Exhibit 4.1



 








EXHIBIT 4.1




THE TOWN AND COUNTRY TRUST,




AND






THE BANK OF NEW YORK,




as Trustee






FIRST SUPPLEMENTAL INDENTURE




Dated as of December 1, 2005





 









 








     FIRST SUPPLEMENTAL INDENTURE, dated as of December 1, 2005, among The Town and Country
Trust, a Maryland real estate investment trust (the “Company”) and The Bank of New York, a New
York banking corporation, as trustee (herein called the “Trustee”). Terms not defined herein
shall have the meanings assigned to them in the Indenture (as defined below).



RECITALS OF THE COMPANY




     WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of August 4,
2003 (the “Indenture”), relating to the Company’s 5.375% Convertible Senior Notes due 2023 (the
“Notes”);



     WHEREAS, Section 10.01 of the Indenture provides that the Company, when authorized by a
Board Resolution, and the Trustee may enter into a supplemental indenture, without the consent
of any Holder, to, among other things, make a correction to or cure any ambiguity in the
Indenture or to make any change that does not adversely affect the rights of any holder of the
Notes under the Indenture; and



     WHEREAS, the Company has determined that this First Supplemental Indenture complies with
Section 10.01 of the Indenture and does not require the consent of any Holders and, on the
basis of the foregoing, the Trustee acknowledges that this First Supplemental Indenture is in
form satisfactory to it.



     NOW, THEREFORE, for and in consideration of the premises, it is mutually covenanted and
agreed, for the equal and ratable benefit of the Holders, as follows:



ARTICLE I




AMENDMENT OF INDENTURE




     SECTION 1.1. Amendment. Section 14.05(e) of the Indenture is hereby amended by
the deletion of the first clause of the first sentence thereof and the substitution therefor of
“In case the Company shall make cash distributions on its Common Shares in any fiscal quarter
in excess of $0.43 per Common Share (appropriately adjusted for any share dividends on or
subdivisions or combinations of the Common Shares),...”.



 









 





ARTICLE II




ACCEPTANCE OF SUPPLEMENTAL INDENTURE




     SECTION 2.1. Trustee’s Acceptance. The Trustee hereby accepts this First
Supplemental Indenture and agrees to perform the same under the terms and conditions set forth
in the Indenture.



ARTICLE III




GENERAL PROVISIONS




     SECTION 3.1. Effect of Supplemental Indenture. On the date hereof, the Indenture
shall be supplemented and amended in accordance herewith, and this First Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter
authenticated and delivered under the Indenture shall be bound thereby.



     SECTION 3.2. Indenture Remains in Full Force and Effect. Except as supplemented
and amended hereby, all provisions in the Indenture shall remain in full force and effect.



     SECTION 3.3. Incorporation of Indenture. All the provisions of this First
Supplemental Indenture shall be deemed to be incorporated in, and made a part of, the
Indenture; and the Indenture, as supplemented and amended by this First Supplemental Indenture,
shall be read, taken and construed as one and the same instrument.



     SECTION 3.4. Headings. The headings of the Articles and Sections of this First
Supplemental Indenture are inserted for convenience of reference and shall not be deemed to be
a part thereof.



     SECTION 3.5. Counterparts. This First Supplemental Indenture maybe executed in
any number of counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.



     SECTION 3.6. Confirmation and Preservation of Indenture. The Indenture as
supplemented by this First Supplemental Indenture is in all respects confirmed and preserved.



     SECTION 3.7. Conflict with Trust Indenture Act. If any provision of this First
Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture
Act that is required under the Trust Indenture Act to be part of and govern any provision of
this First Supplemental Indenture, the provision of the Trust Indenture Act shall control. If
any provision of this First Supplemental Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the provision of the Trust Indenture
Act shall be deemed to apply to the Indenture as so modified or to be excluded by this First
Supplemental Indenture, as the case may be.



 









 





     SECTION 3.8. Successors. All covenants and agreements in this First Supplemental
Indenture by the Company shall be binding upon and accrue to benefit of their respective
successors. All covenants and agreements in this First Supplemental Indenture by the Trustee
shall be binding upon and accrue to the benefit of its successors.



     SECTION 3.9. Separability Clause. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.



     SECTION 3.10. Trustee Not Responsible for Recitals. The recitals contained
herein shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to, and shall
not be responsible for, the validity or sufficiency of this First Supplemental Indenture.



     SECTION 3.11. Certain Duties and Responsibilities of the Trustee. In entering
into this First Supplemental Indenture, the Trustee shall be entitled to the benefit of every
provision of the Indenture relating to the conduct or affecting the liability or affording
protection to the Trustee, whether or not elsewhere herein so provided.



     SECTION 3.12. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.



[Remainder of page intentionally blank.]




 









 






     IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed, all as of the day and year first above written.



	 	 	 	 	 	 
	 	 	THE TOWN AND COUNTRY TRUST


	 

	 	By:
	 	/s/ Daniel G. Berick
	 

	 	 	 	 
	 

	 	 	 	Name: Daniel G. Berick

Title: Secretary


	 	 	THE BANK OF NEW YORK, as Trustee


	 

	 	By:
	 	/s/ Patricia Gallagher
	 

	 	 	 	 
	 

	 	 	 	Name: Patricia Gallagher

Title: Vice President