exv4w1





Exhibit 4.1




Execution Version




 





BioMed Realty, L.P., as Issuer



BioMed Realty Trust, Inc., as Guarantor



U.S. Bank National Association, as Trustee



 






INDENTURE




Dated as of

April 29, 2010



 






6.125% Senior Notes due 2020




 









 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions 
	 	 	2	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	Issue, Description, Execution, Registration and Exchange of Notes
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Designation Amount and Issue of Notes
	 	 	11	 
	Section 2.02. Form of Notes
	 	 	12	 
	Section 2.03. Date and Denomination of Notes; Payments of Interest
	 	 	12	 
	Section 2.04. Execution of Notes
	 	 	14	 
	Section 2.05. Note Registrar and Paying Agent
	 	 	14	 
	Section 2.06. Exchange and Registration of Transfer of Notes; Restrictions on Transfer
	 	 	15	 
	Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	28	 
	Section 2.08. Temporary Notes
	 	 	29	 
	Section 2.09. Cancellation of Notes
	 	 	30	 
	Section 2.10. CUSIP Numbers
	 	 	30	 
	Section 2.11. Issuance of Additional Notes
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	Redemption of Notes
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Optional Redemption of Notes
	 	 	31	 
	Section 3.02. Notice of Optional Redemption; Selection of Notes
	 	 	31	 
	Section 3.03. Payment of Notes Called for Redemption by the Issuer
	 	 	32	 
	Section 3.04. Sinking Fund
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	Particular Covenants of the Issuer
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Payment of Principal, Premium and Interest
	 	 	33	 
	Section 4.02. Maintenance of Office or Agency
	 	 	33	 
	Section 4.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	34	 
	Section 4.04. Provisions as to Paying Agent
	 	 	34	 
	Section 4.05. Existence
	 	 	35	 
	Section 4.06. Reports
	 	 	35	 
	Section 4.07. Stay, Extension and Usury Laws
	 	 	36	 
	Section 4.08. Compliance Certificate
	 	 	36	 
	Section 4.09. Limitations on Incurrence of Debt
	 	 	37	 
	Section 4.10. Insurance
	 	 	38	 
	Section 4.11. Additional Interest Notice
	 	 	38	 






i









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 5
	 	 	 	 
	Noteholders’ Lists and Reports by the Issuer and the Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Noteholders’ Lists
	 	 	38	 
	Section 5.02. Preservation and Disclosure of Lists
	 	 	39	 
	Section 5.03. Reports by Trustee
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	Remedies of the Trustee and Noteholders on an Event of Default
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	40	 
	Section 6.02. Payments of Notes on Default; Suit Therefor
	 	 	42	 
	Section 6.03. Application of Monies Collected by Trustee
	 	 	43	 
	Section 6.04. Proceedings by Noteholders
	 	 	44	 
	Section 6.05. Proceedings by Trustee
	 	 	45	 
	Section 6.06. Remedies Cumulative and Continuing
	 	 	45	 
	Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders
	 	 	45	 
	Section 6.08. Notice of Defaults
	 	 	46	 
	Section 6.09. Undertaking to Pay Costs
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	the trustee
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Duties and Responsibilities of Trustee
	 	 	46	 
	Section 7.02. Reliance on Documents, Opinions, etc
	 	 	48	 
	Section 7.03. No Responsibility for Recitals, etc
	 	 	49	 
	Section 7.04. Trustee, Paying Agents or Registrar May Own Notes
	 	 	49	 
	Section 7.05. Monies to Be Held in Trust
	 	 	49	 
	Section 7.06. Compensation and Expenses of Trustee
	 	 	50	 
	Section 7.07. Officers’ Certificate as Evidence
	 	 	50	 
	Section 7.08. Conflicting Interests of Trustee
	 	 	50	 
	Section 7.09. Eligibility of Trustee
	 	 	51	 
	Section 7.10. Resignation or Removal of Trustee
	 	 	51	 
	Section 7.11. Acceptance by Successor Trustee
	 	 	52	 
	Section 7.12. Succession by Merger
	 	 	53	 
	Section 7.13. Preferential Collection of Claims
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	The Noteholders
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Action by Noteholders
	 	 	53	 
	Section 8.02. Proof of Execution by Noteholders
	 	 	53	 
	Section 8.03. Absolute Owners
	 	 	54	 
	Section 8.04. Issuer-owned Notes Disregarded
	 	 	54	 
	Section 8.05. Revocation of Consents; Future Holders Bound
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	Supplemental Indentures
	 	 	 	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 9.01. Supplemental Indentures Without Consent of Noteholders
	 	 	55	 
	Section 9.02. Supplemental Indenture With Consent of Noteholders
	 	 	56	 
	Section 9.03. Effect of Supplemental Indenture
	 	 	57	 
	Section 9.04. Notation on Notes
	 	 	57	 
	Section 9.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee
	 	 	57	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	Consolidation, Merger, Sale, Conveyance and Lease
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Issuer May Consolidate on Certain Terms
	 	 	57	 
	Section 10.02. Issuer Successor to Be Substituted
	 	 	58	 
	Section 10.03. Guarantor May Consolidate on Certain Terms
	 	 	58	 
	Section 10.04. Guarantor Successor to Be Substituted
	 	 	59	 
	Section 10.05. Assumption by Guarantor
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Satisfaction and Discharge of Indenture
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Discharge of Indenture
	 	 	60	 
	Section 11.02. Deposited Monies to Be Held in Trust by Trustee
	 	 	60	 
	Section 11.03. Paying Agent to Repay Monies Held
	 	 	61	 
	Section 11.04. Return of Unclaimed Monies
	 	 	61	 
	Section 11.05. Reinstatement
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	Legal Defeasance and Covenant Defeasance
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	61	 
	Section 12.02. Legal Defeasance and Discharge
	 	 	61	 
	Section 12.03. Covenant Defeasance
	 	 	62	 
	Section 12.04. Conditions to Legal or Covenant Defeasance
	 	 	63	 
	Section 12.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions
	 	 	64	 
	Section 12.06. Repayment to Issuer
	 	 	64	 
	Section 12.07. Reinstatement
	 	 	65	 
	 
	 	 	 	 
	ARTICLE 13
	 	 	 	 
	Immunity of Incorporators, Stockholders, Officers and Directors
	 	 	 	 
	 
	 	 	 	 
	Section 13.01. Indenture and Notes Solely Corporate Obligations
	 	 	65	 
	 
	 	 	 	 
	ARTICLE 14
	 	 	 	 
	Meetings of Holders of Notes
	 	 	 	 
	 
	 	 	 	 
	Section 14.01. Purposes for Which Meetings May Be Called
	 	 	65	 
	Section 14.02. Call, Notice and Place of Meetings
	 	 	65	 
	Section 14.03. Persons Entitled to Vote at Meetings
	 	 	66	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 14.04. Quorum; Action
	 	 	66	 
	Section 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings
	 	 	67	 
	Section 14.06. Counting Votes and Recording Action of Meetings
	 	 	67	 
	 
	 	 	 	 
	ARTICLE 15
	 	 	 	 
	Guarantee
	 	 	 	 
	 
	 	 	 	 
	Section 15.01. Guarantee
	 	 	68	 
	Section 15.02. Execution and Delivery of Guarantee
	 	 	69	 
	Section 15.03. Limitation of Guarantor’s Liability; Certain Bankruptcy Events
	 	 	70	 
	Section 15.04. Application of Certain Terms and Provisions to the Guarantor
	 	 	70	 
	 
	 	 	 	 
	ARTICLE 16
	 	 	 	 
	Miscellaneous Provisions
	 	 	 	 
	 
	 	 	 	 
	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
	 	 	72	 
	Section 16.05. Evidence of Compliance with Conditions Precedent, Certificates to Trustee
	 	 	72	 
	Section 16.06. Legal Holidays
	 	 	72	 
	Section 16.07. Trust Indenture Act
	 	 	72	 
	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	 
	 
	 	 	 	 
	Exhibit A Form of Note
	 	 	A-1	 
	 
	 	 	 	 
	Exhibit B Form of Certificate of Transfer
	 	 	B-1	 
	 
	 	 	 	 
	Exhibit C Form of Certificate of Exchange
	 	 	C-1	 
	 
	 	 	 	 
	Exhibit D Form of Guarantee
	 	 	D-1	 










iv









 








CROSS REFERENCE TABLE*





	 	 	 	 	 
	Trust Indenture

 Act Section	 	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, 7.10
	(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)

	 	 	5.03	 
	(d)

	 	 	5.03	 
	314(a)

	 	 	4.06, 4.08

	(b)

	 	 	N.A.	 
	(c)(1)

	 	 	16.05	 
	(c)(2)

	 	 	16.05	 
	(c)(3)

	 	 	N.A.	 
	(d)

	 	 	N.A.	 
	(e)

	 	 	16.05	 
	(f)

	 	 	N.A.	 
	315(a)

	 	 	7.01	 
	(b)

	 	 	6.08	 
	(c)

	 	 	7.01	 
	(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)

	 	 	6.02	 
	(a)(2)

	 	 	6.02	 
	(b)

	 	 	11.03	 
	318(a)

	 	 	N.A.	 








 




			
	N.A. 	 	 means not applicable.
	 
	* 	 	 This Cross-Reference Table is not part of the Indenture.






 












 







INDENTURE




     INDENTURE dated as of April 29, 2010 among BioMed Realty, L.P., a Maryland limited partnership
(hereinafter called the “Issuer”), BioMed Realty Trust, Inc., a Maryland corporation (hereinafter
called the “Guarantor” or, in its capacity as the sole general partner of the Issuer, the “General
Partner”), each having its principal office at 17190 Bernardo Center Drive, San Diego, California
92128, and U.S. Bank National 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 6.125% Senior Notes due 2020 (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 (as
defined below) or which are by reference therein defined in the Securities Act (as defined below)
(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.



