Exhibit
4.5


 


INLAND REAL ESTATE
CORPORATION


 


      %
CONVERTIBLE SENIOR NOTES DUE 2029


 


 


INDENTURE


 


 


DATED AS OF               ,
2010


 


 


WELLS FARGO BANK,
NATIONAL ASSOCIATION,


AS TRUSTEE


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE
  1 DEFINITIONS AND INCORPORATION BY REFERENCE

  	
  1

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions

  	
  9

  
	
  Section 1.03.

  	
  Trust Indenture Act
  Provisions

  	
  10

  
	
  Section 1.04.

  	
  Rules of
  Construction

  	
  10

  
	
  ARTICLE
  2 THE SECURITIES

  	
  11

  
	
  Section 2.01.

  	
  Form and Dating

  	
  11

  
	
  Section 2.02.

  	
  Execution and
  Authentication

  	
  13

  
	
  Section 2.03.

  	
  Registrar, Paying Agent
  and Conversion Agent

  	
  13

  
	
  Section 2.04.

  	
  Paying Agent to Hold
  Money in Trust

  	
  14

  
	
  Section 2.05.

  	
  Lists of Holders of
  Securities

  	
  14

  
	
  Section 2.06.

  	
  Transfer and Exchange

  	
  14

  
	
  Section 2.07.

  	
  Replacement Securities

  	
  15

  
	
  Section 2.08.

  	
  Outstanding Securities

  	
  16

  
	
  Section 2.09.

  	
  Treasury Securities

  	
  17

  
	
  Section 2.10.

  	
  Temporary Securities

  	
  17

  
	
  Section 2.11.

  	
  Cancellation

  	
  17

  
	
  Section 2.12.

  	
  Legend; Additional
  Transfer and Exchange Requirements

  	
  17

  
	
  Section 2.13.

  	
  CUSIP Numbers

  	
  20

  
	
  ARTICLE
  3 REPURCHASE

  	
  21

  
	
  Section 3.01.

  	
  Repurchase at Option of
  Holders upon a Change in Control

  	
  21

  
	
  Section 3.02.

  	
  Repurchase at Option of
  Holders on Certain Dates

  	
  23

  
	
  Section 3.03.

  	
  Repayment to the
  Company

  	
  26

  
	
  Section 3.04.

  	
  Securities Purchased in
  Part

  	
  26

  
	
  Section 3.05.

  	
  Compliance with
  Securities Laws upon Purchase of Securities

  	
  26

  
	
  Section 3.06.

  	
  Purchase of Securities
  in Open Market

  	
  26

  
	
  ARTICLE
  4 CONVERSION

  	
  27

  
	
  Section 4.01.

  	
  Conversion Privilege
  and Conversion Rate

  	
  27

  
	
  Section 4.02.

  	
  Conversion Procedure

  	
  30

  
	
  Section 4.03.

  	
  Fractional Shares

  	
  32

  



 


i

















 


	
  Section 4.04.

  	
  Taxes on Conversion

  	
  32

  
	
  Section 4.05.

  	
  Company to Provide
  Stock

  	
  32

  
	
  Section 4.06.

  	
  Adjustment of
  Conversion Rate

  	
  32

  
	
  Section 4.07.

  	
  No Adjustment

  	
  39

  
	
  Section 4.08.

  	
  Notice of Adjustment

  	
  39

  
	
  Section 4.09.

  	
  Notice of Certain
  Transactions

  	
  39

  
	
  Section 4.10.

  	
  Effect of
  Consolidation, Merger or Binding Share Exchange

  	
  39

  
	
  Section 4.11.

  	
  Withholding

  	
  39

  
	
  Section 4.12.

  	
  Trustee’s Disclaimer

  	
  40

  
	
  Section 4.13.

  	
  Conversion Settlement

  	
  40

  
	
  ARTICLE
  5 COVENANTS

  	
  41

  
	
  Section 5.01.

  	
  Payment of Securities

  	
  41

  
	
  Section 5.02.

  	
  SEC and Other Reports

  	
  41

  
	
  Section 5.03.

  	
  Compliance Certificates

  	
  42

  
	
  Section 5.04.

  	
  Further Instruments and
  Acts

  	
  42

  
	
  Section 5.05.

  	
  Maintenance of Corporate
  Existence

  	
  42

  
	
  Section 5.06.

  	
  Rule 144A Information
  Requirement

  	
  42

  
	
  Section 5.07.

  	
  Stay, Extension and
  Usury Laws

  	
  42

  
	
  Section 5.08.

  	
  Removed

  	
  43

  
	
  Section 5.09.

  	
  Maintenance of Office
  or Agency

  	
  43

  
	
  ARTICLE
  6 CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE

  	
  43

  
	
  Section 6.01.

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
  43

  
	
  Section 6.02.

  	
  Successor Substituted

  	
  44

  
	
  ARTICLE
  7 DEFAULT AND REMEDIES

  	
  44

  
	
  Section 7.01.

  	
  Events of Default

  	
  44

  
	
  Section 7.02.

  	
  Acceleration

  	
  46

  
	
  Section 7.03.

  	
  Other Remedies

  	
  47

  
	
  Section 7.04.

  	
  Waiver of Defaults and
  Events of Default

  	
  47

  
	
  Section 7.05.

  	
  Control by Majority

  	
  47

  
	
  Section 7.06.

  	
  Limitations on Suits

  	
  48

  
	
  Section 7.07.

  	
  Rights of Holders to
  Receive Payment and to Convert

  	
  48

  
	
  Section 7.08.

  	
  Collection Suit by
  Trustee

  	
  48

  
	
  Section 7.09.

  	
  Trustee May File
  Proofs of Claim

  	
  48

  



 


ii

















 


	
  Section 7.10.

  	
  Priorities

  	
  49

  
	
  Section 7.11.

  	
  Undertaking for Costs

  	
  49

  
	
  ARTICLE
  8 TRUSTEE

  	
  50

  
	
  Section 8.01.

  	
  Obligations of Trustee

  	
  50

  
	
  Section 8.02.

  	
  Rights of Trustee

  	
  51

  
	
  Section 8.03.

  	
  Individual Rights of
  Trustee

  	
  52

  
	
  Section 8.04.

  	
  Trustee’s Disclaimer

  	
  52

  
	
  Section 8.05.

  	
  Notice of Default or
  Events of Default

  	
  53

  
	
  Section 8.06.

  	
  Reports by Trustee to
  Holders

  	
  53

  
	
  Section 8.07.

  	
  Compensation and
  Indemnity

  	
  53

  
	
  Section 8.08.

  	
  Replacement of Trustee

  	
  54

  
	
  Section 8.09.

  	
  Successor Trustee by
  Merger, Etc.

  	
  55

  
	
  Section 8.10.

  	
  Eligibility;
  Disqualification

  	
  55

  
	
  Section 8.11.

  	
  Preferential Collection
  of Claims Against Company

  	
  55

  
	
  ARTICLE
  9 SATISFACTION AND DISCHARGE OF INDENTURE

  	
  56

  
	
  Section 9.01.

  	
  Satisfaction and
  Discharge of Indenture

  	
  56

  
	
  Section 9.02.

  	
  Application of Trust
  Money

  	
  56

  
	
  Section 9.03.

  	
  Repayment to Company

  	
  57

  
	
  Section 9.04.

  	
  Reinstatement

  	
  57

  
	
  ARTICLE
  10 AMENDMENTS; SUPPLEMENTS AND WAIVERS

  	
  57

  
	
  Section 10.01.

  	
  Without Consent of
  Holders

  	
  57

  
	
  Section 10.02.

  	
  With Consent of Holders

  	
  58

  
	
  Section 10.03.

  	
  Compliance with Trust
  Indenture Act

  	
  59

  
	
  Section 10.04.

  	
  Revocation and Effect
  of Consents

  	
  60

  
	
  Section 10.05.

  	
  Notation on or Exchange
  of Securities

  	
  60

  
	
  Section 10.06.

  	
  Trustee to Sign
  Amendments, Etc.

  	
  60

  
	
  Section 10.07.

  	
  Effect of Supplemental
  Indentures

  	
  60

  
	
  ARTICLE
  11 REDEMPTION

  	
  60

  
	
  Section 11.01.

  	
  Redemption

  	
  60

  
	
  ARTICLE
  12 MISCELLANEOUS

  	
  62

  
	
  Section 12.01.

  	
  Trust Indenture Act
  Controls

  	
  62

  
	
  Section 12.02.

  	
  Notices

  	
  62

  
	
  Section 12.03.

  	
  Communications by
  Holders with Other Holder

  	
  63

  



 


iii

















 


	
  Section 12.04.

  	
  Certificate and Opinion
  as to Conditions Precedent

  	
  63

  
	
  Section 12.05.

  	
  Record Date for Vote or
  Consent of Holders of Securities

  	
  63

  
	
  Section 12.06.

  	
  Rules by Trustee,
  Paying Agent, Registrar and Conversion Agent

  	
  64

  
	
  Section 12.07.

  	
  Legal Holidays

  	
  64

  
	
  Section 12.08.

  	
  Governing Law

  	
  64

  
	
  Section 12.09.

  	
  No Adverse
  Interpretation of Other Agreements

  	
  64

  
	
  Section 12.10.

  	
  No Recourse Against
  Others

  	
  64

  
	
  Section 12.11.

  	
  No Security Interest
  Created

  	
  64

  
	
  Section 12.12.

  	
  Successors

  	
  64

  
	
  Section 12.13.

  	
  Multiple Counterparts

  	
  64

  
	
  Section 12.14.

  	
  Separability

  	
  64

  
	
  Section 12.15.

  	
  Table of Contents,
  Headings, Etc.

  	
  65

  
	
  Section 12.16.

  	
  Force Majeure

  	
  65

  
	
  Exhibit

  	
  A-1

  



 


iv

















 


CROSS
REFERENCE TABLE*


 


	
  TIA

  SECTION

  	
   

  	
  INDENTURE

  SECTION

  
	
  Section

  	
  310

  	
   

  	
  12.01

  
	
   

  	
  310(a)(1)

  	
   

  	
  8.10

  
	
   

  	
  (a)(2)

  	
   

  	
  8.10

  
	
   

  	
  (a) (3)

  	
   

  	
  N.A.**

  
	
   

  	
  (a) (4)

  	
   

  	
  N.A.

  
	
   

  	
  (a) (5)

  	
   

  	
  8.10

  
	
   

  	
  (b)

  	
   

  	
  8.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  Section

  	
  311

  	
   

  	
  12.01

  
	
   

  	
  311 (a)

  	
   

  	
  8.11

  
	
   

  	
  (b)

  	
   

  	
  8.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  Section

  	
  312

  	
   

  	
  12.01

  
	
   

  	
  312(a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
  12.03

  
	
  Section

  	
  313

  	
   

  	
  12.01

  
	
   

  	
  313(a)

  	
   

  	
  8.06(a)

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (b)(2)

  	
   

  	
  8.06(a)

  
	
   

  	
  (c)

  	
   

  	
  8.06(a)

  
	
   

  	
  (d)

  	
   

  	
  8.06(b)

  
	
  Section

  	
  314

  	
   

  	
  12.01

  
	
   

  	
  314(a)

  	
   

  	
  5.02(a);
  5.03

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  2.02;
  9.01; 12.04

  
	
   

  	
  (c)(2)

  	
   

  	
  9.01;
  12.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  12.04

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  Section

  	
  315

  	
   

  	
  12.01

  
	
   

  	
  315(a)

  	
   

  	
  8.01(b)

  
	
   

  	
  (b)

  	
   

  	
  8.05

  
	
   

  	
  (d)

  	
   

  	
  8.01(c)

  
	
   

  	
  (d)(2)

  	
   

  	
  8.01(c)

  
	
   

  	
  (d)(3)

  	
   

  	
  8.01(c)

  
	
   

  	
  (e)

  	
   

  	
  7.11

  
	
  Section

  	
  316

  	
   

  	
  12.01

  
	
   

  	
  316 (a)

  	
   

  	
  7.05;
  10.02(b)

  
	
   

  	
  (b)

  	
   

  	
  7.07

  
	
   

  	
  (c)

  	
   

  	
  11.05

  
	
  Section

  	
  317

  	
   

  	
  7.08;
  7.09; 12.01

  



 

















 


	
  TIA

  SECTION

  	
   

  	
  INDENTURE

  SECTION

  
	
  Section

  	
  318

  	
   

  	
  12.01

  
				



 






*                 This Cross-Reference Table shall not, for any purpose,
be deemed a part of this Indenture.


**          N.A. means Not Applicable.


 
















 


THIS INDENTURE dated as
of                     ,
2010 is between INLAND REAL ESTATE CORPORATION, a corporation duly organized
under the laws of the State of Maryland (the “Company”), and WELLS FARGO BANK,
NATIONAL ASSOCIATION, a national banking association organized and existing
under the laws of the United States of America, as Trustee (the “Trustee”).


 


Both parties agree as
follows for the benefit of the other and for the equal and ratable benefit of
the Holders of the Securities:


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.          Definitions.


 


“Acquired Debt” means
Debt of a Person (i) existing at the time that Person is merged or
consolidated with or into, or becomes a Subsidiary of, the Company or (ii) assumed
by the Company or any of its Subsidiaries in connection with the acquisition of
assets from that Person.  Acquired Debt
shall be deemed to be incurred on the date the acquired Person is merged or
consolidated with or into, or becomes a Subsidiary of, the Company or the date
of the related acquisition, as the case may be.


 


“Affiliate” means, with
respect to any specified person, 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 person means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.


 


“Agent” means any
Registrar, Paying Agent or Conversion Agent.


 


“Applicable Conversion
Period” means, with respect to a conversion of Securities, the 20 consecutive
Trading Day period commencing on the third Trading Day following the date the
Securities are tendered for conversion.


 


“Applicable Conversion
Rate” means, as of any Trading Day, the Conversion Rate in effect on such date.


 


“Applicable Procedures”
means, with respect to any tender, payment, transfer or exchange of beneficial
ownership interests in a Global Security, the rules and procedures of the
Depositary, to the extent applicable to such tender, payment, transfer or
exchange.


 


“Average Price” means,
with respect to a conversion of Securities, an amount equal to the average of
the Closing Sale Prices of shares of Common Stock for each Trading Day in the
Applicable Conversion Period.


 


“Beneficial Ownership”
means the definition such term is given in accordance with Rule 13d-3
promulgated by the SEC under the Exchange Act.


 


1

















 


“Board of Directors”
means either the board of directors of the Company or any committee of the
Board of Directors authorized to act for it with respect to this Indenture.


 


“Business Day” means any
weekday that is not a day on which the Trustee or banking institutions in The
City of New York, New York or Chicago, Illinois are authorized or obligated to
close.


 


“Capital Stock” of any
Person means any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) equity of such Person, but excluding any debt securities
convertible into such equity.


 


“Cash” or “cash” means
such coin or currency of the United States as at any time of payment is legal
tender for the payment of public and private debts.


 


“Certificated Security”
means a Security that is in substantially the form attached as Exhibit A
but that does not include the information or the schedule called for by
footnote 1 thereof.


 


“Change in Control” means
the occurrence at any time any of any of the following events:


 


(1)           consummation of any transaction or
event (whether by means of a share exchange or tender offer applicable to
shares of Common Stock, a liquidation, consolidation, recapitalization,
reclassification, combination or merger of the Company or a sale, lease or
other transfer of all or substantially all of the consolidated assets of the
Company) or a series of related transactions or events pursuant to which all of
the shares of outstanding Common Stock are exchanged for, converted into or
constitute solely the right to receive, cash, securities or other property;


 


(2)           any “person” or “group” (as such
terms are used for purposes of Sections 13(d) and 14(d) of the
Exchange Act, whether or not applicable), other than the Company or any
majority owned subsidiary of the Company, any employee benefit plan of such
subsidiary or the Inland Group, Inc. or its affiliates, is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of more than 50% of the total voting power in the aggregate of all
classes of shares of the capital stock of the Company then outstanding entitled
to vote generally in elections of directors;


 


(3)           during any period of 12 consecutive
months after the date of original issuance of the Securities, persons who at
the beginning of such 12-month period constituted the Board of Directors of the
Company, together with any new persons whose election was approved by a vote of
a majority of the persons then still comprising the Board of Directors of the
Company who were either members of the Board of Directors of the Company at the
beginning of such period or whose election, designation or nomination for
election was previously so approved, cease for any reason to constitute a
majority of the Board of Directors of the Company;


 


2

















 


(4)           the Common Stock (or other common
stock or securities into which the Securities are then convertible) ceases to
be listed on a U.S. national or regional securities exchange; or


 


(5)           the Company’s stockholders approve
any plan or proposal for our liquidation.


 


Notwithstanding the
foregoing, even if any of the events specified in the preceding clauses (1) through
(3) have occurred, except as specified in clause (x), a Change in Control
will not be deemed to have occurred if either: 
(x) the Closing Sale Price per share of Common Stock for any five
Trading Days within (i) the period of 10 consecutive Trading Days ending
immediately after the later of the Change in Control or the public announcement
of the Change in Control, in the case of a Change in Control relating to an
acquisition of capital stock, or (ii) the period of 10 consecutive Trading
Days ending immediately after the Change in Control, in the case of a Change in
Control relating to a merger, consolidation or asset sale, equals or exceeds
105% of the Conversion Price in effect on each of those Trading Days; provided, however,
that the exception to the definition of “Change in Control” specified in this
clause (x) shall not apply in the context of a Change in Control for
purposes of Section 4.01(g); or (y) at least 90% of the consideration
(excluding cash payments for fractional shares and cash payments made pursuant
to dissenters’ appraisal rights) in a merger, consolidation or other
transaction otherwise constituting a Change in Control consists of shares of
common stock (or depositary receipts or other certificates representing common
equity interests) traded on a U.S. national securities exchange or quoted on an
established automated over the counter trading market in the United States (or
will be so traded or quoted immediately following such merger, consolidation or
other transaction) and as a result of the merger, consolidation or other
transaction the Securities become convertible into such shares of common stock
(or depositary receipts or other certificates representing common equity
interests).  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.


 


“Change in Control
Effective Date” means the date on which any Change in Control becomes
effective.


 


“Change in Control
Purchase Date” has the meaning provided in Section 3.01(b) hereof.


 


“Change in Control
Purchase Notice” has the meaning provided in Section 3.01(c) hereof.


 


“Change in Control
Purchase Price” of any Security, means 100% of the principal amount of the
Security to be purchased plus accrued and unpaid interest, if any, to, but
excluding, the Change in Control Purchase Date.


 


“Closing Sale Price” of
the Common Stock or other capital stock or similar equity interests or other
publicly traded securities on any Trading Day means the closing sale price per
share (or, if no closing sale price is reported, the average of the closing bid
and ask prices or, if more than one in either case, the average of the average
closing bid and the average closing ask prices) on such date as reported on the
principal U.S. national or regional securities exchange on 


 


3

















 


which the Common Stock or
such other capital stock or similar equity interests or other publicly traded
securities are listed or, if the Common Stock or such other capital stock or
similar equity interests or other publicly traded securities are not listed on
a U.S. national or regional securities exchange, as reported on another
established over the counter trading market in the United States.  The Closing Sale Price shall be determined
without regard to after hours trading or extended market making.  In the absence of the foregoing, the Company
shall determine the Closing Sale Price on such basis as it considers
appropriate.


 


“Common Stock” means the
common stock of the Company, par value $0.01 per share as it exists on the date
of this Indenture and any shares of any class or classes of Capital Stock of
the Company resulting from any reclassification or reclassifications thereof,
or, in the event of a merger, consolidation or other similar transaction
involving the Company that is otherwise permitted hereunder in which the
Company is not the surviving corporation the common stock, common equity
interests, ordinary shares or depositary shares or other certificates
representing common equity interests of such surviving corporation or its
direct or indirect parent corporation, and which have no preference in respect
of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which are not subject
to redemption by the Company; provided, however, that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable on conversion of Securities shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.


