exv4w18






Exhibit 4.18




FORM OF INDENTURE




GLADSTONE COMMERCIAL CORPORATION



 





INDENTURE



Dated as of [•], 2010



 





[•]



Trustee



 










 









 








CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.06
	(b)
	 	12.03
	(c)
	 	12.03
	313(a)
	 	7.06
	(b)(2)
	 	7.06; 7.07
	(c)
	 	7.06; 12.02
	(d)
	 	7.06
	314(a)
	 	4.03; 12.02; 12.05
	(c)(1)
	 	12.04
	(c)(2)
	 	12.04
	(c)(3)
	 	N.A.
	(e)
	 	12.05
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05, 12.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	(c)
	 	2.13
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.05
	318(a)
	 	12.01
	(b)
	 	N.A.
	(c)
	 	12.01








 




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





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1.

	DEFINITIONS AND INCORPORATION

	BY REFERENCE

	 
	 	 	 	 
	Section 1.01 Definitions

	 	 	1	 
	Section 1.02 Other Definitions

	 	 	6	 
	Section 1.03 Incorporation by Reference of Trust Indenture Act

	 	 	6	 
	Section 1.04 Rules of Construction

	 	 	7	 
	 
	 	 	 	 
	ARTICLE 2.

	THE SECURITIES

	 
	 	 	 	 
	Section 2.01 Issuable in Series

	 	 	7	 
	Section 2.02 Establishment of Terms of Series of Securities

	 	 	7	 
	Section 2.03 Execution and Authentication

	 	 	10	 
	Section 2.04 Registrar and Paying Agent

	 	 	11	 
	Section 2.05 Paying Agent to Hold Money in Trust

	 	 	11	 
	Section 2.06 Holder Lists

	 	 	11	 
	Section 2.07 Transfer and Exchange

	 	 	12	 
	Section 2.08 Replacement Securities

	 	 	12	 
	Section 2.09 Outstanding Securities

	 	 	12	 
	Section 2.10 Treasury Securities

	 	 	13	 
	Section 2.11 Temporary Securities

	 	 	13	 
	Section 2.12 Cancellation

	 	 	13	 
	Section 2.13 Defaulted Interest

	 	 	13	 
	Section 2.14 Global Securities

	 	 	14	 
	Section 2.15 CUSIP Numbers

	 	 	15	 
	 
	 	 	 	 
	ARTICLE 3.

	REDEMPTION AND PREPAYMENT

	 
	 	 	 	 
	Section 3.01 Notices to Trustee

	 	 	15	 
	Section 3.02 Selection of Securities to Be Redeemed or Purchased

	 	 	15	 
	Section 3.03 Notice of Redemption

	 	 	16	 
	Section 3.04 Effect of Notice of Redemption

	 	 	17	 
	Section 3.05 Deposit of Redemption or Purchase Price

	 	 	17	 
	Section 3.06 Securities Redeemed or Purchased in Part

	 	 	17	 
	 
	 	 	 	 
	ARTICLE 4.

	COVENANTS

	 
	 	 	 	 
	Section 4.01 Payment of Securities

	 	 	18	 
	Section 4.02 Maintenance of Office or Agency

	 	 	18	 
	Section 4.03 Reports

	 	 	18	 
	Section 4.04 Compliance Certificate

	 	 	19	 
	Section 4.05 Taxes

	 	 	19	 
	Section 4.06 Stay, Extension and Usury Laws

	 	 	20	 
	Section 4.07 Corporate Existence

	 	 	20	 






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	 	 	Page
	ARTICLE 5.

	SUCCESSORS

	 
	 	 	 	 
	Section 5.01 Merger, Consolidation, or Sale of Assets

	 	 	20	 
	Section 5.02 Successor Person Substituted

	 	 	21	 
	 
	 	 	 	 
	ARTICLE 6.

	DEFAULTS AND REMEDIES

	 
	 	 	 	 
	Section 6.01 Events of Default

	 	 	21	 
	Section 6.02 Acceleration

	 	 	22	 
	Section 6.03 Other Remedies

	 	 	23	 
	Section 6.04 Waiver of Past Defaults

	 	 	23	 
	Section 6.05 Control by Majority

	 	 	23	 
	Section 6.06 Limitation on Suits

	 	 	24	 
	Section 6.07 Rights of Holders of Securities to Receive Payment

	 	 	24	 
	Section 6.08 Collection Suit by Trustee

	 	 	24	 
	Section 6.09 Trustee May File Proofs of Claim

	 	 	24	 
	Section 6.10 Priorities

	 	 	25	 
	Section 6.11 Undertaking for Costs

	 	 	25	 
	 
	 	 	 	 
	ARTICLE 7.