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



     “Acquired Debt” means Debt of a Person (1) existing at the time such Person becomes a
Subsidiary or (2) assumed in connection with the acquisition of assets from such Person, in each
case, other than Debt incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.



     “Additional Interest” has the meaning specified for Registration Default Damages in
Section 2(d) of the Registration Rights Agreement (as defined below).



     “Additional Interest Notice” has the meaning specified in Section 4.11.



2









 








     “Additional Notes” means additional Notes (other than the Initial Notes) issued under this
Indenture in accordance with Sections 2.04, 2.11 and 4.09 hereof, as part of the same series as the
Initial Notes.



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



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



     “Annual Debt Service Charge” as of any date means the amount of interest expense determined on
a consolidated basis in accordance with generally accepted accounting principles.



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



     “Authentication Order” has the meaning specified in Section 2.01.



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



     “Benefited Party” has the meaning specified in Section 15.01.



     “Board of Directors” means the board of directors of the General Partner or a committee of
such board duly authorized to act for it hereunder.



     “Broker-Dealer” means any broker or dealer registered as such under the Exchange Act.



     “Business Day” means, with respect to any Note, any day, other than a Saturday, Sunday or any
other day on which banking institutions in New York, New York are authorized or obligated by law or
executive order to close.



     “Clearstream” means Clearstream Banking, S.A.



     “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



3









 







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.



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



     “Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such Quotations.



     “Consolidated Income Available for Debt Service” means, for any period, Earnings from
Operations of Issuer and its Subsidiaries plus amounts which have been deducted, and minus amounts
which have been added, for the following (without duplication): (1) Annual Debt Service Charge of
Issuer and its Subsidiaries, (2) provision for taxes of Issuer and its Subsidiaries based on
income, (3) provisions for gains and losses on properties and depreciation and amortization, (4)
increases in deferred taxes and other non-cash items, (5) depreciation and amortization with
respect to interests in joint venture and partially owned entity investments, (6) the effect of any
charge resulting from a change in accounting principles in determining Earnings from Operations for
such period, and (7) amortization of deferred charges.



     “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 the
address set forth in Section 16.03.



     “Covenant Defeasance” has the meaning specified in Section 12.03.



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



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



     “Debt” means any of Issuer’s or any of its Subsidiaries’ indebtedness, whether or not
contingent, in respect of (without duplication) (1) borrowed money evidenced by bonds, notes,
debentures or similar instruments, (2) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned by Issuer or any of its
Subsidiaries, but only to the extent of the lesser of (a) the amount of indebtedness so secured and
(b) the fair market value (determined in good faith by the board of directors of such Person or, in
the case of Issuer or one of its Subsidiaries, by the Board of Directors) of the property subject
to such mortgage, pledge, lien, charge, encumbrance or security interest, (3) the reimbursement
obligations, contingent or otherwise, in connection with any letters of credit actually issued or
amounts representing the balance deferred and unpaid of the purchase price of any property or



4









 







services, except any such balance that constitutes an accrued expense or trade payable, or all
conditional sale obligations or obligations under any title retention agreement, or (4) any lease
of property by Issuer or any of its Subsidiaries as lessee which is reflected on Issuer’s
consolidated balance sheet as a capitalized lease in accordance with generally accepted accounting
principles; but only to the extent, in the case of items of indebtedness under (1) through (3)
above, that any such items (other than letters of credit) would appear as a liability on Issuer’s
consolidated balance sheet in accordance with generally accepted accounting principles. The term
“Debt” also includes, to the extent not otherwise included, any obligation of Issuer or any of its
Subsidiaries to be liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business or for the purposes of guaranteeing the
payment of all amounts due and owing pursuant to leases to which Issuer or any of its Subsidiaries
are a party and have assigned its or their interest, provided that such assignee of Issuer or its
Subsidiary is not in default of any amounts due and owing under such leases), Debt of another
Person (other than Issuer or any of its Subsidiaries) (it being understood that Debt shall be
deemed to be incurred by Issuer or any of its Subsidiaries whenever Issuer or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof).



     “Default” means any event which, after notice or the lapse of time, or both, would become, an
Event of Default.



     “Defaulted Interest” has the meaning specified in Section 2.03.



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



     “Depositary” means 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.



     For the purposes of this definition, “person” includes any syndicate or group that would be
deemed to be a “person” under Section 13(d)(3) of the Exchange Act.



     “DTC” means The Depository Trust Company.



     “Earnings from Operations” means, for any period, net income or loss of Issuer and its
Subsidiaries, excluding (1) provisions for gains and losses on sales of investments or joint
ventures; (2) provisions for gains and losses on disposition of discontinued operations; (3)
extraordinary and non-recurring items; and (4) impairment charges, property valuation losses and
non-cash charges necessary to record interest rate contracts at fair value; plus amounts received
as rent under leases which are accounted for as financing arrangements net of related interest
income, as reflected in the consolidated financial statements of Issuer and its Subsidiaries for
such period determined in accordance with generally accepted accounting principles.



     “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.



5









 








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



     “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 Notes” means the Notes issued in the Exchange Offer pursuant to Section 2.06(f)
hereof.



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



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



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



     “Global Note Legend” means the legend set forth in Section 2.06(g)(2) hereof, which is
required to be placed on all Global Notes issued under this Indenture.



     “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the
Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note”
attached thereto, issued in accordance with this Indenture.



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



     “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” has 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.



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



     “Initial Notes” means the first $250,000,000 aggregate principal amount of Notes issued under
this Indenture on the date hereof.



6









 








     “Initial Purchasers” means each of Wells Fargo Securities, LLC, Credit Suisse Securities (USA)
LLC, Deutsche Bank Securities Inc., KeyBanc Capital Markets Inc., Morgan Stanley & Co.
Incorporated, Raymond James & Associates, Inc., RBC Capital Markets Corporation, RBS Securities
Inc., UBS Securities LLC and U.S. Bancorp Investments, Inc.



     “Intercompany Debt” means Debt to which the only parties are any of Issuer, Guarantor and any
of their Subsidiaries; provided, however, that with respect to any such Debt of which Issuer or
Guarantor is the borrower, such Debt is subordinate in right of payment to the Notes.



     “interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes, including Additional Interest, if any, payable under the terms of the Registration
Rights Agreement.



     “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.



     “Legal Defeasance” has the meaning specified in Section 12.02.



     “Letter of Transmittal” means the letter of transmittal to be prepared by the Issuer and sent
to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.



     “Maturity Date” means April 15, 2020.



     “Non-U.S. Person” means a Person who is not a U.S. Person.



     “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” has the meaning specified in Section 2.05.



     “Note Registrar” has the meaning specified in Section 2.05.



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



     “Offering Memorandum” means the Issuer’s and the Guarantor’s offering memorandum dated April
22, 2010 relating to the Notes unconditionally guaranteed by the Guarantor.



     “Officer” means any person holding any of the following positions with the General Partner or
the Issuer: 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.



7









 








     “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
General Partner or the Issuer.



     “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:




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




     (2) Notes, or portions thereof, (i) for the redemption 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;




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




     (4) Notes paid or redeemed pursuant to Article 3.



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



     “Paying Agent” has the meaning specified in Section 2.05.



     “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 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.



     “premium” means any premium payable under the terms of the Notes.



     “Primary Treasury Dealer” means a primary U.S. Government securities dealer.



     “Private Placement Legend” means the legend set forth in Section 2.06(g)(1) hereof to be
placed on all Notes issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.



8









 








     “Purchase Agreement” means the Purchase Agreement, dated as of April 22, 2010, among the
Issuer, the Guarantor and the Initial Purchasers.



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



     “Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer.



     “Record Date” has the meaning specified in Section 2.03.



     “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 Treasury Dealer” means (1) a Primary Treasury Dealer selected by Wells Fargo
Securities, LLC, Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc. and their
respective successors; provided, however, that if any of the Reference Treasury Dealers ceases to
be a Primary Treasury Dealer, Issuer will substitute therefor another Primary Treasury Dealer; and
(2) any one other Primary Treasury Dealers selected by Issuer.



     “Reference Default” has the meaning specified in Section 2(d) of the Registration Rights
Agreement (as defined below).



     “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by Issuer, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on
the third Business Day preceding such Redemption Date.



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of April 29,
2010, among the Issuer, the Guarantor and the Initial Purchasers, as amended from time to time in
accordance with its terms.



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



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



     “Responsible Officer” shall mean, 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.



9









 








     “Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.



     “Restricted Global Note” means a Global Note bearing the Private Placement Legend.



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



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



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



     “Rule 903” means Rule 903 promulgated under the Securities Act as it may be amended from time
to time hereafter.



     “Rule 904” means Rule 904 promulgated under the Securities Act as it may be amended from time
to time hereafter.



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



     “Shelf Registration Statement” has the meaning set forth in the Registration Rights Agreement.



     “Significant Subsidiary” has the meaning specified in Section 6.01(e).



     “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 directors, 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).



     “Total Assets” as of any date means the sum of (1) Issuer’s and all of its Subsidiaries’
Undepreciated Real Estate Assets and (2) all of Issuer’s and all of its Subsidiaries’ other assets
determined in accordance with generally accepted accounting principles (but excluding accounts
receivable and acquisition intangibles, including goodwill).



10









 








     “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 U.S. 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.



     “Undepreciated Real Estate Assets” as of any date means the cost (original cost plus capital
improvements) of Issuer’s and its Subsidiaries’ real estate assets on such date, before
depreciation and amortization determined on a consolidated basis in accordance with generally
accepted accounting principles.



     “Unencumbered Total Asset Value” as of any date means the sum of (1) those Undepreciated Real
Estate Assets not encumbered by any mortgage, lien, charge, pledge or security interest and (2) all
of Issuer’s and its Subsidiaries’ other assets on a consolidated basis determined in accordance
with generally accepted accounting principles (but excluding accounts receivable and acquisition
intangibles, including goodwill), in each case which are unencumbered by any mortgage, lien,
charge, pledge or security interest.



