee (i) an Officers’ Certificate of
the Guarantor and an Opinion of Counsel, each stating that such assumption and
supplemental indenture comply with this Article 10, and that all
conditions precedent herein provided for relating to


 


48

















 


such transaction have been complied with and that the Guarantee and all
other covenants of the Guarantor herein remain in full force and effect and
(ii) an opinion of independent counsel that the Noteholders shall have no
materially adverse United States federal tax consequences as a result of such assumption.


 


ARTICLE 11


 


SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 11.01         Discharge
of Indenture.  This Indenture shall cease to be of further
effect (except as to any surviving rights of exchange, registration of transfer
or exchange of Notes herein expressly provided for and except as further
provided below), and the Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when either: 
(1) all Notes theretofore authenticated and delivered (other than
(i) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 11.04 and (ii) Notes for
whose payment money has theretofore been deposited in trust and thereafter repaid
to the Issuer as provided in Section 11.04) have been delivered to the
Trustee for cancellation; or (2) all such Notes not theretofore delivered
to the Trustee for cancellation (i) have become due and payable, whether
at the Maturity Date, Repurchase Date or Fundamental Change Repurchase Date or
upon exchange or otherwise, or (ii) are to be called for redemption under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Issuer, and the Issuer,
in the case of subclause (1) or (2) above, has irrevocably deposited
or caused to be irrevocably deposited with the Trustee a Paying Agent or the
Exchange Agent (other than the Issuer or any of its Affiliates), as applicable,
in trust cash in an amount (the “Discharge Amount”)
sufficient to pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of Notes which have become
due and payable) or to the Maturity Date, Redemption Date, Repurchase Date or
Fundamental Change Repurchase Date, as the case may be; provided, however, that (i) there shall not exist, on the date
of such deposit, a Default or Event of Default; (ii) the Issuer has paid
or caused to be paid all other sums payable hereunder by the Issuer and
(iii) the Issuer has delivered to the Trustee an Officers’ Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with. In addition, such Officers’ Certificate shall set forth the
Discharge Amount and the Trustee and the provider of such Opinion of Counsel
may conclusively rely thereon for the calculation of the Discharge Amount.


 


Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to any Noteholder under
Article 13 hereof with respect to the exchange of any Note and to the
Trustee under Section 7.06 shall survive.


 


Section 11.02         Deposited
Monies to Be Held in Trust by Trustee.  Subject to
Section 11.04, all monies deposited with the Trustee pursuant to
Section 7.05 shall be held in trust for the sole benefit of the
Noteholders, and such monies shall be applied by the Trustee to the payment,
either directly or through any Paying Agent (including the Issuer if acting as
its own Paying Agent), to the Noteholders of the particular Notes for the
payment or redemption of which such monies have been deposited with the
Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest and Additional Interest, if any.  All moneys deposited with the Trustee
pursuant to Section 7.05 (and held by it or any Paying Agent) for the
payment of Notes subsequently exchanged shall be returned to the Issuer upon
written request.  The Trustee is not
responsible to anyone for interest on any deposited funds except as agreed in
writing.


 


Section 11.03         Paying
Agent to Repay Monies Held.  Subject to
the provisions of Section 11.04, the Trustee or any Paying Agent shall
hold in trust, for the benefit of the Noteholders, all money


 


49

















 


deposited with it pursuant to Section 11.01 and shall apply the
deposited money in accordance with this Indenture and the Notes to the payment
of the principal of (including the Redemption Price or repurchase price upon
redemption or repurchase pursuant to Article 3) and interest on the Notes.


 


Section 11.04         Return
of Unclaimed Monies.  Any money deposited with the Trustee or any
Paying Agent, or then held by the Issuer, in trust for the payment of the
principal of or interest on any Note and remaining unclaimed for two years
after such principal or interest has become due and payable shall be paid
within 60 days of such date by the Trustee to the Issuer upon request by the
Issuer as its property free from trust, or (if then held by the Issuer) shall
be discharged from such trust; and such Noteholder shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon
cease.


 


Section 11.05         Reinstatement. 
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 11.02 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money in accordance with Section 11.02; provided that if the Issuer makes any payment of principal
of or interest on any Note following the reinstatement of its obligations, the
Issuer shall be subrogated to the rights of the Noteholders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.


 


ARTICLE 12


 


NO PERSONAL LIABILITY


 


Section 12.01         No
Personal Liability of Trustees, Officers, Employees and Shareholders. 
No trustee, officer, employee, incorporator, shareholder or partner of
Corporate Office Properties, L.P. or Corporate Office Properties Trust, as
such, will have any liability for any obligations of Corporate Office
Properties, L.P. or Corporate Office Properties Trust under the Notes, the
Indenture, any Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Noteholder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Notes.


 


ARTICLE 13


 


EXCHANGE OF NOTES


 


Section 13.01         Exchange.


 


(a)           Subject to
Section 13.10, and upon compliance with the provisions of this
Article 13, a Noteholder shall have the right, at such Noteholder’s
option, to exchange all or any portion (if the portion to be exchanged is
$1,000 principal amount or an integral multiple thereof) of such Notes at any
time prior to the Close of Business on the Business Day immediately preceding
April 20, 2015 at a rate (the “Exchange Rate”)
of Common Shares (subject to adjustment by the Issuer as provided in
Section 13.03) per $1,000 principal amount Note (the “Exchange
Obligation”) only under the circumstances and during the periods set
forth in clauses (b) through (e) below.  On and after April 20, 2015, regardless
of the conditions described in clause (b) through (e) below, subject
to Section 13.10 and upon compliance with the provisions of this
Article 13, a Noteholder shall have the right, at such Noteholder’s
option, to exchange all or any portion (if the portion to be exchanged is
$1,000 principal amount or an integral


 


50

















 


multiple
thereof) of such Note at any time prior to the Close of Business on the
Business Day immediately preceding the Maturity Date.


 


(b)           Prior to the
Close of Business on the Business Day immediately preceding April 20,
2015, a Noteholder shall have the right, at such Noteholder’s option, to
exchange its Notes during the five Business Day period immediately after any
ten consecutive Trading Day period (the “Measurement Period”)
in which the Trading Price per $1,000 principal amount of Notes, as determined
following a request by a Noteholder in accordance with the procedures described
below, for each day of such Measurement Period was less than 98% of the product
of the Last Reported Sale Price of the Common Shares on such date and the
applicable Exchange Rate.  The Bid
Solicitation Agent shall have no obligation to determine the Trading Price of
the Notes unless the Issuer has requested such determination.  The Issuer shall request that the Bid
Solicitation Agent determine the Trading Price of the Notes and provide such
determination to both the Issuer and the Trustee in writing only if a
Noteholder or group of Noteholders representing at least $1,000,000 aggregate
principal amount of Notes provides the Issuer with reasonable evidence that the
Trading Price per $1,000 principal amount of the Notes would be less than 98%
of the product of the Last Reported Sale Price at such time and the
then-applicable Exchange Rate, at which time the Issuer shall instruct the Bid
Solicitation Agent to determine the Trading Price of the Notes beginning on the
next Trading Day and on each successive Trading Day until the Trading Price per
$1,000 principal amount of the Notes is greater than or equal to 98% of the
product of the Last Reported Sale Price on such date and the then-applicable
Exchange Rate.  If the Trading Price
condition set forth above has been met, the Issuer shall so notify the
Noteholders.  If at any time after the
Trading Price condition set forth above has been met, the Trading Price per
$1,000 principal amount of Notes is greater than 98% of the product of the Last
Reported Sale Price on such date and the then applicable Exchange Rate, the
Issuer shall so notify the Noteholders.


 


(c)           Prior to the
Close of Business on the Business Day immediately preceding April 20,
2015, a Noteholder shall have the right, at such Noteholder’s option, to
exchange its Notes during any calendar quarter after the quarter ended
June 30, 2010, and only during such calendar quarter, if the Last Reported
Sale Price for the Common Shares for at least 20 Trading Days  (whether or not consecutive) during the
period of 30 consecutive Trading Days ending on the last Trading Day of the
previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which
Exchange Price shall be subject to adjustment in accordance with this
Article 13.  Upon tender of a Note
for exchange purported to be made pursuant to this Section 13.01(c),
promptly upon written request from the Exchange Agent, the Issuer will confirm
in writing to the Exchange Agent whether the condition to exchange set forth in
this Section 13.01(c) has been satisfied with respect to such exchange.


 


(d)           In the event
that the Issuer has delivered a notice of redemption in accordance with
Section 3.02 of this Indenture to the Noteholders, a Noteholder may
exchange Notes at any time prior to the Close of Business on the second
Business Day immediately preceding the corresponding Redemption Date, even if
such Notes are not otherwise exchangeable at such time, after which time the
Noteholder’s right to exchange will expire (unless there is a Default in the
payment of the Redemption Price, in which case a Noteholder may exchange such
Notes until the Redemption Price has been paid or duly provided for); provided, however, that
a Noteholder who has delivered a Fundamental Change Repurchase Notice with
respect to a Note may not exchange such Note until the Noteholder has withdrawn
the Fundamental Change Repurchase Notice in accordance with the terms of the
Note and this Indenture.


 


(e)


 


(i)            In the event
that the Issuer or the Guarantor elects to:


 


51

















 


(A)          distribute
to all or substantially all holders of Common Shares rights entitling them to
purchase, for a period expiring within 60 days after the Record Date for such
distribution, Common Shares at a price less than the Last Reported Sale Price
of the Common Shares for the Trading Day immediately preceding the declaration
date of such distribution; or


 


(B)           distribute
to all or substantially all holders of Common Shares, assets or debt securities
of the Issuer or the Guarantor or rights to purchase the Issuer’s or the
Guarantor’s securities, which distribution has a per share value (as determined
by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the
Common Shares on the day immediately preceding the date of declaration of such
distribution,


 


then, in either case, Noteholders may surrender the
Notes for exchange at any time on and after the date that the Issuer provides
notice to Noteholders referred to in the next sentence until the earlier of
(x) the Close of Business on the Business Day immediately preceding the
Ex-Dividend Date for such distribution, (y) the date the Issuer announces
that such distribution will not take place or (z) the second Business Day
immediately preceding the Maturity Date. 
The Issuer shall notify Noteholders of any distribution referred to in
either clause (A) or clause (B) above and of the resulting exchange
right no later than the 25th Scheduled Trading Day prior to the Ex-Dividend
Date for such distribution.


 


(ii)           If a
transaction or event that constitutes a Fundamental Change (without giving
effect to the exception regarding Publicly Traded Securities set forth in the
last paragraph of such definition) occurs, regardless of whether Noteholders
have the right to require the Issuer to purchase their Notes pursuant to
Section 3.06, a Noteholder may surrender all or a portion of its Notes for
exchange until the earliest of (i) the 30th Scheduled Trading Day
immediately following the Effective Date of such transaction,  (ii) if such transaction constitutes a
Fundamental Change, the Business Day immediately preceding the related
Fundamental Change purchase date, (iii) if the Issuer announces that such
transaction will not occur, the date of such announcement and (iv) the
second Business Day immediately preceding the Maturity Date.


 


(f)


 


(i)            If a
Noteholder elects to exchange Notes in connection with a Fundamental Change
that occurs prior to April 20, 2015, the Exchange Rate applicable to each
$1,000 principal amount of Notes so exchanged shall be increased by an
additional number of Common Shares (the “Additional Shares”)
as described below.  The Issuer shall
issue a press release no later than the Effective Date of such
transaction.  Settlement of Notes
tendered for exchange to which Additional Shares shall be added to the Exchange
Rate as provided in this subsection shall be settled pursuant to
Section 13.02 below, as applicable. 
For purposes of this Section 13.01(f), an exchange shall be deemed
to be “in connection with” a Fundamental Change to the extent that the related
Exchange Notice is delivered during the time period beginning on the Effective
Date of such Fundamental Change and ending on and including the related
Fundamental Change Repurchase Date.