 


“Company” means the party
named as such in the first paragraph of this Indenture until a successor
replaces it pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor Company.


 


“Conversion Date” means,
with respect to a Security, the date on which the Holder of the Security has
complied with Section 4.02.


 


“Conversion Price” per
share of Common Stock as of any day means the result obtained by dividing (i) $1,000
by (ii) the then applicable Conversion Rate, rounded to the nearest cent.


 


“Conversion Rate” means
the rate at which shares of Common Stock shall be delivered upon conversion,
which rate shall be initially                 
shares of Common Stock for each $1,000 principal amount of Securities, as
adjusted from time to time pursuant to the provisions of this Indenture.


 


“Conversion Value” means,
for each $1,000 principal amount of Securities, the average of the Daily
Conversion Values for each of the twenty consecutive Trading Days of the Applicable
Conversion Period.


 


“Corporate Trust Office”
means the office of the Trustee at which at any particular time the trust
created by this Indenture shall be administered, which initially will be the
office of Wells Fargo Bank, National Association located at 230 W. Monroe
Street, Suite 2900, Chicago, Illinois 60606 attention:  Corporate Trust Services except that, with
respect to presentation of the Securities for payment, conversion or
registration of transfers or exchanges and the location of 


 


4

















 


the Security Registrar,
such term means the office or agency of the Trustee in Minneapolis, Minnesota,
which at the date of original execution of this Indenture is located at 608
Second Avenue South, N9303-121, Minneapolis, Minnesota 55479, Attention:
Corporate Trust Operations.


 


“Daily Conversion Value”
means, with respect to any Trading Day, the product of (1) the Applicable
Conversion Rate and (2) the Closing Sale Price of the Common Stock on such
Trading Day.


 


“Daily Share Amount” for
each $1,000 principal amount of Securities and each Trading Day in the
Applicable Conversion Period is equal to the greater of:


 


(a)           zero; and


 


(b)           a number of shares of Common Stock
determined by the following formula:


 





 


where


 


CSP means the Closing
Sale Price per share of Common Stock on such Trading Day,


 


CR means the Applicable
Conversion Rate, and


 


Net Cash Amount has the
meaning set forth in this Section 1.01.


 


“Debt” means, with
respect to any Person, any:  (i) indebtedness
of that Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments, (ii).indebtedness
secured by any lien on any property or asset owned by the Person, 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 the
Person or, in the case of the Company or any of its Subsidiaries, by the Board
of Directors, of the property subject to the lien, (iii) 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 except any balance that constitutes an accrued
expense, trade payable or payment under any shared service agreement between
the Company and the Inland Group, Inc. or its affiliates, (iv) lease
of property by a Person as lessee which is required to be reflected on that
Person’s balance sheet as a capitalized lease in accordance with GAAP, and (v) obligation
of such Person to be liable for, or to pay, as obligor, guarantor or otherwise,
other than for purposes of collection in the ordinary course of business, “Debt”
referred to in clauses (i) through (iv) above or another Person.  “Debt” shall be deemed to be incurred by a
Person whenever that Person shall create, assume, guarantee or otherwise become
liable in respect thereof.


 


5

















 


“Default” means, when
used with respect to the Securities, any event that is or, after notice or
passage of time, or both, would be, 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.


 


“Ex-dividend Date”‘ means
the first date upon which a sale of shares of the Common Stock does not
automatically transfer the right to receive the relevant distribution from the
seller of Common Stock to the buyer.


 


“Final Maturity Date”
means November 15, 2029.


 


“GAAP” means generally
accepted accounting principles in the United States of America as in effect
from time to time, including those set forth in (1) the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants, (2) the statements and pronouncements of the
Public Company Accounting Oversight Board and the Financial Accounting
Standards Board, (3) such other statements by such other entity as
approved by a significant segment of the accounting profession and (4) the
rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in registration
statements filed under the Securities Act and periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements
from the accounting staff of the SEC.


 


“Global Security” means a
Security in global form that is in substantially the form attached as Exhibit A
and that includes the information and schedule called for in footnote 1 thereof
and which is deposited with the Depositary or its custodian and registered in
the name of the Depositary or its nominee.


 


“Holder” or “Holder of a
Security” means the person in whose name a Security is registered on the
Registrar’s books.


 


“Indenture” means this
Indenture as amended or supplemented from time to time pursuant to the terms of
this Indenture, including the provisions of the TIA that are automatically
deemed to be a part of this Indenture by operation of the TIA, and the terms of
the Securities.


 


“Interest Payment Date”
means May 15 and November 15 each year, commencing November 15,
2010.


 


“Issue Date” of any
Security means the date on which the Security was originally issued or deemed
issued as set forth on the face of the Security.


 


“Net Amount” has the
meaning provided in Section 4.13(a) hereof.


 


“Net Cash Amount” has the
meaning provided in Section 4.13(b) hereof.


 


“NYSE” means the New York
Stock Exchange.


 


6

















 


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


 


“Officers’ Certificate”
means a certificate signed by the Chairman, any Vice Chairman, the President or
a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.


 


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


 


“Optional Repurchase Date”
has the meaning provided in Section 3.02(a) hereof.


 


“Optional Repurchase
Notice” has the meaning provided in Section 3.02(c) hereof.


 


“Optional Repurchase
Price” has the meaning provided in Section 3.02(a) hereof.


 


“Outstanding” has the
meaning set forth in Section 2.08.


 


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


 


“Principal” or “principal”
of a debt security, including the Securities, means the principal of the debt
security plus, when appropriate, the premium, if any, on the debt security.


 


“Redemption Date” means,
with respect to any Security or portion thereof to be redeemed in accordance
with the provisions of Section 11.01 hereof, the date fixed for such
redemption in accordance with the provisions of Section 11.01 hereof.


 


“Redemption Price” has
the meaning provided in Section 11.01(b) hereof.


 


“Reference Dividend” has
the meaning specified in Section 4.06(a)(4).


 


“Regular Record Date”
means, with respect to each Interest Payment Date, the May 1 or November 1
as the case may be, next preceding such Interest Payment Date.


 


“REIT” means a “real
estate investment trust” under the Internal Revenue Code of 1986, as amended.


 


“Responsible Officer”
means, when used with respect to the Trustee, any officer within the corporate
trust services division 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 and familiarity with the particular
subject.


 


“Restricted Global
Security” means a Global Security that is a Restricted Security.


 


7

















 


“Restricted Security”
means a Security required to bear the restricted legend set forth in the form
of Security annexed as Exhibit A.


 


“Rule 144” means Rule 144
under the Securities Act or any successor to such Rule.


 


“Rule 144A” means Rule 144A
under the Securities Act or any successor to such Rule.


 


“SEC” means the
Securities and Exchange Commission.


 


“Securities” means the up
to $125,000,000 aggregate principal amount of
      % Convertible Senior Notes due 2029, or any
of them (each a “Security”), as amended or supplemented from time to time, that
are issued under this Indenture.


 


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


 


“Securities Custodian”
means the Trustee, as custodian with respect to the Securities in global form,
or any successor thereto.


 


“Significant Subsidiary”
means, in respect of any Person, as of any date of determination, a Subsidiary
of such Person that would constitute a “significant subsidiary” as such term is
defined under Rule 1-02(w) of Regulation S-X under the Securities
Act.


 


“Subsidiary” means, in
respect of any Person, any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency within the
control of such Person to satisfy) to vote in the election of directors,
managers, general partners or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.


 


“TIA” means the Trust
Indenture Act of 1939, as amended, and the rules and regulations
thereunder as in effect on the date of this Indenture, except to the extent
that the Trust Indenture Act or any amendment thereto expressly provides for
application of the Trust Indenture Act as in effect on another date.


 


“Trading Day” means a day
during which trading in securities generally occurs on the NYSE or, if shares
of Common Stock are not then listed on the NYSE, on the principal other U.S.
national or regional securities exchange on which shares of Common Stock are
then listed or, if shares of Common Stock are not then listed on a U.S.
national or regional securities exchange, on the principal other market on
which shares of Common Stock are then traded. 
A “Trading Day” only includes those days that have a scheduled closing
time of 4:00 p.m. (New York City time) or the then standard closing time
for regular trading on the relevant exchange or trading system.


 


“Trading Price” means,
with respect to the Securities on any date of determination, the average of the
secondary market bid quotations per $1,000 principal amount of Securities
obtained by the Company for a $1,000,000 principal amount of Securities at
approximately 3:30


 


8

















 


p.m., New York City time,
on such determination date from two independent nationally recognized
securities dealers selected by the Company. 
If at least two such bids cannot reasonably be obtained by the Company,
but one such bid can reasonably be obtained by the Company, then one bid shall
be used.  If the Company cannot
reasonably obtain at least one bid for a $1,000,000 principal amount of
Securities from a nationally recognized securities dealer or, in the reasonable
judgment of the Company, the bid quotations are not indicative of the secondary
market value of the Securities, then the Trading Price per $1,000 principal
amount of Securities shall be deemed to be less than 98% of the product of the
Closing Sale Price of shares of Common Stock and the Applicable Conversion Rate
on such determination date.


 


“Trustee” means the party
named as such in the first paragraph of this Indenture until a successor
replaces it in accordance with the provisions of this Indenture, and thereafter
means the successor.


 


“Vice President” when
used with respect to the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after
the title “vice president.”


 


“Voting Stock” of a
Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled
(without regard to the occurrence of any contingency within the control of such
person to satisfy) to vote in the election of directors, managers or trustees
thereof.


 


Section 1.02.          Other Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “Agent Members”

  	
   

  	
  2.01

  
	
  “Bankruptcy Law”

  	
   

  	
  7.01

  
	
  “Company Order”

  	
   

  	
  2.02

  
	
  “Company Notice”

  	
   

  	
  3.01

  
	
  “Conversion Agent”

  	
   

  	
  2.03

  
	
  “Conversion Date”

  	
   

  	
  4.02

  
	
  “Depositary”

  	
   

  	
  2.01

  
	
  “Distribution Notice”

  	
   

  	
  4.01(b)

  
	
  “DTC”

  	
   

  	
  2.01

  
	
  “Event of Default”

  	
   

  	
  7.01

  
	
  “Expiration Time”

  	
   

  	
  4.06

  
	
  “Legal Holiday”

  	
   

  	
  11.07

  
	
  “Net Amount”

  	
   

  	
  4.13

  
	
  “Net Cash Amount”

  	
   

  	
  4.13

  
	
  “Net Shares”

  	
   

  	
  4.13

  
	
  “Notice of Default”

  	
   

  	
  7.01

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Primary Registrar”

  	
   

  	
  2.03

  
	
  “Principal Return”

  	
   

  	
  4.13

  
	
  “Prospectus”

  	
   

  	
  2.01(a)

  
	
  “Receiver”

  	
   

  	
  7.01

  



 


9

















 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Registration
  Statement”

  	
   

  	
  2.01(a)

  
	
  “record date”

  	
   

  	
  4.06

  



 


Section 1.03.          Trust Indenture Act Provisions.  Whenever this Indenture refers to a provision
of the TIA, that provision is incorporated by reference in and made a part of
this Indenture.  This Indenture shall
also include those provisions of the TIA required to be included herein by the
provisions of the Trust Indenture Reform Act of 1990.


 


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


 


“indenture securities”
means the Securities;


 


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


 


“indenture to be
qualified” means this Indenture;


 


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


 


“obligor” on the
indenture securities means the Company or any other obligor on the Securities.


 


All other terms used in
this Indenture that are defined in the TIA, defined by TIA reference to another
statute or defined by any SEC rule and not otherwise defined herein have
the meanings assigned to them therein.


 


Section 1.04.          Rules of Construction.  Unless the context otherwise requires:


 


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


 


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


 


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


 


(4)           provisions apply to successive events
and transactions;


 


(5)           the term “merger” includes a
statutory share exchange and the term “merged” has a correlative meaning;


 


(6)           the masculine gender includes the
feminine and the neuter;


 


(7)           references to agreements and other
instruments include subsequent amendments thereto; and


 


(8)           all “Article”, “Exhibit” and “Section”
references are to Articles, Exhibits and Sections, respectively, of or to this
Indenture unless otherwise specified herein, and


 


10

















 


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


 


ARTICLE 2

THE SECURITIES


 


Section 2.01.          Form and Dating.  The Securities and the Trustee’s certificate
of authentication shall be substantially in the respective forms set forth in Exhibit A,
which Exhibit is incorporated in and made part of this Indenture.  The Securities may have notations, legends or
endorsements required by law, stock exchange or automated quotation system rule or
regulation or usage.  The Company shall
provide any such notations, legends or endorsements to the Trustee in
writing.  Each Security shall be dated
the date of its authentication.


 


(a)           Global Securities.  All of the Securities are initially being
offered and sold to existing holders of the Company’s 4.625% Convertible Notes
due 2026 pursuant to the Company’s offer to exchange the Securities upon the
terms and subject to the conditions set forth in the prospectus, subject to
amendment, dated                     ,
2010 (as it may be amended and supplemented from time to time, the “Prospectus”),
which forms a part of the Registration Statement on Form S-4 filed by the
Company on the date hereof (the “Registration Statement”) (collectively, “Exchange
Participants” or individually, each an “Exchange Participant”) and shall be
issued initially in the form of one or more Global Securities, which shall be
deposited on behalf of the Exchange Participants represented thereby with the
Securities Custodian, as custodian for the depositary, The Depository Trust
Company (“DTC”, and such depositary, or any successor thereto, being
hereinafter referred to as the “Depositary”), and registered in the name of its
nominee, Cede & Co.  (or
any successor thereto), for the accounts of participants in the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided.  The aggregate principal amount
of the Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Securities Custodian as hereinafter
provided, subject in each case to compliance with the Applicable Procedures.


 


(b)           Global Securities In General.  The Securities issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the
Global Security legend thereon and the “Schedule of Exchanges of Securities”
attached thereto).  The Securities issued
in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Security legend thereon and without the
“Schedule of Exchanges of Securities” attached thereto). Each Global Security
shall represent such of the outstanding Securities as shall be specified
therein and each shall provide that it shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect replacements, exchanges,
purchases, redemptions, or conversions of such Securities.  Any adjustment of the aggregate principal
amount of a Global Security to reflect the amount of any increase or decrease
in the amount of outstanding Securities represented thereby shall be made by
the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.12 and shall be made on the records of the Trustee
and the Depositary.


 


11
















 


Members of, or
participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the
Depositary or under the Global Security, and the Depositary (including, for
this purpose, its nominee) may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and Holder of such
Global Security for all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall (1) prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or (2) impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.


 


(c)           Book Entry Provisions.  The Company
shall execute and the Trustee shall, in accordance with this Section 2.01(c),
authenticate and deliver initially one or more Global Securities that (1) shall
be registered in the name of the Depositary or its nominee, (2) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instructions and (3) shall bear legends substantially to the following
effect:


 


“UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.  THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF.  THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND,
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.”


 


12

















 


Section 2.02.          Execution and Authentication.


 


(a)           The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is limited to $125,000,000
aggregate principal amount, except as provided in Sections 2.06 and 2.07.


 


(b)           An Officer shall sign the Securities for the Company
by manual or facsimile signature. 
Typographic and other minor errors or defects in any such facsimile
signature shall not affect the validity or enforceability of any Security that
has been authenticated and delivered by the Trustee.


 


(c)           If an officer whose signature is on a Security no
longer holds that office at the time the Trustee authenticates the Security,
the Security shall be valid nevertheless.


 


(d)           A Security shall not be valid until an authorized
signatory of the Trustee by manual signature signs the certificate of
authentication on the Security.  The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.


 


(e)           The Trustee shall authenticate and make available for
delivery Securities for original issue in the aggregate principal amount of up
to $125,000,000 upon receipt of a written order or orders of the Company signed
by an Officer of the Company (a “Company Order”).  The Company order shall specify the amount of
Securities to be authenticated and the date on which each original issue of
Securities is to be authenticated.


 


(f)            The Trustee shall act as the initial authenticating
agent.  Thereafter, the Trustee may
appoint an authenticating agent acceptable to the Company to authenticate
Securities.  An authenticating agent may
authenticate Securities whenever the Trustee may do so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent shall have the same
rights as an Agent to deal with the Company or an Affiliate of the Company.


 


(g)           The Securities shall be issuable only in registered
form without coupons and only in denominations of $1,000 principal amount and
any integral multiple thereof.


 


Section 2.03.          Registrar, Paying Agent and Conversion Agent.


 


(a)           The Company shall maintain one or more offices or
agencies where Securities may be presented for registration of transfer or for
exchange (each, a “Registrar”), one or more offices or agencies where
Securities may be presented for payment (each, a “Paying Agent”), one or more
offices or agencies where Securities may be presented for conversion (each, a “Conversion
Agent”) and one or more offices or agencies where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served.  The Company will at all times
maintain a Paying Agent, Conversion Agent, Registrar and an office or agency
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served, which initially shall be the Corporate Trust
Office of the Trustee.  One of the
Registrars (the “Primary Registrar”) shall keep a register of the Securities
and of their transfer and exchange.


 


13

















 


(b)           The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, provided that the Agent
may be an Affiliate of the Trustee.  The
agreement shall implement the provisions of this Indenture that relate to such
Agent.  The Company shall notify the
Trustee of the name and address of any Agent not a party to this
Indenture.  If the Company fails to
maintain a Registrar, Paying Agent, Conversion Agent, or agent for service of
notices and demands in any place required by this Indenture, or fails to give
the foregoing notice, the Trustee shall act as such.  The Company or any Affiliate of the Company
may act as Paying Agent (except for the purposes of Section 5.01 and Article 9).


 


(c)           The Company hereby initially designates the Trustee as
Paying Agent, Registrar, Securities Custodian and Conversion Agent, and
initially designates the Corporate Trust Office of the Trustee as an office or
agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture shall be served.


 


Section 2.04.          Paying Agent to Hold Money in Trust. 
Prior to 10:00 a.m., New York City time, on each due date of the
payment of principal of, or interest on, any Securities, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal or
interest so becoming due.  Subject to Section 9.02,
a Paying Agent shall hold in trust for the benefit of Holders of Securities or
the Trustee all money held by the Paying Agent for the payment of principal of,
or interest on, the Securities, and shall notify the Trustee of any failure by
the Company (or any other obligor on the Securities) to make any such
payment.  If the Company or an Affiliate
of the Company acts as Paying Agent, it shall, before 10:00 a.m., New York
City time, on each due date of the principal of, or interest on, any
Securities, segregate the money and hold it as a separate trust fund.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee, and the Trustee may at any
time during the continuance of any Default, upon written request to a Paying
Agent, require such Paying Agent to pay forthwith to the Trustee all sums so
held in trust by such Paying Agent.  Upon
doing so, the Paying Agent (other than the Company) shall have no further
liability for the money.  The Company or
an Affiliate of the Company shall not act as Paying Agent in connection with a
redemption pursuant to Article 11 or pursuant to repurchase pursuant to Section 3.01
and Section 3.02.


 


Section 2.05.          Lists of Holders of Securities. 
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of Securities.  If the Trustee is
not the Primary Registrar, the Company shall furnish to the Trustee on or
before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders of Securities.


 


Section 2.06.          Transfer and Exchange.


 


(a)           Subject to compliance with any applicable additional
requirements contained in Section 2.12, when a Security is presented to a
Registrar with a request to register a transfer thereof or to exchange such Security
for an equal principal amount of Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested; provided, however, that every Security
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by an assignment form and completed in a manner
satisfactory to the Registrar and duly executed by the Holder thereof or


 


14

















 


its attorney duly
authorized in writing.  To permit
registration of transfers and exchanges, upon surrender of any Security for
registration of transfer or exchange at an office or agency maintained pursuant
to Section 2.03, the Company shall execute and the Trustee shall
authenticate Securities of a like aggregate principal amount at the Registrar’s
request.  Any exchange or transfer shall
be without charge, except that the Company or the Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto; provided that this sentence shall not apply to any
exchange pursuant to Section 2.10, 2.12(a), 3.04, 4.02(e), or 4.04.