     “Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required
to bear the Private Placement Legend.



     “Unrestricted Global Note” means a Global Note that does not bear and is not required to bear
the Private Placement Legend.



     “U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities
Act.



ARTICLE 2

Issue, Description, Execution, Registration and Exchange of Notes




     Section 2.01. Designation Amount and Issue of Notes. The Notes shall be designated as “6.125%
Senior Notes due 2020.” 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 (an
“Authentication Order”), such order signed by two Officers or by an Officer and either an Assistant
Treasurer of the General Partner or the Issuer or any Assistant Secretary of the General Partner or
the Issuer, 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; provided that upon initial issuance, the aggregate principal amount of
Notes outstanding shall not exceed $250,000,000, except as provided in Sections 2.07 and 2.08. The
Issuer may, without the consent of the Holders of Notes, issue Additional Notes from time to time
in the future in an unlimited principal amount, subject to compliance with the terms of this
Indenture, including Section 2.11.



11









 








     Section 2.02. Form of Notes. Notes issued in global form will be substantially in the form of
Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges
of Interests in the Global Note” attached thereto). Notes issued in definitive form will be
substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon
and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each
Global Note will represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee
or the Custodian, at the direction of the Trustee. 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.



     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 as may be
required for the Notes to be tradable on any market existing or 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 Global Notes. 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 of the Depositary. 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 Holders of such Global 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 5:00 p.m., New York City time, on any Record Date with respect to any interest payment date
shall be entitled to receive the interest payable on such interest payment date.



12









 







Interest shall be payable at the office of the Issuer maintained by the Issuer for such
purposes in the City of St. Paul, Minnesota, 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 thereto as it appears in the Note Register; provided, however,
that a Holder of any Notes in certificated form in the aggregate principal amount of more than $2.0
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, or (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.



     No other payment or adjustment will be made for accrued interest on an exchanged Note.



     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 (1) or (2) below:




     (1) 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 5:00 p.m.,
New York City time, 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 twenty-five (25) calendar 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 monies 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 monies 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 fifteen (15) calendar days and not less than ten (10) calendar days
prior to the date of the proposed payment, and not less than ten (10) calendar 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
mailed (or sent by electronic transmission), first-class postage prepaid, to each Holder at
its address as it appears in the Note Register, not less than ten (10) calendar 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 mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Notes (or their respective Predecessor Notes) are



13









 









registered at 5:00 p.m., New York City time, on such special record date and shall no
longer be payable pursuant to the following clause (b) of this Section 2.03.




     (2) 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. The Trustee will, upon receipt of an
Authentication Order, authenticate Notes for issue under this Indenture, including any Additional
Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate
principal amount of Notes authorized for issuance by the Issuer pursuant to one or more
Authentication Orders, except as provided in Sections 2.07 and 2.08 hereof.



     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 Holder is entitled to the benefits of this Indenture.



     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 this Indenture any
such person was not such an Officer.



     Section 2.05. Note Registrar and Paying Agent.



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



14









 








     The Issuer initially appoints the DTC to act as Depositary with respect to the Global Notes.



     The Issuer initially appoints the Trustee to act as the Note Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes.



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



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



     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a
whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes will be
exchanged by the Issuer for Definitive Notes if:




          (1) the Issuer delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it has ceased to be a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Issuer within 120 days after the date of such notice from the Depositary;




          (2) the Issuer in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; or




          (3) upon request from the Depositary if there has occurred and is continuing a Default
or Event of Default with respect to the Notes.



     Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.08 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.08 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a), however, beneficial



15









 







interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b),
(c) or (f) hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or (2)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or instructions shall
be required to be delivered to the Note Registrar to effect the transfers described in this
Section 2.06(b)(1).




     (2)All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the
Note Registrar either:




     (A) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and




     (ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or




     (B) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and



16









 










     (ii) instructions given by the Depositary to the Note Registrar
containing information regarding the Person in whose name such Definitive
Note shall be registered to effect the transfer or exchange referred to in
(1) above.




     Upon consummation of an Exchange Offer by the Issuer in accordance with Section 2.06(f)
hereof, the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied
upon receipt by the Note Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the Restricted Global
Notes. Upon satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.




     (3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and the Note Registrar
receives the following:




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




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




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted
Global Note may be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.06(b)(2) above and:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Issuer;




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



17









 










     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Note Registrar receives the following:




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




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




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



     If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.04 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.



     Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.



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




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




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



18









 










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




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




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




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




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




     the Trustee shall cause the aggregate principal amount of the applicable Global Note to
be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and
the Trustee shall authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall
be registered in such name or names and in such authorized denomination or denominations as
the holder of such beneficial interest shall instruct the Note Registrar through
instructions from the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a Broker-



19









 










Dealer, (ii) a Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144) of the Issuer;




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




     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Note Registrar receives the following:




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




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




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




     (3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Issuer will execute and the Trustee will authenticate and
deliver to the Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(3) will be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest requests through
instructions to the Note Registrar from or through the Depositary and the Participant or
Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(3) will not bear the Private Placement Legend.



20









 









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




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




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




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




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




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




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




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




     the Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global
Note and, in the case of clause (C) above, the Regulation S Global Note.




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



21









 










     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Issuer;




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




     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Note Registrar receives the following:




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




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




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




     Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Note.




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



22









 










     If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an
Unrestricted Global Note has not yet been issued, the Issuer will issue and, upon receipt of
an Authentication Order in accordance with Section 2.04 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.



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




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




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




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




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




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Issuer;



23









 










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




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




     (D) the Note Registrar receives the following:




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




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




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




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



     (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Issuer will issue and, upon receipt of an Authentication Order
in accordance with Section 2.04 hereof, the Trustee will authenticate:




     (1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Issuer; and




     (2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and
(C) they are not affiliates (as defined in Rule 144) of the Issuer.



24









 








     Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Issuer will
execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.



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




     (1) Private Placement Legend.



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



     “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 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, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
“RESALE RESTRICTION TERMINATION DATE”) THAT IS [ONE YEAR FOR RULE 144A NOTES] [40 DAYS FOR
REGULATION S NOTES] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER, BIOMED REALTY TRUST, INC. OR ANY OF THE ISSUER’S
SUBSIDIARIES, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES TO
NON-U.S. PERSONS WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE




25











 




REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”




     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06
(and all Notes issued in exchange therefor or substitution thereof) will not bear the Private
Placement Legend.




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



     “THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE)
OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.09 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
ISSUER.



     UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“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 SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”



     (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed or canceled in whole and not in part, each such Global Note will be returned to
or retained and canceled by the Trustee in accordance with Section 2.09 hereof. At any time prior
to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of



26









 







Notes represented by such Global Note will be reduced accordingly and an endorsement will be
made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in another Global
Note, such other Global Note will be increased accordingly and an endorsement will be made on
such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.



     (i) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Issuer will execute and the
Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.04 hereof or at the Note Registrar’s
request.




     (2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Issuer may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.08,
3.03 and 9.04 hereof).




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




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




     (5) Neither the Note Registrar nor the Issuer will be required:




     (A) to issue, register the transfer of or to exchange any Note during a period
beginning at the opening of business 15 days before any selection of Notes for
redemption under Article 3 hereof and ending at the close of business on the
earliest date on which the relevant notice of redemption is deemed to have been
given to all Holders of Notes to be so redeemed; or




     (B) to register the transfer or exchange of any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in part.




     (6) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving



27









 







payment of principal of and interest on such Notes and for all other purposes, and none
of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.




     (7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.04 hereof.




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




     (9) The Trustee shall have no responsibility or obligation to any Participants,
indirect Participants 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 Participants, Indirect Participants 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 Depositary. The Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its Participants.




          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 Participants in any Global Note) other than to require deliver 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 2.07. 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.



28









 





     Following receipt by the Trustee or such authenticating agent, as the case may be, of
satisfactory security or indemnity and 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 Holder of a sum sufficient to cover any tax, assessment or other governmental charge
that may be imposed in relation thereto and any other expenses connected therewith. In case any
Note which has matured or is about to mature or has been called for redemption, as the case may be,
shall become mutilated or be destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Note, pay or authorize the payment of, as the case may be, if the applicant for such
payment 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 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 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 2.07 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 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 redemption of negotiable instruments or
other securities without their surrender.



     Section 2.08. 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.



29









 





     Section 2.09. Cancellation of Notes. All Notes surrendered for the purpose of payment,
redemption or registration of transfer shall, if surrendered to the Issuer or any Paying Agent,
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, with copies of such cancelled Notes and related documentation provided to the Issuer.
If the Issuer shall acquire any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.



     Section 2.10. 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 of any change in the “CUSIP” numbers.


    Section 2.11. Issuance of Additional Notes. The Issuer will be entitled, upon delivery of an
Officers’ Certificate, Opinion of Counsel and Authentication Order, subject to its compliance with
Section 4.09, to issue Additional Notes under the Indenture that will have identical terms to and
the same CUSIP number as the Initial Notes issued on the date of this Indenture other than with
respect to the date of issuance, issue price and interest accrued prior to the issue date of the
Additional Notes; 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 Holders of Notes to vote or take any action,
the Holders of Initial Notes and the Holders of any such Additional Notes will vote or take the
action as a single class.




     With respect to any Additional Notes, the Issuer will set forth in a resolution of its Board
of Directors and an Officers’ Certificate, a copy of each of which will be delivered to the
Trustee, the following information:



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



     (2) the issue price, the issue date and the CUSIP number of such Additional Notes; and



     (3) whether such Additional Notes shall be transfer restricted Notes and issued in the form of
Initial Notes as set forth in Section 2.04 of this Indenture or shall be issued in the form of
Exchange Notes.



30









 





ARTICLE 3

Redemption of Notes




     Section 3.01. Optional Redemption of Notes.