 


(ii)           The number
of Additional Shares by which the Exchange Rate will be increased shall be
determined by reference to the table attached as Schedule A hereto,
based on the date on which the Fundamental Change occurs or becomes effective
(the “Effective Date”), and the Share Price; provided, that if the Share Price is between two Share Price
amounts in the table or the Effective Date is between two Effective Dates in
the table, the number of Additional Shares shall be determined by a straight
line interpolation between the number of Additional Shares set forth for the
next higher and next lower Share Price amounts and the two nearest Effective
Dates,


 


52

















 


as applicable, based on a 365-day
year; provided further that if (1) the
Share Price is greater than $110.00 per Common Share (subject to adjustment in
the same manner as set forth in Section 13.03), no Additional Shares will
be added to the Exchange Rate, and (2) the Share Price is less than $40.13
per share (subject to adjustment in the same manner as set forth in Section 13.03),
no Additional Shares will be added to the Exchange Rate.  Notwithstanding the foregoing, in no event
will the total number of Common Shares issuable upon exchange exceed 24.9190
shares per $1,000 principal amount of Notes (subject to adjustment in the same
manner as set forth in Section 13.03).


 


(iii)          The Share
Prices set forth in the first row of the table in Schedule A hereto
shall be adjusted as of any date on which the Exchange Rate of the Notes is
adjusted.  The adjusted Share Prices
shall equal the Share Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Exchange Rate in effect
immediately prior to the adjustment giving rise to the Share Price adjustment
and the denominator of which is the Exchange Rate as so adjusted.  The number of Additional Shares within the
table shall be adjusted in the same manner as the Exchange Rate as set forth in
Section 13.03 (other than by operation of an adjustment to the Exchange
Rate by adding Additional Shares).


 


(g)           If a
Noteholder surrenders a Note for exchange, the Issuer may direct the Exchange
Agent to surrender, on or prior to the commencement of the Observation Period,
such Notes to a financial institution designated by the Issuer for transfer in
lieu of exchange. In order to accept any Notes surrendered for exchange, the
designated institution must agree to deliver, in exchange for such Notes, all
cash and Common Shares equal to the consideration due upon exchange, as
determined under Section 13.02 (the “Exchange Consideration”).
By the Close of Business on the Trading Day immediately preceding the start of
the applicable Observation Period, the Issuer will notify the Noteholder
surrendering Notes for exchange that the Issuer has directed the designated
financial institution to accept the Notes in lieu of exchange and such
financial institution will be required to notify the Exchange Agent that it has
agreed to deliver the Exchange Consideration due upon such exchange.


 


If the designated institution accepts any such Notes,
it will deliver the Exchange Consideration to the Exchange Agent and the
Exchange Agent will deliver such Exchange Consideration to the Noteholder in
lieu of actual exchange. Any Notes accepted by the designated institution shall
remain Outstanding. If the designated institution agrees to accept any Notes
but does not timely deliver the related Exchange Consideration, or if such
designated financial institution does not accept the Notes, the Issuer shall,
on the third Trading Day immediately following the last day of the related
Observation Period, exchange the Notes into the Exchange Consideration pursuant
to this Section.


 


Section 13.02         Exchange
Procedures.


 


(a)           Subject to
Section 13.02(b) and Section 13.11, the Issuer will satisfy the
Exchange Obligation with respect to each $1,000 principal amount of Notes
validly tendered for exchange in cash and fully paid Common Shares, if any, on
the third Trading Day immediately following the last day of the related
Observation Period, equal to the sum of the Daily Settlement Amounts for each
of the 20 Trading Days during the related Observation Period; provided that the Issuer will deliver cash in lieu of
fractional Common Shares as set forth pursuant to clause (l) below.


 


(b)           Before any
Noteholder shall be entitled to exchange the same as set forth above, such
Noteholder shall (1) in the case of a Global Note, comply with the
Applicable Procedures and, if required, pay funds equal to interest payable on
the next Interest Payment Date to which such Noteholder is not entitled as set
forth in Section 13.02(h) and, if required, pay all taxes or duties,
if any, and (2) in the case of a Note issued in certificated form,
(a) complete and manually sign and deliver an irrevocable written


 


53

















 


notice
to the Exchange Agent in the form on the reverse of such certificated Note (or
a facsimile thereof) (an “Exchange Notice”)
at the office of the Exchange Agent and shall state in writing therein the
principal amount of Notes to be exchanged and the name or names (with
addresses) in which such Noteholder wishes the certificate or certificates for
any Common Shares, if any, to be delivered upon settlement of the Exchange
Obligation to be registered, (b) surrender such Notes, duly endorsed to
the Issuer or in blank (and accompanied by appropriate endorsement and transfer
documents), at the office of the Exchange Agent, (c) if required, pay
funds equal to interest payable on the next Interest Payment Date to which such
Noteholder is not entitled as set forth in Section 13.02(h), and
(d) if required, pay all taxes or duties, if any.  A Note shall be deemed to have been exchanged
immediately prior to the Close of Business on the Trading Day (the “Exchange Date”) that the Noteholder has complied with the
requirements set forth in this Section 13.02(b).


 


No Exchange Notice with respect to any Notes may be
tendered by a Noteholder thereof if such Noteholder has also tendered a Put
Right Repurchase Notice or a Fundamental Change Repurchase Notice and not
validly withdrawn such Put Right Repurchase Notice or Fundamental Change
Repurchase Notice in accordance with the applicable provisions of
Section 3.05(d) or Section 3.06(c), as the case may be.


 


If more than one Note shall be surrendered for
exchange at one time by the same holder, the Exchange Obligation with respect
to such Notes, if any, that shall be payable upon exchange shall be computed on
the basis of the aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted thereby) so surrendered.


 


(c)           Delivery of
the amounts owing in satisfaction of the Exchange Obligation shall be made by
the Issuer in no event later than the date specified in
Section 13.02(a).  The Issuer shall
make such delivery by paying the cash amount owed to the Exchange Agent or to
the Noteholder of the Note surrendered for exchange, or such Noteholder’s  nominee or nominees, and by issuing, or
causing to be issued, and delivering to the Exchange Agent or to such Holder,
or such Noteholder’s  nominee or
nominees, certificates or a book entry transfer through the Depositary for the
number of full Common Shares to which such Noteholder shall be entitled as part
of such Exchange Obligation, if any (together with any cash in lieu of fractional
shares).


 


(d)           In case any
Note shall be surrendered to the Trustee for partial exchange (along with, if
the Issuer or the Trustee so requires, due endorsements from such Holder, or
written instruments of transfer in form satisfactory to the Issuer and the
Trustee duly executed by the Noteholder thereof or his attorney in fact), the
Issuer shall execute and the Trustee shall authenticate and deliver to or upon
the written order of the Noteholder of the Note so surrendered, without charge
to such Holder, a new Note or Notes containing identical terms and conditions
to the Outstanding Notes in authorized denominations in an aggregate principal
amount equal to the unexchanged portion of the surrendered Note.


 


(e)           If a
Noteholder submits a Note for exchange, the Issuer shall pay all documentary,
stamp or similar issue or transfer tax, if any, which may be imposed by the United
States or any political subdivision thereof or taxing authority thereof or
therein with respect to the issuance of Common Shares, if any, upon the
exchange.  However, the Noteholder shall
pay any such tax that is due because the Noteholder requests any Common Shares
to be issued in a name other than the Noteholder’s name.  The Exchange Agent may refuse to deliver the
certificates representing the Common Shares being issued in a name other than
the Noteholder’s name until the Trustee receives a sum sufficient to pay any
tax which will be due because the shares are to be issued in a name other than
the Noteholder’s name.  The Exchange
Agent may refuse to deliver the certificates representing the Common Shares
being issued in a name other than the holder’s name until the Trustee receives
a sum sufficient to pay any tax which will be


 


54
















 


due because the shares are to be issued in a name other than
the holder’s name.  Nothing herein shall
preclude any tax withholding required by law or regulations.


 


(f)            Except
as provided in Section 13.03, no adjustment shall be made for dividends on
any shares issued upon the exchange of any Note as provided in this Article.


 


(g)           Upon
the exchange of an interest in a Global Note, the Trustee shall make a notation
on such Global Note as to the reduction in the principal amount represented
thereby.  The Issuer shall notify the
Trustee in writing of any exchange of Notes effected through any Exchange Agent
other than the Trustee.


 


(h)           Upon
exchange, a Noteholder will not receive any separate cash payment for accrued
and unpaid interest, except as set forth below. 
The Issuer’s settlement of its Exchange Obligation as described above
shall be deemed to satisfy its obligation to pay the principal amount of the
Note and accrued and unpaid interest to, but not including, the Exchange
Date.  As a result, accrued and unpaid
interest to, but not including, the Exchange Date shall be deemed to be paid in
full rather than cancelled, extinguished or forfeited.  Notwithstanding the preceding sentence, if
Notes are exchanged after the Close of Business on a Record Date, Noteholders
of such Notes as of the Close of Business on the Record Date will receive the
interest payable on such Notes on the corresponding Interest Payment Date
notwithstanding the exchange.  Notes
surrendered for exchange during the period from the Close of Business on any
regular Record Date to the Open of Business on the corresponding Interest
Payment Date must be accompanied by payment of an amount equal to the interest
payable on the Notes so exchanged; provided, however, that no such payment need be made (1) if the
Issuer has called the Notes for redemption or (2) to the extent of any
overdue interest existing at the time of exchange with respect to such
Note.  Except as described above, no
payment or adjustment will be made for accrued interest on exchanged Notes.


 


(i)            The
Person in whose name the certificate for any Common Shares issued upon exchange
is registered shall be treated as a holder of such Common Shares of record on
and after the date such Common Shares are delivered pursuant to
Section 13.02(a); provided, however,
that no surrender of Notes on any date when the share transfer books of the
Issuer shall be closed shall be effective to constitute the Person or Persons
entitled to receive the Common Shares upon such exchange as the record holder
or holders of such Common Shares on such date, but such surrender shall be
effective to constitute the Person or Persons entitled to receive such Common
Shares as the record holder or holders thereof for all purposes at the Close of
Business on the next succeeding day on which such share transfer books are
open; such exchange shall be at the Exchange Rate in effect on the date that
such Notes shall have been surrendered for exchange, as if the share transfer
books of the Issuer had not been closed. 
Upon exchange of Notes, such Person shall no longer be a Noteholder.


 


(j)            Notwithstanding
any other provision of the Notes, no Noteholder shall be entitled to exchange
such Notes for Common Shares if and to the extent that the Issuer has not
received such Common Shares from the Guarantor. 
If the Issuer is unable to deliver shares to any Noteholder as described
above, the Issuer will at the Issuer’s option either pay cash to such
Noteholder in lieu of the Common Shares otherwise deliverable, or issue to such
Noteholder a number of the Issuer’s Common Units equal to the shortfall in the
number of Common Shares otherwise deliverable, with such Common Units having
all the rights and privileges provided in the Issuer’s declaration of trust as
in effect on the date of issuance of such Common Units including the right by,
and at the Guarantor’ election, to have such units redeemed for cash in an
amount equal to the fair market value of an equal number of Common Shares or
for an equal number of Common Shares.


 


(k)           The
Issuer may elect to pay cash to the Noteholders in lieu of all or a portion of
the Common Shares otherwise issuable pursuant to this Article 13.  In such event, on any day prior to the first 


 


55

















 


Trading Day of the applicable Observation Period, the Issuer
shall specify a percentage of the Daily Share Amount that shall be settled in
cash (the “Cash Percentage”) and the amount
of cash that the Issuer shall deliver in respect of the Daily Share amount on
each Trading Day in the applicable Observation Period will equal the product
of:  (1) the Cash Percentage,
(2) the Daily Share Amount for such Trading Day and (3) the Last
Reported Sale Price for Common Shares for such Trading Day (provided that after
the consummation of a Fundamental Change in which the consideration is
comprised entirely of cash, the amount used in this clause (3) shall be
the cash price per share received by holders of the Common Shares in such
Fundamental Change).  The number of
Common Shares that the Issuer shall deliver in respect of each Trading Day in
the applicable Observation Period will be a percentage of the Daily Share
Amount equal to 100% minus the Cash Percentage. 
Upon making a determination that a percentage of the Daily Share Amount
will be settled in cash, the Issuer shall promptly notify Noteholders of such
Cash Percentage by notifying the Trustee (the “Cash
Percentage Notice”).  If the
Issuer does not specify a Cash Percentage by the Close of Business on the
Trading Day prior to the scheduled first Trading Day of the applicable
Observation Period, the Issuer shall settle 100% of the Daily Share Amount for
each Trading Day in the applicable Observation Period with Common Shares; provided, however, that
the Issuer shall pay cash in lieu of fractional shares otherwise issuable upon
exchange of Notes.  The Issuer at its
option, may revoke any Cash Percentage Notice by notifying the Trustee; provided, that the Issuer shall revoke such notice by the
Close of Business on the Trading Day prior to the scheduled first Trading Day
of the applicable Observation Period.