 


(b)           Neither the Company, any Registrar nor the Trustee
shall be required to exchange or register a transfer of (1) any Securities
for a period of 15 days next preceding mailing of a notice of Securities to be
redeemed, or (2) any Securities or portions thereof in respect of which a
Change in Control Purchase Notice has been delivered and not withdrawn by the
Holder thereof (except, in the case of the purchase of a Security in part, the
portion thereof not to be purchased).


 


(c)           All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.


 


(d)           Any Registrar appointed pursuant to Section 2.03
shall provide to the Trustee such information as the Trustee may reasonably require
in connection with the delivery by such Registrar of Securities upon transfer
or exchange of Securities.


 


(e)           Each Holder of a Security agrees to indemnify the
Company and the Trustee against any liability that may result from the
transfer, exchange or assignment of such Holder’s Security in violation of any
provision of this Indenture and/or applicable United States federal or state
securities law.


 


(f)            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 Security (including any transfers between
or among Agent Members or other beneficial owners of interests in any Global Security)
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.


 


Section 2.07.          Replacement Securities.


 


(a)           If any mutilated Security is surrendered to the
Company, a Registrar or the Trustee, and the Company, a Registrar and the
Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and there is delivered to the Company, the applicable
Registrar and the Trustee such security or indemnity as will be required by
them to save each of them harmless, then, in the absence of notice to the
Company, such Registrar or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute, and upon its written request
the Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new


 


15

















 


Security of like tenor
and principal amount, bearing a number not contemporaneously outstanding.


 


(b)           If any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, or is about to be
purchased by the Company pursuant to Article 3, or converted pursuant to Article 4,
the Company in its discretion may, instead of issuing a new Security, pay, purchase
or convert such Security, as the case may be.


 


(c)           Upon the issuance of any new Securities under this Section 2.07,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto as a result
of any Securities, at the request of any Holder, being issued to a Person other
than such Holder and any other reasonable expenses (including the reasonable
fees and expenses of the Trustee or the Registrar) in connection therewith.


 


(d)           Every new Security issued pursuant to this Section 2.07
in lieu of any mutilated, destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or not
the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.


 


(e)           The provisions of this Section 2.07 are (to the
extent lawful) exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.


 


Section 2.08.          Outstanding Securities.


 


(a)           Securities outstanding at any time are all Securities
authenticated by the Trustee, except for those canceled by it, those purchased
pursuant to Article 3, those converted pursuant to Article 4, those
redeemed by the Company pursuant to Article 11, those delivered to the
Trustee for cancellation or surrendered for transfer or exchange and those
described in this Section 2.08 as not outstanding.


 


(b)           If a Security is replaced pursuant to Section 2.07,
it ceases to be outstanding unless the Company receives proof satisfactory to
it that the replaced Security is held by a bona fide purchaser.


 


(c)           If a Paying Agent (other than the Company or an
Affiliate of the Company) holds in respect of the outstanding Securities on an
Optional Repurchase Date, a Change in Control Purchase Date, Redemption Date or
the Final Maturity Date money sufficient to pay the principal of and accrued
interest, if any, on Securities (or portions thereof) payable on that date,
then on and after such Optional Repurchase Date, Change in Control Purchase
Date, Redemption Date or Final Maturity Date, as the case may be, such
Securities (or portions thereof, as the case may be) shall cease to be
outstanding and cash interest, if any, on them shall cease to accrue.


 


(d)           Subject to the restrictions contained in Section 2.09,
a Security does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Security.


 


16

















 


Section 2.09.          Treasury Securities.  In
determining whether the Holders of the required principal amount of Securities
have concurred in any notice, direction, waiver or consent, securities owned by
the Company or any other obligor on the Securities or by any Affiliate of the
Company or of such other obligor shall be disregarded, except that, for
purposes of determining whether the Trustee shall be protected in relying on
any such notice, direction, waiver or consent, only Securities which a
Responsible Officer of the Trustee with responsibility for this Indenture
actually knows are so owned shall be so disregarded.  Securities so owned which have been pledged
in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to the
Securities and that the pledgee is not the Company or any other obligor on the
Securities or any Affiliate of the Company or of such other obligor.


 


Section 2.10.          Temporary Securities.  Until
definitive Securities are ready for delivery, the Company may prepare and
execute, and, upon receipt of a Company Order, the Trustee shall authenticate
and deliver, temporary Securities. 
Temporary Securities shall be substantially in the form of definitive
securities but may have variations that the Company with the consent of the
Trustee considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate and deliver
definitive Securities in exchange for temporary Securities.


 


Holders of temporary
Securities shall be entitled to all of the benefits of this indenture.


 


Section 2.11.          Cancellation.  The Company
at any time may deliver Securities to the Trustee for cancellation. The
Registrar, the Paying Agent and the Conversion Agent shall forward to the
Trustee or its agent any Securities surrendered to them for transfer, exchange,
purchase, payment or conversion.  The
Trustee and no one else shall cancel, in accordance with its standard
procedures, all Securities surrendered for transfer, exchange, purchase,
payment, conversion or cancellation and shall dispose of the cancelled
Securities in accordance with its customary procedures.  All Securities which are purchased, redeemed
or otherwise acquired by the Company or any of its Subsidiaries prior to the
Final Maturity Date pursuant to Article 3 shall be delivered to the
Trustee for cancellation, and the Company may not hold or resell such
Securities or issue any new Securities to replace any such Securities or any
Securities that any Holder has converted pursuant to Article 4.


 


Section 2.12.          Legend; Additional Transfer and Exchange Requirements.


 


(a)           If Securities are issued upon the transfer, exchange
or replacement of Securities subject to restrictions on transfer and bearing
the legends set forth on the forms of Securities attached as Exhibit A
(collectively, the “Legend”), or if a request is made to remove the Legend on a
Security, the Securities so issued shall bear the Legend, or the Legend shall
not be removed, as the case may be, unless there is delivered to the Company
and the Registrar such satisfactory evidence, which shall include an Opinion of
Counsel if requested by the Company or such Registrar, as may be reasonably
required by the Company and the Registrar, that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of Rule 144A or Rule 144
under the Securities Act or that such Securities are not “restricted” within
the meaning of Rule 144 under the Securities Act; provided that no such
evidence need be supplied in connection with the sale of such Security


 


17

















 


pursuant to a
registration statement that is effective at the time of such sale.  Upon (1) provision of such satisfactory
evidence if requested or (2) notification by the Company to the Trustee
and Registrar of the sale of such Security pursuant to a registration statement
that is effective at the time of such sale, the Trustee, at the written
direction of the Company, shall authenticate and deliver a Security that does
not bear the Legend.  If the Legend is
removed from the face of a Security and the Security is subsequently held by an
Affiliate of the Company, the Legend shall be reinstated.


 


(b)           A Global Security may not be transferred, in whole or
in part, to any Person other than the Depositary or a nominee or any successor
thereof, and no such transfer to any such other Person may be registered; provided that the foregoing shall not
prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. 
No transfer of a Security to any Person shall be effective under this
Indenture or the Securities unless and until such Security has been registered
in the name of such Person.  Notwithstanding
any other provisions of this Indenture or the Securities, transfers of a Global
Security, in whole or in part, shall be made only in accordance with this Section 2.12.


 


(c)           Subject to Section 2.12(b), every Security shall
be subject to the restrictions on transfer provided in the legend set forth on
the forms of Securities attached as Exhibit A.


 


(d)           Removed


 


As used in Sections
2.12(c), the term “transfer” encompasses any sale, pledge, transfer,
hypothecation or other disposition of any Security.


 


(e)           The provisions below shall apply only to Global
Securities:


 


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


 


(2)           Notwithstanding any other provisions of this Indenture
or the Securities, a Global Security shall not be exchanged in whole or in part
for a Security registered, and no transfer of a Global Security in whole or in
part shall be registered in the name of any Person other than the Depositary or
one or more nominees thereof; provided that a Global Security may be exchanged
for securities registered in the names of any person designated by the
Depositary in the event that (A) the Depositary has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or such Depositary has ceased to be a “clearing agency” registered
under the Exchange Act, and a successor Depositary is not appointed by the
Company within 90 days after receiving such notice or becoming aware that the
Depositary has ceased to be a “clearing agency,” or (B) an Event of
Default has occurred and is continuing with respect to the Securities.  Any Global Security exchanged pursuant to
subclause (A) above shall be so exchanged in whole and not in part, and
any Global Security exchanged pursuant to subclause (B) above may be
exchanged in whole or from time to time in part as directed by the
Depositary.  Any Security issued in
exchange for a Global Security or any portion


 


18

















 


thereof shall be a Global
Security; provided further that any such Security so issued that is registered
in the name of a Person other than the Depositary or a nominee thereof shall
not be a Global Security.


 


(3)           Securities issued in exchange for a Global Security or
any portion thereof shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate principal amount equal to
that of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear the applicable legends provided for
herein.  Any Global Security to be
exchanged in whole shall be surrendered by the Depositary to the Trustee, as
Registrar.  With regard to any Global
Security to be exchanged in part, either such Global Security shall be so
surrendered for exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Security, the principal
amount thereof shall be reduced, by an amount equal to the portion thereof to be
so exchanged, by means of an appropriate adjustment made on the records of the
Trustee.  Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Security issuable on
such exchange to or upon the order of the Depositary or an authorized
representative thereof.


 


(4)           Subject to clause (6) of this Section 2.12(e),
the registered Holder may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.


 


(5)           In the event of the occurrence of any of the events
specified in clause (2) of this Section 2.12(e), the Company will
promptly make available to the Trustee a reasonable supply of Certificated
Securities in definitive, fully registered form, without interest coupons.


 


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


 


(7)           At such time as all interests in a Global Security
have been converted, canceled or exchanged for Securities in certificated form,
such Global Security shall, upon receipt thereof, be cancelled by the Trustee
in accordance with standing procedures and instructions existing between the
Depositary and the Securities Custodian, subject to Section 2.11 of this
Indenture.  At any time prior to such
cancellation, if any interest in a


 


19

















 


Global Security is
converted, canceled or exchanged for Securities in certificated form, the
principal amount of such Global Security shall, in accordance with the standing
procedures and instructions existing between the Depositary and the Securities
Custodian, be appropriately reduced, and an endorsement shall be made on such
Global Security, by the Trustee or the Securities Custodian, at the direction
of the Trustee, to reflect such reduction.


 


(f)            Removed.


 


Section 2.13.          CUSIP Numbers.  The Company
in issuing the Securities may use one or more “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices, including notices of purchase or redemption as a convenience to
Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any such notice
and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such purchase, redemption or other matter to
which such notice pertains shall not be affected by any defect in or omission
of such numbers.  The Company will promptly
notify the Trustee of any change in the “CUSIP” numbers.


 


20
















 


ARTICLE 3


REPURCHASE


 


Section 3.01.          Repurchase at Option of Holders upon a Change in
Control.


 


(a)           If a Change in Control occurs at any time, a Holder of
Securities shall have the right to require the Company to repurchase such
Holder’s Securities, in whole or in part (in principal amounts of $1,000 or an
integral multiple thereof) for cash equal to the Change in Control Purchase
Price, subject to satisfaction by or on behalf of the Holder of the
requirements set forth below.


 


(b)           Within 20 days after the occurrence of a Change in
Control, the Company shall notify the Holders and the Trustee of the Change in
Control and of the repurchase right arising as a result of the Change in
Control (the “Company Notice”).  The
notice shall include a form of Change in Control Purchase Notice to be
completed by the Holder and shall state:


 


(a)           briefly, the events causing a Change in
Control and the date of such Change in Control;


 


(b)           the date by which the Change in Control
Purchase Notice must be delivered to the Paying Agent;


 


(c)           the date on which the Company will
repurchase Securities in connection with a Change in Control, which must be not
less than 15 days nor more than 45 days after the date of the Company Notice
(such date, the “Change in Control Purchase Date”);


 


(d)           the Change in Control Purchase Price;


 


(e)           the name and address of the Trustee, the
Paying Agent and the Conversion Agent;


 


(f)            that Securities in respect of which a
Change in Control Purchase Notice is provided by a Holder shall not be
convertible unless such Holder validly withdraws such Change in Control
Purchase Notice in accordance with the provisions of this Section 3.01;


 


(g)           that Securities must be surrendered to
the Paying Agent to collect payment of the Change in Control Purchase Price;


 


(h)           that the Change in Control Purchase Price
for any Security as to which a Change in Control Purchase Notice has been duly
given will be paid within two Business Days after the later of the Change in
Control Purchase Date or the time at which such Securities are surrendered for
repurchase;


 


21

















 


(i)            that, unless the Company defaults in
making payment of the Change in Control Purchase Price, interest on Securities
surrendered for repurchase will cease to accrue on and after the Change in
Control Purchase Date; and


 


(j)            the CUSIP number of the Securities.


 


The Company shall also
disseminate a press release through Dow Jones & Company, Inc. or
Bloomberg Business News announcing the occurrence of such Change in Control or
publish such information in the Wall Street Journal or another newspaper of
general circulation in The City of New York or on the Company’s website, or
through such other public medium as the Company shall deem appropriate at such
time.


 


(c)           A Holder may exercise its rights specified in this Section 3.01
upon delivery of a written notice of such Holder’s exercise of its repurchase
right (a “Change in Control Purchase Notice”) to the Trustee (or any Paying
Agent) at any time prior to the close of business on the third Business Day
prior to the Change in Control Purchase Date, stating:


 


(a)           if such Securities are in certificated
form, the certificate number(s) of the Securities which the Holder will
deliver to be repurchased;


 


(b)           the portion of the principal amount of
the Securities to be repurchased, in multiples of $1,000, provided that the
remaining principal amount of Securities is in an authorized denomination; and


 


(c)           that such Security shall be repurchased
pursuant to the applicable provisions hereof and of the Securities.


 


The Trustee (or any
Paying Agent) shall promptly notify the Company in writing of the receipt by it
of any Change in Control Purchase Notice.


 


Book-entry transfer of
Securities in book-entry form in compliance with the Applicable Procedures or
delivery of Securities in certificated form (together with all necessary
endorsements) to the Paying Agent on or after the Change in Control Purchase
Date at the offices of the Paying Agent shall be a condition to the receipt by
the Holder of the Change in Control Purchase Price therefor.  Holders electing to require the Company to
repurchase Securities must effect such transfer or delivery to the Paying Agent
prior to the Change in Control Purchase Date to receive payment of the Change
in Control Purchase Price on or within two Business Days after the Change in
Control Purchase Date.  The Company shall
pay the Change in Control Purchase Price within two Business Days after the
later of the Change in Control Purchase Date or the time of such transfer or
delivery of the Securities.


 


(d)           A Change in Control Purchase Notice may be withdrawn
in whole or in part by a Holder by means of a written notice of withdrawal
delivered to the office of the Paying Agent prior to the close of business on the
third Business Day prior to the Change in Control Purchase Date specifying:


 


(a)           the Holder’s name;


 


22

















 


(b)           the principal amount of Securities in
respect of which the Change in Control Purchase Notice is being withdrawn,
which must be an integral multiple of $1,000;


 


(c)           if the Securities subject to the notice
of withdrawal are in certificated form, the certificate number(s) of all
Securities subject to the notice of withdrawal; and


 


(d)           the principal amount of Securities, if
any, that remains subject to the Change in Control Purchase Notice, which must
be an integral multiple of $1,000.


 


If Securities
subject to the notice of withdrawal are in book-entry form, the above notices
must also comply with the Applicable Procedures.


 


(e)           On or before 10:00 a.m. (New York City time) on
the Change in Control Purchase Date, the Company shall deposit with the Paying
Agent money sufficient to pay the aggregate Change in Control Purchase Price of
the Securities to be purchased pursuant to this Section 3.01.  If the Paying Agent holds, in accordance with
the terms of the Indenture, money sufficient to pay the Change in Control
Purchase Price of such Securities on the Change in Control Purchase Date, then,
on and after such date, such Securities shall cease to be Outstanding and
interest on such Securities shall cease to accrue and all rights of the Holders
of such Securities shall terminate (other than the right to receive the Change
in Control Purchase Price after delivery or transfer of the Securities).  Such will be the case whether or not book
entry transfer of the Securities in book entry form is made and whether or not
Securities in certificated form, together with the necessary endorsements, are
delivered to the Paying Agent.


 


(f)            Notwithstanding the foregoing, no Securities may be
repurchased by the Company in accordance with the provisions of this Section 3.01
if there has occurred and is continuing an Event of Default with respect to the
Securities (other than a default in the payment of the Change in Control
Purchase Price).


 


(g)           The Paying Agent will promptly return to the
respective Holders thereof any Securities with respect to which a Change of
Control Purchase Notice has been withdrawn in compliance with this Indenture.


 


(h)           If a Change of Control Purchase Date falls after a
Regular Record Date and on or before the related Interest Payment Date, then
interest on the Securities payable on such Interest Payment Date will be
payable to the Holders in whose names the Securities are registered at the
close of business on such Regular Record Date.


 


Section 3.02.          Repurchase at Option of Holders on Certain Dates.


 


(a)           A Holder of Securities shall have the right to require
the Company to repurchase such Holder’s Securities, in whole or in part (in
principal amounts of $1,000 or an integral multiple thereof), on each of November 15,
2014, November 15, 2016, November 15, 2019 and  November 15, 2024 (each, an “Optional
Repurchase Date”) for cash equal to 100% of the principal amount of the
Securities to be repurchased plus accrued but unpaid interest to but excluding
the Optional Repurchase Date (such amount, the “Optional Repurchase Price”),
subject to satisfaction by or on behalf of the Holder of the requirements set
forth below.


 


23

















 


(b)           On or before the 20th Business Day prior to each
Optional Repurchase Date, the Company shall provide a written notice by first
class mail to the Trustee, any Paying Agent and all Holders (and to beneficial
owners as required by applicable law). 
The notice shall include a form of Optional Repurchase Notice to be
completed by the Holder and shall state:


 


(1)           the date by which the Optional Repurchase
Notice must be delivered to the Paying Agent;


 


(2)           the Optional Repurchase Date;


 


(3)           the Optional Repurchase Price;


 


(4)           the name and address of the Trustee, the Paying Agent
and the Conversion Agent;


 


(5)           that Securities must be surrendered to the Paying
Agent to collect payment of the Optional Repurchase Price;


 


(6)           that the Optional Repurchase Price for any Security as
to which an Optional Repurchase Notice has been duly given will be paid within
two Business Days after the later of the Optional Repurchase Date or the time
at which such Securities are surrendered for repurchase;


 


(7)           that, unless the Company defaults in making payment of
the Optional Repurchase Price, interest on Securities surrendered for
repurchase will cease to accrue on and after the Optional Repurchase Date;


 


(8)           that Securities in respect of which an Optional
Repurchase Notice is provided by a Holder shall not be convertible in
accordance with their terms even if otherwise convertible unless such Holder
validly withdraws such Optional Repurchase Notice in accordance with the provisions
of this Section 3.02; and


 


(9)           the CUSIP number of the Securities.


 


The Company shall also
disseminate a press release through Dow Jones & Company, Inc. or
Bloomberg Business News containing the information specified in such notice or
publish that information in the Wall Street Journal or another newspaper of
general circulation in The City of New York or on the Company’s website, or
through other public medium as the Company deems appropriate.