     (a) The Issuer shall have the right to redeem the Notes at its option and in its sole
discretion, at any time in whole or from time to time in part. The redemption price (“Redemption
Price”) will equal the greater of (i) 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 (plus Additional Interest, if applicable), on such interest payment date to the
Holder of record at the close of business on the corresponding Record Date (instead of the Holder
surrendering its Notes for redemption) and the Redemption Price shall be equal to 100% of the
principal amount of the Notes to be redeemed or (ii) as determined by the Quotation Agent, the
sum of the present values of the remaining scheduled payments of principal and interest thereon
(not including any portion of such payments of interest accrued as of the Redemption Date)
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate plus 40 basis points (0.40% or forty
one-hundredths of one percent), plus, in each case, accrued and unpaid interest thereon to the
Redemption Date. Notwithstanding the foregoing, if the Notes are redeemed on or after 90 days
prior to the Maturity Date, the Redemption Price will be equal to 100% of the principal amount of
the Notes being redeemed.



     (b) The Issuer shall not redeem the Notes pursuant to Section 3.01(a) on any date if the
principal amount of the Notes has been accelerated, and such an acceleration has not been
rescinded or cured on or prior to such date (except in the case of an acceleration resulting from
a default by the Issuer in the payment of the Redemption Price with respect to the Notes to be
redeemed).



     Section 3.02. Notice of Optional Redemption; Selection of Notes. In case the Issuer shall
desire to exercise the right to redeem all or, as the case may be, 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 five (5) Business 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 mailed (or sent by
electronic transmission), the Trustee in the name of and at the expense of the Issuer, shall mail
(or send by electronic transmission) or cause to be mailed (or sent by electronic transmission) a
notice of such redemption not fewer than thirty (30) calendar days nor more than sixty (60)
calendar days prior to the Redemption Date to each Holder of Notes 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 mailing shall be by first class mail (unless sent by electronic
transmission). The notice, if mailed in the manner herein provided, shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice. In any case, failure to
give such notice by mail or any defect in the notice to the Holder of any Note designated for
redemption as



31









 




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, if any, 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 and (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. 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 forty-five (45) calendar 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) an amount
of monies in immediately available funds sufficient to redeem on the Redemption Date all the Notes
(or portions thereof) so called for redemption 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 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 and integral multiples of $1,000 in excess thereof), on a pro rata
basis or such other method the Trustee deems fair and appropriate or is required by the Depositary.
The Notes (or portions thereof) so selected for redemption shall be deemed duly selected for
redemption for all purposes hereof.



     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 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, so long as Paying Agent holds funds sufficient to
pay the Redemption Price of the Notes to be redeemed on the Redemption Date, then (a) such Notes
will cease to be outstanding on and after the Redemption Date, (b) interest on the Notes or portion
of Notes so called for redemption shall cease to accrue on and after the Redemption Date, (c) after
5:00 p.m., New York City time, on the second



32









 




Business Day immediately preceding the Redemption Date (unless the Issuer shall default in the
payment of the Redemption Price) and, except as provided in Section 7.05 and Section 11.02, such
Notes will cease to be entitled to any benefit or security under this Indenture, and (d) the
Holders of the Notes 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 Holder 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.



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 pursuant to Article 3), and premium, if any, and interest on each
of the Notes at the places, at the respective times and in the manner provided herein and in the
Notes; provided that, the Issuer or Paying Agent may withhold from payments of interest and upon
redemption pursuant to Article 3, maturity or otherwise, any amounts the Issuer or Paying Agent is
required to withhold by law.



     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 redemption 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 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.



33









 





     The Issuer hereby initially designates the Trustee as Paying Agent, Note Registrar and
Custodian, 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 mail (or send by
electronic transmission), or cause to be mailed, 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 mail such notices only to the Issuer and the Holders of Notes 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:




     (1) that it will hold all sums held by it as such agent for the payment of the
principal of and premium, if any, or interest on the 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
Holders of the Notes;




     (2) 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 on the Notes when the same shall be due and payable; and




     (3) 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
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
(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 on the Notes, set aside, segregate and hold in
trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal,
premium, if any, and interest 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 on the Notes when the same
shall become due and payable.



34









 





     (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, 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. Reports.



     (a) Whether or not required by the rules and regulations of the Commission, so long as any
Notes are outstanding, the Issuer will furnish to the Holders of Notes or cause the Trustee to
furnish to the Holders of Notes, within the time periods specified in the Commission’s rules and
regulations:




     (1) all quarterly and annual reports that would be required to be filed with the
Commission on Forms 10-Q and 10-K if Issuer were required to file such reports; and




     (2) all current reports that would be required to be filed with the Commission on Form
8-K if Issuer were required to file such reports.



     All such reports will be prepared in all material respects in accordance with all of the rules
and regulations applicable to such reports. Each annual report on Form 10-K will include a report
on the Issuer’s consolidated financial statements by its independent registered public accounting
firm, unless otherwise permitted by the Commission. Notwithstanding the foregoing, (i) prior to the
consummation of the Exchange Offer contemplated by the Registration Rights Agreement and (ii) after
consummation of the Exchange Offer, if permitted by the Commission, the Issuer may satisfy its
obligation to furnish the reports described above by furnishing reports for the Guarantor.
Following the consummation of the Exchange Offer contemplated by the Registration Rights Agreement,
the Issuer will file a copy of each of the reports referred to in clauses (1) and (2) above with
the Commission for public availability within the time periods



35









 




specified in the rules and regulations applicable to such reports (unless the Commission will
not accept such a filing) and will make the reports available on its website within those time
periods.




     If, at any time after consummation of the Exchange Offer contemplated by the Registration
Rights Agreement, the Issuer is no longer subject to the periodic reporting requirements of the
Exchange Act for any reason, the Issuer will nevertheless continue filing the reports specified in
the preceding paragraph with the Commission within the time periods specified above unless the
Commission will not accept such a filing. The Issuer will not take any action for the purpose of
causing the Commission not to accept any such filings. If, notwithstanding the foregoing, the
Commission will not accept the Issuer’s filings for any reason, the Issuer will make the reports
referred to in the preceding paragraph available on its website within the time periods that would
apply if the Issuer were required to file those reports with the Commission. Notwithstanding the
foregoing, if permitted by the Commission, the Issuer’s obligations to file reports under this
Section 4.06(a) may be satisfied by the filing of the reports described in clauses (1) and (2)
above by the Guarantor.



     (b) For so long as any Notes remain outstanding, if at any time it is not required to file
with the Commission the reports required by paragraphs (a) of this Section 4.06, the Issuer will
furnish to the Holders and to securities analysts and prospective investors, upon their request,
the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.



     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 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 one hundred twenty (120) calendar days after the
end of each fiscal year of the Issuer, the Issuer and the Guarantor 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 and the Guarantor, as the case may be, 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.



36









 





     Any notice required to be given under this Section 4.08 shall be delivered to a Responsible
Officer of the Trustee at its Corporate Trust Office.



     Section 4.09. Limitations on Incurrence of Debt.



     (a) Limitation on Total Outstanding Debt. The Issuer will not, and will not permit any of
its Subsidiaries to, incur any Debt, other than Intercompany Debt and guarantees of Debt incurred
by the Issuer or its Subsidiaries in compliance with this Indenture, if, immediately after giving
effect to the incurrence of such Debt and the application of the proceeds thereof, the aggregate
principal amount of all of the Issuer’s and its Subsidiaries’ outstanding Debt on a consolidated
basis determined in accordance with generally accepted accounting principles is greater than 60% of
the sum of (without duplication) (1) Total Assets as of the end of the calendar quarter covered in
Issuer’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not permitted under the Exchange Act,
with the Trustee) prior to the incurrence of such additional Debt and (2) the purchase price of any
real estate assets or mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Debt), by Issuer or any of its Subsidiaries since the end of
such calendar quarter, including those proceeds obtained in connection with the incurrence of such
additional Debt.



     (b) Limitation on Secured Debt. The Issuer will not, and will not permit any of its
Subsidiaries to, incur any Debt, other than Intercompany Debt and guarantees of Debt incurred by
Issuer or its Subsidiaries in compliance with this Indenture, secured by any mortgage, lien,
charge, pledge, encumbrance or security interest of any kind upon any of Issuer’s or any of its
Subsidiaries’ property if, immediately after giving effect to the incurrence of such Debt and the
application of the proceeds thereof, the aggregate principal amount of all of Issuer’s and its
Subsidiaries’ outstanding Debt on a consolidated basis which is secured by any mortgage, lien,
charge, pledge, encumbrance or security interest on Issuer’s or its Subsidiaries’ property is
greater than 40% of the sum of (without duplication) (1) Total Assets as of the end of the calendar
quarter covered in Issuer’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the
case may be, most recently filed with the Commission (or, if such filing is not permitted under the
Exchange Act, with the Trustee) prior to the incurrence of such additional Debt and (2) the
purchase price of any real estate assets or mortgages receivable acquired, and the amount of any
securities offering proceeds received (to the extent such proceeds were not used to acquire real
estate assets or mortgages receivable or used to reduce Debt), by Issuer or any of its Subsidiaries
since the end of such calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt; provided, that for purposes of this limitation, the amount of
obligations under capital leases shown as a liability on Issuer’s consolidated balance sheet shall
be deducted from Debt and from Total Assets.