 


(l)            No
fractional Common Shares shall be issued upon exchange of any Note or
Notes.  If more than one Note shall be
surrendered for exchange at one time by the same Noteholder, the number of full
shares that shall be issued upon exchange thereof shall be computed on the
basis of the aggregate principal amount of the Notes (or specified portions
thereof) so surrendered.  Instead of any
fractional Common Share that would otherwise be issued upon exchange of any
Note or Notes (or specified portions thereof), the Issuer shall pay a cash
adjustment in respect of such fraction (calculated to the nearest one 100th of
a share) in an amount equal to the same fraction of the Last Reported Sale
Price of the Common Shares on the last day of the applicable Observation
Period.


 


Section 13.03         Adjustment of Exchange Rate.  The Exchange Rate shall be adjusted from time
to time by the Issuer as follows, provided that
the Issuer will not make any adjustments to the Exchange Rate if Noteholders
participate (other than in the case of a share split or share combination), at
the same time and upon the same terms as holders of the Common Shares and
solely as a result of holding the Notes, in any of the transactions described
in this Section without having to exchange their Notes as if they held a
number of Common Shares equal to the Exchange Rate, multiplied by the principal
amount (expressed in thousands) of Notes held by each such Holder:


 


(a)           In
case the Guarantor shall issue Common Shares as a dividend or distribution on
all or substantially all Common Shares, or shall effect a subdivision into a
greater number of Common Shares or combination into a lower number of Common
Shares, the Exchange Rate shall be adjusted based on the following formula:


 


	
   

  	
  ER’

  	
  =

  	
  ER0

  	
  x

  	
  OS’

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  OS0

  	
   

  



 


Where


 


ER0                            =        the Exchange Rate in effect immediately prior to the
Open of Business on the Ex-Dividend Date of such dividend or distribution, or
immediately prior to the Open of Business on the effective date of such share
split or combination, as applicable;


 


56

















 


ER’                             =        the Exchange Rate in effect
immediately after the Open of Business on such Ex-Dividend Date or effective
date;


 


OS0                           =        the number of Common Shares outstanding immediately
prior to the Open of Business on such Ex-Dividend Date or effective date; and


 


OS’                            =        the number of Common Shares
outstanding immediately after such dividend, distribution, share split or
combination.


 


If any dividend or
distribution of the type described in this Section 13.03(a) is
declared but not so paid or made, then the Exchange Rate shall be immediately
readjusted, effective as of the date the Board of Trustees determines not to
pay such dividend or distribution to the Exchange Rate that would then be in
effect if such dividend or distribution had not been declared or announced.


 


(b)           In
case the Guarantor shall issue to all or substantially all holders of its
outstanding Common Shares rights, options or warrants entitling them (for a
period expiring within 60 days after the issuance thereof) to subscribe for or
purchase Common Shares at a price per share less than the Last Reported Sale
Price of the Common Shares on the Trading Day immediately preceding the date of
announcement of such issuance, the Exchange Rate shall be adjusted based on the
following formula:


 


	
   

  	
  ER’

  	
  =

  	
  ER0

  	
  x

  	
  OS0 + X

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  OS0 + Y

  	
   

  



 


Where


 


ER0                            =        the Exchange Rate in effect immediately prior to the
Open of Business on the Ex-Dividend Date for such issuance;


 


ER’                             =        the Exchange Rate in effect
immediately after the Open of Business on such Ex-Dividend Date;


 


OS0                           =        the number of Common Shares outstanding immediately
prior to the Open of Business on such Ex-Dividend Date;


 


X                                       =        the total number of Common
Shares issuable pursuant to such rights, options or warrants; and


 


Y                                        =        the number of Common Shares
equal to the aggregate price payable to exercise such rights, options or
warrants divided by the average of the Last Reported Sale Prices of the Common
Shares over the 10 consecutive Trading Day period ending on the Trading Day
immediately preceding the date of the announcement of the issuance of such
rights, options or warrants.


 


Such adjustment shall be
successively made whenever any such rights, options or warrants are
issued.  To the extent that Common Shares
are not delivered after the expiration of such rights, options or warrants, the
Exchange Rate shall be readjusted to be the Exchange Rate that would then be in
had the adjustment made upon the issuance of such rights, options or warrants
been made on the basis of delivery of only the number of Common Shares actually
delivered.  If such rights, options or
warrants are not so issued, the Exchange Rate shall immediately be readjusted
to equal the Exchange Rate that would then be in effect had the relevant
adjustment pursuant to this Section 13.03(b) not occurred.


 


57

















 


In determining whether any
rights, options or warrants entitle the holders to subscribe for or purchase
Common Shares at less than such Last Reported Sale Price, and in determining
the aggregate offering price of such Common Shares, there shall be taken into
account any consideration received by the Guarantor for such rights, options or
warrants and any amount payable on exercise or exchange thereof, the value of
such consideration, if other than cash, to be determined by the Board of
Trustees.


 


(c)           (i) In
case the Guarantor shall, by dividend or otherwise, distribute shares of its
capital stock, evidences of its indebtedness or other assets or property of the
Guarantor (including securities, but excluding dividends, distributions,
rights, options and warrants covered by Section 13.03(a) or
Section 13.03(b), dividends or distributions paid exclusively in cash and
distributions described below in this paragraph (c) with respect to
Spin-Offs) (any of such shares of beneficial interest, indebtedness, or other
asset or property hereinafter in this Section 13.03(c) called the “Distributed Property”), to all or substantially all holders
of its Common Shares, then, in each such case the Exchange Rate shall be
adjusted based on the following formula:


 


	
   

  	
  ER’

  	
  =

  	
  ER0

  	
  x

  	
  SP0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  SP0 – FMV

  	
   

  



 


Where


 


ER0                            =        the Exchange Rate in effect immediately prior to the
Open of Business on the Ex-Dividend Date for such distribution;


 


ER’                             =        the Exchange Rate in effect
immediately after the Open of Business on each Ex-Dividend Date for such
distribution;


 


SP0                             =        the average of the Last Reported Sale Prices of the Common
Shares over the 10 consecutive Trading Day period ending on the Trading Day
immediately preceding the Ex-Dividend Date for such distribution; and


 


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


 


Notwithstanding the
foregoing, if the then fair market value (as so determined) of the portion of
the Distributed Property so distributed applicable to one Common Share is equal
to or greater than SP0 as set forth above, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive, for each $1,000 principal amount of Notes upon exchange,
the amount of Distributed Property such Noteholder would have received had such
Noteholder owned a number of Common Shares equal to the Exchange Rate on the
Ex-Dividend Date.  If the Board of
Trustees determines the fair market value of any distribution for purposes of
this Section 13.03(c) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in
such market over the same period used in determining SP0 above.


 


(ii) With respect to an
adjustment pursuant to this Section 13.03(c) where there has been a
payment of a dividend or other distribution on the Common Shares of or other
beneficial interests in the Guarantor, or on any class or series of stock of or
similar beneficial interest in or relating to a Subsidiary or other business
unit thereof (a “Spin-Off”), the Exchange Rate will
be increased based on the following formula:


 


	
   

  	
  ER’

  	
  =

  	
  ER0

  	
  x

  	
  FMV0 + MP0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  MP0

  	
   

  



 


58

















 


Where


 


ER0                            =        the Exchange Rate in effect immediately prior to the
Close of Business on the last Trading Day of the Valuation Period;


 


ER’                             =        the Exchange Rate in effect
immediately after the Close of Business on the last Trading Day of the Valuation
Period;


 


FMV0                =        the average of the Last Reported Sale Prices of the
capital stock or similar equity interest distributed to holders of Common
Shares with respect to one Common Share over the first ten consecutive
Trading-Day period after, and including, the Ex-Dividend Date of the Spin-Off
(the “Valuation Period”); and


 


MP0                        =        the average of the Last Reported Sale Prices of
Common Shares over the first 10 consecutive Trading Day period after the
effective date of the Spin-Off.


 


Such adjustment shall occur
by the Close of Business on the last Trading Day of the Valuation Period; provided that in respect of any exchange within the 10
Trading Days following any Spin-Off, references within this paragraph
(c)(ii) to ten days shall be deemed replaced with such lower number of
Trading Days as have elapsed between such Spin-Off and the Exchange Date in
determining the applicable Exchange Rate.


 


If any such distribution
described in Section 13.03(c)(i) or Section 13.03(c)(ii) is
not so paid or made, the Exchange Rate shall be readjusted to be the Exchange
Rate that would then be in effect had such distribution not been declared.


 


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


 


59

















 


retained
such rights or warrants), made to all holders of Common Shares as of the date
of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any
holders thereof, the Exchange Rate shall be readjusted as if such rights and
warrants had not been issued.


 


(d)           In
case the Guarantor shall pay a dividend or make a distribution consisting
exclusively of cash to all or substantially all holders of its Common Shares to
the extent that the aggregate of all such cash dividends or distributions paid
in any quarter exceeds the Dividend Threshold Amount for such quarter, the
Exchange Rate shall be adjusted based on the following formula:


 


	
   

  	
  ER’

  	
  =

  	
  ER0

  	
  x

  	
  SP0 – T

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  SP0 – C

  	
   

  



 


Where


 


ER0                            =        the Exchange Rate in effect immediately prior to the
Open of Business on the Ex-Dividend Date for such dividend or distribution;


 


ER’                             =        the Exchange Rate in effect
immediately after the Open of Business on the Ex-Dividend Date for such
dividend or distribution;


 


SP0                             =        the average of the Last Reported Sale Prices of the
Common Shares over the period of 10 consecutive Trading Days ending the Trading
Day immediately preceding the Ex-Dividend Date for such dividend or
distribution; and


 


T                                        =        the dividend threshold
amount (“Dividend Threshold Amount”), which
amount shall initially be $0.3925 per quarter and which shall be appropriately
adjusted from time to time for any share dividends on, or subdivisions or
combinations of, Common Shares; provided, that
if an Exchange Rate adjustment is required to be made as a result of a
distribution that is not a quarterly dividend either in whole or in part, the
Dividend Threshold Amount shall be deemed to be zero; and


 


C                                        =        the amount in cash per share
that the Guarantor distributes to holders of Common Shares.


 


Notwithstanding the
foregoing, if the portion of the cash so distributed applicable to one Common
Share is equal to or greater than SP0 above, in
lieu of the foregoing adjustment, adequate provision shall be made so that each
Noteholder shall have the right to receive upon exchange of a Note (or any
portion thereof) the amount of cash such Noteholder would have received had
such Noteholder owned a number of shares equal to the Exchange Rate on the
Ex-Dividend Date.  If such dividend or
distribution is not so paid or made, the Exchange Rate shall be readjusted to
be the Exchange Rate that would then be in effect if such dividend or
distribution had not been declared.