	TRUSTEE

	 
	 	 	 	 
	Section 7.01 Duties of Trustee

	 	 	26	 
	Section 7.02 Rights of Trustee

	 	 	27	 
	Section 7.03 Individual Rights of Trustee

	 	 	27	 
	Section 7.04 Trustee’s Disclaimer

	 	 	28	 
	Section 7.05 Notice of Defaults

	 	 	28	 
	Section 7.06 Reports by Trustee to Holders of the Securities

	 	 	28	 
	Section 7.07 Compensation and Indemnity

	 	 	28	 
	Section 7.08 Replacement of Trustee

	 	 	29	 
	Section 7.09 Successor Trustee by Merger, etc.

	 	 	30	 
	Section 7.10 Eligibility; Disqualification

	 	 	30	 
	Section 7.11 Preferential Collection of Claims Against Company

	 	 	30	 
	 
	 	 	 	 
	ARTICLE 8.

	LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance

	 	 	31	 
	Section 8.02 Legal Defeasance and Discharge

	 	 	31	 
	Section 8.03 Covenant Defeasance

	 	 	31	 
	Section 8.04 Conditions to Legal or Covenant Defeasance

	 	 	32	 
	Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions

	 	 	33	 
	Section 8.06 Repayment to Company

	 	 	33	 
	Section 8.07 Reinstatement

	 	 	34	 
	 
	 	 	 	 
	ARTICLE 9.

	AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 
	Section 9.01 Without Consent of Holders of Securities

	 	 	34	 
	Section 9.02 With Consent of Holders of Securities

	 	 	35	 
	Section 9.03 Compliance with Trust Indenture Act

	 	 	37	 
	Section 9.04 Revocation and Effect of Consents

	 	 	37	 






ii 









 






	 	 	 	 	 
	 	 	Page
	Section 9.05 Notation on or Exchange of Securities

	 	 	37	 
	Section 9.06 Trustee to Sign Amendments, etc.

	 	 	37	 
	 
	 	 	 	 
	ARTICLE 10.

	GUARANTEES

	 
	 	 	 	 
	Section 10.01 Guarantees

	 	 	37	 
	Section 10.02 Limitation on Guarantor Liability

	 	 	38	 
	Section 10.03 Execution and Delivery of Security Guarantee

	 	 	39	 
	Section 10.04 Guarantors May Consolidate, etc., on Certain Terms

	 	 	39	 
	Section 10.05 Releases Following Sale of Assets

	 	 	40	 
	 
	 	 	 	 
	ARTICLE 11.

	SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	Section 11.01 Satisfaction and Discharge

	 	 	40	 
	Section 11.02 Application of Trust Money

	 	 	41	 
	 
	 	 	 	 
	ARTICLE 12.

	MISCELLANEOUS

	 
	 	 	 	 
	Section 12.01 Trust Indenture Act Controls

	 	 	42	 
	Section 12.02 Notices

	 	 	42	 
	Section 12.03 Communication by Holders of Securities with Other Holders of Securities

	 	 	43	 
	Section 12.04 Certificate and Opinion as to Conditions Precedent

	 	 	43	 
	Section 12.05 Statements Required in Certificate or Opinion

	 	 	43	 
	Section 12.06 Rules by Trustee and Agents

	 	 	44	 
	Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders

	 	 	44	 
	Section 12.08 Governing Law

	 	 	44	 
	Section 12.09 No Adverse Interpretation of Other Agreements

	 	 	44	 
	Section 12.10 Successors

	 	 	44	 
	Section 12.11 Severability

	 	 	44	 
	Section 12.12 Counterpart Originals

	 	 	44	 
	Section 12.13 Table of Contents, Headings, etc.

	 	 	44	 






iii 









 





     INDENTURE dated as of [•], 2010 between Gladstone Commercial Corporation, a Maryland
corporation, the Guarantors (as defined herein) and [•], as trustee.



     The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders (as defined herein) of the Securities issued under
this Indenture:



ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE



Section 1.01 Definitions “Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified therein and which are owing to such Holders.




     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to
be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” have correlative meanings.



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



     “Authentication Order” means a written order signed in the name of the Company by an Officer.