     (c) Ratio of Consolidated Income Available for Debt Service to the Annual Debt Service Charge.
The Issuer will not, and will not permit any of its Subsidiaries to, incur any Debt, other than
Intercompany Debt and guarantees of Debt by Issuer or its Subsidiaries in compliance with this
Indenture, if the ratio of Consolidated Income Available for Debt Service to the Annual Debt
Service Charge for the four consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than 1.5 to



37









 




1.0, on an unaudited pro forma basis after giving effect thereto and to the application of the
proceeds therefrom, and calculated on the assumption that: (1) such Debt and any other Debt
incurred by Issuer and its Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other Debt, had occurred at the
beginning of such period; (2) the repayment or retirement of any other Debt by Issuer and its
Subsidiaries since the first day of such four-quarter period had been repaid or retired at the
beginning of such period (except that, in making such computation, the amount of Debt under any
revolving credit facility shall be computed based upon the average daily balance of such Debt
during such period); (3) in the case of Acquired Debt or Debt incurred in connection with any
acquisition since the first day of such four-quarter period, the related acquisition had occurred
as of the first day of such period, with the appropriate adjustments with respect to such
acquisition being included in such unaudited pro forma calculation; and (4) in the case of any
acquisition or disposition by Issuer or its Subsidiaries of any asset or group of assets or other
placement of any assets in service or removal of any assets from service by Issuer or any of its
Subsidiaries since the first day of such four-quarter period, whether by merger, stock purchase or
sale, or asset purchase or sale, such acquisition, disposition, placement in service or removal
from service, or any related repayment of Debt had occurred as of the first day of such period,
with the appropriate adjustments with respect to such acquisition, disposition, placement in
service or removal from service, being included in such unaudited pro forma calculation.




     (d) Maintenance of Unencumbered Total Asset Value. The Issuer, together with its Subsidiaries,
will at all times maintain an Unencumbered Total Asset Value in an amount not less than 150% of the
aggregate outstanding principal amount of all Issuer’s and its Subsidiaries’ unsecured Debt, taken
as a whole.



     Section 4.10. Insurance. The Issuer will, and will cause of each of its Subsidiaries to,
maintain insurance with financially sound and reputable insurance companies against such risks and
in such amounts as is customarily maintained by Persons engaged in similar businesses or as may be
required by applicable law.



     Section 4.11. Additional Interest Notice. In the event that the Issuer is required to pay
Additional Interest to Holders of Notes 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 no later than fifteen (15) calendar days prior to the proposed interest payment
date for Additional Interest, and the Additional Interest Notice 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 Holder of Notes 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 Issuer and 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 fifteen (15) calendar days after
each April 15 and October 15 of each year beginning with October 15, 2010, and at such other



38









 




times as the Trustee may reasonably request in writing, within thirty (30) calendar 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 Holders of
Notes as of a date not more than fifteen (15) calendar 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 Holders of Notes 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 Holders of Notes 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 Holders of Notes made pursuant to the Trust Indenture
Act.



     Section 5.03. Reports by Trustee.



     (a) On or before May 15 of each year beginning with May 15, 2010, the Trustee shall transmit
to Holders of Notes such reports dated as of May 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 Holders of Notes, 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 delisted
therefrom.



39









 





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 thirty (30) days in the payment of any installment of interest under the
Notes; or



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



     (c) 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
Holders 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 sixty (60) days after the Issuer
receives such notice; or



     (d) failure to pay any indebtedness for monies borrowed by the Issuer, the Guarantor or any
Subsidiary in which the Issuer has invested at least $50,000,000 in capital (a “Significant
Subsidiary”) in an outstanding principal amount in excess of $50,000,000 at final maturity or
upon acceleration after the expiration of any applicable grace period, which indebtedness is not
discharged, or such default in payment or acceleration is not cured or rescinded, within thirty
(30) days after written notice to the Issuer from the Trustee (or to the Issuer and the Trustee
from Holders of at least 25% in principal amount of the outstanding Notes); or



     (e) the Issuer, the Guarantor or any of the Issuer’s Significant Subsidiaries pursuant to or
under or within meaning of any Bankruptcy Law:




     (i) commences a voluntary case or proceeding seeking liquidation,
reorganization or other relief with respect to the Issuer, the Guarantor or a
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 a Significant Subsidiary or any substantial part of the property of the
Issuer, the Guarantor or a Significant Subsidiary; or




     (ii) consents 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 a Significant Subsidiary; or




     (iii) consents to the appointment of a custodian of it or for all or
substantially all of its property; or




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



40









 





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



     (g) 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 the Issuer’s
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 a Significant Subsidiary or any substantial
part of the property of the Issuer, the Guarantor or a Significant Subsidiary; or




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


then, and in each and every such case (other than an Event of Default specified in Section 6.01(e),
6.01(f) and 6.01(g) 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 Holders of at least twenty-five
percent (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 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(e), 6.01(f) or 6.01(g) occurs with respect to
the Issuer, the principal amount of and premium, if any, and interest 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 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, Holders of a majority
in aggregate principal amount of the Notes then outstanding on behalf of the Holders 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) 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 and (b) the Issuer has deposited



41









 




with the Trustee all required payments of the principal of and interest on the Notes and 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.
The Issuer shall notify in writing a Responsible Officer of the Trustee, promptly upon becoming
aware thereof, of any Event of Default, as provided in Section 4.08.




     The sole remedy for any violation of any obligations the Issuer or the General Partner may be
deemed to have pursuant to section 314(a)(1) of the Trust Indenture Act or for Issuer’s or
Guarantor’s breach of Section 4.06 shall be the accrual of Additional Interest on the Notes in the
manner set forth in the Registration Rights Agreement as if such deemed violation were a
Registration Default at a rate of 0.25% per annum, payable semiannually. In no event shall
Additional Interest accrue at a per annum rate in excess of 0.50% per annum pursuant to both this
Indenture and the Registration Rights Agreement, regardless of the number of events or
circumstances giving rise to the requirement to pay such Additional Interest.



     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 Holders of Notes, and the Trustee shall be restored respectively
to their several positions and rights hereunder, and all rights, remedies and powers of the Issuer,
the Holders of Notes, 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 Holders of the Notes, (i) the whole amount
that then shall be due and payable on all such Notes for principal and premium, if any, or
interest, 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 at the rate borne by the Notes, plus 1%, from the
required payment date 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 on the Notes to the registered Holders, 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,



42









 




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 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, 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 Holders of the Notes may be entitled to
receive in such proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.




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



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



     Section 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:



43









 





     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 at the annual rate of 1% above then applicable interest rate, 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, 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 without preference or
priority of principal and premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other installment of interest, or of
any Note over any other Note, ratably to the aggregate of such principal and premium, if any, and
accrued and unpaid interest; and



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



     Section 6.04. Proceedings by Noteholders. No Holder of any Note 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 on the Notes, unless (a) such Holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore provided, (b) the
Holders of at least twenty-five percent (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 it may require against the costs, liabilities or expenses to be
incurred therein or thereby, (c) the Trustee for sixty (60) calendar 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 Holder of every Note with every other taker and Holder and
the Trustee, that no one or more Holders of Notes 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 Holder of Notes, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of Notes (except as otherwise
provided herein). For the protection and enforcement of this Section 6.04,



44









 




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 Holder of any Note to receive payment of the principal of (including the Redemption Price
upon redemption pursuant to Article 3) and premium, if any, and accrued interest on such Note, on
or after the respective due dates expressed in such Note or in the event of redemption, 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.



     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 Holders of the Notes, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this Indenture, and no delay
or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power
accruing upon any Default or Event of Default occurring and continuing as aforesaid shall impair
any such right or power, or shall be construed to be a waiver of any such Default or 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
Holders 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 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 or otherwise be unduly prejudicial to the Noteholders not joining therein and
(d) the Trustee may decline to take any action that would involve the Trustee in personal
liability. Prior to taking any such action hereunder, the Trustee shall be entitled to
indemnification reasonably satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.



     The Holders of a majority in aggregate principal amount of the Notes at the time outstanding
may, on behalf of the Holders of all of the Notes, waive any past Default or Event of Default
hereunder and its consequences except (i) a default in the payment of the principal of



45









 




(including the Redemption Price upon redemption pursuant to Article 3), premium, if any, or
interest on the Notes, (ii) a default in the payment of the Redemption Price on the Redemption Date
pursuant to Article 3 or (iii) a default in respect of a covenant or provisions hereof which under
Article 9 cannot be modified or amended without the consent of the Holders of all Notes then
outstanding or each Note affected thereby.




     Upon any such waiver, the Issuer, the Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder; but no such waiver shall extend to any subsequent
or other Default or Event of Default or impair any right consequent thereon. Whenever any Default
or Event of Default hereunder shall have been waived as permitted by this Section 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 ninety (90) calendar days after a
Responsible Officer of the Trustee has knowledge of the occurrence of a Default, mail (or send by
electronic transmission) to all Noteholders, as the names and addresses of such Holders appear upon
the Note Register, notice of all Defaults known to a Responsible Officer, unless such Defaults
shall have been cured or waived before the giving of such notice; provided that except in the case
of default in the payment of the principal of (including the Redemption Price upon redemption
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 directors 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 Holder
of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions of this Section 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 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 upon redemption pursuant to Article 3), or interest on
any Note on or after the due date expressed in such Note.



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



46









 




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;



     (b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless 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 Holders 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;



     (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;




47











 





     (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 Holder of Notes.



     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.



     Except as explicitly specified otherwise herein, Issuer will be responsible for making all
calculations required under this Indenture and the Notes. Issuer will make such calculations in
good faith and, absent manifest error, Issuer’s calculations will be final and binding on Holders
of the Notes. Issuer will provide a schedule of its calculations to the Trustee, and the Trustee is
entitled to rely upon the accuracy of Issuer’s calculations without independent verification. The
Trustee will forward Issuer’s calculations to any Holder of the Notes upon request.



     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,
debenture, 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 Directors may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Issuer
or the General Partner;



     (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



48









 







Trustee reasonable security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby;



     (e) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document, but the Trustee may make
such further inquiry or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the 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; and



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



     Section 7.03. No Responsibility for Recitals, etc. The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The
Trustee shall not be accountable for the use or application by the 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 or Registrar May Own Notes. The Trustee, any Paying 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 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



49









 




the purposes for which they were received. Monies 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 monies received by it
hereunder except as may be agreed in writing from time to time by the Issuer and the Trustee.