 


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


 


60

















 


(e)           In
case the Guarantor or any of its Subsidiaries makes a payment in respect of a
tender offer or exchange offer for all or any portion of the Common Shares, to
the extent that the cash and value of any other consideration included in the
payment per Common Share exceeds the Last Reported Sale Price of the Common
Shares on the Trading Day next succeeding the last date on which tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be
amended), the Exchange Rate shall be increased based on the following formula:


 


	
   

  	
  ER’

  	
  =

  	
  ER0

  	
  x

  	
  AC + (SP’ x OS’)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  SP’ x OS0

  	
   

  



 


Where


 


ER0                            =        the Exchange Rate in effect immediately prior to the
Close of Business on the tenth Trading Day immediately following, and
including, the Trading Day next succeeding the date such tender or exchange
offer expires;


 


ER’                             =        the Exchange Rate
immediately after the Close of Business on the tenth Trading Day immediately
following, and including, the Trading Day next succeeding the date such tender
or exchange offer expires;


 


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


 


OS0                           =        the number of Common Shares outstanding immediately
(prior to the date such tender or exchange offer expires prior to giving effect
to the purchase or exchange of shares pursuant to such tender or exchange
offer);


 


OS’                            =        the number of Common Shares
outstanding immediately after the date such tender or exchange offer expires
(after giving effect to the purchase or exchange of common Shares pursuant to
such tender or exchange offer); and


 


SP’                              =        the average of the Last
Reported Sale Prices of Common Shares over the 10 consecutive Trading Day
period commencing on the Trading Day next succeeding the date such tender or
exchange offer expires,


 


The adjustment to the
Exchange Rate under this Section 13.03(e) will occur at the Close of
Business on the tenth Trading Day immediately following, and including, the
Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any exchange within the ten
Trading Days immediately following, and including, the expiration date of any
tender or exchange offer, references with respect to ten Trading Days shall be
deemed replaced with such lesser number of Trading Days as have elapsed between
the expiration date of such tender or exchange offer and the Exchange Date in
determining the applicable Exchange Rate.


 


If the Issuer is obligated
to purchase shares pursuant to any such tender or exchange offer, but the
Issuer is permanently prevented by applicable law from effecting all or any
such purchases or all or any portion of such purchases are rescinded, the
Exchange Rate shall again be adjusted to be the Exchange Rate that would then
be in effect if such tender or exchange offer had not been made or had only
been made in respect of the purchases that had been effected.  No adjustment to the Exchange Rate will be
made if the application of the foregoing formula would result in a decrease in
the Exchange Rate.


 


61

















 


(f)            If
a Noteholder exchanges a Note and, on any Trading Day during the Observation
Period for such Note, Common Shares are deliverable as part of the Daily
Settlement Amount for such Trading Day, and


 


(i)            any
event that requires an adjustment to the Exchange Rate under Sections
13.03(a) through (e) has occurred, but will not result in an
adjustment to the applicable Exchange Rate for such Trading Day; and


 


(ii)           the
Common Shares that will be delivered to such Noteholder with respect of such
Trading Day are not entitled to participate in the relevant event (because they
were not held on a related Record Date or otherwise),


 


then the number of Common
Shares delivered to such Noteholder as part of the Daily Settlement Amount for
such trading day shall be adjusted in a manner that appropriately reflects the
relevant distribution or transaction.


 


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


 


(h)           In
addition to those required by clauses (a), (b), (c), (d), and (e) of this
Section 13.03, and to the extent permitted by applicable law and subject
to the applicable rules of the New York Stock Exchange, the Issuer from
time to time may increase the Exchange Rate by any amount for a period of at
least 20 days if the Board of Trustees determines that such increase would be
in the Issuer’s best interest.  In
addition, the Issuer may also (but is not required to) increase the Exchange
Rate to avoid or diminish any income tax to holders of Common Shares or rights
to purchase Common Shares in connection with any dividend or distribution of
shares (or rights to acquire shares) or similar event.  Whenever the Exchange Rate is increased
pursuant to the preceding sentence, the Issuer shall provide each Noteholder a
notice of the increase at least five days prior to the date the increased
Exchange Rate takes effect, and such notice shall state the increased Exchange
Rate and the period during which it will be in effect.


 


(i)            Notwithstanding
the foregoing, if any adjustment to the Exchange Rate described in Sections
13.03(a) through (e) becomes effective on any Ex-Dividend Date or
effective date and a Noteholder that has exchanged its Notes would:


 


(i)            receive
Common Shares based on an adjusted Exchange Rate; and


 


(ii)           be
a record holder of such Common Shares on the Record Date for the dividend,
distribution or other event giving rise to the adjustment,


 


then, in lieu of receiving
Common Shares at such an adjusted Exchange Rate, such Noteholder shall receive
a number of Common Shares based on the unadjusted Exchange Rate and will
participate in the related dividend, distribution or other event giving rise to
the adjustment.


 


(j)            All
calculations and other determinations under this Article 13 shall be made
by the Issuer and shall be made to the nearest cent or to the nearest 0.00001
of a share, as the case may be.  No
adjustment shall be made for the Guarantor’s issuance of Common Shares or any
securities convertible into or exchangeable for Common Shares, or the right to
purchase Common Shares or such convertible or 


 


62

















 


exchangeable securities, other than as provided in this
Section 13.03.  No adjustment shall
be made to the Exchange Rate unless such adjustment would require a change of
at least 1% in the Exchange Rate then in effect at such time.  The Issuer shall carry forward any
adjustments that are less than 1% of the Exchange Rate and make such carried
forward adjustments, regardless of whether the aggregate adjustment is less
than 1% within one year of the first such adjustment carried forward, upon a
Fundamental Change, upon any call of the Notes for redemption or upon maturity.


 


(k)           Whenever
the Exchange Rate is adjusted as herein provided, the Issuer shall promptly
file with the Trustee and any Exchange Agent other than the Trustee an
Officers’ Certificate setting forth the Exchange Rate after such adjustment and
setting forth a brief statement of the facts requiring such adjustment.  The Trustee and Exchange Agent may
conclusively rely on the accuracy of the Exchange Rate adjustment provided by
the Issuer.  Unless and until a
Responsible Officer of the Trustee shall have received such Officers’
Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Exchange Rate and may assume without inquiry that the last
Exchange Rate of which it has knowledge is still in effect.  Promptly after delivery of such certificate,
the Issuer shall prepare a notice of such adjustment of the Exchange Rate
setting forth the adjusted Exchange Rate and the date on which each adjustment
becomes effective and shall provide such notice of such adjustment of the
Exchange Rate to the Noteholder within 30 days of the effective date of such
adjustment.  Failure to deliver such
notice shall not affect the legality or validity of any such adjustment.


 


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


 


In the event that this
Section 13.03 requires adjustments to the Exchange Rate under more than
one of Sections 13.03(a), 13.03(b), 13.03(c) or 13.03(d), and the
Ex-Dividend Dates for the distributions giving rise to such adjustments shall
occur on the same date, then such adjustments shall be made by applying, first,
the provisions of Section 13.03(a), second, the provisions of
Section 13.03(c), third, the provisions of Section 13.03(d) and,
fourth, the provisions of Section 13.03(b).


 


Section 13.04         Sufficient Shares to be
Delivered.  To the
extent the Issuer elects to deliver Common Shares, and subject to
Section 13.02(j), the Issuer shall provide, free from preemptive rights,
sufficient Common Shares to provide for exchange of the Notes from time to time
as such Notes are presented for exchange.


 


Section 13.05         Effect of Reclassification,
Consolidation, Merger or Sale.  In the event of (i) any reclassification
or change of the outstanding Common Shares (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a split, subdivision or combination), (ii) any consolidation,
merger or combination of the Guarantor with another Person, or (iii) any
sale or conveyance of all or substantially all of the property and assets of
the Guarantor to any other Person, in each case as a result of which holders of
Common Shares shall be entitled to receive cash, securities or other property
or assets with respect to or in exchange for such Common Shares (any such event
a “Merger Event”), then the Issuer shall
execute with the Trustee a supplemental indenture (which shall comply with the
Trust Indenture Act as in force at the date of execution of such supplemental
indenture if such supplemental indenture is then required to so comply)
providing for the exchange and settlement of the Notes as set forth in this
Indenture.  Such supplemental indenture
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 13 and the
Trustee may conclusively rely on the determination by the Issuer of the
equivalency of such adjustments.


 


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Notwithstanding the
provisions of Section 13.02(a), and subject to the provisions of
Section 13.01, at the effective time of such Merger Event, the right to
exchange each $1,000 principal amount of Notes will be changed to a right to
exchange such Note by reference to the kind and amount of cash, securities or
other property or assets that a holder of a number of Common Shares equal to
the Exchange Rate immediately prior to such transaction would have owned or
been entitled to receive (the “Reference Property”)
such that from and after the effective time of such transaction, a Noteholder
will be entitled thereafter to exchange its Notes into cash and the same type
(and in the same proportion) of Reference Property, based on the Daily
Settlement Amounts of Reference Property in an amount equal to the applicable
Exchange Rate, as described under Section 13.02(a).  For purposes of determining the constitution
of Reference Property, the type and amount of consideration that a holder of
Common Shares would have been entitled to in the case of reclassifications,
consolidations, mergers, sales or conveyance of assets or other transactions
that cause the Common Shares to be converted into the right to receive more
than a single type of consideration (determined based in part upon any form of
shareholder election) will be deemed to be the weighted average of the types
and amounts of consideration received by the holders of Common Shares that
affirmatively make such an election.  The
Issuer shall not become a party to any such transaction unless its terms are
consistent with the preceding.


 


In the event the Issuer
shall execute a supplemental indenture pursuant to this Section 13.05, the
Issuer shall file with the Trustee an Officers’ Certificate briefly stating the
kind or amount of cash, securities or other property or asset that will
constitute the Reference Property after any such Merger Event, and any adjustment
to be made with respect thereto.


 


The Issuer shall cause notice of the execution of such
supplemental indenture to be provided to each Noteholder within 30 days after
execution thereof.  Failure to deliver
such notice shall not affect the legality or validity of such supplemental
indenture.


 


The above provisions of this
Section shall similarly apply to successive Merger Events.


 


Section 13.06         Certain Covenants.  The Issuer covenants that all Common Shares
delivered upon exchange of Notes will be fully paid and non-assessable by the
Guarantor and free from all taxes, liens and changes with respect to the issue
thereof.


 


Section 13.07         Responsibility of Trustee.  The Trustee and any other Exchange Agent
shall not at any time be under any duty or responsibility to any Noteholder to
determine the Exchange Rate, whether a Noteholder is entitled to exchange
Notes, or whether any facts exist which may require any adjustment of the
Exchange Rate, or with respect to the nature or extent or calculation of any
such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same.  The Trustee and any other Exchange Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any Common Shares, or of any securities or property, which may at
any time be issued or delivered upon the exchange of any Note; and the Trustee
and any other Exchange Agent make no representations with respect thereto.  Neither the Trustee nor any Exchange Agent
shall be responsible for any failure of the Issuer to transfer or deliver any
Common Shares or certificates therefor or other securities or property or cash
upon the surrender of any Note for the purpose of exchange or to comply with
any of the duties, responsibilities or covenants of the Issuer contained in
this Article 13.


 


Without limiting the
generality of the foregoing, neither the Trustee nor any Exchange Agent shall
be under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to
Section 13.05 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by Noteholders upon the
exchange of their Notes after any event referred to in such Section 13.05
or to any adjustment to be made with respect 


 


64

















 


thereto,
but may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, the Officers’ Certificate
with respect thereto.


 


Section 13.08         Notice to Noteholders Prior
to Certain Actions.


 


In case:


 


(a)           the
Guarantor shall declare a dividend (or any other distribution) on its Common
Shares that will require an adjustment in the Exchange Rate pursuant to
Section 13.03; or


 


(b)           the
Guarantor shall authorize the granting to all of the holders of its Common
Shares of rights or warrants to subscribe for or purchase any share of any
class or any other rights or warrants;


 


(c)           of
any reclassification of the Common Shares (other than a subdivision or
combination of outstanding Common Shares, or a change in par value, or from par
value to no par value, or from no par value to par value), or of any consolidation
or merger to which the Guarantor is a party and for which approval of any
shareholders of the Guarantor is required, or of the sale or transfer of all or
substantially all of the assets of the Guarantor; or


 


(d)           of
the voluntary or involuntary dissolution, liquidation or winding up of the
Guarantor, the Issuer shall provide the Trustee and to provide each Noteholder
a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights or warrants, or, if a record
is not to be taken, the date as of which the holders of Common Shares of record
to be entitled to such dividend, distribution or rights are to be determined,
or (y) the date on which such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding-up is expected to become
effective or occur, and the date as of which it is expected that holders of
Common Shares of record shall be entitled to exchange their Common Shares for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or
winding-up.  Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up.