 


(c)           A Holder may exercise its rights specified in this Section 3.02
upon delivery of a written notice of repurchase (an “Optional Repurchase Notice”)
to the Paying Agent during the period beginning at any time from the opening of
business on the date that is 20 Business Days prior to the applicable Optional Repurchase
Date until the close of business on the third Business Day prior to such
Optional Repurchase Date, stating:


 


(1)           if such Securities are in certificated
form, the certificate number(s) of the Securities which the Holder will
deliver to be repurchased;


 


24

















 


(2)           the portion of the principal amount of
the Securities to be repurchased, in integral multiples of $1,000, provided
that the remaining principal amount of Securities is in an authorized denomination;
and


 


(3)           that such Securities shall be repurchased
pursuant to the applicable provisions hereof and the Securities.


 


The Paying Agent shall
promptly notify the Company in writing of the receipt by it of any Optional
Repurchase Notice.


 


(d)           Book entry transfer of Securities in book entry form
in compliance with the Applicable Procedures or delivery of Securities in
certificated form, together with all necessary endorsements, to the Paying
Agent on or after the Optional Repurchase Date at the offices of the Paying
Agent shall be a condition to the receipt by the Holder of the Optional
Repurchase Price.  Holders electing to
require the Company to repurchase Securities must effect such transfer or
delivery to the Paying Agent prior to the Optional Repurchase Date to receive
payment of the Optional Repurchase Price on or within two Business Days after
the Optional Repurchase Date.  The
Company shall pay the Optional Repurchase Price within two Business Days after
the later of the Optional Repurchase Date or the time of such transfer or
delivery of the Securities.


 


(e)           An Optional Repurchase Notice may be withdrawn in
whole or in part by a Holder by means of a written notice of withdrawal
delivered to the office of the Paying Agent prior to the close of business on
the third Business Day prior to the Optional Repurchase Date specifying:


 


(1)           the Holder’s name;


 


(2)           the principal amount of Securities in
respect of which the Optional Repurchase Notice is being withdrawn, which must
be an integral multiple of $1,000;


 


(3)           if the Securities subject to the notice
of withdrawal are in certificated form, the certificate number(s) of all
Securities subject to the notice of withdrawal; and


 


(4)           the principal amount of Securities, if
any, that remains subject to the Optional Repurchase Notice, which must be an
integral multiple of $1,000.


 


If Securities subject to
the notice of withdrawal are in book-entry form, the above notices must also
comply with the Applicable Procedures.


 


(f)            On or before 10:00 a.m. (New York City time) on
the Optional Repurchase Date, the Company shall deposit with the Paying Agent
money sufficient to pay the aggregate Optional Repurchase Price of the
Securities to be purchased pursuant to this Section 3.02.  If the Paying Agent holds, in accordance with
the terms of the Indenture, money sufficient to pay the Optional Repurchase
Price of such Securities on the Optional Repurchase Date, then on and after
such date, such Securities shall cease to be Outstanding and interest on such
Securities shall cease to accrue, and all rights of the Holder of such
Securities shall terminate (other than the right to receive the Optional
Repurchase Price after delivery or transfer of the Securities).  Such will be the case whether or not book
entry transfer of the Securities in book entry form is made and


 


25

















 


whether or not Securities
in certificated form, together with the necessary endorsements, are delivered
to the Paying Agent.


 


(g)           Notwithstanding the foregoing, no Securities may be
purchased by the Company in accordance with the provisions of this Section 3.02
if there has occurred and is continuing an Event of Default with respect to the
Securities (other than a default in the payment of the Optional Repurchase Price).


 


Section 3.03.          Repayment to the Company. 
To the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 3.01 or 3.02 exceeds the aggregate Change in Control
Purchase Price or Optional Repurchase Price, as applicable, of the Securities
or portions thereof that the Company is obligated to purchase, then promptly
after the Change in Control Purchase Date or Optional Repurchase Date, as
applicable, the Trustee or a Paying Agent, as the case may be, shall return any
such excess cash to the Company.


 


Section 3.04.          Securities Purchased in Part. 
Any Security that is to be purchased only in part shall be surrendered
at the office of a Paying Agent, and promptly after the Change in Control
Purchase Date or Optional Repurchase Date, as applicable, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of such
authorized denomination or denominations as may be requested by such Holder
(which must be equal to $1,000 principal amount or any integral thereof), in
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Security so surrendered that is not purchased.


 


Section 3.05.          Compliance with Securities Laws upon Purchase of
Securities.  In connection with any offer to purchase of
Securities under Section 3.01 or 3.02, the Company shall (a) comply
with Rule 13e-4 and Rule 14e-1 (or any successor to either such
Rule), and any other tender offer rules, if applicable, under the Exchange Act,
(b) file the related Schedule TO (or any successor or similar schedule,
form or report) if required under the Exchange Act, and (c) otherwise
comply with all federal and state securities laws in connection with such offer
to purchase or purchase of Securities, all so as to permit the rights of the
Holders and obligations of the Company under Sections 3.01 and 3.02 to be
exercised in the time and in the manner specified therein.  To the extent that compliance with any such
laws, rules and regulations would result in a conflict with any of the
terms hereof, this Indenture is hereby modified to the extent required for the
Company to comply with such laws, rules and regulations.


 


Section 3.06.          Purchase of Securities in Open Market. 
The Company may repurchase Securities in the open market, at any time,
by tender at any price or by negotiated transactions.  The Company shall surrender any Security
purchased by the Company to the Trustee for cancellation.  Any securities surrendered to the Trustee for
cancellation may not be reissued or resold by the Company and will be canceled
promptly in accordance with Section 2.11.


 


26

















 


ARTICLE 4


CONVERSION


 


Section 4.01.          Conversion Privilege and Conversion Rate.


 


(a)           Upon compliance with the provisions of this Article 4,
at the option of the Holder thereof, any Security or portion thereof that is an
integral multiple of $1,000 principal amount may be converted into the
consideration provided for in Section 4.13 in the following circumstances:


 


(1)           during any calendar quarter beginning
after June 30, 2010, and only during such calendar quarter, if, as of the
last day of the immediately preceding calendar quarter, the Closing Sale Price
per share of the Common Stock for at least 20 Trading Days in the period of the
30 consecutive Trading Days ending on the last Trading Day of such preceding
calendar quarter was more than 130% of the Conversion Price in effect on the
applicable Trading Day;


 


(2)           if the Company distributes to all holders of Common
Stock rights entitling them to purchase, for a period expiring within 45 days
of the date of issuance, shares of Common Stock at less than the Closing Sale
Price of the Common Stock on the Trading Day ending on the date immediately
preceding the first public announcement of the distribution;


 


(3)           if the Company distributes to all holders of Common
Stock, assets, debt securities (or other evidences of Indebtedness) or rights
to purchase the Company’s securities, which distribution, together with all
other distributions within the preceding twelve months, has a per share value,
as determined by the Company’s Board of Directors, exceeding 15% of the average
of the Closing Sale Prices of the Common Stock for the five consecutive Trading
Days ending on the date immediately preceding the first public announcement of
such distribution;


 


(4)           if an event specified in any of clauses (1) through
(4) of the definition of Change in Control occurs;


 


(5)           at any time during the period beginning on October 15,
2029 and ending at the close of business on the second Business Day immediately
preceding the Final Maturity Date;


 


(6)           during any five Business Day period after any five
consecutive Trading Day period in which the Trading Price per $1,000 principal
amount of Securities, as determined following a request by a Holder in
accordance with the procedures described below in Section 4.01(d)(ii), for
each day of that period was less than 98% of the product of (i) the Closing
Sale Price of the Common Stock for each day in that period and (ii) the
Applicable Conversion Rate;


 


(7)           a Holder may surrender for conversion any of the
Securities called for redemption at any time prior to the close of business on
the third Business Day prior to


 


27

















 


the Redemption Date.  The right to convert Securities pursuant to
this clause (7) will expire after the close of business on the third
Business Day prior to the Redemption Date unless the Company defaults in making
the payment due upon redemption.  A
Holder may convert fewer than all of its Securities so long as the Securities
converted are an integral multiple of $1,000 principal amount and the remaining
principal amount of Securities is in an authorized denomination; or


 


(8)           if the Common Stock ceases to be listed on a U.S.
national or regional securities exchange, during the period beginning on the
date the Common Stock was delisted and ending on the close of business on the
30th Business Day after such date.  The Company shall notify Holders and the
Trustee of the delisting of the Common Stock within five days following the
delisting.


 


(b)           In the case of a distribution contemplated by clauses (2) and
(3) of Section 4.01(a), the Company shall notify Holders and the
Trustee at least 20 days prior to the Ex- Dividend Date for such distribution
(the “Distribution Notice”).  Once the
Company has given the Distribution Notice, Holders may surrender their
Securities for conversion at any time until the earlier of the close of
business on the last Business Day preceding the Ex-Dividend Date or the Company’s
announcement that such distribution will not take place.  In the event of a distribution contemplated
by clauses (2) and (3) of Section 4.01(a), Holders may not
convert the Securities if the Holders will otherwise participate in such
distribution to the same extent as if the Securities had been converted into
shares of Common Stock immediately prior to the time at which eligibility is
determined for such transaction without converting their Securities, other than
through adjustments contemplated by Section 4.06.  The Company will provide written notice to
the Conversion Agent as soon as reasonably practicable of any anticipated or
actual event or transaction that will cause or causes the Securities to become
convertible pursuant to clause (2) or (3) of Section 4.01(a).


 


(c)           In the case of a transaction contemplated by clause (4) of
Section 4.01(a), the Company will notify the Holders and Trustee as
promptly as practicable following the date the Company publicly announces the
Change in Control, but in no event will such public announcement be less than
five Business Days prior to the Change in Control Effective Date.  Holders may surrender Securities for
conversion at any time from and after the Change in Control Effective Date
until the close of business on the 30th Business Day following the Change in Control
Effective Date.


 


(d)           (1)  For each calendar quarter of the Company,
beginning with the calendar quarter ending June 30, 2010, the Company will
determine, on the first Business Day following the last Trading Day of such
calendar quarter, whether the Securities are convertible pursuant to clause (1) of
Section 4.01(a), and, if so, will notify the Holders, the Trustee and the
Conversion Agent in writing within five Business Days of that determination.
Such notice will inform Holders that they have until the end of that quarter to
surrender their Securities for conversion. 
Upon request of the Conversion Agent, the Company shall provide, or
cause to be provided to, the Conversion Agent the Closing Sale Price of the
Common Stock for the 30 consecutive Trading Days ending on the last Trading Day
of the preceding calendar quarter.


 


(2)  The
Company shall have no obligation to determine the Trading Price of the
Securities and whether the Securities are convertible pursuant to clause (6) of
Section 4.01(a) unless a Holder of Securities provides the Company
with reasonable evidence


 


28

















 


that the Trading Price
per $1,000 principal amount of Securities would be less than 98% of the product
of the Closing Sale Price of the Common Stock and the Applicable Conversion
Rate over the relevant period.  At such
time, the Company shall determine the Trading Price of the Securities beginning
on the next Trading Day and on each successive Trading Day until the Trading
Price per $1,000 principal amount of the Securities is greater than 98% of the
product of the Closing Sale Price of the Common Stock and the Applicable
Conversion Rate.  The Company shall
notify the Trustee of the Trading Price promptly following its determination.


 


(e)           If a Security is submitted or presented for purchase
upon a Change of Control pursuant to Article 3, such conversion right
shall terminate at the close of business on the Business Day immediately
preceding the Change in Control Purchase Date for such Security (unless the
Company shall fail to make the Change in Control Purchase Price payment when due
in accordance with Article 3, in which case the conversion right shall
terminate at the close of business on the date such failure is cured and such
Security is redeemed or purchased, as the case may be).  Securities in respect of which a Change in
Control Purchase Notice has been delivered may not be surrendered for
conversion pursuant to this Article 4 prior to a valid withdrawal of such
Change of Control Purchase Notice in accordance with the provisions of Article 3.


 


(f)            Provisions of this Indenture that apply to conversion
of all of a Security also apply to conversion of a portion of a Security.


 


(g)           If a Change of Control occurs with respect to an event
specified in any of clauses (1) through (4) of the definition
thereof, then the Conversion Rate per $1,000 principal amount of Securities
otherwise in effect in respect of Securities that are converted during the
period beginning on the Change of Control Effective Date and ending at the
close of business on the 30th Business Day following such date shall be
increased by the amount, if any, determined by the Company by reference to the
table below, based on the effective date of the Change of Control and the Stock
Price of such Change of Control; provided
that if the Stock Price or effective date of the Change of Control is not set
forth on the table:  (i) if the
actual Stock Price on the Change of Control Effective Date is between two Stock
Prices on the table or the actual Change of Control Effective Date is between
two dates on the table, the amount of the Conversion Rate adjustment will be
determined by a straight-line interpolation between the adjustment amounts set
forth for the two Stock Prices and the two dates on the table based on a
365-day year, as applicable, (ii) if the Stock Price on the Change in
Control Effective Date exceeds
$         per share, subject to
adjustment as set forth herein, no adjustment to the applicable Conversion Rate
will be made, and (iii) if the Stock Price on the Change in Control
Effective Date is less than $         per
share, subject to adjustment as set forth herein, no adjustment to the
applicable Conversion Rate will be made. 
If holders of the Common Stock receive only cash in the Change of
Control, the Stock Price shall be the cash amount paid per share of the Common
Stock in connection with the Change of Control. 
Otherwise, the Stock Price shall be equal to the average Closing Sale
Prices of the Common Stock for each of the 10 Trading Days immediately
preceding, but not including, the applicable Change in Control Effective Date.


 


29
















 


The following table shows
the amount, if any, by which the applicable Conversion Rate will increase for
each Stock Price and Change in Control Effective Date set forth below:


 


	
  Effective date

  	
   

  	
  $       

  	
   

  	
  $       

  	
   

  	
  $       

  	
   

  	
  $       

  	
   

  	
  $       

  	
   

  	
  $       

  	
   

  	
  $       

  	
   

  	
  $       

  	
   

  	
  $       

  	
   

  	
  $       

  	
   

  
	
             ,
  2010

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 15,
  2010

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 15,
  2011

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 15,
  2012

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 15,
  2013

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 21,
  2014

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


The Stock Prices set
forth in the first column of the table above will be adjusted as of any date on
which the Conversion Rate of the Securities is adjusted, other than as a result
of an adjustment of the Conversion Rate by virtue of the provisions of this Section 4.01(g).  The adjusted Stock Prices will equal the
Stock Prices applicable immediately prior to such adjustment multiplied by a
fraction, the numerator of which is the Conversion Rate immediately prior to
the adjustment and the denominator of which is the Conversion Rate as so
adjusted.  The Conversion Rate adjustment
amounts set forth in the table above will be adjusted in the same manner as the
Conversion Rate as set forth in Section 4.06 hereof.


 


Notwithstanding the
foregoing paragraph, in no event will the Conversion Rate exceed                     
per $1,000 principal amount of Securities, subject to adjustment in the manner
set forth in Section 4.06(a) hereof.


 


(h)                                 Except as set forth in Section 4.02(c),
by delivering the amount of cash and/or the number of shares of Common Stock
issuable on conversion to the Trustee, the Company will be deemed to have
satisfied its obligation to pay the principal amount of the Securities so
converted and its obligation to pay accrued and unpaid interest, if any,
attributable to the period from the most recent Interest Payment Date through
the Conversion Date (which amount will be deemed paid in full rather than
cancelled, extinguished or forfeited).


 


Section 4.02.                             Conversion Procedure.


 


(a)                                  To convert a Security, a Holder must (1) complete
and manually sign the conversion notice on the back of the Security and deliver
such notice to a Conversion Agent, (2) surrender the Security to a
Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by a Conversion Agent, (4) pay all transfer or
similar taxes, if required pursuant to Section 4.04, and (5) pay
funds equal to interest payable on the next Interest Payment Date, if
required.  The date on which the Holder
satisfies all of those requirements is the “Conversion Date.”  Upon the conversion of a Security, the
Company will pay the cash and deliver the shares of Common Stock, as
applicable, as promptly as practicable after the later of the Conversion Date
and the date that all calculations necessary to make such payment and 


 


30

















 


delivery have been made
(such calculations shall be made in accordance with Section 4.13(b) hereof),
but in no event later than five Business Days after the later of those
dates.  Anything herein to the contrary
notwithstanding, in the case of Global Securities, conversion notices may be
delivered and such Securities may be surrendered for conversion in accordance
with the Applicable Procedures as in effect from time to time.


 


(b)                                 The person in whose name the shares of
Common Stock are issuable upon conversion shall be deemed to be a Holder of
record of such Common Stock on the later of (i) the Conversion Date, (ii) the
expiration of the period in which the Company may elect to deliver cash in lieu
of shares of common stock or (iii) if the Company elects to deliver cash
in lieu of some, but not all, of such shares of Common Stock, the date on which
the amount of cash issuable per Security has been determined; provided,
however, that no surrender of a Security on any Conversion Date when
the stock transfer books of the Company shall be closed shall be effective to
constitute the person or persons entitled to receive the shares of Common Stock
upon conversion as the record Holder or Holders of such shares of Common Stock
on such date, but such surrender shall be effective to constitute the person or
persons entitled to receive such shares of Common Stock as the record Holder or
Holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; provided further
that such conversion shall be at the Conversion Rate in effect on the
Conversion Date as if the stock transfer books of the Company had not been
closed.  Upon conversion of a Security,
such person shall no longer be a Holder of such Security.  Except as set forth in this Indenture, no
payment or adjustment will be made for dividends or distributions declared or
made on shares of Common Stock issued upon conversion of a Security prior to
the issuance of such shares.


 


(c)                                  Holders of Securities surrendered for
conversion (in whole or in part) during the period from the close of business
on any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date will receive the semi annual interest payable on such
Securities on the corresponding Interest Payment Date notwithstanding the
conversion.  However, such Holders must
deliver to the Conversion Agent an amount in cash equivalent to such payment in
order to convert their Securities; provided, however, that no such payment shall be
required to be made (1) if such Securities have been called for redemption
on a Redemption Date that is after such Regular Record Date and on or prior to
such Interest Payment Date, (2) if a Change in Control Redemption Date has
been scheduled that is after such Regular Record Date and on or prior to such
Interest Payment Date, or (3) with respect to overdue interest, if any
overdue interest exists at the time of conversion with respect to such
Securities.  Except as otherwise provided
in this Section 4.02(c), no payment or adjustment will be made for accrued
interest on a converted Security.


 


(d)                                 Subject to Section 4.02(c), nothing
in this Section shall affect the right of a Holder in whose name any
Security is registered at the close of business on a Regular Record Date to
receive the interest payable on such Security on the related Interest Payment
Date in accordance with the terms of this Indenture and the Securities.  If a Holder converts more than one Security
at the same time, the amount of cash to be paid and the number of shares of
Common Stock issuable upon the conversion, if any (and the amount of any cash
in lieu of fractional shares pursuant to Section 4.03), shall be based on
the aggregate principal amount of all Securities so converted.


 


31

















 


(e)                                  In the case of any Security which is
converted in part only, upon such conversion the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, without service
charge, a new Security or Securities of authorized denominations in an
aggregate principal amount equal to, and in exchange for, the unconverted
portion of the principal amount of such Security.  A Security may be converted in part, but only
if the principal amount of such part is an integral multiple of $1,000 and the
principal amount of such Security to remain outstanding after such conversion
is equal to $1,000 or any integral multiple of $1,000 in excess thereof.


 


Section 4.03.                             Fractional Shares. 
The Company will not issue fractional shares of Common Stock upon
conversion of Securities.  If more than
one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares that shall be issuable upon conversion shall
be computed on the basis of the aggregate principal amount of the Securities
(or specified portions thereof to the extent permitted hereby) so
surrendered.  In lieu of any fractional
shares, the Company will pay an amount in cash based upon the Average Price.


 


Section 4.04.                             Taxes on Conversion. 
If a Holder converts a Security, the Company shall pay any transfer,
stamp or similar taxes or duties related to the issue or delivery of shares of
Common Stock upon such conversion.  The
Company shall also pay any such tax with respect to cash received in lieu of
fractional shares.  The Holder shall pay
any such tax which is due because the Holder requests the shares to be issued
in a name other than the Holder’s name. 
The Conversion Agent may refuse to deliver the certificate representing
the Common Stock being issued in a name other than the Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder’s
name.  Nothing herein shall preclude any
tax withholding required by law or regulation.