     Section 7.06. Compensation and Expenses of Trustee. 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 this trust or in any other capacity hereunder,
including the reasonable costs and expenses of defending themselves against any claim (whether
asserted by the Issuer, any Holder 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 Holders 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(e), 6.01(f) or 6.01(g) 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



50









 




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 $50,000,000 (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 $50,000,000). If such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of any supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article.



     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 Holders of Notes. 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 Directors, one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment sixty (60) calendar days after the mailing of such notice of
resignation to the Noteholders, the resigning Trustee may, upon ten (10) Business Days’ notice to
the Issuer and the Noteholders, appoint a successor identified in such notice or 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;



51









 




then, in any such case, the Issuer may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 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 sixty (60) calendar 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
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 Holders 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 mail (or send by
electronic transmission) or cause to be mailed (or sent by electronic transmission) notice of the
succession of such trustee hereunder to the Holders of Notes at their addresses as they shall
appear on the Note Register. If the Issuer fails to mail such notice within ten (10) calendar days
after acceptance of appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.



52









 





     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).



ARTICLE 8

The Noteholders



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



53









 




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



     Section 8.04. Issuer-owned Notes Disregarded. In determining whether the Holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture or whether a quorum is present at a meeting of the Holders of the
Notes, 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 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 Holders 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 Holders of the percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any Holder of a Note which is shown by the evidence to be
included in the Notes the Holders of which have consented to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 8.02, revoke such action so far as it concerns such Note. Except as aforesaid, any such
action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Note and of any Notes issued in exchange or substitution
therefor, irrespective of whether any notation in regard thereto is made upon such Note or any Note
issued in exchange or substitution therefor.



54









 





ARTICLE 9

Supplemental Indentures




     Section 9.01. Supplemental Indentures Without Consent of Noteholders. The Issuer, when
authorized by the resolutions of the Board of Directors, 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 Holders of the Notes 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 Holders of
the Notes 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 Holders of the Notes;



     (d) to amend or supplement any provisions of this Indenture; provided that no amendment or
supplement shall materially adversely affect the interests of the Holders of any Notes then
outstanding;



     (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 provide for rights of Holders of Notes if any consolidation, merger or sale of all or
substantially all of property or assets of the Issuer and the Guarantor occurs;



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



     (i) to provide for the issuance of Additional Notes in accordance with the limitations set
forth in this Indenture;



     (j) to supplement any of the provisions of this Indenture 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 Holders of the Notes in any material respect; or



     (k) to conform the text of this Indenture, any Guarantee or the Notes to any provision of
the description thereof set forth in the Offering Memorandum to the extent that such provision in
the Offering Memorandum was intended to be a verbatim recitation of a provision in this
Indenture, such Guarantee or the Notes.



     Upon the written request of the Issuer, accompanied by a copy of the resolutions of the Board
of Directors certified by the Issuer’s or the General Partner’s Secretary or Assistant Secretary
authorizing the execution of any supplemental indenture, the Trustee is hereby



55









 




authorized to join with the Issuer and the Guarantor in the execution of any such supplemental
indenture, to make any further appropriate agreements and 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 Holders of any of the Notes
at the time outstanding, notwithstanding any of the provisions of Section 9.02.



     Section 9.02. Supplemental Indenture With Consent of Noteholders. With the consent (evidenced
as provided in Article 8) of the Holders of not less than a majority in aggregate principal amount
of the Notes at the time outstanding, the Issuer, when authorized by the resolutions of the Board
of Directors, 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 Holders of the Notes; provided that no such
supplemental indenture shall, without the consent of the Holder of each Note so affected:



     (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 Holder of
the Notes, 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 percentage in 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 Holders the terms and conditions of the
obligations of the Issuer or the Guarantor in respect of the due and punctual payments of
principal and interest; or



     (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 Holders of the Notes.



     Upon the written request of the Issuer, accompanied by a copy of the resolutions of the Board
of Directors certified by the Issuer’s or the General Partner’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 unless such



56









 




supplemental indenture affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated
to, enter into such supplemental indenture.




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



     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 Holders of Notes
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 Issuer, 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.



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



57









 




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 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) immediately after giving effect to such transaction, no Default and no Event of Default
shall have occurred and be continuing; and



     (c) 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 Issuer shall have delivered to the Trustee an Issuer’s
Officers’ Certificate and an Opinion of Counsel, each stating that the Issuer’s obligations
hereunder shall remain in full force and effect thereafter.



     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 and discharged from all obligations
and covenants under this Indenture, the Notes and the Registration Rights Agreement.



     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 10.03. 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



58









 




other Person (whether or not affiliated with the Guarantor); provided, however, that the
following conditions are met:




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



     (c) either the Guarantor or the successor Person, in either case, shall have 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.



     No such consolidation, merger, sale, conveyance, transfer or lease shall be permitted by this
Section 10.03 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.



     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 this 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 and discharged from all obligations and covenants under this Indenture, the
Guarantee and the Registration Rights Agreement.



     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. Without the consent of any Holders of the Notes, 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 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’



59









 




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 such transaction have been complied with and that, in the event of
assumption by a Subsidiary, 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 Holders of Notes shall
have no materially adverse United States federal tax consequences as a result of such assumption,
and that, if any Notes are then listed on the New York Stock Exchange, that such Notes shall not be
delisted 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 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 (a) either: (1) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 11.04 and (ii) Notes for whose payment monies have 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, 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 clause (1) or (2) above, has irrevocably deposited or caused
to be irrevocably deposited with the Trustee or a Paying Agent (other than the Issuer or any of its
Affiliates), as applicable, as trust funds in trust cash in an 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 or Redemption Date, as the case may be;
provided, however, that there shall not exist, on the date of such deposit, a Default or Event of
Default; provided, further, that such deposit shall not result in a breach or violation of, or
constitute a Default under, this Indenture or any other agreement or instrument to which the Issuer
is a party or to which the Issuer is bound; (b) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and (c) 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.



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Issuer to the Trustee under Section 7.06 shall survive and, if monies shall have been deposited
with the Trustee pursuant to subclause (2) of clause (a) of this Section, the provisions of
Sections 2.06, 2.07, 2.08, 5.01 and this Article 11, shall survive until the Notes have been paid
in full.



     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



60









 




Agent), to the Holders 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. 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 a Paying Agent shall hold in trust, for the benefit of the Noteholders, all monies
deposited with it pursuant to Section 11.01 and shall apply the deposited monies in accordance with
this Indenture and the Notes to the payment of the principal of (including the Redemption Price
upon redemption pursuant to Article 3) and interest on the Notes.



     Section 11.04. Return of Unclaimed Monies. The Trustee and each Paying Agent shall pay to the
Issuer upon request any monies held by them for the payment of principal or interest that remains
unclaimed for two years after a right to such monies have matured; provided, however, that the
Trustee or such Paying Agent, before being required to make any such payment, may, at the expense
of the Issuer, either publish in a newspaper of general circulation in The City of New York, or
cause to be mailed (or sent by electronic transmission) to each Holder entitled to such monies,
notice that such monies remain unclaimed and that after a date specified therein, which shall be at
least thirty (30) calendar days from the date of such mailing or publication, any unclaimed balance
of such monies then remaining will be repaid to the Issuer. After payment to the Issuer, Holders
entitled to monies must look to the Issuer for payment as general creditors unless an applicable
abandoned property law designates another person, and the Trustee and each Paying Agent shall be
relieved of all liability with respect to such monies.



     Section 11.05. Reinstatement. If the Trustee or the Paying Agent is unable to apply any monies
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 monies 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 Holders of such Notes to receive
such payment from the monies held by the Trustee or Paying Agent.



ARTICLE 12

Legal Defeasance and Covenant Defeasance



     Section 12.01. Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may at any
time, at the option of the Board of Directors evidenced by a resolution set forth in an Officers’
Certificate, elect to have either Section 12.02 or 12.03 hereof be applied to all outstanding Notes
upon compliance with the conditions set forth below in this Article 12.



     Section 12.02. Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 12.01
hereof of the option applicable to this Section 12.02, the Issuer and the Guarantor will, subject
to the satisfaction of the conditions set forth in Section 12.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes and Guarantee on the date
the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For



61









 




this purpose, Legal Defeasance means that the Issuer and the Guarantor will be deemed to have paid
and discharged the entire Debt represented by the outstanding Notes and Guarantee, which will
thereafter be deemed to be “outstanding” only for the purposes of Section 12.05 hereof and the
other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied
all their other obligations under such Notes, the Guarantee and this Indenture (and the Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the
same), except for the following provisions which will survive until otherwise terminated or
discharged hereunder:




     (a) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium and Additional Interest, if any, on, such Notes when such
payments are due from the trust referred to in Section 12.04 hereof;



     (b) the Issuer’s obligations with respect to such Notes under Article 2 and Section 4.02
hereof;



     (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Issuer’s and the Guarantor’s obligations in connection therewith; and



     (d) this Article 12.



     Subject to compliance with this Article 12, the Issuer may exercise its option under this
Section 12.02 notwithstanding the prior exercise of its option under Section 12.03 hereof.



     Section 12.03. Covenant Defeasance.



     Upon the Issuer’s exercise under Section 12.01 hereof of the option applicable to this Section
12.03, the Issuer and the Guarantor will, subject to the satisfaction of the conditions set forth
in Section 12.04 hereof, be released from each of their obligations under the covenants contained
in Sections 4.09, 4.10 and 4.11 with respect to the outstanding Notes on and after the date the
conditions set forth in Section 12.04 hereof are satisfied (hereinafter, “Covenant Defeasance”),
and the Notes will thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but will continue to be deemed “outstanding” for all other purposes
hereunder (it being understood that such Notes will not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes
and Guarantee, the Issuer and the Guarantor may omit to comply with and will have no liability in
respect of any term, condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other document and such
omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes and Guarantee will
be unaffected thereby. In addition, upon the Issuer’s exercise under Section 12.01 hereof of the
option applicable to this Section 12.03, subject to the satisfaction of the conditions set forth in
Section 12.04 hereof, Sections 6.01(c) and 6.01(d) hereof will not constitute Events of Default.