 


Section 13.09         Shareholder Rights Plans.  To the extent that the Guarantor has a rights
plan in effect upon exchange of the Notes into Common Shares, Noteholders will
receive, in addition to any Common Shares issued upon such exchange, the rights
under the rights plan with respect to such shares, unless prior to any
exchange, the rights have separated from the Common Shares, in which case the
Exchange Rate will be adjusted at the time of separation as if the Guarantor
distributed to all holders of the Common Shares, shares of Guarantor capital
stock, evidences of indebtedness or assets as described in
Section 13.03(c), subject to readjustment in the event of the expiration,
termination or redemption of such rights.


 


Section 13.10         Ownership Limit.  Notwithstanding any other provision of this
Indenture or the Notes, no Noteholder shall be entitled to exchange such Notes
for Common Shares to the extent that receipt of such shares would cause such
Noteholder (together with such Noteholder’s affiliates) to exceed the
applicable ownership limit contained in the Declaration of Trust of the
Guarantor as then in effect.


 


Section 13.11         Tax Effect.  In certain circumstances, a Noteholder may be
deemed to have received a constructive dividend or a payment of additional
interest subject to U.S. federal income tax as a result of an Exchange Rate
adjustment or the failure to make an Exchange Rate adjustment.  In such event, the Issuer may set-off any U.S.
federal withholding tax that it is required to pay with respect to any such
constructive distribution or payment against cash payments of interest on the
Notes.


 


65
















 


Section 13.12         Taxes
on Shares Issued.  The issue of stock
certificates, if any, on exchange of Notes shall be made without charge to the
exchanging Noteholder for any documentary, stamp or similar issue or transfer
tax in respect of the issue thereof.  The
Issuer shall not, however, be required to pay any such tax which may be payable
in respect of any transfer involved in the issue and delivery of stock in any
name other than that of the Noteholder of any Note exchanged, and the Issuer
shall not be required to issue or deliver any such stock certificate unless and
until the Person or Persons requesting the issue thereof shall have paid to the
Issuer the amount of such tax or shall have established to the satisfaction of
the Issuer that such tax has been paid.


 


Section 13.13         Reservation
of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements;
Listing of Common Shares.  The
Guarantor shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient Common Shares to provide
for the exchange of the Notes as required by this Indenture from time to time
as such Notes are presented for exchange.


 


The Guarantor covenants that all Common Shares which
may be issued upon exchange of Notes will upon issue be fully paid and
non-assessable by the Guarantor and free from all taxes, liens and charges with
respect to the issue thereof.


 


The Guarantor covenants that, if any Common Shares to
be provided for the purpose of exchange of Notes hereunder require registration
with or approval of any governmental authority under any federal or state law
before such shares may be validly issued upon exchange, the Guarantor shall, as
expeditiously as possible secure such registration or approval, as the case may
be.


 


The Guarantor further covenants that, if at any time
the Common shares shall be listed on The New York Stock Exchange or any other
national or regional securities exchange or automated quotation system, the
Guarantor will, if permitted by the rules of such exchange or automated
quotation system, list and keep listed, so long as the Common shares shall be
so listed on such exchange or automated quotation system, all the Common shares
issuable upon exchange of the Notes; provided that
if the rules of such exchange or automated quotation system permit the
Guarantor to defer the listing of such Common shares until the first exchange
of the Notes in accordance with the provisions of this Indenture, the Guarantor
covenants to list such Common shares issuable upon exchange of the Notes in
accordance with the requirements of such exchange or automated quotation system
at such time.


 


Section 13.14         Calculation
in Respect of Notes.  Except as
otherwise specifically stated herein or in the Notes, all calculations to be
made in respect of the Notes shall be the obligation of the Issuer.  All calculations made by the Issuer or its
agent as contemplated pursuant to the terms hereof and of the Notes shall be
made in good faith and be final and binding on the Notes and the Noteholders
absent manifest error.  The Issuer shall
provide a schedule of calculations to the Trustee, and the Trustee shall be
entitled to conclusively rely upon the accuracy of the calculations by the
Issuer without independent verification. 
The Trustee shall forward calculations made by the Issuer to any
Noteholder upon written request.


 


ARTICLE 14


 


MEETINGS OF NOTEHOLDERS


 


Section 14.01         Purposes
for Which Meetings May Be Called. 
A meeting of Noteholders may be called at any time and from time to time
pursuant to this Article 14 to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other act provided by this
Indenture to be made, given or taken by Noteholders.


 


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Section 14.02         Call,
Notice and Place of Meetings.


 


(a)           The Trustee may at any time call a
meeting of Noteholders for any purpose specified in Section 14.01, to be
held at such time and at such place in The City of New York, New York as the
Trustee shall determine.  Notice of every
meeting of Noteholders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 16.03, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.


 


(b)           In case at any time the Issuer, the
Guarantor or the Noteholders of at least 10% in principal amount of the
Outstanding Notes shall have requested the Trustee to call a meeting of the
Noteholders for any purpose specified in Section 14.01, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have provided notice of or made the first
publication of the notice of such meeting within 21 days after receipt of such
request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer, the Guarantor, if applicable, or the
Noteholders in the amount above specified, as the case may be, may determine
the time and the place in the City of New York, New York, for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
clause (a) of this Section 14.02.


 


Section 14.03         Persons
Entitled to Vote at Meetings.  To be
entitled to vote at any meeting of Noteholders, a Person shall be (a) a
Noteholder of one or more Outstanding Notes, or (b) a Person appointed by
an instrument in writing as proxy for a Noteholder or Noteholders of one or
more Outstanding Notes by such Noteholder or Noteholders.  The only Persons who shall be entitled to be
present or to speak at any meeting of Noteholders shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel, any representatives of the Guarantor and its counsel and any
representatives of the Issuer and its counsel.


 


Section 14.04         Quorum;
Action.  The Persons entitled to vote
a majority in principal amount of the Outstanding Notes shall constitute a
quorum for a meeting of Noteholders; provided, however, that if any action is to be taken at the meeting
with respect to a consent or waiver which may be given by the Noteholders of
not less than a specified percentage in principal amount of the Outstanding
Notes, the Persons holding or representing the specified percentage in
principal amount of the Outstanding Notes will constitute a quorum.  In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Noteholders, be dissolved. 
In any other case the meeting may be adjourned for a period of not less
than ten days as determined by the chairman of the meeting prior to the
adjournment of such meeting.  In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than ten days as determined by
the chairman of the meeting prior to the adjournment of such adjourned
meeting.  Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 14.02, except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Notes which shall constitute a quorum.


 


Except as limited by the proviso to Section 9.02,
any resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the affirmative
vote of the Noteholders of a majority in principal amount of the Outstanding
Notes; provided, however,
that, except as limited by the proviso to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Noteholders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding Notes may be adopted at a
meeting or an adjourned


 


67

















 


meeting duly reconvened
and at which a quorum is present as aforesaid by the affirmative vote of the
Noteholders of such specified percentage in principal amount of the Outstanding
Notes.


 


Any resolution passed or decision taken at any meeting
of Noteholders duly held in accordance with this Section 14.04 shall be
binding on all the Noteholders, whether or not such Noteholders were present or
represented at the meeting.


 


Section 14.05         Determination
of Voting Rights; Conduct and Adjournment of Meetings.


 


(a)           Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Noteholders in regard to proof of the holding
of Notes and of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate.  Except as otherwise permitted or required by
any such regulations, the holding of Notes shall be proved in the manner
specified in Section 8.03 and the appointment of any proxy shall be proved
in the manner specified in Section 8.01.


 


(b)           The Trustee shall, by an instrument
in writing, appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Issuer or by Noteholders as provided in
Section 14.02(b), in which case the Issuer, the Guarantor or the
Noteholders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman.  A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Notes of such series represented at the meeting.


 


(c)           At any meeting, each Noteholder or
proxy shall be entitled to one vote for each $1,000 principal amount of Notes
held or represented by him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Note challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. 
The chairman of the meeting shall have no right to vote, except as a
Noteholder or proxy.


 


(d)           Any meeting of Noteholders duly
called pursuant to Section 14.02 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Notes represented at the meeting; and the meeting may
be held as so adjourned without further notice.


 


Section 14.06         Counting
Votes and Recording Action of Meetings. 
The vote upon any resolution submitted to any meeting of Noteholders
shall be by written ballots on which shall be subscribed the signatures of the
Noteholders or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Notes held or represented by them.  The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in triplicate of all votes cast at the
meeting.  A record, at least in
triplicate, of the proceedings of each meeting of Noteholders shall be prepared
by the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 14.02 and, if applicable, Section 14.04.  Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer and the Guarantor, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto


 


68

















 


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


 


ARTICLE 15


 


GUARANTEE


 


Section 15.01         Guarantee.  By its execution hereof, the Guarantor
acknowledges and agrees that it receives substantial benefits from the Issuer
and that the Guarantor is providing its Guarantee for good and valuable
consideration, including, without limitation, such substantial benefits.  Accordingly, subject to the provisions of
this Article 15, the Guarantor hereby unconditionally guarantees to each
Noteholder and its successors and assigns that: 
(x) the principal of (including the Redemption Price or repurchase
price upon redemption or repurchase pursuant to Article 3), premium, if
any, and interest and Additional Interest, if any, on the Notes shall be duly
and punctually paid in full when due, whether at the Maturity Date, upon
acceleration, upon redemption, upon a repurchase, upon repurchase due to a
Fundamental Change or otherwise, and interest on overdue principal, premium, if
any, Additional Interest, if any, and (to the extent permitted by law) interest
on any interest, if any, on the Notes and (y) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, the
same shall be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at the Maturity Date, by
acceleration, call for redemption, upon repurchase, upon repurchase due to a
Fundamental Change or otherwise. 
Furthermore, subject to the provisions of this Article 15, the
Guarantor hereby unconditionally guarantees to the Trustee and to each
Noteholder and their respective successors and assigns that (z) all other
obligations of the Issuer to the Noteholders or the Trustee hereunder or under
the Notes (including fees, expenses or other) shall be promptly paid in full or
performed, all in accordance with the terms hereof, subject, however, in the
case of clauses (x), (y) and (z) above, to the limitations set forth
in Section 15.03 hereof (the obligations set forth in this
Section 15.01 collectively, the “Guarantee Obligations”).


 


Subject to the provisions of this Article 15, the
Guarantor hereby agrees that its Guarantee hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Noteholder of the Notes with respect to any thereof, the entry of any
judgment against the Issuer, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of the Guarantor.  The Guarantor
hereby waives and relinquishes: 
(a) any right to require the Trustee, the Noteholders or the Issuer
(each, a “Benefited Party”) to proceed against
the Issuer or any other Person or to proceed against or exhaust any security
held by a Benefited Party at any time or to pursue any other remedy in any
secured party’s power before proceeding against the Guarantor; (b) any
defense that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of a Benefited Party
to file or enforce a claim against the estate (in administration, bankruptcy or
any other proceeding) of any other Person or Persons; (c) demand, protest
and notice of any kind (except as expressly required by this Indenture),
including but not limited to notice of the existence, creation or incurring of
any new or additional indebtedness or obligation or of any action or non-action
on the part of the Guarantor, the Issuer, any Benefited Party, any creditor of
the Guarantor or the Issuer or on the part of any other Person whomsoever in
connection with any obligations the performance of which are hereby guaranteed;
(d) any defense based upon an election of remedies by a Benefited Party,
including but not limited to an election to proceed against the Guarantor for
reimbursement; (e) 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; (f) any
defense arising because of a Benefited Party’s election, in any proceeding
instituted under Bankruptcy Law, of the application of
Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense
based on any borrowing or grant of a security interest under Section 364
of the Bankruptcy Code.