 


Section 4.05.                             Company to Provide Stock.


 


(a)                                  The Company shall, prior to issuance of
any Securities hereunder, and from time to time as may be necessary, reserve,
out of its authorized but unissued Common Stock, a sufficient number of shares
of Common Stock to permit the conversion of all Outstanding Securities into
shares of Common Stock.


 


(b)                                 All shares of Common Stock delivered upon
conversion of the Securities shall be newly issued shares, shall be duly
authorized, validly issued, fully paid and nonassessable and shall be free from
preemptive or similar rights of any securityholder of the Company and free of
any lien or adverse claim as the result of any action by the Company.


 


(c)                                  The Company will endeavor promptly to
comply with all federal and state securities laws regulating the offer and
delivery of shares of Common Stock upon conversion of Securities.


 


Section 4.06.                             Adjustment of Conversion Rate.


 


(a)                                  The Company will adjust the Conversion
Rate if the following events occur:


 


32

















 


(1)                                  If the Company issues Common Stock as a
dividend or distribution on the Common Stock to all Holders of the Common
Stock, or if the Company effects a share split or share combination, the
Conversion Rate will be adjusted based on the following formula:


 


CR1 = CR0 x                                  OS1 


                                  OS0 


 


where,


 


CR0                           =                 the Conversion Rate in effect immediately prior to the Ex-Dividend Date
for such dividend or distribution, or the effective date of such share split or
share combination, as applicable;


 


CR1                           =                 the new Conversion Rate in effect immediately after the Ex-Dividend
Date for such dividend or distribution, or the effective date of such share
split or share combination, as applicable;


 


OS0                           =                 the number of shares of the Common Stock outstanding immediately prior
to the Ex-Dividend Date for such dividend or distribution, or the effective
date of such share split or share combination, as applicable; and


 


OS1                           =                 the number of shares of the Common Stock outstanding immediately after
the Ex-Dividend Date for such dividend or distribution, as if such dividend or
distribution occurred at that time, or the effective date of such share split
or share combination, as applicable.


 


If any dividend or
distribution described in this clause (1) is declared but not so paid or
made, the new Conversion Rate shall be readjusted to the Conversion Rate that
would then be in effect if the dividend or distribution had not been declared.


 


(2)                                  If the Company issues to all holders of
Common Stock any rights, warrants, options or other securities entitling them
for a period of not more than 45 days after the date of issuance thereof to
subscribe for or purchase shares of Common Stock, or issues to all holders of
Common Stock securities convertible into shares of Common Stock for a period of
not more than 45 days after the date of issuance thereof, in either case at an
exercise price per share of Common Stock or a conversion price per share of
Common Stock less than the Closing Sale Price of the Common Stock on the
Business Day immediately preceding the time of announcement of such issuance,
the Conversion Rate will be adjusted based on the following formula:


 


CR1 = CR0 x            OS0 + X 


                                    OS0 + Y


 


where,


 


CR0                           =                 the Conversion Rate in effect immediately prior to the Ex-Dividend Date
for the distribution;


 


33

















 


CR1                           =                 the Conversion Rate in effect immediately after the Ex-Dividend Date
for the distribution;


 


OS0                           =                 the number of shares of the Common Stock outstanding immediately prior
to the Ex-Dividend Date for the distribution;


 


X                                       =                 the total number of shares of the Common Stock issuable pursuant to
such rights, warrants, options, other securities or convertible securities; and


 


Y                                        =                 the number of shares of the Common Stock equal to the quotient of (A) the
aggregate price payable to exercise such rights, warrants, options, other
securities or convertible securities divided by (B) the average of the
Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days
ending on the Business Day immediately preceding the date of announcement for
the issuance, the rights, warrants, options, other securities or convertible
securities.


 


For purposes of
this paragraph (2), in determining whether any rights, warrants, options, other
securities or convertible securities entitle the holders to subscribe for or
purchase, or exercise a conversion right for, shares of Common Stock at less
than the applicable Closing Sale Price of the Common Stock, and in determining
the aggregate exercise or conversion price payable for such Common Stock, there
shall be taken into account any consideration received by the Company for such
rights, warrants, options, other securities or convertible securities and any
amount payable on exercise or conversion thereof, with the value of such
consideration, if other than cash, to be determined by the Board of Directors
of the Company.  If any right, warrant,
option, other security or convertible security described in this clause (2) is
not exercised or converted prior to the expiration of the exercisability or
convertibility thereof, the new Conversion Rate shall be readjusted to the
Conversion Rate that would then be in effect if such right, warrant, option,
other security or convertible security had not been so issued.


 


(3)                                  If the Company distributes shares of its
capital stock, evidences of indebtedness or other assets or property to all
holders of the Common Stock, excluding:


 


·                                          dividends, distributions, rights,
warrants, options, other securities or convertible securities referred to in
clause (1) or (2) above;


 


·                                          dividends or distributions paid
exclusively in cash; and


 


·                                          spin-offs described below in this clause
(3),


 


then the Conversion Rate
will be adjusted based on the following formula:


 


CR1 = CR0 x           SP0          

                                                            SP0 – FMV


 


where,


 


34

















 


CR0                           =                 the Conversion Rate in effect immediately prior to the Ex-Dividend Date
for such distribution;


 


CR1                           =                 the new Conversion Rate in effect immediately after the Ex-Dividend
Date for such distribution;


 


SP0                             =                 the average of the Closing Sale Prices of the Common Stock for the 10
consecutive Trading Days prior to the Business Day immediately preceding the
earlier of the record date or the Ex-Dividend Date for such distribution; and


 


FMV                     =                 the fair market value (as determined in good faith by the Company’s
Board of Directors) of the shares of capital stock, evidences of indebtedness,
assets or property distributed with respect to each outstanding share of Common
Stock on the earlier of the record date or the Ex-Dividend Date for such
distribution.


 


An adjustment to the
Conversion Rate made pursuant to the immediately preceding paragraph shall
become effective on the day immediately after the date fixed for the
determination of holders of our Common Stock entitled to receive such
distribution.


 


If the Company
distributes to all holders of the Common Stock, capital stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other of
the Company’s business units (a “Spin-Off”), the Conversion Rate in effect
immediately before the close of business on the date fixed for determination of
holders of the Common Stock entitled to receive such distribution will be
adjusted based on the following formula:


 


CR1 = CR0 x                FMV0 + MP0   

                                                                                        MP0


 


where,


 


CR0                           =                 the Conversion Rate in effect immediately prior to the 10th Trading Day
immediately following and including the effective date of the Spin-Off;


 


CR1                           =                 the new Conversion Rate immediately after the 10th Trading Day
immediately following, and including, the effective date of the Spin-Off;


 


FMV0                =                 the average of the Closing Sale Prices of the capital stock or similar
equity interest distributed to Holders of the Common Stock applicable to one
share of the Common Stock over the first 10 consecutive Trading Days after the
effective date of the Spin-Off; and


 


MP0                        =                 the average of the Closing Sale Price of the Common Stock over the
first 10 consecutive Trading Days after the effective date of the Spin-Off.


 


An adjustment to
the Conversion Rate made pursuant to the immediately preceding paragraph will
occur on the 11th Trading Day from and including the effective
date of the 


 


35

















 


Spin-Off.  If any dividend or distribution described in
this paragraph (3) is declared but not paid or made, the new Conversion
Rate shall be readjusted to be the Conversion Rate that would then be in effect
if the dividend or distribution had not been declared.


 


(4)                                  If the Company makes any cash dividend or
distribution in respect of any month (without regard to when paid) to all
holders of our common stock in an aggregate amount that, together with other
cash dividends or distributions made in respect of such month, exceeds $0.08
(the “Reference Dividend”) per share, the Conversion Rate will be adjusted
based on the following formula:


 


CR1 = CR0 x                  SP0          

                                                                                  SP0 – C


 


where,


 


CR0                           =                 the Conversion Rate in effect immediately prior to the Ex-Dividend Date
for such distribution;


 


CR1                           =                 the new Conversion Rate immediately after the Ex-Dividend Date for such
distribution;


 


SP0                             =                 the average of the Closing Sale Prices of Common Stock for the 10
consecutive Trading Days ending on the Trading Day prior to the business day
immediately preceding the earlier of the record date or the day prior to the Ex
Dividend Date for such distribution; and


 


C                                        =                 the amount in cash per share that the Company distributes to Holders of
the Common Stock in respect of such month that exceeds the Reference Dividend.


 


The Reference Dividend
shall be subject to adjustment on account of any of the events set forth in
clauses (1), (2) and (3) above and clause (5) below.  Any adjustment will be effected by
multiplying the Reference Dividend by a fraction, the numerator of which will
equal the Conversion Rate in effect immediately prior to the adjustment on
account of the event and the denominator of which will equal the Conversion
Rate as adjusted.  The Reference Dividend
shall also be appropriately adjusted to take into account any changes in the
frequency of payment of our regular dividend.


 


If any dividend or
distribution described in this paragraph (4) is declared but no so paid or
made, the new Conversion Rate shall be readjusted to the Conversion Rate that
would then be in effect if the dividend or distribution had not been declared.


 


(5)                                  If the Company or any of its Subsidiaries
makes a payment in respect of a tender offer or exchange offer for the Common
Stock to the extent that the cash and value of any other consideration included
in the payment per share of the Common Stock exceeds the Closing Sale Price of
the Common Stock on the Trading Day next succeeding the last date on which
tenders or exchanges may be made pursuant to such tender or exchange offer (the
“Expiration Time”), the Conversion Rate will be adjusted based on the following
formula:


 


36

















 


CR1 = CR0 x               (AC + (SP1 x OS1))   

                                                                                       SP1 x OS0


 


where,


 


CR0                           =                 the Conversion Rate in effect immediately prior to the date the tender
or exchange offer expires;


 


CR1                           =                 the new Conversion Rate immediately following the date the tender or
exchange offer expires;


 


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


 


OS0                           =                 the number of shares of the Common Stock outstanding immediately prior
to the date the tender or exchange offer expires;


 


OS1              =                 the number of shares of the Common Stock outstanding immediately after
the tender or exchange offer expires (after giving effect to the purchase or
exchange of shares pursuant to the tender or exchange offer); and


 


SP1                             =                 the average of the Closing Sale Prices of the Common Stock for the 10
consecutive Trading Days commencing on the Trading Day next succeeding the date
the tender or exchange offer expires.


 


If the application of the
foregoing formula would result in a decrease in the Conversion Rate, no
adjustment to the Conversion Rate will be made.


 


Any adjustment to
the Conversion Rate made pursuant to this paragraph (5) shall become
effective on the date immediately following the date the tender or exchange
offer expires.  If the Company or one of
its Subsidiaries is obligated to purchase shares of Common Stock pursuant to
any such tender or exchange offer but is permanently prevented by applicable
law from effecting any such purchase or all such purchases are rescinded, the
new Conversion Rate shall be readjusted to be the Conversion Rate that would be
in effect if such tender or exchange offer had not been made.


 


(b)                                 The Reference Dividend shall be adjusted (i) whenever
the Conversion Rate is adjusted pursuant to clauses (1) through (3) and
(5) of Section 4.06(a), by multiplying the dividend threshold amount
at the time of calculation by a fraction, the numerator of which is the
Conversion Rate prior to adjustment and the denominator of which is the
Conversion Rate following such adjustment and (2) as appropriate to take
into account any change in the frequency of payment of the Company’s dividend
to holders of its Common Stock.


 


(c)                                  In addition to these adjustments, the
Company may in its sole discretion increase the Conversion Rate as the Company’s
Board of Directors deems advisable to avoid or diminish any income tax to
Holders of the Common Stock resulting from any dividend or distribution of
capital stock (or rights to acquire capital stock) or from any event treated as
such for income tax 


 


37

















 


purposes.  The Company may also, from time to time, to
the extent permitted by applicable law, increase the Conversion Rate by any
amount for any period if the Company’s Board of Directors has determined that
such increase would be in the Company’s best interests.  If the Company’s Board of Directors makes
that determination, it will be conclusive. 
The Company will give Holders of Securities and the Trustee at least 15
days’ prior notice of such an increase in the Conversion Rate.


 


(d)                                 For purposes of this Section 4.06, “record
date” shall mean, with respect to any dividend, distribution or other
transaction or event in which the Holders of Common Stock have the right to
receive any cash, securities or other property or into which the Common Stock
(or other applicable security) is exchanged or converted into any combination
of cash, securities or other property, the date fixed for determination of
shareholders entitled to receive such cash, security or other property (whether
or not such date is fixed by the Board of Directors or by statute, contract or
otherwise).


 


(e)                                  If the Company has in effect a rights
plan while any Securities remain Outstanding, Holders of Securities will
receive, upon a conversion of Securities in respect of which the Company has
elected to deliver Net Shares, in addition to such Net Shares, rights under the
Company’s stockholder rights agreement unless, prior to conversion, the rights
have expired, terminated or been redeemed or unless the rights have separated
from the Common Stock.  If the rights
provided for in the rights plan adopted by the Company have separated from the
Common Stock in accordance with the provisions of the applicable stockholder
rights agreement so that Holders of Securities would not be entitled to receive
any rights in respect of Common Stock that the Company elects to deliver as Net
Shares upon conversion of Securities, the Conversion Rate will be adjusted at
the time of separation as if the Company had distributed to all holders of
Common Stock capital stock, evidences of indebtedness or other assets or
property pursuant to paragraph (c) above, subject to readjustment upon the
subsequent expiration, termination or redemption of the rights. In lieu of any
such adjustment, the Company may amend such applicable stockholder rights
agreement to provide that upon a conversion of Securities the Holders will
receive, in addition to Common Stock that the Company elects to deliver as Net
Shares upon such conversion, the rights which would have attached to such
Common Stock if the rights had not become separated from the Common Stock under
such applicable stockholder rights agreement. 
To the extent that the Company adopts any future stockholder rights
agreement, upon a conversion of Securities in respect of which the Company
elects to deliver Common Stock as Net Shares, a Holder of Securities shall
receive, in addition to such Common Stock, the rights under the future
stockholder rights agreement whether or not the rights have separated from
Common Stock at the time of conversion and no adjustment will be made in
accordance with paragraph (c) or otherwise.


 


(f)                                    Notwithstanding the provisions set forth
in Section 4.06(a), in no event shall the Conversion Rate exceed                     
per $1,000 principal amount of Securities as a result of an adjustment pursuant
to clause (4) or (5) of Section 4.06(a), subject to adjustment
in the manner set forth in clauses (1) through (3) of Section 4.06(a).


 


38






 












 


Section 4.07.                             No Adjustment.


 


(a)                                  No adjustment in the Conversion Rate
shall be required if Holders may participate in the transactions set forth in Section 4.06
above (to the same extent as if the Securities had been converted into Common
Stock immediately prior to the time at which eligibility is determined for such
transactions) without converting the Securities held by such Holders.


 


(b)                                 No adjustment in the Conversion Rate
shall be required unless such adjustment would require an increase or decrease of
at least 1% in the Conversion Rate as last adjusted; provided, however, that
any adjustments which would be required to be made but for this Section 4.07(b) shall
be carried forward and taken into account in any subsequent adjustment. All
calculations under this Article 4 shall be made to the nearest cent or to
the nearest one-ten thousandth of a share, as the case may be, with one half
cent and 0.00005 of a share, respectively, being rounded upward.


 


Section 4.08.                             Notice of Adjustment. 
Whenever the Conversion Rate is required to be adjusted pursuant to this
Indenture, the Company shall promptly mail to Holders a notice of the
adjustment and file with the Trustee an Officers’ Certificate briefly stating
the facts requiring the adjustment and the manner of computing it. Failure to
mail such notice or any defect therein shall not affect the validity of any
such adjustment.  Unless and until the
Trustee shall receive an Officers’ Certificate setting forth an adjustment of
the Conversion Rate, the Trustee may assume without inquiry that the Conversion
Rate has not been adjusted and that the last Conversion Rate of which it has
knowledge remains in effect.


 


Section 4.09.                             Notice of Certain Transactions. 
In the event that there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice stating
the proposed effective date.  The Company
shall mail such notice at least 10 days before such proposed effective date.  Failure to mail such notice or any defect therein
shall not affect the validity of any transaction referred to in this Section 4.09.


 


Section 4.10.                             Effect of Consolidation, Merger or
Binding Share Exchange.  If the Company is a party to a
consolidation, merger or binding share exchange pursuant to which all shares of
Common Stock are exchanged for cash, securities or other property, then at the
effective time of the transaction any conversion of Securities and the
Conversion Value will be based on the kind and amount of cash, securities or
other property that the Holder would have received if such Holder had converted
its Securities for Common Stock immediately prior to the effective time of the
transaction.  For purposes of the
foregoing, where a consolidation, merger or binding share conversion involves a
transaction that causes Common Stock to be converted into the right to receive
more than a single type of consideration based upon any form of stockholder
election, such consideration will be deemed to be the weighted average of the
types and amounts of consideration received by the holders of Common Stock who
affirmatively made such an election.


 


Section 4.11.                             Withholding.  At
the Maturity of the principal of the Securities, whether at Stated Maturity or
upon earlier redemption or repurchase of Securities or otherwise, and as
otherwise required by law, the Company may deduct and withhold from the amount
of consideration otherwise deliverable to such Holder the amount required to be
deducted and withheld under applicable law. 


 


39

















 


Section 4.12.                             Trustee’s Disclaimer.  The
Trustee shall have no duty to determine when an adjustment under this Article 4
should be made, how it should be made or what such adjustment should be, but
may accept as conclusive evidence of that fact or the correctness of any such
adjustment, and shall be protected in relying upon, an Officers’ Certificate,
including the Officers’ Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 4.08.  The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities.


 


Section 4.13.                             Conversion Settlement.


 


(a)                                  Upon a conversion of Securities, the
Company shall deliver, in respect of each $1,000 principal amount of Securities
tendered for conversion:


 


(1)                                  cash in an amount (the “Principal Return”)
equal to the lesser of (1) the principal amount of the Securities
surrendered for conversion and (2) the Conversion Value; and


 


(2)                                  if the Conversion Value is greater than
the Principal Return, an amount (the “Net Amount”) in cash or Common Stock with
an aggregate value equal to the difference between the Conversion Value and the
Principal Return.


 


(b)                                 The Company may elect to deliver any
portion of the Net Amount in cash (the “Net Cash Amount”) or Common Stock, and
any portion of the Net Amount the Company elects to deliver in Common Stock
(the “Net Shares”) will be the sum of the Daily Share Amounts for each Trading
Day during the Applicable Conversion Period. 
Prior to the close of business on the second Trading Day following the
date on which Securities are tendered for conversion, the Company shall inform
Holders of such Securities of its election to pay cash for all or a portion of
the Net Amount and, if applicable, the portion of the Net Amount that will be
paid in cash and the portion that will be delivered in the form of Net Shares.


 


(c)                                  Notwithstanding any other provision of
this Indenture, if the Company’s Board of Directors determines in good faith
that the conversion by a Holder of its Securities into Common Stock would
prevent the Company from qualifying as a REIT, the Company shall elect not to
satisfy the Net Amount in whole or in part with Common Stock, but shall satisfy
the Net Amount in Cash.


 


(d)                                 The Company shall determine the
Conversion Value, Net Amount, Daily Share Amount and Average Price at the end
of the Applicable Conversion Period.  For
the purposes of Sections 4.13(a) and (b), in the event that any of
Conversion Value, Net Amount, Daily Share Amounts or Average Price cannot be
determined for all portions of the Applicable Conversion Period, the Company’s
Board of Directors shall in good faith determine the values necessary to
calculate the Conversion Value, Net Amount, Daily Share Amounts and Average
Price, as applicable.