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



     “Board of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been adopted by the Board of Directors or pursuant to
authorization by the Board of Directors and to be in full force and effect on the date of the
certificate and delivered to the Trustee.



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



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



     “Capital Stock” means:




     (1) in the case of a corporation, corporate stock;




     (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;



1









 






     (3) in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and




     (4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.



     “Company” means Gladstone Commercial Corporation, a Maryland corporation, and any and all
successors thereto.



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



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



     “Depositary” means, with respect to the Securities issuable or issued in whole or in part in
global form, the Person specified in Section 2.02 hereof as the Depositary with respect to the
Securities, and any and all successors thereto appointed as depositary hereunder and having become
such pursuant to the applicable provision of this Indenture.



     “Discount Security” means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession as amended and/or modified from time to time.



     “Global Securities” means a Security or Securities, as the case may be, in the form
established pursuant to Section 2.02 evidencing all or part of a Series of Securities, issued to
the Depositary for such Series or its nominee, and registered in the name of such Depositary or
nominee.



     “Government Securities” means securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the United States government
(provided that the full faith and credit of the United States is pledged in support of those
securities), and additionally, in respect of any Series of Securities denominated in other than
United States dollars, securities issued or directly and fully guaranteed or insured by the
government in whose currencies such Series of Securities are denominated (which in the case of the
Euro shall be deemed to include any government whose functional currency is the Euro).



     “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection or deposit in the ordinary course of business, direct or indirect, in any manner
including, without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Indebtedness.



     “Guarantors” means each of:



2









 






     (1) the guarantors listed on the signature pages hereto; and




     (2) any other Subsidiary that executes a Security Guarantee in accordance with the
provisions of this Indenture,


and their respective successors and assigns.




     “Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person under:




     (1) interest rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements;




     (2) other agreements or arrangements designed to manage interest rates or interest rate
risk; and




     (3) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange rates or commodity prices.



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



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




     (1) in respect of borrowed money;




     (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit
or reimbursement agreements in respect thereof (other than reimbursement obligations with
respect to letters of credit securing obligations (other than obligations described in (1),
(2) (other than letters of credit), (3), (4), (5) or (6)) entered into in the ordinary
course of business of such Person to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later than the third
Business Day following receipt by such Person of a demand for reimbursement following
payment on the letter of credit);




     (3) in respect of banker’s acceptances;




     (4) representing Capital Lease Obligations;




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




     (6) representing any Hedging Obligations,


if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified
Person of any indebtedness of any other Person.




     The amount of any Indebtedness outstanding as of any date will be:



3









 






     (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;




     (2) the principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other Indebtedness; and




     (3) with respect to Hedging Obligations, the amount of Indebtedness required to be
recorded as a liability in accordance with GAAP.



     “Indenture” means this instrument as amended and supplemented from time to time by one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular Series of Securities established as contemplated by Section 2.02;
provided, however, that, if at any time more than one Person is acting as Trustee under this
instrument, “Indenture” shall mean, with respect to any one or more Series of Securities for which
such Person is Trustee, this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the or those particular Series of
Securities for which such Person is Trustee established as contemplated by Section 2.02, exclusive,
however, of any provisions or terms which relate solely to other Series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become Trustee but to which such Person, as such Trustee, was
not a party.



     “interest” with respect to any Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or in Philadelphia, Pennsylvania or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue on such payment for the intervening period.



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



     “Maturity,” when used with respect to any Security or installment of principal thereof, means
the date on which the principal of such Security or such installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, notice of option to elect repayment or otherwise.



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



     “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any
Vice-President of such Person.



4









 





     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Sections 12.04 and 12.05 hereof.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Sections 12.04 and 12.05 hereof. The counsel may be an
employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.



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



     “principal” of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.



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



     “SEC” means the Securities and Exchange Commission.



     “Securities” means the debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this Indenture.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Security Guarantee” means the guarantee of any Series of Securities by a Guarantor under
Article 10.



     “Series” or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.01 and 2.02 hereof.



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



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



     “Subsidiary” means, with respect to any specified Person:




     (1) any corporation, association 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) to vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and



5









 






     (2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination
thereof).



     “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the
date on which this Indenture is qualified under the TIA; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any
such amendment, the Trust Indenture Act of 1939 as so amended.



     “Trustee” means the Person named as the “trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” as
used with respect to the Securities of or within any Series shall mean only the Trustee with
respect to the Securities of that Series.