 


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The Guarantor hereby
covenant that, except as otherwise provided therein, the Guarantee shall not be
discharged except by payment in full of all Guarantee Obligations, including
the principal, premium, if any, and interest and Additional Interest, if any,
on the Notes and all other costs provided for under this Indenture or as
provided in Article 7.


 


If any Noteholder or the Trustee is required by any
court or otherwise to return to either the Issuer or the Guarantor, or any
trustee or similar official acting in relation to either the Issuer or the
Guarantor, any amount paid by the Issuer or the Guarantor to the Trustee or
such Holder, the Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.  The
Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Noteholders in respect of any Guarantee Obligations hereby
until payment in full of all such obligations guaranteed hereby.  The Guarantor agrees that, as between it, on
the one hand, and the Noteholders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 hereof for the purposes hereof, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in
respect of the Guarantee Obligations, and (y) in the event of any
acceleration of such obligations as provided in Article 6 hereof, such
Guarantee Obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantor for the purpose of the Guarantee.


 


Section 15.02         Execution
and Delivery of Guarantee.  To
evidence the Guarantee set forth in Section 15.01 hereof, the Guarantor
agrees that a notation of the Guarantee substantially in the form included in Exhibit A
hereto shall be endorsed on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of the Guarantor by
an officer of the Guarantor.


 


The Guarantor agrees that the Guarantee set forth in
this Article 15 shall remain in full force and effect and apply to all the
Notes notwithstanding any failure to endorse on each Note a notation of the
Guarantee.


 


If an officer whose facsimile signature is on a Note
or a notation of Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which the 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 the Guarantor.


 


Section 15.03         Limitation
of Guarantor’s Liability; Certain Bankruptcy Events.


 


(a)           The Guarantor, and by its acceptance
hereof each Holder, hereby confirms that it is the intention of all such
parties that the Guarantee Obligations of the Guarantor pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance for purposes of
any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law.  To effectuate the foregoing intention, the
Noteholders and the Guarantor hereby irrevocably agree that the Guarantee
Obligations of the Guarantor under this Article 15 shall be limited to the
maximum amount as shall, after giving effect to all other contingent and fixed
liabilities of the Guarantor, result in the Guarantee Obligations of the
Guarantor under the Guarantee not constituting a fraudulent transfer or
conveyance.


 


(b)           The Guarantor hereby covenants and
agrees, to the fullest extent that it may do so under applicable law, that in
the event of the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Issuer, the Guarantor shall not file (or join in any filing
of), or otherwise seek to participate in the filing of, any motion or request
seeking to stay or to prohibit (even temporarily) execution on the


 


70

















 


Guarantee
and hereby waives and agrees not to take the benefit of any such stay of
execution, whether under Section 362 or 105 of the Bankruptcy Code or
otherwise.


 


Section 15.04         Application
of Certain Terms and Provisions to the Guarantor.


 


(a)           For purposes of any provision of this
Indenture which provides for the delivery by the Guarantor of an Officers’
Certificate and/or an Opinion of Counsel, the definitions of such terms in
Section 1.01 hereof shall apply to the Guarantor as if references therein
to the Issuer or the Guarantor, as applicable, were references to the
Guarantor.


 


(b)           Any request, direction, order or
demand which by any provision of this Indenture is to be made by the Guarantor
shall be sufficient if evidenced as described in Section 16.03 hereof as
if references therein to the Issuer were references to the Guarantor.


 


(c)           Any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Noteholders to or on the Guarantor may be given or served
as described in Section 16.03 hereof as if references therein to the
Issuer were references to the Guarantor.


 


(d)           Upon any demand, request or
application by the Guarantor to the Trustee to take any action under this
Indenture, the Guarantor shall furnish to the Trustee such certificates and
opinions as are required in Section 16.05 hereof as if all references
therein to the Issuer were references to the Guarantor.


 


ARTICLE 16


 


MISCELLANEOUS PROVISIONS


 


Section 16.01         Provisions
Binding on Issuer’s and Guarantor’s Successors.  All the covenants, stipulations, promises and
agreements by the Issuer or Guarantor contained in this Indenture shall bind
their respective successors and assigns whether so expressed or not.


 


Section 16.02         Official
Acts by Successor Corporation.  Any
act or proceeding by any provision of this Indenture authorized or required to
be done or performed by any board, committee or officer of the Issuer shall and
may be done and performed with like force and effect by the like board,
committee or officer of any Person that shall at the time be the lawful sole
successor of the Issuer or Guarantor.


 


Section 16.03         Addresses
for Notices, etc.  Any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Noteholders on the Issuer or Guarantor
shall be in writing and shall be deemed to have been sufficiently given or
made, for all purposes, if given or served by being deposited postage prepaid
by registered or certified mail in a post office letter box, or sent by
overnight courier, or sent by telecopier transmission addressed as follows:


 


To Issuer:


 


Corporate Office Properties, L.P.


6711 Columbia Gateway Drive, Suite 300 


Columbia, Maryland 21046


Facsimile No.:  (443) 285-7640


Attention:  General Counsel


 


71

















 


To Guarantor:


 


Corporate Office Properties Trust


6711 Columbia Gateway Drive, Suite 300 


Columbia, Maryland 21046


Facsimile No.:  (443) 285-7640


Attention:  General Counsel


 


Any notice, direction, request or demand hereunder to
or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or served by being deposited, postage prepaid, by
registered or certified mail in a post office letter box, or sent by overnight
courier, or sent by telecopier transmission addressed as follows:


 


Wells Fargo Bank, National Association

625 Marquette Avenue, MAC N9311-110

Minneapolis, MN 55479

Facsimile No.:  (612) 667-9825

Attention:  Corporate Trust Services


 


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


 


Any notice or communication provided to a Noteholder
shall be delivered via electronic transmission or mailed by first-class mail,
postage prepaid, at such Noteholder’s address as it appears on the Note
Register and shall be sufficiently given to such Noteholder if so provided
within the time prescribed.


 


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


 


Section 16.04         Governing
Law; Waiver of Jury Trial.  This
Indenture shall be governed by, and construed in accordance with, the laws of
the State of New York without regard to conflict of law principles thereof.


 


EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


Section 16.05         Evidence
of Compliance with Conditions Precedent, Certificates to Trustee.  Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, and, if requested by
the Trustee, an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with; provided, however, that such Officers’ Certificate and
Opinion of Counsel shall not be required in the case of the original issuance
of Notes hereunder.


 


Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant, if any, provided for in this Indenture shall
include:  (1) a


 


72

















 


statement that the person
making such certificate or opinion has read such covenant or condition, if any;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate
or opinion is based; (3) a statement that, in the opinion of such person,
such person 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, if any, has been complied with; and (4) a statement
as to whether or not, in the opinion of such person, such condition or
covenant, if any, has been complied with; provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers’ Certificate or certificates of public
officials.


 


Section 16.06         Legal
Holidays; Days.  In any case in which
the Maturity Date of interest on or principal of the Notes or the Redemption
Date or Repurchase Date of any Note will not be a Business Day, then payment of
such interest on or principal of the Notes need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Maturity Date or the Redemption Date or Repurchase Date, and
no interest shall accrue for the period from and after such date.  Unless expressly stated, references in this
Indenture to “days” are to calendar days.


 


Section 16.07         Trust
Indenture Act.  This Indenture is
hereby made subject to, and shall be governed by, the provisions of the Trust
Indenture Act required to be part of and to govern indentures qualified under
the Trust Indenture Act; provided that
this Section 16.07 shall not require this Indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to the Indenture that
any such qualification is required prior to the time such qualification is in
fact required under the terms of the Trust Indenture Act.  If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in an
indenture qualified under the Trust Indenture Act, such required provision
shall control.


 


Section 16.08         No
Security Interest Created.  Nothing
in this Indenture or in the Notes, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction in
which property of the Issuer or its subsidiaries is located.


 


Section 16.09         Benefits
of Indenture.  Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto, any Paying Agent, any Bid Solicitation Agent, any
authenticating agent, any Note Registrar and their successors hereunder and the
Noteholders any benefit or any legal or equitable right, remedy or claim under
this Indenture.


 


Section 16.10         Table
of Contents, Headings, etc.  The
table of contents and the titles and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


Section 16.11         Authenticating
Agent.  The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and subject
to its direction, in the authentication and delivery of Notes in connection
with the original issuance thereof and transfers and exchanges of Notes
hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, 3.03, 3.05 and
3.06, as fully to all intents and purposes as though the authenticating agent
had been expressly authorized by this Indenture and those Sections to
authenticate and deliver Notes.  For all
purposes of this Indenture, the authentication and delivery of Notes by the
authenticating agent shall be deemed to be authentication and delivery of such
Notes “by the Trustee” and a certificate of authentication executed on behalf
of the Trustee by an authenticating agent shall be deemed to satisfy any
requirement hereunder or in the Notes for the Trustee’s certificate of


 


73

















 


authentication.  Such
authenticating agent shall at all times be a Person eligible to serve as
trustee hereunder pursuant to Section 7.09.


 


Any corporation into which any authenticating agent
may be merged or exchanged or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or exchange to which any
authenticating agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any authenticating agent,
shall be the successor of the authenticating agent hereunder, if such successor
corporation is otherwise eligible under this Section 16.11, without the
execution or filing of any paper or any further act on the part of the parties
hereto or the authenticating agent or such successor corporation.


 


Any authenticating agent may at any time resign by
giving written notice of resignation to the Trustee and to the Issuer.  The Trustee may at any time terminate the
agency of any authenticating agent by giving written notice of termination to
such authenticating agent and to the Issuer. 
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any authenticating agent shall cease to be eligible
under this Section, the Trustee shall either promptly appoint a successor
authenticating agent or itself assume the duties and obligations of the former
authenticating agent under this Indenture and, upon such appointment of a
successor authenticating agent, if made, shall give written notice of such
appointment of a successor authenticating agent to the Issuer and shall provide
notice of such appointment of a successor authenticating agent to all
Noteholders.


 


The Issuer agrees to pay to the authenticating agent
from time to time such reasonable compensation for its services as shall be
agreed upon in writing between the Issuer and the authenticating agent.


 


The provisions of Sections 7.02, 7.03, 7.04 and 8.03
and this Section 16.11 shall be applicable to any authenticating agent.


 


Section 16.12         Execution
in Counterparts.  This Indenture may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same
instrument.  The exchange of copies of
this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all
purposes.  Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their original
signatures for all purposes.


 


Section 16.13         Severability.  In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


Section 16.14         Force
Majeure.  In no event shall
the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.


 


Section 16.15         USA
PATRIOT Act.  The parties hereto acknowledge that in accordance with Section 326
of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on
October 26, 2001)) (the “Patriot Act”),
the Trustee, like all financial institutions and in order to help fight the
funding


 


74

















 


of terrorism and money laundering, is required to
obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they
will provide the Trustee with such information as it may reasonably request in
order for the Trustee to satisfy the requirements of the Patriot Act.


 


Wells Fargo Bank, National Association, hereby accepts
the trusts in this Indenture declared and provided, upon the terms and
conditions herein above set forth.


 


75

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed.