 


40

















 


ARTICLE 5

COVENANTS


 


Section 5.01.                             Payment of Securities.


 


(a)                                  The Company shall promptly make all
payments in respect of the Securities on the dates and in the manner provided
in the Securities and this Indenture.  A
payment of principal or interest, if any, shall be considered paid on the date
it is due if the Paying Agent (other than the Company) holds by 10:00 a.m.,
New York City time, on that date money, deposited by or on behalf of the
Company sufficient to make the payment. 
Subject to Section 4.02, accrued and unpaid interest on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
is registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such
purpose.  Principal, interest, Change in
Control Purchase Price and Optional Repurchase Price, if any, in each case if
payable, shall be considered paid on the applicable date due if on such date
the Trustee or the Paying Agent holds, in accordance with this Indenture, money
sufficient to pay all such amounts then due. 
The Company shall, to the fullest extent permitted by law, pay interest
in immediately available funds on overdue principal amount and interest at the
annual rate borne by the Securities compounded semiannually, which interest
shall accrue from the date such overdue amount was originally due to the date
payment of such amount, including interest thereon, has been made or duly
provided for.  All such interest shall be
payable on demand.


 


(b)                                 Payment of the principal of and interest,
if any, on the Securities shall be made at the office or agency of the Company
maintained for that purpose, which shall initially be at the Corporate Trust
Office of the Trustee, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address appears in the Register; provided further that a Holder with an
aggregate principal amount in excess of $2,000,000 will be paid by wire
transfer in immediately available funds at the election of such Holder if such
Holder has provided wire transfer instructions to the Trustee at least 10
Business Days prior to the payment date. 
Any wire transfer instructions received by the Trustee will remain in
effect until revoked by the Holder.


 


Section 5.02.                             SEC and Other Reports.


 


(a)                                  The Company shall file all reports and
other information and documents which it is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act, and within 15
days after it files them with the SEC, the Company shall file copies of all
such reports, information and other documents with the Trustee; provided that
any such reports, information and documents filed with the SEC pursuant to its
Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system shall be
deemed to be filed with the Trustee.  The
Company also shall comply with the provisions of TIA Section 314(a).


 


(b)                                 Delivery or filing of such reports,
information and documents to or with the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute 


 


41

















 


constructive notice of
any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


Section 5.03.                             Compliance Certificates. 
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company (beginning with the fiscal year ending on December 31,
2010), an Officers’ Certificate that need not comply with Section 12.04,
one signer of which shall be the principal executive officer, principal
financial officer, or principal accounting officer of the Company, as to the
signer’s knowledge of the Company’s compliance with all terms, conditions and
covenants on its part contained in this Indenture and stating whether or not
the signer knows of any Default or Event of Default.  If such signer knows of such a Default or
Event of Default, the Officers’ Certificate shall describe the Default or Event
of Default and the efforts to remedy the same. 
For the purposes of this Section 5.03, compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.


 


Section 5.04.                             Further Instruments and Acts. 
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.


 


Section 5.05.                             Maintenance of Corporate Existence. 
Subject to Article 6, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.


 


Section 5.06.                             Rule 144A Information Requirement. 
During the period prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities
Act (or any successor provision), the Company covenants and agrees that it
shall, during any period in which it is not subject to Section 13 or 15(d) under
the Exchange Act, upon the request of any Holder or beneficial holder of the
Securities, make available to such Holder or beneficial holder of Securities or
any Common Stock issued upon conversion thereof which continue to be Restricted
Securities in connection with any sale thereof and any prospective purchaser of
Securities or such Common Stock designated by such Holder or beneficial holder,
the information required pursuant to Rule 144A(d)(4) under the
Securities Act and it will take such further action as any Holder or beneficial
holder of such Securities or such Common Stock may reasonably request, all to
the extent required from time to time to enable such Holder or beneficial
holder to sell its Securities or Common Stock without registration under the
Securities Act within the limitation of the exemption provided by Rule 144A,
as such Rule may be amended from time to time. Whether a person is a
beneficial holder shall be determined by the Company.


 


Section 5.07.                             Stay, Extension and Usury Laws. 
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law or other law
which would prohibit or forgive the Company from paying all or any portion of
the principal of or accrued but unpaid interest, if any, on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture, and the
Company (to the extent it may lawfully do so) hereby 


 


42

















 


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 5.08.                             Removed.


 


Section 5.09.                             Maintenance of Office or Agency. 
The Company will maintain an office or agency of the Trustee, Registrar
and Paying Agent where securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer, purchase or
redemption and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served.  The Corporate Trust Office shall initially be
one such office or agency for all of the aforesaid purposes. The Company shall
give prompt written notice to the Trustee of the location, and of any change in
the location, of any such office or agency (other than a change in the location
of the office of the Trustee).  If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 12.02.


 


The Company may also from
time to time designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency.


 


ARTICLE 6

CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE


 


Section 6.01.                             Company May Consolidate, Etc., Only
on Certain Terms.  The Company shall not, in any transaction or
series of related transactions, consolidate with, or sell, lease, assign,
transfer or otherwise convey all or substantially all of its assets to, or
merge with or into, any other Person, unless:


 


(1)                                  either the Company shall be the
continuing corporation, or the successor person, if other than the Company,
formed by or resulting from any consolidation or merger or which shall have
received the transfer of all or substantially all of its assets is a
corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall expressly
assume, by supplemental indenture executed by the successor corporation and
delivered to the Trustee, the due and punctual payment of the principal of and
interest and other amounts payable, if any, payable in respect of the
Securities and the due and punctual performance and observance of all of the
other covenants and conditions contained in the Securities and the indenture to
be performed or observed by the Company;


 


(2)                                  immediately after giving effect to the transaction,
and treating any Debt, including Acquired Debt, which becomes the Company’s
obligation or an obligation of any of the Company’s Subsidiaries as a result
thereof as having been incurred by the Company or the Subsidiary at the time of
the transaction, no Event of Default under the 


 


43

















 


Indenture, and, no Event
of Default, and no event which, after notice or the lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and


 


(3)                                  the Company shall have, at or prior to
the effective date of such consolidation, merger or transfer, delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer complies with this Article Six and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture complies with this Article, and that all conditions
precedent herein provided for relating to such transaction have been complied
with.


 


In the
event that the Company is not the continuing corporation, then, for purposes of
above, the references to the Company shall be deemed to refer to the successor
corporation.


 


Section 6.02.                             Successor Substituted. 
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease substantially as an
entirety, of the properties and assets of the Company and its Subsidiaries,
taken as a whole, in accordance with Section 6.01, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, and except for
obligations the predecessor Person may have under a supplemental indenture, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


ARTICLE 7

DEFAULT AND REMEDIES


 


Section 7.01.                             Events of Default.


 


(a)                                  An “Event of Default” shall occur if:


 


(1)                                  the Company shall fail to pay when due
the principal (including, without limitation, any Principal Redemption Price,
Optional Repurchase Price or Change in Control Purchase Price) of any Security,
when the same becomes due and payable whether at the Final Maturity Date or,
upon any earlier Redemption Date, Optional Repurchase Date, Change in Control
Purchase Date, acceleration or otherwise; or


 


(2)                                  the Company shall fail to pay an
installment of interest on any of the Securities, which failure continues for
30 days after the date when due; or


 


(3)                                  the Company shall fail to deliver when
due the Conversion Value upon the exercise of a Holder’s conversion right in
accordance with the terms of this Indenture, which failure continues for 15
days; or


 


(4)                                  the Company shall fail to perform or
observe (or obtain a waiver with respect to) any other term, covenant or
agreement contained in the Securities or this


 


44

















 


Indenture after receipt
by the Company of a notice of default specifying such failure (a “Notice of
Default”) from the Trustee or of a Notice of Default by the Company and the
Trustee from Holders of not less than 25% in aggregate principal amount of the
Securities and the Company does not cure (or obtain a waiver of) the default
within 60 days after receipt of the Notice of Default; or


 


(5)                                  a default under any bond, note, debenture
or other evidence of indebtedness of the Company or any of its Subsidiaries, or
under any mortgage, indenture or other instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness of the
Company or any of its Subsidiaries which results in the acceleration of such
indebtedness in an aggregate principal amount exceeding $100,000,000  or which constitutes a failure to pay at
maturity or other scheduled payment date (after expiration of any applicable
grace period) such indebtedness in an aggregate principal amount exceeding
$100,000,000, but only if such indebtedness is not discharged or such
acceleration is not rescinded or annulled within 10 days after notice to the
Company by the Trustee or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Securities; or


 


(6)                                  the Company, or any Significant
Subsidiary of the Company, pursuant to or within the meaning of any Bankruptcy
Law:


 


(A)                              commences as a debtor a voluntary case or
proceeding;


 


(B)                                consents to the entry of an order for
relief against it in an involuntary case or proceeding or the commencement of
any case against it;


 


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


 


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


 


(E)                                 files a petition in bankruptcy or answer
or consent seeking reorganization or relief; or


 


(F)                                 consents to the filing of such a petition
or the appointment of or taking possession by a Receiver; or


 


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


 


(A)                              grants relief against the Company or any
Significant Subsidiary of the Company in an involuntary case or proceeding or
adjudicates the Company or any Significant Subsidiary of the Company insolvent
or bankrupt;


 


(B)                                appoints a Receiver of the Company or any
Significant Subsidiary of the Company or for all or substantially all of the
property of the Company or any Significant Subsidiary of the Company; or


 


45

















 


(C)                                orders the winding up or liquidation of
the Company or any Significant Subsidiary of the Company;


 


and in each case the
order or decree remains unstayed and in effect for 60 consecutive days.


 


(8)                                  the Company shall fail to provide notice
of the occurrence of a Change in Control when required under Section 3.01(b) of
this Indenture, which failure continues for 10 days.


 


The term “Bankruptcy Law”
means Title 11 of the United States Code (or any successor thereto) or any
similar federal or state law for the relief of debtors.  The term “Receiver” means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.


 


(b)                                 The Company will deliver to the Trustee,
within five Business Days after becoming aware of the occurrence of a Default
or Event of Default, written notice thereof.


 


Section 7.02.                             Acceleration. 
If an Event of Default (other than an Event of Default specified in
clause (6) or (7) of Section 7.01(a)) occurs and is continuing
with respect to the Company, the Trustee may, by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the Securities then
outstanding may, by notice to the Company and the Trustee, declare the
principal amount and accrued and unpaid interest, if any, through the date of
declaration on all the Securities to be immediately due and payable. Upon such
a declaration, such principal amount and such accrued and unpaid interest, if
any, shall be due and payable immediately. 
If an Event of Default specified in Section 7.01(a)(6) or (7) occurs
in respect of the Company and is continuing, the principal amount and accrued
but unpaid interest, if any, on all the Securities shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders of Securities. 
At any time after such a declaration of acceleration with respect to the
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of not less than a majority in principal amount of the Securities,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:


 


(1)                                  the Company has paid or deposited with
the Trustee a sum sufficient to pay in the currency in which the Securities are
payable:


 


(B)                                all overdue installments of interest on
all outstanding Securities,


 


(C)                                the principal of any outstanding
Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne by or provided for
in the Securities,


 


(D)                               to the extent that payment of such
interest is lawful, interest upon overdue installments of interest at the rate
or rates borne by or provided for in the Securities, and


 


46

















 


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


 


(2)                                  all Events of Default with respect to the
Securities, other than the nonpayment of the principal of or interest on the
Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 7.04.


 


Section 7.03.                             Other Remedies.


 


(a)                                  If an Event of Default occurs and is
continuing, the Trustee may, but shall not be obligated to, pursue any
available remedy by proceeding at law or in equity to collect payment of the
principal amount and accrued and unpaid interest, if any, on the Securities or
to enforce the performance of any provision of the Securities or this Indenture.


 


(b)                                 The Trustee may maintain a proceeding
even if it does not possess any of the Securities or does not produce any of
them in the proceeding.  A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.  No remedy is exclusive of any other
remedy.  All available remedies are
cumulative to the extent permitted by applicable law.


 


Section 7.04.                             Waiver of Defaults and Events of Default. 
Subject to Sections 7.07 and 10.02, the Holders of a majority in
aggregate principal amount of the Securities then outstanding by notice to the
Trustee may waive an existing Default or Event of Default and its consequences,
except an uncured Default or Event of Default in the payment of the principal
of, other amounts payable, if any, or any accrued but unpaid interest, if any,
on any Security, an uncured failure by the Company to convert any Securities
into Common Stock and cash, as applicable, or any Default or Event of Default
in respect of any provision of this Indenture or the Securities which, under Section 10.02,
cannot be modified or amended without the consent of the Holder of each
Security affected.  When a Default or
Event of Default is waived, it is cured and ceases to exist.


 


Section 7.05.                             Control by Majority. 
The Holders of a majority in aggregate principal amount of the
Securities then outstanding may 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 it.  However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Holder or the Trustee (it being understood that the Trustee does not
have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders), or that may involve the
Trustee in personal liability unless the Trustee is offered security or
indemnity reasonably satisfactory to it; provided, however, that the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.


 


47






 












 


Section 7.06.                             Limitations on Suits.


 


(a)                                  A Holder may not pursue any remedy with
respect to this Indenture or the Securities (except actions for payment of
overdue principal, other amounts payable, if any, or interest or for the
conversion of the Securities pursuant to Article 4) unless:


 


(1)                                  the Holder gives to the Trustee written
notice of a continuing Event of Default;


 


(2)                                  the Holders of at least 25% in aggregate
principal amount of the then outstanding Securities make a written request to
the Trustee to pursue the remedy;


 


(3)                                  such Holder or Holders offer to the
Trustee reasonable security or indemnity to the Trustee against any loss,
liability or expense;


 


(4)                                  the Trustee does not comply with the
request within 60 days after receipt of the request and the offer of security
or indemnity; and


 


(5)                                  no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the Securities then
outstanding.


 


(b)                                 No Holder of a Security shall have any
right under any provision of this Indenture or the Securities to affect,
disturb, or prejudice the rights of another Holder of a Security or to obtain a
preference or priority over another Holder of a Security or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.  The Trustee shall mail to all Holders any
notice it receives from Holders under this Section.


 


Section 7.07.                             Rights of Holders to Receive Payment and
to Convert.  Notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to receive payment of the
Principal, interest, Redemption Price, Optional Repurchase Price or Change in
Control Purchase Price, if any, in respect of the Securities held by such
Holder, on or after the respective due dates expressed in the Securities and
this Indenture (whether upon repurchase or otherwise), and to convert such
Security in accordance with Article 4, and to bring suit for the
enforcement of any such payment on or after such respective due dates or for
the right to convert in accordance with Article 4, is absolute and
unconditional and shall not be impaired or affected without the consent of the
Holder.


 


Section 7.08.                             Collection Suit by Trustee. 
If an Event of Default described in clause (1) or (2) of Section 7.01(a) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or another obligor on the
Securities for the whole amount owing with respect to the Securities and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


Section 7.09.                             Trustee May File Proofs of Claim. 
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the


 


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claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any money or other property payable or deliverable on
any such claims and to distribute the same, and any Receiver in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 8.07, and to the extent that such payment of the reasonable
compensation, expenses, disbursements and advances 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, money,
securities and other property which the Holders may be entitled to receive in
such proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to, or, on behalf of any Holder, to
authorize, accept or adopt any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors’ or other similar committee.


 


Section 7.10.                             Priorities.


 


(a)                                  After an Event of Default, any money or
other property distributable in respect of the Company’s obligations under this
Indenture it shall be paid out in the following order:


 


(1)                                  First, to the Trustee for amounts due
under Section 8.07;


 


(2)                                  Second, to Holders for amounts due and
unpaid on the Securities for the Principal and interest, as applicable,
ratably, without preference or priority of any kind, according to such
respective amounts due and payable on the Holders’ Securities;


 


(3)                                  Third, to such other Person or Persons,
if any, to the extent entitled thereto; and


 


(4)                                  Fourth, the balance, if any, to the
Company.


 


(b)                                 The Trustee may fix a record date and
payment date for any payment to Holders pursuant to this Section 7.10.


 


Section 7.11.                             Undertaking for Costs. 
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 7.11 does not apply to a suit made by the
Trustee, a suit by a Holder 


 


49

















 


pursuant to Section 7.07,
or a suit by Holders of more than 25% in aggregate principal amount of the
Securities then outstanding.  This Section 7.11
shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is
hereby expressly excluded from this Indenture, as permitted by the TIA.


 


ARTICLE 8

TRUSTEE


 


Section 8.01.                             Obligations of Trustee.


 


(a)                                  If an Event of Default of which a Responsible
Officer of the Trustee shall have actual knowledge has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.


 


(b)                                 Except during the continuance of an Event
of Default of which a Responsible Officer of the Trustee shall have actual
knowledge:


 


(1)                                  the Trustee need perform only those
duties as are specifically set forth in this Indenture and no others; and


 


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


 


This Section 8.01(b) shall
be in lieu of Section 315(a) of the TIA and such Section 315(a) is
hereby expressly excluded from this Indenture, as permitted by the TIA.


 


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


 


(1)                                  this paragraph does not limit the effect
of Section 8.01(b);


 


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


 


(3)                                  the Trustee shall not be liable in its
individual capacity with respect to any action it takes or omits to take in
good faith in accordance with a request or direction received by it pursuant to
Section 7.05, or a request or direction received by it from a


 


50

















 


majority of the Holders
of the Outstanding Securities concerning the exercise of any trust or power
conferred upon the Trustee by this Indenture.


 


This Section 8.01(c) shall
be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the TIA
and such Sections are hereby expressly excluded from this Indenture as
permitted by the TIA.


 


(d)                                 No provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers unless the Trustee shall have received
adequate security or indemnity in its opinion against potential costs and
liabilities incurred by it relating thereto.


 


(e)                                  Every provision of this Indenture that in
any way relates to the Trustee is subject to subsections (a), (b), (c) and
(d) of this Section 8.01.


 


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


 


Section 8.02.                             Rights of Trustee.


 


(a)                                  Subject to Section 8.01:


 


(1)                                  The Trustee may rely conclusively and
shall be protected in acting or refraining from acting upon on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.


 


(2)                                  Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate or an Opinion of Counsel, which
shall conform to Section 12.04(b). 
The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.


 


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


 


(4)                                  The Trustee shall not be personally
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers.


 


(5)                                  The Trustee may consult with counsel of
its selection, and the advice of such counsel as to matters of law or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any such action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice of such counsel or Opinion of Counsel.


 


51

















 


(6)                                  The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.


 


(7)                                  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, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of
the Company, and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation. 
The reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company upon demand
from the Company’s own funds.


 


(8)                                  The Trustee shall not be deemed to have
notice or knowledge of any Default, Event of Default, or Change in Control
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a Default is received
by the Trustee at the Corporate Trust Office, and such notice references the
Securities and this Indenture.  In the
absence of receipt of such notice or actual knowledge, the Trustee may
conclusively assume that there is no Default, Event of Default, or Change in
Control.


 


(9)                                  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, including, without limitation as
Paying Agent, Registrar and Conversion Agent, and to each agent, custodian and
other Person employed to act hereunder.


 


(10)                            The right of the Trustee to perform any
discretionary act enumerated in this Indenture shall not be construed as a
duty, and the Trustee shall not be answerable for other than its own negligence
or willful misconduct in the performance of such act.


 


Section 8.03.                             Individual Rights of Trustee. 
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an
Affiliate of the Company with the same rights it would have if it were not
Trustee.  Any Agent may do the same with
like rights.  However, the Trustee is
subject to Sections 8.10 and 8.11.


 


Section 8.04.                             Trustee’s Disclaimer. 
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities and the Trustee assumes no responsibility for
their correctness.  It shall not be
accountable for the Company’s use of the proceeds from the Securities and it
shall not be responsible for any statement in the Securities other than its


 


52

















 


certificate of
authentication. The Trustee shall have no responsibility for the Registration
Statement or the Prospectus.