     “U.S. Legal Tender” means such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts.



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



Section 1.02 Other Definitions




	 	 	 
	 	 	Defined in
	Term	 	Section
	“Covenant Defeasance”
	 	8.03
	“Event of Default”
	 	6.01
	“Legal Defeasance”
	 	8.02
	“Paying Agent”
	 	2.04
	“Registrar”
	 	2.04






Section 1.03 Incorporation by Reference of Trust Indenture Act




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



     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 Securities means the Company and any successor obligor upon the Securities.



     All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.



6









 





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) “or” is not exclusive;




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




     (5) “will” shall be interpreted to express a command;




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




     (7) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time.



ARTICLE 2.

THE SECURITIES




Section 2.01 Issuable in Series




     The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities
of a Series shall be identical except as may be set forth in the Board Resolution, supplemental
indenture or Officers’ Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a Series to be issued
from time to time, the Board Resolution, Officers’ Certificate or supplemental indenture may
provide for the method by which specified terms (such as interest rate, maturity date, record date
or date from which interest shall accrue) are to be determined. All Series of Securities shall be
entitled to the benefits of the Indenture, provided that Securities may differ between Series in
respect of any matters as provided by the Board Resolution, supplemental indenture or Officers’
Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a
Board Resolution.



Section 2.02 Establishment of Terms of Series of Securities




     At or prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Subsection 2.02(a) and either as to such
Securities within the Series or as to the Series generally in the case of Subsections 2.02(b)
through 2.02(v)) by a Board Resolution, a supplemental indenture or an Officers’ Certificate
pursuant to authority granted under a Board Resolution:



     (a) the title of the Series (which shall distinguish the Securities of that particular Series
from the Securities of any other Series);



     (b) the price or prices (expressed as a percentage of the principal amount thereof) at which
the Securities of the Series will be issued;



7









 





     (c) any limit upon the aggregate principal amount of the Securities of the Series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series
pursuant to Section 2.07, 2.08, 2.11, 3.06 or 9.05);



     (d) the date or dates or the method by which such date or dates will be determined on which
the principal of the Securities of the Series is payable;



     (e) the rate or rates (which may be fixed or variable) per annum or, if applicable, the method
used to determine such rate or rates, at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date or dates on which
such interest, if any, shall commence and be payable and any regular record date for the interest
payable on any interest payment date and the basis upon which interest shall be calculated if other
than that of a 360-day year consisting of twelve 30-day months;



     (f) the place or places where the principal of and interest, if any, on the Securities of the
Series shall be payable, or the method of such payment, if by wire transfer, mail or other means;



     (g) if applicable, the period or periods within which, the price or prices at which and the
terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part,
at the option of the Company;



     (h) the obligation, if any, of the Company to redeem or purchase the Securities of the Series
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the terms and conditions upon
which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;



     (i) the dates, if any, on which and the price or prices at which the Securities of the Series
will be repurchased by the Company at the option of the Holders thereof and other detailed terms
and provisions of such repurchase obligations;



     (j) if other than denominations of $1,000 and any integral multiple thereof, the denominations
in which the Securities of the Series shall be issuable;



     (k) the forms of the Securities of the Series and whether the Securities will be issuable as
Global Securities;



     (l) if other than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02;



     (m) if other than United States dollars, the currency of denomination of the Securities of the
Series;



     (n) if other than United States dollars, the designation of the currency, currencies or
currency units in which payment of the principal of and interest, if any, on the Securities of the
Series will be made;



     (o) if payments of principal of or interest, if any, on the Securities of the Series are to be
made in one or more currencies or currency units other than that or those in which such Securities
are denominated, the manner in which the exchange rate with respect to such payments will be
determined;



8









 





     (p) the manner in which the amounts of payment of principal of or interest, if any, on the
Securities of the Series will be determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a commodity, commodity index, stock
exchange index or financial index;



     (q) the provisions, if any, relating to any security provided for the Securities of the
Series;



     (r) the provisions, if any, relating to any guarantees of the Securities of the Series;



     (s) any addition to or change in the Events of Default which applies to any Securities of the
Series and any change in the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section 6.02;



     (t) any addition to or change in the covenants set forth in Articles IV or V which applies to
Securities of the Series;



     (u) any other terms of the Securities of the Series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 9.01, but which may modify or
delete any provision of this Indenture insofar as it applies to such Series);