 


	
   

  	
  CORPORATE OFFICE
  PROPERTIES, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Corporate Office
  Properties Trust

  
	
   

  	
   

  	
  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Randall M. Griffin

  
	
   

  	
   

  	
  Name: 

  	
  Randall M. Griffin

  
	
   

  	
   

  	
  Title:

  	
  President &
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CORPORATE OFFICE
  PROPERTIES TRUST,

  
	
   

  	
  as Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Randall M. Griffin

  
	
   

  	
   

  	
  Name: 

  	
  Randall M. Griffin

  
	
   

  	
   

  	
  Title:

  	
  President &
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK,
  NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lynn M. Steiner

  
	
   

  	
   

  	
  Name: 

  	
  Lynn M. Steiner

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 
















 


SCHEDULE
A


 


	
   

  	
   

  	
  Share
  Price

  	
   

  
	
  Effective
  Date

  	
   

  	
  $40.13

  	
   

  	
  $45.00

  	
   

  	
  $50.00

  	
   

  	
  $55.00

  	
   

  	
  $60.00

  	
   

  	
  $65.00

  	
   

  	
  $70.00

  	
   

  	
  $75.00

  	
   

  	
  $80.00

  	
   

  	
  $85.00

  	
   

  	
  $90.00

  	
   

  	
  $95.00

  	
   

  	
  $100.00

  	
   

  	
  $105.00

  	
   

  	
  $110.00

  	
   

  
	
  April 7,
  2010

  	
   

  	
  4.1532

  	
   

  	
  2.9009

  	
   

  	
  1.8541

  	
   

  	
  1.2610

  	
   

  	
  0.8751

  	
   

  	
  0.6204

  	
   

  	
  0.4493

  	
   

  	
  0.3318

  	
   

  	
  0.2492

  	
   

  	
  0.1895

  	
   

  	
  0.1453

  	
   

  	
  0.1118

  	
   

  	
  0.0858

  	
   

  	
  0.0653

  	
   

  	
  0.0489

  	
   

  
	
  April 20,
  2011

  	
   

  	
  4.1532

  	
   

  	
  2.8606

  	
   

  	
  1.8499

  	
   

  	
  1.2131

  	
   

  	
  0.8106

  	
   

  	
  0.5544

  	
   

  	
  0.3891

  	
   

  	
  0.2801

  	
   

  	
  0.2064

  	
   

  	
  0.1550

  	
   

  	
  0.1179

  	
   

  	
  0.0902

  	
   

  	
  0.0690

  	
   

  	
  0.0523

  	
   

  	
  0.0390

  	
   

  
	
  April 20,
  2012

  	
   

  	
  4.1532

  	
   

  	
  2.8328

  	
   

  	
  1.7419

  	
   

  	
  1.0765

  	
   

  	
  0.6756

  	
   

  	
  0.4351

  	
   

  	
  0.2899

  	
   

  	
  0.2005

  	
   

  	
  0.1438

  	
   

  	
  0.1062

  	
   

  	
  0.0801

  	
   

  	
  0.0610

  	
   

  	
  0.0463

  	
   

  	
  0.0347

  	
   

  	
  0.0253

  	
   

  
	
  April 20,
  2013

  	
   

  	
  4.1532

  	
   

  	
  2.6703

  	
   

  	
  1.5032

  	
   

  	
  0.8329

  	
   

  	
  0.4646

  	
   

  	
  0.2679

  	
   

  	
  0.1638

  	
   

  	
  0.1077

  	
   

  	
  0.0760

  	
   

  	
  0.0565

  	
   

  	
  0.0434

  	
   

  	
  0.0336

  	
   

  	
  0.0258

  	
   

  	
  0.0193

  	
   

  	
  0.0137

  	
   

  
	
  April 20,
  2014

  	
   

  	
  4.1532

  	
   

  	
  2.2619

  	
   

  	
  1.0204

  	
   

  	
  0.4146

  	
   

  	
  0.1610

  	
   

  	
  0.0675

  	
   

  	
  0.0354

  	
   

  	
  0.0238

  	
   

  	
  0.0183

  	
   

  	
  0.0146

  	
   

  	
  0.0117

  	
   

  	
  0.0091

  	
   

  	
  0.0068

  	
   

  	
  0.0047

  	
   

  	
  0.0028

  	
   

  
	
  April 20,
  2015

  	
   

  	
  4.1532

  	
   

  	
  1.4564

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 

















 


Exhibit A


 


FORM OF
NOTE


 


[Include only for Global
Notes]


 


[THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE
TREATED BY THE ISSUER, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF
THIS SECURITY FOR ALL PURPOSES.


 


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


 


UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM IN
THE LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY 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.]


 


[Include only for Notes that
are Restricted Securities]


 


[NEITHER THIS SECURITY NOR
THE COMMON SHARES OF BENEFICIAL INTEREST ISSUABLE ON EXCHANGE OF THIS SECURITY
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.  NEITHER THIS SECURITY NOR THE COMMON SHARES
OF BENEFICIAL INTEREST ISSUABLE ON EXCHANGE OF THIS SECURITY, NOR ANY INTEREST
OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.  THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE
144A”)); (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY OR ANY COMMON SHARES OF BENEFICIAL INTEREST ISSUABLE ON
EXCHANGE OF THIS SECURITY, PRIOR TO THE TIME AT WHICH THIS SECURITY MAY BE
RESOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), ONLY (a) TO CORPORATE OFFICE PROPERTIES, L.P.  (THE “ISSUER”), (b) UNDER A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (c) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE UNDER RULE 144A, IN COMPLIANCE WITH
RULE 144A TO A PERSON IT REASONABLY BELIEVES IS 


 


A-1

















 


A QUALIFIED INSTITUTIONAL
BUYER 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 OR (d) UNDER ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING RULE 144), SUBJECT
TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER UNDER CLAUSE (d) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


THIS LEGEND WILL BE REMOVED
ON THE EARLIER OF THE TRANSFER OF THIS SECURITY UNDER CLAUSE 2(b) ABOVE OR
ON ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION).]


 


A-2

















 


CORPORATE
OFFICE PROPERTIES, L.P.


4.25%
EXCHANGEABLE SENIOR NOTES DUE 2030


 


	
  Dated:

  	
   

  	
  PRINCIPAL AMOUNT

  
	
  No.:

  	
   

  	
  $                       

  
	
  CUSIP
  No.: 22003B AC0

  	
   

  	
   

  
	
  ISIN No.: US22003BAC00

  	
   

  	
   

  



 


CORPORATE OFFICE PROPERTIES,
L.P., a Delaware limited partnership (hereinafter called the “Issuer,” which term shall include any successor under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to
[              ]
[IF THIS NOTE IS A GLOBAL NOTE, THEN INSERT:] [Cede & Co.], or
registered assigns, upon presentation, the principal sum of
$                        
[IF THIS NOTE IS A GLOBAL NOTE, THEN INSERT:] [(which principal amount may from
time to time be decreased to such other principal amounts by adjustments made
on the records of the Trustee hereinafter referred to in accordance with the
Indenture referred to below)] on April 15, 2030 and to pay interest on the
outstanding principal amount thereon from
                        
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually in arrears on April 15 and October 15
in each year, commencing on October 15, 2010, at the rate of 4.25% per
annum, until the entire principal hereof is paid or made available for
payment.  The Notes will be fully and
unconditionally guaranteed by Corporate Office Properties Trust (the “Guarantor”), on a senior unsecured basis, in accordance with
the provisions of Article 15 of the Indenture.


 


The interest so payable, and
punctually paid or duly provided for on any Interest Payment Date will, as provided
in the Indenture, be paid to the Person in whose name this Note is registered
at the Close of Business on the Record Date for such interest which shall be
the April 1 or October 1, as the case may be, next preceding such
Interest Payment Date.  Payment of the
principal of and interest on this Note will be made at the office of the Issuer
maintained by the Issuer for such purposes, which shall initially be an office
or agency of the Trustee, or elsewhere as provided in the Indenture, 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; provided, however, that at the option of the Issuer, payment of
interest may be made by (i) check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or (ii) transfer
to an account of the Person entitled thereto located inside the United States.


 


Each Note of this series is
one of a duly authorized issue of securities of the Issuer (herein called the “Notes”), issued under an Indenture, dated as of April 7,
2010 (the “Indenture”), between the Issuer,
the Guarantor and Wells Fargo Bank, National Association, as trustee (herein
called the “Trustee”).  Reference is hereby made to the Indenture for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Issuer, the Trustee and the Noteholders and of the
terms upon which the Notes are, and are to be, authenticated and delivered.


 


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


 


As provided in and subject
to the provisions of the Indenture, unless the principal of all of the Notes of
this series at the time Outstanding shall already have become due and payable,
the Noteholder of this Note shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless such Noteholder shall
have previously given the Trustee written notice of a continuing Event of
Default with respect to the Notes of this series, the Noteholders of not less
than 25% in principal amount of the Notes of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of 


 


A-3

















 


such
Event of Default as Trustee and offered the Trustee such reasonably security or
indemnity as the Trustee may require and the Trustee shall not have received
from the Noteholders of a majority in principal amount of Notes of this series
at the time Outstanding a direction inconsistent with such request, and the
Trustee shall have failed to institute any such proceeding for 60 days after
receipt of such notice, request and offer of security or indemnity.  The foregoing shall not apply to any suit
instituted by the Noteholder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.


 


Prior to April 20,
2015, the Issuer may not redeem the Notes except to preserve the Guarantor’s
status as a real estate investment trust as described in Section 3.01 of
the Indenture.  Subject to the terms and
conditions of the Indenture, on or after April 20, 2015, the Issuer shall
have the right to redeem the Notes, in whole or from time to time in whole or
part, at a price equal to 100% of the principal amount of the Notes being
redeemed, plus accrued and unpaid interest. 
Any such redemption shall be upon at least 30 days’ and no more than 60 days’
notice to Noteholders.


 


Subject to the terms and
conditions of the Indenture, the Issuer will make all payments and deliveries
in respect of the Fundamental Change Repurchase Price, the Put Right Repurchase
Price, the redemption price and the principal amount on the Maturity Date, as
the case may be, to the Noteholder who surrenders a Note to a Paying Agent to
collect such payments in respect of the Note. 
The Issuer will pay cash amounts in money of the United States that at
the time of payment is legal tender for payment of public and private debts.


 


The Indenture contains
provisions permitting the Issuer and the Trustee in certain circumstances,
without the consent of the Noteholders, and in other circumstances, with the
consent of the Noteholders of not less than a majority in aggregate principal
amount of the Notes at the time Outstanding, evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
Noteholders.  It is also provided in the
Indenture that the Noteholders of a majority in aggregate principal amount of the
Notes at the time Outstanding may on behalf of the Noteholders of all of the
Notes waive any past Default or Event of Default under the Indenture and its
consequences except as provided in the Indenture.  Any such consent or waiver by the Noteholder
of this Note (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Noteholder and upon all future Noteholders and owners of
this Note and any Notes which may be issued in exchange or substitution hereof,
irrespective of whether or not any notation thereof is made upon this Note or
such other Notes.


 


No reference herein to the
Indenture and no provision of this Note or of the Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and accrued and unpaid interest on this Note at the place,
at the respective times, at the rate and in the lawful money herein prescribed.


 


The Notes are issuable in
registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof.  At the
office or agency of the Issuer referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, without
payment of any service charge but with payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration or exchange of Notes, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.


 


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


 


A-4

















 


Upon the occurrence of a
Fundamental Change, the Noteholder has the right, at such Noteholder’s  option, to require the Issuer to repurchase
all of such Noteholder’s  Notes or any portion
thereof (in principal amounts of $1,000 or integral multiples thereof) on the
Fundamental Change Repurchase Date at a price equal to 100% of the principal
amount of the Notes such Noteholder elects to require the Issuer to repurchase,
together with accrued and unpaid interest to but excluding the Fundamental
Change Repurchase Date.  The Issuer or,
at the written request of the Issuer, the Trustee shall provide to all
Noteholders of record a notice of the occurrence of a Fundamental Change and of
the repurchase right arising as a result thereof on or before the twentieth day
after the occurrence of any Fundamental Change.


 


On April 15, 2015, April 15,
2020 or April 15, 2025, the Noteholder has the right, at such
Noteholder’s  option, to require the Issuer
to repurchase all of such Noteholder’s 
Notes or any portion thereof (in principal amounts of $1,000 or integral
multiples thereof) at a price equal to 100% of the principal amount of the
Notes such Noteholder elects to require the Issuer to repurchase, together with
accrued and unpaid interest to but excluding the Put Right Repurchase
Date.  Noteholders shall submit their
Notes for repurchase to the Paying Agent at any time from the Open of Business
on the date that is 25 Business Days prior to the applicable Put Right
Repurchase Date until the Close of Business on the fifth Business Day prior to
the Put Right Repurchase Date.