 


Section 8.05.                             Notice of Default or Events of Default. 
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder of a Security
notice of all uncured Defaults or Events of Default known to it within 90 days
after it occurs or, if later, within 15 days after it becomes known to the
Trustee.  However, the Trustee may
withhold the notice if and for so long as a committee of its Responsible
Officers in good faith determines that withholding notice is in the interests
of Holders of Securities, except in the case of a Default or an Event of
Default in payment of the principal of, or other amounts payable, if any, or
interest on any Security when due or in the payment of any redemption or
purchase obligation, or the Company’s failure to convert Securities when
obligated to convert them.  This Section 8.05
is in lieu of section 315(b) of the TIA and such provision is expressly
excluded from this Indenture as permitted by the TIA.


 


Section 8.06.                             Reports by Trustee to Holders.


 


(a)                                  If a report is required by TIA Section 313,
within 60 days after each May 15, beginning with the May 15 following
the date of this Indenture, the Trustee shall mail to each Holder of Securities
a brief report dated as of such May 15 that complies with TIA Section 313(a).  If required by TIA Section 313, the
Trustee also shall comply with TIA Sections 313(b)(2) and (c).


 


(b)                                 A copy of each report at the time of its
mailing to Holders of Securities shall be mailed to the Company and, to the
extent required by the TIA, filed with the SEC, and each stock exchange, if
any, on which the Securities are listed. 
The Company shall notify the Trustee whenever the Securities become
listed on any stock exchange or listed or admitted to trading on any quotation
system and any changes in the stock exchanges or quotation systems on which the
Securities are listed or admitted to trading and of any delisting thereof.


 


Section 8.07.                             Compensation and Indemnity.


 


(a)                                  The Company shall pay to the Trustee from
time to time such compensation (as agreed to from time to time by the Company
and the Trustee in writing) for its services (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust).  The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it. 
Such expenses may include the reasonable compensation, disbursements and
expenses of the Trustee’s agents and counsel.


 


(b)                                 The Company shall indemnify the Trustee
or any predecessor Trustee (which for purposes of this Section 8.07 shall
include its officers, directors, employees and agents) for, and hold it
harmless against, any and all loss, liability or expense including taxes (other
than franchise taxes and taxes based upon, measured by or determined by the
income of the Trustee), incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture or any action
or failure to act as authorized or within the discretion or rights or powers
conferred upon the Trustee hereunder including the reasonable costs and
expenses of


 


53

















 


the Trustee and its
counsel in defending (including reasonable legal fees and expenses) itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. 
The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity, provided that failure of
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder.  The Company need
not pay for any settlement effected without its prior written consent, which
shall not be unreasonably withheld. 
Anything in this Indenture to the contrary notwithstanding, in no event
shall the Trustee be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits), even
if the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.


 


(c)                                  The Company need not reimburse the
Trustee for any expense or indemnify it against any loss or liability incurred
by it resulting from its negligence, willful misconduct or bad faith.


 


(d)                                 The Trustee shall have a senior claim to
which the Securities are hereby made subordinate on all money or property held
or collected by the Trustee.


 


(e)                                  When the Trustee incurs expenses or
renders services after an Event of Default specified in clause (6) or (7) of
Section 7.01(a) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.


 


(f)                                    The obligations of the Company under this
Section 8.07 shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee.


 


Section 8.08.                             Replacement of Trustee.


 


(a)                                  The Trustee may resign by so notifying
the Company.  The Holders of a majority
in aggregate principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee and the Company and may, with the Company’s
written consent, appoint a successor Trustee. 
The Company may remove the Trustee at any time, so long as no Default or
Event of Default has occurred and is continuing, and appoint a Successor
Trustee in accordance with this Section 8.08.


 


(b)                                 If the Trustee resigns or is removed or
if a vacancy exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee.  If
the Company fails to promptly appoint a successor Trustee, the Trustee shall
have the right to choose a qualified Trustee as successor, and the Company
shall appoint such successor as Trustee. 
The resignation or removal of a Trustee shall not be effective until a
successor Trustee shall have delivered the written acceptance of its
appointment as described below.


 


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


 


54

















 


(d)                                 If the Trustee fails to comply with Section 8.10,
any Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.


 


(e)                                  A successor Trustee shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company.  Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee and be released from its obligations (exclusive of any
liabilities that the retiring Trustee may have incurred while acting as
Trustee) hereunder, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. 
A successor Trustee shall mail notice of its succession to each Holder.


 


(f)                                    A retiring Trustee shall not be liable
for the acts or omissions of any successor Trustee after its succession.


 


(g)                                 Notwithstanding replacement of the
Trustee pursuant to this Section 8.08, the Company’s obligations under Section 8.07
shall continue for the benefit of the retiring Trustee.


 


Section 8.09.                             Successor Trustee by Merger, Etc. 
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business (including the
administration of this Indenture) to, another corporation, the resulting,
surviving or transferee corporation, without any further act, shall be the
successor Trustee; provided such transferee corporation shall qualify and be
eligible under Section 8.10.  Such
successor Trustee shall promptly mail notice of its succession to the Company
and each Holder.


 


Section 8.10.                             Eligibility; Disqualification. 
The Trustee shall always satisfy the requirements of paragraphs (1), (2) and
(5) of TIA Section 310(a).  The
Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition.  If at any
time the Trustee shall cease to satisfy any such requirements, it shall resign
immediately in the manner and with the effect specified in this Article 8.  The Trustee shall be subject to the
provisions of TIA Section 310(b). 
Nothing herein shall prevent the Trustee from filing with the SEC the
application referred to in the penultimate paragraph of TIA Section 310(b).  To the extent permitted by the Trust
Indenture Act, the Trustee shall not be deemed to have a conflicting interest
with respect to any other indenture of the Company by virtue of being a trustee
under this Indenture with respect to the Securities.


 


Section 8.11.                             Preferential Collection of Claims Against
Company.  The Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b).  A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated
therein.


 


55

















 


ARTICLE 9

SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 9.01.                             Satisfaction and Discharge of Indenture.


 


(a)                                  This Indenture shall cease to be of
further force and effect (except as to any surviving rights of conversion,
registration of transfer or exchange of Securities herein expressly provided
for and except as further provided below), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when either:


 


(A)                              all Securities theretofore authenticated
and delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.07
and (ii) Securities for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company as provided in Section 9.03)
have been delivered to the Trustee for cancellation; or


 


(B)                                all such Securities not theretofore
delivered to the Trustee for cancellation have become due and payable,


 


provided that


 


(1)                                  the Company has deposited with the
Trustee, a Paying Agent (other than the Company or any of its Affiliates) or a
Conversion Agent, if applicable, immediately available funds in trust for the
purpose of and in an amount sufficient to pay and discharge all indebtedness
and obligations related to such Securities not theretofore delivered to the
Trustee for cancellation, for principal and interest to the date of such
deposit;


 


(2)                                  the Company has paid or caused to be paid
all other sums payable hereunder by the Company; and


 


(3)                                  the Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein relating to the satisfaction and discharge of this
Indenture have been complied with.


 


(b)                                 Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company with respect to the
conversion privilege and the Conversion Rate of the Securities pursuant to Article 4,
the obligations of the Company to the Trustee under Section 8.07 and, if
money shall have been deposited with the Trustee pursuant to clause (1) of
Section 9.01(a), the provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.12, 5.01 and 12.05, Article 4, and this Article 9, shall survive
until the Securities have been paid in full.


 


Section 9.02.                             Application of Trust Money. 
Subject to the provisions of Section 9.03, the Trustee or a Paying
Agent shall hold in trust, for the benefit of the Holders, all money deposited
with it pursuant to Section 9.01 and shall apply the deposited money in
accordance with this Indenture and the Securities to the payment of the
principal of and interest on the Securities.


 


56
















 


Section 9.03.                             Repayment to Company.


 


(a)                                  The Trustee and each Paying Agent shall
promptly pay to the Company upon request any excess money (1) deposited
with them pursuant to Section 9.01 and (2) held by them at any time.


 


(b)                                 The Trustee and each Paying Agent shall,
subject to applicable abandonment property laws, pay to the Company upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after a right to such money has matured;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such payment, may at the expense of the Company cause to be mailed
to each Holder entitled to such money notice that such money remains unclaimed
and that after a date specified therein, which shall be at least 30 days from
the date of such mailing, any unclaimed balance of such money then remaining
will be repaid to the Company.  After
payment to the Company, Holders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.


 


Section 9.04.                             Reinstatement. 
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 9.02 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 9.01
until such time as the Trustee or such Paying Agent is permitted to apply all
such money in accordance with Section 9.02; provided, however, that if the
Company has made any payment of the principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive any such
payment from the money held by the Trustee or such Paying Agent.


 


ARTICLE 10

AMENDMENTS; SUPPLEMENTS AND WAIVERS


 


Section 10.01.                       Without Consent of Holders. 
Without the consent of any Holders of the Securities, the Company, when
authorized by or pursuant to a resolution of the Board of Directors, and the
Trustee may enter into an indenture to indentures supplemental hereto for any
of the following purposes:


 


(a)                                  to evidence the succession or addition of
another Person to the Company and the assumption by any such successor of
covenants of the Company under this Indenture;


 


(b)                                 to add to the covenants of the Company
for the benefit of the Holders or to surrender any right or power conferred
upon the Company in this Indenture;


 


(c)                                  to add any additional Events of Default
for the benefit of the Holders of all the Securities;


 


57

















 


(d)                                 to permit or facilitate the issuance of
the Securities in uncertificated form, provided that such action shall not
adversely affect the interests of the Holders in any material respect.


 


(e)                                  to secure the Securities;


 


(f)                                    to evidence and provide for the
acceptance of appointment by a successor Trustee and to add to or change any of
the provisions of this Indenture as is necessary to provide for or facilitate
the administration of the trusts under this Indenture by more than one Trustee;


 


(g)                                 to provide for rights of Holders of the
Securities if any reclassification or change of shares of Common Stock or any
consolidation, merger or sale of all or substantially all of our property or
assets occurs;


 


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


 


(i)                                     to conform the text of this Indenture or
the Securities to any provision of the “Description of the New Notes” section
of the Prospectus, to the extent that such provision in the “Description of the
New Notes” section was intended to be a verbatim recitation of a provision of
this Indenture or the Securities; or


 


(j)                                     to supplement any of the provisions of
this Indenture to the extent necessary to permit or facilitate defeasance and
discharge of the Securities under this Indenture, provided that such action
shall not adversely affect the interests of the Holders in any material
respect.


 


Section 10.02.                       With Consent of Holders.


 


(a) The Company and
the Trustee may amend or supplement this Indenture or the Securities with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Securities then outstanding and affected by such amendment or
supplement (voting together as a single class). 
However, subject to Section 10.04, without the written consent of
each Holder affected, an amendment, supplement or waiver may not:


 


(i)                                     change the stated maturity of the
principal of, or any installment of principal of, or interest on, the
Securities;


 


(ii)                                  reduce the principal amount of, the rate
of interest on, or change the timing or reduce the amount payable on the
redemption of, the Securities;


 


(iii)                               make any change that impairs or adversely
affects the rights of a Holder to convert Securities in accordance herewith;


 


(iv)                              change the place of payment, or the coin
or currency, for payment of principal of, or interest on, the Securities;


 


58

















 


(v)                                 impair the right to institute suit for
the enforcement of any payment on or with respect to Securities or the delivery
of the Conversion Value as required by this Indenture upon a conversion of
Securities;


 


(vi)                              reduce the percentage in principal amount
of the outstanding Securities, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver with respect to the outstanding Securities;


 


(vii)                           modify any of the provisions of this Section 10.02
or Section 7.02, 7.05, 7.06(d) or 8.08(a) of this Indenture,
except to increase the required percentage to effect such action or to provide
that specified other provisions of this Indenture may not be modified or waived
without the consent of the Holders of each outstanding Security affected
thereby;


 


(viii)                        change the provisions of Section 4.01(g) in
a manner that adversely affects the holders of Securities; or


 


(ix)                                change the dates and prices at which the
Securities may be redeemed, or at which the Holders may require the Securities
to be repurchased, in a manner that adversely affects the Holders of
Securities.


 


(b)                                 Without limiting the provisions of Section 10.02(a) hereof,
the Holders of a majority in principal amount of the Securities then
outstanding may, on behalf of all the Holders of all Securities, (i) waive
compliance by the Company with the restrictive provisions of this Indenture,
and (ii) waive any past Default or Event of Default under this Indenture
and its consequences, except an uncured failure to pay when due the principal
amount, accrued and unpaid interest, Change in Control Purchase Price or
Optional Repurchase Price, or in the obligation to deliver Common Stock or
cash, if any and as applicable, or in respect of any provision which under this
Indenture cannot be modified or amended without the consent of the Holder of
each outstanding Security affected.


 


(c)                                  After an amendment, supplement or waiver
under this Section 10.02 becomes effective, the Company shall promptly
mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver.  Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.


 


(d)                                 For purposes of this Indenture,
Securities will be deemed outstanding if they have been authenticated and
delivered under this Indenture unless, among other things, the Securities have
matured or been cancelled, converted, redeemed or repurchased.


 


Section 10.03.                       Compliance with Trust Indenture Act. 
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as in effect at the date of such amendment or
supplement.


 


59

















 


Section 10.04.                       Revocation and Effect of Consents.


 


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


 


(b)                                 After an amendment, supplement or waiver
becomes effective, it shall bind every Holder of a Security.


 


Section 10.05.                       Notation on or Exchange of Securities. If an amendment, supplement or waiver
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. 
The Trustee may place an appropriate notation on the Security about the
changed terms and return it to the Holder. 
Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms.


 


Section 10.06.                       Trustee to Sign Amendments, Etc. 
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 10 if the amendment or supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  If it does,
the Trustee may, in its sole discretion, but need not sign it.  In signing or refusing to sign such amendment
or supplemental indenture, the Trustee shall be entitled to receive and,
subject to Section 8.01, shall be fully protected in relying upon, an
Opinion of Counsel stating that such amendment or supplemental indenture is
authorized or permitted by this Indenture. 
The Company may not sign an amendment or supplement indenture until the
Board of Directors approves it.


 


Section 10.07.                       Effect of Supplemental Indentures. 
Upon the execution of any supplemental indenture under this Article 10,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.


 


ARTICLE 11

REDEMPTION


 


Section 11.01.                       Redemption.


 


(a)                                  The Company shall not have the right to
redeem any Securities prior to November 21, 2014, except to preserve the
Company’s status as a REIT.  If, at any
time, the Company determines it is necessary to redeem the Securities in order
to preserve the Company’s status as a REIT, the Company may, upon not less than
30 nor more than 60 days’ prior written notice by mail to the Holders of the
Securities, redeem the Securities in whole or in part, for cash equal to 100%
of the principal amount of the Securities to be redeemed plus any accrued but
unpaid interest to but excluding the Redemption Date. In such case, the Company
shall provide the


 


60

















 


Trustee with an Officers’
Certificate evidencing that the Board of Directors of the Company has, in good
faith, made the determination that it is necessary to redeem the Securities in
order to preserve the Company’s status as a real estate investment trust.


 


(b)                                 The Company shall have the right to
redeem the Securities, in whole or in part at any time or from time to time, on
or after November 21, 2014 upon not less than 30 nor more than 60 days’
prior written notice by mail to the Holders of the Securities, at a redemption
price (“Redemption Price”) for cash equal to 100% of the principal amount of
the Securities to be redeemed plus any accrued but unpaid interest to but
excluding the Redemption Date.  If less
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed (in principal amounts of $1,000 and integral
multiples thereof) on a pro rata basis or by such other method the Trustee
considers fair and appropriate or is required by Applicable Procedures of the
Depositary for the Securities.  The
Trustee shall make the selection at least 30 days but not more than 60 days before
the Redemption Date from Outstanding Securities not previously called for
redemption.  Securities and portions of
the principal amount thereof selected for redemption shall be in integral
multiples of $1,000.  The Trustee shall
notify the Company promptly of the Securities or portions of the principal
amount thereof to be redeemed.  If the
Trustee selects a portion of a Security for partial redemption and a Holder
converts a portion of the same Security in accordance with the provisions of Section 4.01(a)(7) hereof
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed to
be from the portion selected for redemption. 
Securities that have been converted during a selection of Securities to
be redeemed shall be treated by the Trustee as Outstanding for the purpose of
such selection.


 


(c)                                  In the event of any redemption in part,
the Company shall not be required to:  (i) issue
or register the transfer or conversion of any Security during a period beginning
at the opening of business 15 days before any selection of Securities for
redemption 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 Securities to be so redeemed, or (ii) register the transfer or
conversion of any Security so selected for redemption, in whole or in part,
except the unredeemed portion of any Security being redeemed in part.


 


(d)                                 A notice of redemption sent to the
Holders of Securities to be redeemed in accordance with the provisions of the
two preceding paragraphs shall state:


 


(1)                                  the name of the Paying Agent and
Conversion Agent;


 


(2)                                  the then current Conversion Rate;


 


(3)                                  that Securities called for redemption may
be converted at any time prior to the close of business on the third Business
Day immediately preceding the Redemption Date; and


 


(4)                                  that Holders who wish to convert
Securities must comply with the procedures relating thereto specified in Section 4.02
hereof.


 


61

















 


ARTICLE 12

MISCELLANEOUS


 


Section 12.01.                       Trust Indenture Act Controls. 
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the TIA through
operation of Section 318(c) thereof, such imposed duties shall
control.


 


Section 12.02.                       Notices.  Any demand,
authorization notice, request, consent or communication shall be given in
writing and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows or transmitted by facsimile transmission (confirmed by
delivery in person or mail by first-class mail, postage prepaid, or by
guaranteed overnight courier) to the following facsimile numbers:


 


If to the Company, to:


 


Inland Real Estate
Corporation

2901 Butterfield Road, Oak Brook, Illinois

Attention:  Mark Zalatoris

Fax:  630-218-7350


 


with a copy to:


 


Shefsky &
Froelich Ltd.

Attention:  Michael J. Choate

111 East Wacker Drive, Suite 2800

Chicago, Illinois  60611

Fax:  312-275-7554


 


if to the Trustee, to:


 


Wells Fargo Bank,
National Association


230 W. Monroe Street, Suite 2900


Chicago, IL 60606


Attention: Corporate
Trust Services

Fax:  312-726-2158


 


Such notices or
communications shall be effective when received.


 


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


 


Any notice or
communication mailed to a Holder of a Security shall be mailed by first-class
mail or delivered by an overnight delivery service to it at its address shown
on the register kept by the Primary Registrar.


 


Failure to mail a notice
or communication to a Holder of a Security or any defect in it shall not affect
its sufficiency with respect to other Holders of Securities.  If a notice or 


 


62

















 


communication to a Holder
of a Security is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.


 


If the Company mails any
notice to a Holder of a Security, it shall mail a copy to the Trustee and each
Registrar, Paying Agent and Conversion Agent.


 


Section 12.03.                       Communications by Holders with Other
Holder.  Holders of Securities may communicate
pursuant to TIA Section 312(b) with other Holders of Securities with
respect to their rights under this Indenture or the Securities.  The Company, the Trustee, the Registrar and
any other person shall have the protection of TIA Section 312(c).


 


Section 12.04.                       Certificate and Opinion as to Conditions
Precedent.  Upon any request or application by the
Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee:


 


(1)                                  an Officers’ Certificate stating that, in
the opinion of the signers, all conditions precedent (including any covenants,
compliance with which constitutes a condition precedent), if any, provided for
in this Indenture relating to the proposed action have been complied with; and


 


(2)                                  an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent (including any
covenants, compliance with which constitutes a condition precedent) have been
complied with.