     (v) any trustees, depositories, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to Securities of such Series if other than those appointed
herein; and



     (w) the date as of which any temporary Global Security representing Outstanding Securities of
or within the Series shall be dated if other than the date of original issuance of the first
Security of the Series to be issued;



     (x) the applicability, if any, of Sections 8.02 and/or 8.03 to the Securities of or within the
Series and any provisions in modification of, in addition to or in lieu of any of the provisions of
Article Eight;



     (y) if the Securities of such Series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such Series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, then the form and/or
terms of such certificates, documents or conditions;



     (z) if the Securities of or within the Series are to be issued upon the exercise of debt
warrants, the time, manner and place for such Securities to be authenticated and delivered;



     (aa) whether and under what circumstances the Company will pay Additional Amounts on the
Securities of or within the Series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to redeem such Securities rather than
pay such Additional Amounts (and the terms of any such option);



     (bb) the obligation, if any, of the Company to permit the Securities of such Series to be
converted into or exchanged for common stock of the Company or other Securities or property of the
Company and the terms and conditions upon which such conversion or exchange shall be effected
(including, without limitation, the initial conversion or exchange price or rate, the conversion or
exchange period, any adjustment of the applicable conversion or exchange price or rate and any
requirements relative to the reservation of such shares for purposes of conversion or exchange);



9









 





     (cc) if convertible or exchangeable, any applicable limitations on the ownership or
transferability of the Securities or property into which such Securities are convertible or
exchangeable; and



     (dd) the applicability, if any, of Article 10 or the Security Guarantee to the Securities of
or within the Series and any provisions in modification, in addition to or in lieu of any of the
provisions of Article 10 or any Security Guarantee.



     All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture or Officers’ Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers’ Certificate.



Section 2.03 Execution and Authentication




     An Officer must sign the Securities for the Company by manual or facsimile signature.



     If an Officer whose signature is on a Security no longer holds that office at the time a
Security is authenticated, the Security will nevertheless be valid.



     A Security will not be valid until authenticated by the manual signature of the Trustee. The
signature will be conclusive evidence that the Security has been authenticated under this
Indenture.



     The Trustee shall at any time, and from time to time, authenticate Securities of a Series for
original issue in the principal amount provided in the Board Resolution, supplemental indenture
hereto or Officers’ Certificate described in Section 2.02 with respect to such Series upon receipt
by the Trustee of an Authentication Order. Such Authentication Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized
agent or agents, which oral instructions shall be promptly confirmed in writing. Each Security
shall be dated the date of its authentication unless otherwise provided by the Board Resolution,
supplemental indenture hereto or Officers’ Certificate described in Section 2.02 with respect to
such Series.



     The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section
2.02, except as provided in Section 2.08.



     Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.02) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of
that Series or of Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers’ Certificate complying with Section 12.04 and
stating that all conditions precedent provided for in this Indenture relating to the authentication
and delivery of Securities of such Series have been complied with, and (c) an Opinion of Counsel
complying with Section 12.04 and stating that all conditions precedent
provided for in this Indenture relating to the authentication and delivery of Securities of
such Series have been complied with.



     The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken; or (b) if the Trustee in good faith by its board of directors or trustees, executive
committee or a



10









 







trust committee of directors and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any then outstanding Series of
Securities.



     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 has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.



Section 2.04 Registrar and Paying Agent
The Company will maintain with respect to each Series of Securities at the place or places
specified with respect to such Series pursuant to Section 2.02 an office or agency where Securities
of such Series may be presented for registration of transfer or for exchange (“Registrar”) and an
office or agency where Securities of such Series may be presented for payment (“Paying Agent”).
The Registrar will keep a register of the Securities of such Series and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent. The Company may change any Paying Agent or Registrar without notice to
any Holder. The Company will notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.



     If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or
Service Agent or shall fail to furnish the Trustee with the name and address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.



     The Company hereby appoints the Trustee as the initial Registrar, Paying Agent and Service
Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be,
is appointed prior to the time Securities of that Series are first issued.



Section 2.05 Paying Agent to Hold Money in Trust




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



Section 2.06 Holder Lists




     The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders of each Series of Securities and
shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will
furnish to the Trustee at



11









 







least seven Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of each Series of
Securities and the Company shall otherwise comply with TIA § 312(a).



Section 2.07 Transfer and Exchange
Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.05).