62









 





     Section 12.04. Conditions to Legal or Covenant Defeasance.



     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 12.02
or 12.03 hereof:



     (a) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally recognized investment bank,
appraisal firm, or firm of independent public accountants, to pay the principal of, premium and
Additional Interest, if any, and interest on, the outstanding Notes on the stated date for
payment thereof or on the applicable Redemption Date, as the case may be, and the Issuer must
specify whether the Notes are being defeased to such stated date for payment or to a particular
Redemption Date;



     (b) in the case of an election under Section 12.02 hereof, the Issuer must deliver to the
Trustee an Opinion of Counsel confirming that:




     (1) the Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling; or




     (2) since the date of this Indenture, there has been a change in the applicable federal
income tax law,



     in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if such
Legal Defeasance had not occurred;



     (c) in the case of an election under Section 12.03 hereof, the Issuer must deliver to the
Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance had not occurred;



     (d) no Default or Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit (and any similar concurrent deposit relating to other indebtedness being
defeased, discharged or replaced), and the granting of liens to secure such borrowings);



     (e) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation
of, or constitute a default under, any material agreement or instrument (other than this
Indenture and the agreements governing any other indebtedness being defeased, discharged or
replaced) to which the Issuer or the Guarantor is a party or by which the Issuer or the Guarantor
is bound;



63









 





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



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



     Section 12.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.



     Subject to Section 12.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 12.05, the “Trustee”) pursuant to Section 12.04 hereof in respect of the
outstanding Notes will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal, premium and
Additional Interest, if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.



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



     Notwithstanding anything in this Article 12 to the contrary, the Trustee will deliver or pay
to the Issuer from time to time upon the request of the Issuer any money or non-callable Government
Securities held by it as provided in Section 12.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 12.04(a) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.



     Section 12.06. Repayment to Issuer.



     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, premium or Additional Interest, if any, or interest on, any
Note and remaining unclaimed for two years after such principal, premium or Additional Interest, if
any, or interest has become due and payable shall be paid to the Issuer on its request or (if then
held by the Issuer) will be discharged from such trust; and the Holder of such Note will thereafter
be permitted to 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, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Issuer cause to be



64









 




published once, in the New York Times and The Wall Street Journal (national edition), notice
that such money remains unclaimed and that, after a date specified therein, which will not be less
than 30 days from the date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer.




     Section 12.07. Reinstatement.



     If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities in accordance with Section 12.02 or 12.03 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer’s and the Guarantor’s obligations under this
Indenture and the Notes and the Guarantee will be revived and reinstated as though no deposit had
occurred pursuant to Section 12.02 or 12.03 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 12.02 or 12.03 hereof, as the case
may be; provided, however, that, if the Issuer makes any payment of principal of, premium or
Additional Interest, if any, or interest on, any Note following the reinstatement of its
obligations, the Issuer will be subrogated to the rights of the Holders of such Notes to receive
such payment from the money held by the Trustee or Paying Agent.



ARTICLE 13

Immunity of Incorporators, Stockholders, Officers and Directors



     Section 13.01. Indenture and Notes Solely Corporate Obligations. Except as otherwise
expressly provided in Article 15, no recourse for the payment of the principal of (including the
Redemption Price upon redemption pursuant to Article 3) or, premium, if any, or interest on any
Note, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon
any obligation, covenant or agreement of the Issuer in this Indenture or in any supplemental
indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, limited partner, member, manager, employee, agent,
officer, director or Subsidiary, as such, past, present or future, of the General Partner, the
Issuer or any of the Issuer’s Subsidiaries or of any successor thereto, either directly or through
the Issuer or any of the Issuer’s Subsidiaries or any successor thereto, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture and the
issue of the Notes.



ARTICLE 14

Meetings of Holders of Notes



     Section 14.01. Purposes for Which Meetings May Be Called. A meeting of Holders of Notes 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 Holders of Notes.



     Section 14.02. Call, Notice and Place of Meetings.



65









 





     (a) The Trustee may at any time call a meeting of Holders of Notes 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 Holders of Notes, 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 twenty-one (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 Holders of at least 10% in
principal amount of the outstanding Notes shall have requested the Trustee to call a meeting of
the Holders of Notes 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 mailed notice of or made the first publication of the notice of such meeting within
twenty-one (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
Holders of Notes 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.



     Section 14.03. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting of
Holders of Notes, a Person shall be (a) a Holder of one or more outstanding Notes, or (b) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or more outstanding
Notes by such Holder or Holders. The only Persons who shall be entitled to be present or to speak
at any meeting of Holders of Notes 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 Holders of Notes; provided,
however, that if any action is to be taken at the meeting with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which may be made, given or taken
by the Holders 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 Holders of
Notes, be dissolved. In any other case the meeting may be adjourned for a period of not less than
ten (10) 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 (10) 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.



66









 





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



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



     Section 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings.
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Notes 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.



     (a) 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 Holders of Notes as
provided in Section 14.02(b), in which case the Issuer, the Guarantor or the Holders of Notes
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.



     (b) At any meeting, each Holder of a Note 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 Holder of a Note or proxy.



     (c) Any meeting of Holders of Notes 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 Holders of Notes shall be by written ballots on which shall be
subscribed the signatures of the Holders of Notes or of their representatives by proxy



67









 




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 Holders of Notes
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 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 Holder of a Note authenticated and delivered by the Trustee and its successors
and assigns that: (i) the principal of (including the Redemption Price upon redemption 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 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 all
other obligations of the Issuer to the Holders 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; and (ii) 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 or otherwise, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in Section 15.03 hereof (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 Holder 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 Holders 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



68









 




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 the
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. The Guarantor hereby covenants 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 on the Notes and all other costs provided for under this
Indenture or as provided in Article 7.




     If any Holder 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
Holders 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
Holders of Notes 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 D 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.



69









 





     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 Holders 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 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 Law
or otherwise.



     Section 15.04. Application of Certain Terms and Provisions to the Guarantor. 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 General Partner, as
applicable, were references to the Guarantor.



     (a) 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.



     (b) 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 Holders of Notes 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.



     (c) 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.




70












 





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 Holders of Notes
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:




BioMed Realty, L.P.

17190 Bernardo Center Drive

San Diego, California 92128

Telecopier No.: (858) 485-9843

Attention: General Counsel




To Guarantor:




BioMed Realty Trust, Inc.

17190 Bernardo Center Drive

San Diego, California 92128

Telecopier No.: (858) 485-9843

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:




U.S. Bank National Association

633 West Fifth Street, 24th Floor

Los Angeles, California 90071

Telecopier No.: (213) 615-6197

Attention: Paula M. Oswald, Corporate Trust Services (BioMed Realty 2010 Indenture 
6.125%
Senior Notes due 2020)



71









 





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



     Any notice or communication mailed to a Noteholder shall be 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 mailed within the time prescribed.



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



     Section 16.04. Governing Law. 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 that would
result in the application of any laws other than the laws of the State of New York.



     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 have been complied
with.



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is based; (3) a
statement that, in the opinion of such person, 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 has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with; 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. In any case in which the Maturity Date of interest on or
principal of the Notes or the Redemption 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, and no interest shall accrue for the period from and after such date.



     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



72









 





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
authenticating agent, any Note Registrar and their successors hereunder and the Holders of Notes
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, 2.06, 2.07, 2.08 and 3.03, as fully to all intents
and purposes as though the authenticating agent had been expressly authorized by this Indenture and
those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be deemed to be
authentication and delivery of such Notes “by the Trustee” and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any
requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such
authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant
to Section 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 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



73









 





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 mail notice of such appointment of a
successor authenticating agent to all Holders of Notes as the names and addresses of such Holders
appear on the Note Register.




     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.



     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.



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



74









 






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



	 	 	 	 	 	 	 

	 	 	BIOMED REALTY, L.P.	 	 
	 

	 	By:
	BioMed Realty Trust, Inc.

Its Sole General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By: 
	 /s/ R. Kent Griffin
 

Name:  R. Kent Griffin
	 	 
	 

	 	 	Title: President, Chief
Operating Officer 

          and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	BIOMED REALTY TRUST, INC.,

     as Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	/s/ R. Kent Griffin
 

Name: R. Kent Griffin
	 	 
	 

	 	 	Title: President, Chief Operating Officer

          and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,

     as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	/s/ Bradley E. Scarbrough
 

Name: Bradley E. Scarbrough
	 	 
	 

	 	 	Title: Vice President	 	 









 









 








EXHIBIT A




[Include only for Global Notes]




     THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE)
OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.09 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
ISSUER.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“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 SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




[Include only for Notes that are Restricted Securities]




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 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,
AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS [ONE YEAR FOR RULE 144A NOTES] [40 DAYS FOR REGULATION S
NOTES] AFTER THE




A-1









 








LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF
THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
ISSUER, BIOMED REALTY TRUST, INC. OR ANY OF THE ISSUER’S SUBSIDIARIES, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES TO NON-U.S. PERSONS WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.




A-2









 








BIOMED REALTY, L.P.