 


Subject to the provisions of
the Indenture, the Noteholder has the right, at its option, to exchange all or
any portion (if the portion to be exchanged is $1,000 principal amount or an
integral multiple thereof) of such Notes at any time prior to the Close of
Business on the Scheduled Trading Day immediately preceding April 20,
2015, into cash, Common Shares or a combination thereof, in each case at the
Exchange Rate specified in the Indenture, as adjusted from time to time as
provided in the Indenture.  The initial
Exchange Rate is 20.7658 Common Shares for each $1,000 principal amount of Notes.  No fractional Common Shares will be issued
upon any exchange, but an adjustment in cash will be paid to the Holder, as
provided in the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Note or Notes for exchange.  No adjustment shall be made for dividends or
any shares issued upon exchange of such Note except as provided in the
Indenture.


 


Upon due presentment for
registration of transfer of this Note at the office or agency of the Company, a
new Note or Notes of authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange thereof, subject to the
limitations provided in the Indenture, without charge except for any tax,
assessments or other governmental charge imposed in connection therewith.


 


The Issuer, the Trustee, any
Authenticating Agent, any Paying Agent, any Exchange Agent and any Security
Registrar may deem and treat the registered Noteholder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment hereof, or on account hereof, for the exchange
hereof and for all other purposes, and neither the Issuer nor the Trustee nor
any other Authenticating Agent nor any Paying Agent nor any other Exchange
Agent nor any Security Registrar shall be affected by any notice to the
contrary.  All payments made to or upon
the order of such registered Noteholder shall, to the extent of the sum or sums
paid, satisfy and discharge liability for monies payable on this Note.


 


No recourse for the payment
of the principal of, or accrued and unpaid interest on, this Note, or for any
claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Issuer in the Indenture or
any indenture supplemental thereto or in any Note, or because of the creation
of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, employee, agent, officer, director, trustee or subsidiary, as
such, past, present or future, of the 


 


A-5

















 


Issuer
or of any successor corporation, either directly or through the Issuer or any
successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.


 


Terms used in this Note and
defined in the Indenture are used herein as therein defined.  Customary abbreviations may be used in the
name of a Noteholder or an assignee, such as TEN COM (=tenants in common),
TENANT (=tenants by the entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform gift to Minors Act).


 


THE INDENTURE AND THE NOTES,
INCLUDING THIS NOTE (WHICH SHALL BE DEEMED A CONTRACT MADE UNDER THE LAWS OF
THE STATE OF NEW YORK), SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
THEREOF.


 


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 of this series as
a convenience to the Noteholders of such Notes. 
No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Notes, and reliance may be placed only on the
other identification numbers printed hereon.


 


No Noteholder shall be
entitled to exchange such Notes for Common Shares to the extent that receipt of
such Common Shares would cause such Noteholder (together with such
Noteholder’s  affiliates) to exceed the
applicable ownership limit contained in the Declaration of Trust of the
Guarantor as then in effect.


 


[This
space intentionally left blank.]


 


A-6

















 


Unless the certificate of
authentication hereon has been executed by or on behalf of the Trustee by
manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.


 


A-7

















 


IN WITNESS WHEREOF, the
Issuer has caused this instrument to be duly executed by the undersigned
officer.


 


	
   

  	
  CORPORATE
  OFFICE PROPERTIES, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Corporate
  Office Properties Trust

  
	
   

  	
   

  	
  Its
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION:


 


This is one of the Notes of
the series designated therein referred to in the within-mentioned Indenture.


 


	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Officer

  	
   

  



 


A-8

















 


NOTATION
OF GUARANTEE


 


The Guarantor listed below
(hereinafter referred to as the “Guarantor,”
which term includes any successors or assigns under the Indenture, dated the
date hereof, among the Guarantor, the Issuer (defined below) and Wells Fargo
Bank, National Association, as trustee (the “Indenture”)),
has irrevocably and unconditionally guaranteed on a senior basis the Guarantee
Obligations (as defined in Section 15.01 of the Indenture), which include (i) the
due and punctual payment of the principal of, premium, if any, and interest and
Additional Interest, if any, on the 4.25% Exchangeable Senior Notes due 2030
(the “Notes”) of Corporate Office Properties,
L.P., a Delaware limited partnership (the “Issuer”),
whether at maturity, by acceleration, call for redemption, upon a repurchase 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 on any
interest on the Notes, and the due and punctual performance of all other
obligations of the Issuer, to the Noteholders or the Trustee all in accordance
with the terms set forth in Article 15 of the Indenture, and (ii) in
case of any extension of time of payment or renewal of any Notes or any 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, call for redemption, upon a repurchase or otherwise.


 


The obligations of the
Guarantor to the Noteholders and to the Trustee pursuant to this Guarantee and
the Indenture are expressly set forth in Article 15 of the Indenture and
reference is hereby made to such Indenture for the precise terms of this
Guarantee.


 


No past, present or future
trustee, officer, employee, incorporator or shareholder (direct or indirect) of
the Guarantor (or any such successor entity), as such, shall have any liability
for any obligations of the Guarantor under this Guarantee or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation.


 


The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Issuer, any right to require a proceeding
first against the Issuer, the benefit of discussion, protest or notice with
respect to the Notes and all demands whatsoever.


 


This is a continuing
Guarantee and shall remain in full force and effect and shall be binding upon
the Guarantor and its successors and assigns until full and final payment of
all of the Issuer’s obligations under the Notes and Indenture or until legally
discharged in accordance with the Indenture and shall inure to the benefit of
the successors and assigns of the Trustee and the Noteholders, and, in the
event of any transfer or assignment of rights by any Noteholder or the Trustee,
the rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof.  This is a
Guarantee of payment and performance and not of collectability.


 


This Guarantee shall not be
valid or obligatory for any purpose until the certificate of authentication on
the Note upon which this Guarantee is noted shall have been executed by the
Trustee under the Indenture by the manual or facsimile signature of one of its
authorized officers.


 


The obligations of the
Guarantor under this Guarantee shall be limited to the extent necessary to
insure that it does not constitute a fraudulent conveyance under applicable
law.


 


THE TERMS OF ARTICLE 15 OF
THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.  Capitalized terms used herein have the same
meanings given in the Indenture unless otherwise indicated.


 


A-9

















 


IN WITNESS WHEREOF, the
Guarantor has caused this instrument to be duly executed.


 


Dated:


 


 


	
   

  	
  CORPORATE
  OFFICE PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-10
















 


EXCHANGE
NOTICE


 


TO:         CORPORATE OFFICE PROPERTIES,
L.P.


WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Trustee


 


The undersigned registered
owner of this Note hereby irrevocably exercises the option to exchange this
Note, or the portion thereof (which is $1,000 or a multiple thereof) below
designated, into cash and, if applicable, Common Shares, cash, or a combination
thereof, as the case may be, at the election of the Issuer, in accordance with
the terms of the Indenture referred to in this Note, and directs that the
Common Shares, if any, issuable and deliverable upon such exchange, together
with any check in payment for cash, if any, payable upon exchange or for
fractional shares and any


 


Notes representing any
unexchanged principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below.  Capitalized terms used herein but not defined
shall have the meanings ascribed to such terms in the Indenture.  If shares or any portion of this Note not
exchanged are to be issued in the name of a person other than the undersigned,
the undersigned will provide the appropriate information below and pay all
transfer taxes payable with respect thereto. 
Any amount required to be paid by the undersigned on account of interest
accompanies this Note.


 


The undersigned registered
owner of this Note hereby certifies that it or the Person on whose behalf the
Notes are being exchanged is a qualified institutional buyer within the meaning
of Rule 144A under the Securities Act of 1933, as amended.


 


	
  Dated:

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s) must
  be guaranteed by an “eligible guarantor
  institution” meeting the requirements of the Note 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 Note Registrar in addition to, or in substitution
  for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
  amended.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 


A-11

















 


Fill in the registration of
Common Shares, if any, if to be issued, and Notes if to be delivered, and the
person to whom cash and payment for fractional shares is to be made, if to be
made, other than to and in the name of the registered holder:


 


	
  Please
  print name and address

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Street
  Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (City,
  State and Zip Code)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Principal
  amount to be exchanged (if less than all):

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Social Security or Other Taxpayer Identification Number:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


NOTICE:  The signature on this Exchange Notice must
correspond with the name as written upon the face of the Note in every
particular without alteration or enlargement or any change whatever.


 


A-12

















 


REPURCHASE
NOTICE


 


TO:         CORPORATE OFFICE PROPERTIES,
L.P.


WELLS FARGO BANK, NATIONAL ASSOCIATION


 


The undersigned registered
owner of this Note hereby irrevocably acknowledges receipt of a notice from
Corporate Office Properties, L.P.  (the “Issuer”) regarding the right of Noteholders to elect to
require the Issuer to repurchase the Notes and requests and instructs the
Issuer to repay the entire principal amount of this Note, or the portion thereof
(which is $1,000 or an integral multiple thereof) below designated, in cash, in
accordance with the terms of the Indenture at the price of 100% of such entire
principal amount or portion thereof, together with accrued and unpaid interest
to, but excluding, the Repurchase Date or the Fundamental Change Repurchase
Date, as the case may be, to the registered holder hereof.  Capitalized terms used herein but not defined
shall have the meanings ascribed to such terms in the Indenture.  The Notes shall be repurchased by the Issuer
as of the Put Right Repurchase Date or the Fundamental Change Repurchase Date,
as the case may be, pursuant to the terms and conditions specified in the
Indenture.


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Principal amount to be repurchased (if less than all, must be $1,000
  or whole multiples thereof):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Social Security or Other
  Taxpayer Identification Number:

  	
   

  



 


	
  Dated:

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s) must
  be guaranteed by an “eligible guarantor
  institution” meeting the requirements of the Note 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 Note Registrar in addition to, or in substitution
  for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
  amended.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 


A-13

















 


ASSIGNMENT


 


For value received
                                          
hereby sell(s) assign(s) and transfer(s) unto
                                                        
(Please insert social security or other Taxpayer Identification Number of
assignee) the within Note, and hereby irrevocably constitutes and appoints
                                                 
attorney to transfer said Note on the books of the Issuer, with full power of
substitution in the premises.


 


In connection with any
transfer of the Note, the undersigned confirms that such Note is being
transferred:


 


o            To Corporate Office Properties, L.P., Corporate
Office Properties Trust or a subsidiary of Corporate Office Properties, L.P.;
or


 


o            Pursuant to and in compliance with Rule 144
under the Securities Act of 1933, as amended; or


 


o            To a person the undersigned reasonably believes is a
qualified institutional buyer that is purchasing for its own account or for the
account of another qualified institutional buyer and to whom notice is given
that the transfer is being made in reliance on Rule 144A, all in
compliance with Rule 144A (if available); or


 


o            Pursuant to a Registration Statement which has been
declared effective under the Securities Act of 1933, as amended, and which
continues to be effective at the time of transfer.


 


Unless one of the boxes is
checked, the Trustee will refuse to register any of the Notes evidenced by this
certificate in the name of any person other than the registered holder thereof.


 


	
  Dated:

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s) must
  be guaranteed by an “eligible guarantor
  institution” meeting the requirements of the Note 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 Note Registrar in addition to, or in substitution
  for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
  amended.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 


A-14

















 


NOTICE:  The signature on this Assignment must
correspond with the name as written upon the face of the Note in every
particular without alteration or enlargement or any change whatever.


 


A-15

















 


[Include only for a
Global Note]


 


SCHEDULE
OF INCREASES OR DECREASES IN NOTE


 


The initial principal amount
of this Global Note is
                                
($                            ).  The following increases or decreases in part
of this Note have been made:


 


	
  Date

  	
   

  	
  Amount of

  Increase in

  Principal

  Amount of this

  Note

  	
   

  	
  Amount of

  Decrease in

  Principal

  Amount of this

  Note

  	
   

  	
  Principal Amount of

  this Note following

  such Increase or

  Decrease

  	
   

  	
  Signature of

  Authorized Signatory

  of Trustee

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-16