     Neither the Company nor the Registrar shall be required (a) to issue, register the transfer
of, or exchange Securities of any Series for the period beginning at the opening of business
fifteen days immediately preceding the mailing of a notice of redemption of Securities of that
Series selected for redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected, called or being
called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.



Section 2.08 Replacement Securities




     If any mutilated Security is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any Security, the
Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a
replacement Security of the same Series if the Trustee’s requirements are met. If required by the
Trustee or the Company, an affidavit of loss and indemnity bond must be supplied by the Holder that
is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer if a Security is
replaced. The Company may charge for its expenses in replacing a Security.



     Every replacement Security is an additional obligation of the Company and will be entitled to
all of the benefits of this Indenture equally and proportionately with all other Securities of the
same Series duly issued hereunder.



Section 2.09 Outstanding Securities




     The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest in a Global
Security effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.09 as not outstanding. Except as set forth in Section 2.10 hereof, a Security
does not cease to be outstanding because the Company or an Affiliate of the Company holds the
Security.



     If a Security is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Security is held by a protected
purchaser.



     If the principal amount of any Security is considered paid under Section 4.01 hereof, it
ceases to be outstanding and interest on it ceases to accrue.



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     If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Securities payable on that
date, then on and after that date such Securities will be deemed to be no longer outstanding and
will cease to accrue interest.



     In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02.



Section 2.10 Treasury Securities




     In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any direction, waiver or consent, Securities of such Series owned by the Company,
or by any Person directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any such direction,
waiver or consent, only Securities of such Series that the Trustee knows are so owned will be so
disregarded.



Section 2.11 Temporary Securities




     Until certificates representing Securities are ready for delivery, the Company may prepare and
the Trustee, upon receipt of an Authentication Order, will authenticate temporary Securities.
Temporary Securities will be substantially in the form of certificated Securities but may have
variations that the Company considers appropriate for temporary Securities and as may be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Securities of the same Series and date of maturity in exchange for
temporary Securities. After preparation of such definitive Securities, the temporary Securities
will be exchangeable for such definitive Securities upon surrender of the temporary Securities.



     Holders of temporary Securities will be entitled to all of the benefits of this Indenture.



Section 2.12 Cancellation




     The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and Paying Agent will forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else will cancel all Securities surrendered
for registration of transfer, exchange, payment, replacement or cancellation and will destroy
canceled Securities (subject to the record retention requirements of the Exchange Act).
Certification of the
destruction of all canceled Securities will be delivered to the Company. The Company may not
issue new Securities to replace Securities that it has paid or that have been delivered to the
Trustee for cancellation.



Section 2.13 Defaulted Interest




     If the Company defaults in a payment of interest on the Securities of a Series, it will pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders of the Securities of such Series on a subsequent
special record date, in each case at the rate provided in such Series of Securities and in Section
4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Security of such Series and the date of the proposed payment. The
Company will fix or cause to be



13









 




fixed each such special record date and payment date, provided that
no such special record date may be less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record date, the Company (or, upon the
written request of the Company, the Trustee in the name and at the expense of the Company) will
mail or cause to be mailed to Holders of Securities of such Series a notice that states the special
record date, the related payment date and the amount of such interest to be paid.




Section 2.14 Global Securities




     (a) Terms of Securities. The Board Resolution, supplemental indenture hereto or
Officers’ Certificate described in Section 2.02 with respect to a Series shall establish whether
the Securities of a Series shall be issued in whole or in part in the form of one or more Global
Securities and the Depositary for such Global Security or Securities.



     (b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained
in Section 2.07 of the Indenture and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.07 of the Indenture for Securities of the Series with respect to which such
Global Security was issued registered in the names of Holders other than the Depositary for such
Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time such Depositary ceases
to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails
to appoint a successor Depositary within 90 days of such event, (ii) the Company executes and
delivers to the Trustee an Officers’ Certificate to the effect that such Global Security shall be
so exchangeable or (iii) an Event of Default with respect to the Securities represented by such
Global Security shall have happened and be continuing. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as
the Depositary shall direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.



     Except as provided in this Section 2.14(b), a Global Security may not be transferred except as
a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by
a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such a successor
Depositary.



     (c) Legend. Any Global Security issued hereunder shall bear a legend in substantially
the following form:




“This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of
the Depositary or a nominee of the Depositary. 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 may not be transferred except as a whole by the
Depositary to a nominee of the Depositary, by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a
nominee of such a successor Depositary.”