6.125% SENIOR NOTES DUE 2020




No. [ ]




CUSIP No.: [09064AAD3: Rule 144A][ U09039AA3: Reg S]




ISIN: [US09064AAD37:Rule 144A][ USU09039AA31: Reg S]




$[   ]




     BioMed Realty, L.P., a Maryland limited partnership (herein called the “Issuer,” which term
includes any successor entity under the Indenture referred to on the reverse hereof), for value
received hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of
[ ] ($[ ]), or such lesser amount as is set forth in the Schedule of Increases or
Decreases In Note on the other side of this Note, on April 15, 2020 at the office or agency of the
Issuer maintained for that purpose in accordance with the terms of the Indenture, in such coin or
currency of the United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, semi-annually on April 15 and October 15
of each year, commencing October 15, 2010, on said principal sum at said office or agency, in like
coin or currency, at the rate per annum of 6.125%, from the April 15 or October 15, as the case may
be, next preceding the date of this Note to which interest has been paid or duly provided for,
unless no interest has been paid or duly provided for on the Notes, in which case from April 29,
2010 until payment of said principal sum has been made or duly provided for. The Issuer shall pay
interest on any Notes in certificated form by check mailed to the address of the Person entitled
thereto as it appears in the Note Register; provided, however, that a Holder of any Notes in
certificated form in the aggregate principal amount of more than $2.0 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, or on any Global Note by wire transfer
of immediately available funds to the account of the Depositary or its nominee.



     The Issuer promises to pay interest on overdue principal, premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) interest at the rate of 1% per
annum above the rate borne by the Notes.



     Reference is made to the further provisions of this Note set forth on the reverse hereof and
the Indenture governing this Note. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.



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



A-3









 





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



     Dated: April 29, 2010



	 	 	 	 	 	 

	 	 	BIOMED REALTY, L.P.	 	 
	 
	 	 	 	 	 
	 

	 	By:
	BioMed Realty Trust, Inc.

Its Sole General Partner	 	 
	 
	 	 	 	 	 
	 

	 	By:
	 
 

Name:
	 	 
	 

	 	 	Title:	 	 






A-4









 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION




This is one of the Notes described in the within-named Indenture.




Dated: April 29, 2010




	 	 	 	 	 	 

	 	 	U.S. Bank National Association, as Trustee	 	 
	 
	 	 	 	 	 
	 

	 	By:
	  

Authorized
Signatory
	 	 






A-5









 






[FORM OF REVERSE SIDE OF NOTE]




BioMed Realty, L.P.

6.125% SENIOR NOTES DUE 2020



     This Note is one of a duly authorized issue of Notes of the Issuer, designated as its 6.125%
Senior Notes due 2020 (herein called the “Notes”), issued under and pursuant to an Indenture dated
as of April 29, 2010 (herein called the “Indenture”), among the Issuer, the Guarantor and U.S. Bank
National Association, as trustee (herein called the “Trustee”), to which Indenture and any
indentures supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Issuer,
the Guarantor and the Holders of the Notes. Defined terms used but not otherwise defined in this
Note shall have the respective meanings ascribed thereto in the Indenture.



     If an Event of Default (other than an Event of Default specified in Section 6.01(e), 6.01(f)
and 6.01(g) with respect to the Issuer) occurs and is continuing, the principal of, premium, if
any, and accrued and unpaid interest on all Notes may be declared to be due and payable by either
the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding, and, upon said declaration the same shall be immediately due and payable. If an Event
of Default specified in Section 6.01(e), 6.01(f) or 6.01(g) of the Indenture occurs with respect to
the Issuer, the principal of and premium, if any, and interest accrued and unpaid on all the Notes
shall be immediately and automatically due and payable without necessity of further action.



     The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of
the Holders of not less than a majority in aggregate principal amount of the Notes at the time
outstanding, 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 Holders of the Notes, subject to exceptions set forth in Section
9.02 of the Indenture. Subject to the provisions of the Indenture, the Holders of not less than a
majority in aggregate principal amount of the Notes at the time outstanding may, on behalf of the
Holders of all of the Notes, waive any past Default or Event of Default, subject to exceptions set
forth in the Indenture.



     No reference herein to the Indenture and no provision of this Note or of the Indenture shall
impair, as among the Issuer and the Holder of the Notes, the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, on and interest on this Note
at the place, at the respective times, at the rate and in the coin or currency herein and in the
Indenture prescribed.



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



     The Notes are issuable in fully registered form, without coupons, in denominations of $1,000
principal amount and any multiple of $1,000. 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



A-6









 





any tax, assessment 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 any other authorized denominations.




     The Issuer shall have the right to redeem the Notes under certain circumstances as set forth
in Section 3.01, Section 3.02 and Section 3.03 of the Indenture.



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



     Except as expressly provided in Article 15 of the Indenture, no recourse for the payment of
the principal of or any premium or 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 supplemental indenture or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
stockholder, limited partner, member, manager, employee, agent, officer, director or subsidiary, as
such, past, present or future, of the Guarantor, the Issuer or any of the Issuer’s Subsidiaries or
of any successor thereto, either directly or through the Guarantor, the Issuer or any of the
Issuer’s subsidiaries or of any successor thereto, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a condition of, and
as consideration for, the execution of the Indenture and the issue of this Note.



     In addition to the rights provided to Holders of Notes under the Indenture, Holders shall have
all the rights set forth in the Registration Rights Agreement.



A-7









 





ASSIGNMENT FORM




     To assign this Note, fill in the form below:



	 	 	 

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

	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)






 




(Insert assignee’s soc. sec. or tax I.D. no.)



 





 





 





 




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



	 	 	 

	and irrevocably appoint

	 	 
	 

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






Date:                                         




	 	 	 	 	 

	 

	 	Your Signature:
	 	 
	 

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







Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).




A-8









 










SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *




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



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	Amount of decrease in	 	Amount of increase in	 	at maturity of this	 	 
	 	 	Principal Amount	 	Principal Amount	 	Global Note following	 	Signature of authorized
	 	 	at maturity of	 	at maturity of	 	such decrease	 	officer of Trustee or
	Date of Exchange	 	this Global Note	 	this Global Note	 	(or increase)	 	Custodian
	 	 	 	 	 	 	 	 	 







 




			
	*	 	This schedule should be included only if the Note is issued in global form.






A-9












 





EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER



BioMed Realty, L.P.

17190 Bernardo Center Drive

San Diego, California 92128

Telecopier No.: (858) 485-9843

Attention: General Counsel




U.S. Bank National Association

633 West Fifth Street, 24th Floor

Los Angeles, California 90071

Telecopier No.: (213) 615-6197

Attention: Paula M. Oswald, Corporate Trust Services (BioMed Realty 2010 Indenture 6.125% Senior Notes due 2020)




     Re: 6.125% Notes due 2020



     Reference is hereby made to the Indenture, dated as of April 29, 2010 (the “Indenture”), among
BioMed Realty, L.P., a Maryland limited partnership, as issuer (the “Issuer”), the Guarantor party
thereto and U.S. Bank National Association, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.



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



[CHECK ALL THAT APPLY]




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



B-1









 





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



     3.  ̈ Check and complete if Transferee will take delivery of a Restricted Definitive
Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that (check one):




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



or





     (b)  ̈ such Transfer is being effected to the Issuer or a Subsidiary thereof;



or





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



or





     (d)  ̈ such Transfer is being effected to pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or
Rule 904, and the Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification), to the effect



B-2









 







that such Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Notes and in the Indenture and
the Securities Act.



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



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



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



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



B-3









 





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



	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	[Insert Name of Transferor] 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name: 	 
	 	 	Title:  	 	 
	 


Dated:                                         








B-4









 








ANNEX A TO CERTIFICATE OF TRANSFER



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




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





	 	(a)	 	 ̈ a beneficial interest in the:






	 	(i)	 	 ̈ 144A Global Note (CUSIP                     ), or
	 
	 	(ii)	 	 ̈ Regulation S Global Note (CUSIP                     ), or






	 	(b)	 	 ̈ a Restricted Definitive Note.




2. After the Transfer the Transferee will hold:




[CHECK ONE]





	 	(a)	 	 ̈ a beneficial interest in the:






	 	(i)	 	 ̈ 144A Global Note (CUSIP                     ), or
	 
	 	(ii)	 	 ̈ Regulation S Global Note (CUSIP                     ), or
	 
	 	(iii)	 	 ̈ Unrestricted Global Note (CUSIP                     ); or






	 	(b)	 	 ̈ a Restricted Definitive Note; or
	 
	 	(c)	 	 ̈ an Unrestricted Definitive Note,
	 
	 	 	 	in accordance with the terms of the Indenture.




B-5









 











EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE



BioMed Realty, L.P.

17190 Bernardo Center Drive

San Diego, California 92128

Telecopier No.: (858) 485-9843

Attention: General Counsel




U.S. Bank National Association

633 West Fifth Street, 24th Floor

Los Angeles, California 90071

Telecopier No.: (213) 615-6197

Attention: Paula M. Oswald, Corporate Trust Services (BioMed Realty 2010 Indenture 6.125% Senior Notes due 2020)




     Re: 6.125% Notes due 2020


Reference is hereby made to the Indenture, dated as of April 29, 2010 (the “Indenture”), among
BioMed Realty, L.P., a Maryland limited partnership, as issuer (the “Issuer”), the Guarantor party
thereto and U.S. Bank National Association, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.




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



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



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



     (b)  ̈ Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in
a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the



C-1









 




Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any state of the
United States.




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



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



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



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



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



C-2









 




beneficial interest issued will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.




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



	 	 	 	 	 
	 	 	 
	 	 	 
	 	[Insert Name of Transferor] 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated:                                         








C-3









 








EXHIBIT D




FORM 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 U.S. 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 6.125% Senior Notes due 2020
(the “Notes”) of BioMed Realty, L.P., a Maryland limited partnership (the “Issuer”), whether at
maturity, by acceleration, call for redemption or otherwise, the due and punctual payment of
interest on the overdue principal and premium, if any, and (to the extent permitted by law)
interest on any interest on the Notes, and the due and punctual performance of all other
obligations of the Issuer, to the Holders of the Notes 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 or otherwise.



The obligations of the Guarantor to the Holders of the Notes 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 director, officer, employee, incorporator or stockholder (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
Holders of the Notes, and, in the event of any transfer or assignment of rights by any Holder of
the Notes 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.







D-1









 







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.







D-2









 









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


Dated: April 29, 2010




	 	 	 	 	 
	 	BIOMED REALTY TRUST, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




D-3