 


(b)                                 Each Officers’ Certificate and Opinion of
Counsel 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 statements or opinions
contained in such certificate or opinion are based;


 


(3)                                  a statement that, in the opinion of such
person, he or she has made such examination or investigation as is necessary to
enable him or her 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 12.05.                       Record Date for Vote or Consent of
Holders of Securities.  The Company (or, in the event
deposits have been made pursuant to Section 9.01, the Trustee) may set a
record date for purposes of determining the identity of Holders entitled to
vote or consent to any action by vote or consent authorized or permitted under
this Indenture, which record date shall not be more than 30 days prior to the
date of the commencement of solicitation of such action.


 


63

















 


Notwithstanding the
provisions of Section 10.04, if a record date is fixed, those persons who
were Holders of Securities at the close of business on such record date (or
their duly designated proxies), and only those persons, shall be entitled to
take such action by vote or consent or to revoke any vote or consent previously
given, whether or not such persons continue to be Holders after such record
date.


 


Section 12.06.                       Rules by Trustee, Paying Agent,
Registrar and Conversion Agent. The Trustee may make reasonable rules (not
inconsistent with the terms of this Indenture) for action by or at a meeting of
Holders.  Any Registrar, Paying Agent or
Conversion Agent may make reasonable rules for its functions.


 


Section 12.07.                       Legal Holidays. 
A “Legal Holiday” is a Saturday, Sunday or a day on which state or
federally chartered banking institutions in The City of New York , New York or
Chicago, Illinois are authorized or obligated to close.  If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.  If a Regular Record Date is a Legal Holiday,
the record date shall not be affected.


 


Section 12.08.                       Governing Law. 
This Indenture and the Securities shall be governed by, and construed in
accordance with, the internal laws of the State of New York.


 


Section 12.09.                       No Adverse Interpretation of Other
Agreements.  This Indenture may not be used to interpret
another indenture, loan or debt agreement of the Company or a Subsidiary of the
Company.  Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.


 


Section 12.10.                       No Recourse Against Others. 
All liability described in paragraph 15 of the Securities of any
director, officer, employee or shareholder, as such, of the Company hereby is
waived and released by each of the Holders.


 


Section 12.11.                       No Security Interest Created. 
Nothing in this Indenture or in the Securities, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, now in effect or hereafter enacted and
made effective, in any jurisdiction.


 


Section 12.12.                       Successors.  All
agreements of the Company in this Indenture and the Securities shall bind its
successor.  All agreements of the Trustee
in this Indenture shall bind its successor.


 


Section 12.13.                       Multiple Counterparts. 
The parties may sign multiple counterparts of this Indenture.  Each signed counterpart shall be deemed an
original, but all of them together represent the same agreement.


 


Section 12.14.                       Separability. 
If any provisions in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


64

















 


Section 12.15.                       Table of Contents, Headings, Etc. 
The table of contents, cross-reference sheet 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 12.16.                       Force Majeure. 
In no event shall the Trustee be responsible or liable, nor shall the
Company be responsible or liable to the Trustee, for any failure or delay in
the performance of their respective obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond their control, including,
without limitation strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities; it being
understood that the Trustee or the Company, as the case may be, shall use
reasonable efforts which are consistent with accepted practices to resume
performance as soon as practicable under the circumstances.


 


[SIGNATURE PAGE
FOLLOWS]


 


65

















 


IN WITNESS WHEREOF, the
parties hereto have hereunto set their hands as of the date and year first
above written.


 


	
   

  	
  INLAND REAL ESTATE
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK,
  NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


SIGNATURE PAGE TO
INDENTURE


 
















 


EXHIBIT A


 


FORM OF FACE
OF SECURITY


 


UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.  THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF.  THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND,
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.(1)


 






(1)                                  This paragraph should be included only if
the Security is a Global Security.


 


A-1

















 


INLAND REAL ESTATE
CORPORATION

      % Convertible Senior Notes due 2029


 


	
  No.   

  	
   

  	
  CUSIP:            

  



 


INLAND REAL ESTATE
CORPORATION, a State of Maryland corporation, promises to pay to Cede &
Co. or registered assigns the principal amount of one hundred twenty-five
million dollars ($125,000,000) on  November 15,
2029.


 


This Security shall bear
interest as specified on the other side of this Security.  This Security is convertible as specified on
the other side of this Security.


 


Additional provisions of
this Security are set forth on the other side of this Security.


 


Dated:                      ,
2010


 


SIGNATURE PAGE
FOLLOWS


 


A-2

















 


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


 


	
   

  	
  INLAND REAL ESTATE
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Dated:                      ,
2010


 


Trustee’s Certificate of
Authentication:  This is one of the
Securities referred to in the within-mentioned Indenture.


 


Wells Fargo Bank,
National Association

as Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


A-3

















 


FORM OF
REVERSE SIDE OF SECURITY


 


INLAND REAL ESTATE
CORPORATION

CONVERTIBLE SENIOR NOTES DUE 2029


 


This Security is one of a
duly authorized issue of notes, debentures, bonds, or other evidences of
indebtedness of the Company (hereinafter called the “Securities”) of the series
hereinafter specified, all issued or to be issued under and pursuant to an
Indenture, dated as of                     ,
2010 between the Company and Wells Fargo Bank, National Association, as
trustee, and reference is hereby made to the Indenture, and all modifications
and amendments and indentures supplemental thereto relating to the Securities,
for a description of the rights, limitations of rights, obligations, duties,
and immunities thereunder of the Trustee, the Company and the Holders of the
Securities and the terms upon which the Securities are authenticated and
delivered.  Terms used herein without
definition and which are defined in the Indenture have the meanings assigned to
them in the Indenture.


 


1.                                       INTEREST


 


The Securities shall bear
interest at the rate of       % per annum from                             ,
2010 or from the most recent Interest Payment Date (as defined below) to which
interest has been paid or duly provided for, as the case may be, payable semi
annually in arrears on May 15 and November 15 of each year (each, an “Interest
Payment Date”), commencing on November 15, 2010, until the principal
hereof is paid or duly made available for payment.  Interest payable on each Interest Payment
Date shall equal the amount of interest accrued for the period commencing on
and including the immediately preceding Interest Payment Date in respect of
which interest has been paid or duly provided for (or commencing on and
including                             ,
2010, if no interest has been paid or duly provided for) and ending on and
including the day preceding such Interest Payment Date.  Interest on the Securities will be computed
on the basis of a 360-day year consisting of twelve 30-day months.


 


2.                                       METHOD OF PAYMENT


 


Except as provided in the
Indenture, the Company shall pay interest on the Securities to the Persons who
are Holders of record of Securities at the close of business (whether or not a
Business Day) on the May 1 and November 1 immediately preceding the
applicable Interest Payment Date (each, a “Regular Record Date”).  Holders must surrender Securities to a Paying
Agent and comply with the other terms of the Indenture to collect the principal
amount, Redemption Price, Optional Repurchase Price or Change in Control
Purchase Price of the Securities, plus, if applicable, accrued and unpaid
interest payable as herein provided at maturity, upon redemption at the Company’s
option or repurchase at the Holder’s option. 
The Company shall pay, in money of the United States that at the time of
payment is legal tender for payment of public and private debts, all amounts
due in cash with respect to the Securities on the dates and in the manner
provided in this Security and the Indenture.


 


3.                                       PAYING AGENT, CONVERSION AGENT AND
SECURITY REGISTRAR


 


Initially, the Trustee
shall act as Paying Agent, Conversion Agent and Security Registrar.  The Company hereby initially designates the
Corporate Trust Office of the Trustee as the office


 


A-4

















 


to be maintained by it
where this Security may be presented for payment, registration of transfer or
exchange, where notices or demands to or upon the Company in respect of this
Security or the Indenture may be served and where the Securities may be
surrendered for conversion in accordance with the provisions of paragraph 6
hereof and the Indenture.  The Company
may appoint and change any Paying Agent, Conversion Agent, Security Registrar
or co-registrar or approve a change in the office through which any Paying
Agent acts without notice, other than notice to the Trustee.


 


4.                                       REDEMPTION BY THE COMPANY


 


The Company shall not
have the right to redeem any Securities prior to November 21, 2014, except
to preserve its status as a real estate investment trust.  If the Company determines it is necessary to
redeem the Securities in order to preserve its status as a real estate
investment trust, the Company may redeem the Securities then Outstanding, in
whole or in part, at 100% of the principal amount of the Securities to be
redeemed plus any accrued but unpaid interest to but excluding the Redemption
Date.


 


The Company shall have
the right to redeem the Securities for cash, in whole or in part at any time or
from time to time, on or after November 21, 2014 at 100% of the principal
amount of the Securities to be redeemed plus any accrued but unpaid interest to
but excluding the Redemption Date (the “Redemption Price”).


 


Notice of redemption at
the option of the Company shall be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities to be redeemed at
the Holder’s registered address. 
Securities in denominations larger than $1,000 principal amount may be
redeemed in part but only in integral multiples of $1,000 principal amount.


 


5.                                       OPTIONAL REPURCHASE RIGHTS; REPURCHASE AT
OPTION OF HOLDER UPON A CHANGE IN CONTROL


 


(a)                                  Subject to the terms and conditions of
the Indenture, a Holder shall have the right to require the Company to
repurchase all of its Securities, or any portion of the principal amount
thereof that is equal to $1,000 or an integral multiple thereof, on each of November 15,
2014, November 15, 2016, November 15, 2019 and November 15, 2024
(each, an “Optional Repurchase Date”) for cash equal to 100% of the principal
amount of the Securities to be repurchased plus any accrued but unpaid interest
to but excluding such Optional Repurchase Date (the “Optional Repurchase Price”),
upon delivery to the Paying Agent of an Optional Repurchase Notice containing
the information set forth in the Indenture, from the opening of business on the
date that is 20 Business Days prior to such Optional Repurchase Date until the
close of business on the third Business Day prior to such Optional Repurchase
Date and upon compliance with the other terms of the Indenture.


 


(b)                                 If a Change in Control occurs at any
time, a Holder shall have the right, at such Holder’s option and subject to the
terms and conditions of the Indenture, to require the Company to repurchase all
or any of such Holder’s Securities having a principal amount equal to $1,000 or
an integral multiple thereof on the date (the “Change in Control Purchase Date”)
specified by the Company in the Company Notice (which date shall be no earlier
than 15 days and no later than


 


A-5

















 


45 days after the date of
such Company Notice) for cash equal to the 100% of the principal amount of the
Securities to be repurchased plus any accrued but unpaid interest to but
excluding the Change in Control Purchase Date (the “Change in Control Purchase
Price”).


 


(c)                                  Holders have the right to withdraw any
Optional Repurchase Notice or Change in Control Purchase Notice, as the case
may be, by delivery to the Paying Agent of a written notice of withdrawal in
accordance with the provisions of the Indenture.


 


(d)                                 If the Paying Agent holds, in accordance
with the terms of the Indenture, money sufficient to pay the Optional
Repurchase Price or Change in Control Purchase Price of such Securities on the
Optional Repurchase Date or Change in Control Purchase Date, as the case may
be, then, on and after such date and as set forth in the Indenture, such
Securities shall cease to be Outstanding and interest on such Securities shall
cease to accrue, and all other rights of the Holder shall terminate (other than
the right to receive the Optional Repurchase Price or Change in Control
Purchase Price upon delivery or transfer of the Securities).


 


6.                                       CONVERSION


 


The Securities shall be
convertible into the consideration specified in the Indenture at such times,
upon compliance with such conditions and upon the terms set forth in the
Indenture.


 


The initial Conversion
Rate shall be               
shares of Common Stock per $1,000 principal amount of Securities, subject to
adjustment in certain circumstances as specified in the Indenture.  Securities tendered for conversion by a
Holder after the close of business on any Regular Record Date for an interest
payment and on or prior to the corresponding Interest Payment Date must be
accompanied by payment of an amount equal to the interest that such Holder is
to receive on such Securities on such Interest Payment Date; provided, however, that no such payment of
interest shall be required (1) if such Securities have been called for
redemption on a Redemption Date that is after such Regular Record Date and on
or prior to such Interest Payment Date, (2) if a Change in Control
Redemption Date has been scheduled that is after such Regular Record Date and
on or prior to such Interest Payment Date, or (3) with respect to overdue
interest, if any overdue interest exists at the time of conversion with respect
to such Securities.


 


The Conversion Rate
applicable to each Security in respect of which a notice of conversion is
received by the Conversion Agent from and including the Effective Date of a
Change in Control resulting from a transaction described in clauses (1) through
(4) of the definition of Change in Control up to and including the 30th
Business Day following the Effective Date of such Change in Control shall be
increased as specified in the Indenture.


 


To convert this Security if
this Security is in book-entry form, the Holder must convert by book-entry
transfer to the Conversion Agent through the facilities of DTC and the
conversion notice must comply with all applicable DTC procedures.  To convert this Security if this Security is
held in certificated form, the Holder must (a) complete and manually sign
the conversion notice set forth below (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent at
the office maintained by the Conversion Agent for such purpose, (b) surrender
such Security to the Conversion Agent, (c) furnish appropriate


 


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endorsements and transfer
documents if required by the Conversion Agent and (d) pay any transfer or
similar tax, if required. The date on which the Holder satisfies all such
requirements shall be deemed to be the date on which this Security shall have
been tendered for conversion.


 


If the Holder has
delivered an Optional Repurchase Notice or a Change in Control Purchase Notice
requiring the Company to repurchase all or a portion of this Security pursuant
to paragraph 5 hereof, then this Security (or portion hereof subject to such
Optional Repurchase Notice or Change in Control Purchase Notice) may be
converted only if the Optional Repurchase Notice or Change in Control Purchase
Notice is withdrawn in accordance with the terms of the Indenture.


 


7.                                       RANKING


 


The Securities are senior
unsecured obligations of the Company and shall rank pari passu in right of
payment with all other senior unsecured indebtedness of the Company from time
to time outstanding.


 


8.                                       DEFAULTED INTEREST


 


Except as otherwise
specified herein or in the Indenture, any defaulted Interest on this Security
shall forthwith cease to be payable to the Holder hereof on the relevant
Interest Payment Date by virtue of having been paid to such Holder, and such
defaulted Interest may be paid by the Company as provided for in Section 5.01
of the Indenture.


 


9.                                       DENOMINATIONS; TRANSFER; EXCHANGE


 


This Security is issuable
only in fully registered, book-entry form, in denominations of $1,000 and
integral multiples thereof.  This
Security may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations at the office or agency of the Company or in
the manner and subject to the limitations provided herein and in the Indenture,
but without the payment of any charge except for any tax or other governmental
charge imposed in connection therewith. 
Upon due presentment for registration of transfer of this Security at
the office or agency of the Company, one or more new Securities of authorized
denominations in an equal aggregate principal amount will be issued to the
transferee in exchange therefor, and bearing such restrictive legends as may be
required by the Indenture, but without payment of any charge except for any tax
or other governmental charge imposed in connection therewith.  In the event of any redemption in part, the
Company shall not be required to:  (i) issue
or register the transfer or exchange of any Security during a period beginning
at the opening of business 15 days before any selection of Securities for
redemption 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 Securities to be so redeemed, or (ii) register the transfer or exchange
of any Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part.


 


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10.                                 PERSONS DEEMED OWNERS


 


The Holder of this
Security may be treated as the owner of this Security for all purposes, and
none of the Company or the Trustee nor any authorized agent of the Company or
the Trustee shall be affected by any notice to the contrary, except as required
by law.


 


11.                                 MODIFICATION AND AMENDMENT; WAIVER


 


The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in the aggregate
principal amount of all Outstanding Securities affected thereby (voting
together as a single class).  The
Indenture also provides that certain amendments or modifications may not be
made without the consent of each Holder to be affected thereby.  Furthermore, provisions in the Indenture
permit the Holders of a majority in the aggregate principal amount of the
Outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the Holders of Securities of such series, certain past defaults under
the Indenture and their consequences. 
Any such waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and other
Securities issued upon the registration of transfer hereof or in exchange
hereof, or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.


 


12.                                 DEFAULTS AND REMEDIES


 


The Indenture sets forth
events that constitute an Event of Default under the Indenture.  If an Event of Default shall occur and be
continuing, there may be declared due and payable the principal amount
(together with accrued and unpaid interest) on the Securities in the manner and
with the effect provided in the Indenture. 
If certain bankruptcy or insolvency events occur and continue with
respect to the Company or a Significant Subsidiary, the Securities shall
automatically become due and payable in accordance with the terms of the
Indenture.


 


13.                                 CONSOLIDATION, MERGER, AND SALE OF ASSETS


 


In the event of a
consolidation or merger of the Company or a sale, lease or conveyance of all or
substantially all of the assets of the Company as described in Article 6
of the Indenture the successor entity to the Company shall succeed to and be
substituted for the Company and may exercise the rights and powers of the
Company under the Indenture, and thereafter, except in the case of a lease, the
Company shall be relieved of all obligations and covenants under the Indenture
and the Securities.


 


14.                                 TRUSTEE AND AGENT DEALINGS WITH THE
COMPANY


 


Subject to the TIA, the
Trustee, Paying Agent, Conversion Agent and Registrar under the Indenture, each
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by
the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee, Paying
Agent, Conversion Agent or Registrar.


 


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15.                                 CALCULATIONS IN RESPECT OF THE SECURITIES


 


Except as otherwise
specifically stated herein or in the Indenture, all calculations to be made in
respect of the Securities shall be the obligation of the Company.  All calculations made by the Company or its
agent as contemplated pursuant to the terms hereof and of the Indenture shall
be final and binding on the Company and the Holders absent manifest error.  The Company shall provide a schedule of
calculations to the Trustee, and the Trustee shall be entitled to rely upon the
accuracy of the calculations by the Company without independent
verification.  The Trustee shall forward
calculations made by the Company to any Holder of Securities upon request.


 


16.                                 GOVERNING LAW


 


The Indenture and this
Security shall be governed by and construed in accordance with the internal
laws of the State of New York.


 


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ASSIGNMENT FORM


 


To assign this Security,
fill in the form below:


 


I or we assign and
transfer this Security to


 


	
   

  	
   

  	
   

  



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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



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


 


and irrevocably appoint


 


	
   

  	
   

  	
   

  



agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him or her.


 


	
   

  	
  Your Signature

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  (Sign exactly as your
  name appears on the other side of this Security)

  
	
   

  	
   

  
	
  * Signature guaranteed
  by:

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  



 






*                 The signature must be guaranteed by an institution
which is a member of one of the following recognized signature guaranty programs:  (i) the Securities Transfer Agent
Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion
Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such
other guaranty program acceptable to the Trustee.


 


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CONVERSION NOTICE


 


To convert this Security
into Common Stock of the Company, check the box:


 


To convert only part of
this Security, state the principal amount to be converted (must be $1,000 or a
integral multiple of $1,000): 
$              .


 


If you want the stock
certificate made out in another person’s name, fill in the form below:


 


	
   

  	
   

  	
   

  



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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



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


 


	
   

  	
  Your Signature

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  (Sign exactly as your
  name appears on the other side of this Security)

  
	
   

  	
   

  
	
  * Signature guaranteed
  by:

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  



 






*                 The signature must be guaranteed by an institution
which is a member of one of the following recognized signature guaranty
programs:  (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program
(SEMP); or (iv) such other guaranty program acceptable to the Trustee.


 


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SCHEDULE OF
EXCHANGES OF SECURITIES(1)


 


The following exchanges,
purchase, redemptions, purchases or conversions of a part of this Global
Security have been made:


 


	
  Principal
  Amount of this

  Global Security

  Following Such Decrease

  Date of Exchange (or

  Increase)

  	
   

  	
  Authorized Signatory of

  Securities Custodian

  	
   

  	
  Amount of Decrease in

  Principal Amount of this

  Global Security

  	
   

  	
  Amount of Increase in

  Principal Amount of this

  Global Security

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)                                  This schedule should be included only if
the Security is a Global Security.


 


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