     (d) Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under the Indenture.



14









 





     (e) Payments. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.02, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder thereof.



     (f) Consents, Declaration and Directions. Except as provided in Section 2.14(e), the
Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of
outstanding Securities of such Series represented by a Global Security as shall be specified in a
written statement of the Depositary with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the Holders pursuant to
this Indenture.



Section 2.15 CUSIP Numbers




     The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to 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 notice of a redemption and
that reliance may be placed only on the other elements of identification printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of such numbers.



ARTICLE 3.

REDEMPTION AND PREPAYMENT




Section 3.01 Notices to Trustee




     The Company may, with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such
Securities or in the Board Resolution, supplemental indenture or Officer’s Certificate described in
Section 2.02 with respect to such Series. If a Series of Securities is redeemable and the Company
wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of
Securities pursuant to the terms of such Securities, it must furnish to the Trustee, at least 45
days but not more than 60 days before a redemption date, an Officers’ Certificate setting forth:




     (1) the term of the applicable Series of Securities pursuant to which the redemption
shall occur;




     (2) the redemption date;




     (3) the principal amount of Securities of such Series to be redeemed; and




     (4) the redemption price.



Section 3.02 Selection of Securities to Be Redeemed or Purchased




     Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, if less than all of the Securities of a Series are to be
redeemed or purchased in an offer to purchase at any time, the Trustee will select Securities of
such Series for redemption or purchase as follows:



15









 






     (1) if the Securities of such Series are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange on which the
Securities of such Series are listed; or




     (2) if the Securities of such Series are not listed on any national securities
exchange, on a pro rata basis (based on amounts tendered), by lot or by such method as the
Trustee shall deem fair and appropriate.



     In the event of partial redemption or purchase by lot, the Securities of a Series to be
redeemed or purchased will be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption or purchase date by the Trustee from the outstanding
Securities of such Series not previously called for redemption or purchase.



     The Trustee will promptly notify the Company in writing of the Securities selected for
redemption or purchase and, in the case of any Security selected for partial redemption or
purchase, the principal amount thereof to be redeemed or purchased. Securities and portions of
Securities selected will be in amounts of the minimum authorized denomination for Securities of
that Series or integral multiples thereof; except that if all of the Series of Securities of a
Holder are to be redeemed or purchased, the entire outstanding amount of such Securities held by
such Holder, even if not an integral multiple of the minimum authorized denomination, shall be
redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture
that apply to Securities called for redemption or purchase also apply to portions of Securities
called for redemption or purchase.



Section 3.03 Notice of Redemption




     Unless otherwise indicated for a particular Series of Securities by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, at least 30 days but not more than 60 days
before a redemption date, the Company will mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Securities are to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge
of such Securities and this Indenture pursuant to Articles 8 or 11 of this Indenture.



     The notice will identify the Securities of the Series to be redeemed and will state:




     (1) the redemption date;




     (2) the redemption price;




     (3) if any Security of the Series is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the redemption date upon
surrender of
such Security, a new Security or Securities in principal amount equal to the unredeemed
portion will be issued upon cancellation of the original Security;




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




     (5) that Securities of the Series called for redemption must be surrendered to the
Paying Agent to collect the redemption price;



16









 






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




     (7) the Section of the Securities of the Series and/or Section of this Indenture
applicable to such Series pursuant to which the Securities of the Series called for
redemption are being redeemed; and




     (8) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Securities of the Series.



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company has delivered to the Trustee, at least 45
days prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided in the preceding
paragraph.



Section 3.04 Effect of Notice of Redemption




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



Section 3.05 Deposit of Redemption or Purchase Price




     Prior to 10:00 a.m. New York City time on the relevant redemption or purchase date, the
Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption or purchase price of and accrued interest, if any, on all Securities to be redeemed or
purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued interest, if any, on, all
Securities to be redeemed or purchased.



     If the Company complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest will cease to accrue on the Securities or the portions of
Securities called for redemption or purchase. If a Security is redeemed or purchased on or after
an interest record date but on or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Security was registered at the close
of business on such record date. If any Security called for redemption or purchase is not so paid
upon surrender for redemption or purchase because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or
purchase date until such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Securities and in Section 4.01
hereof.



Section 3.06 Securities Redeemed or Purchased in Part




     Upon surrender of a Security that is redeemed or purchased in part, the Company will issue
and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Company a new Security of the same Series equal in principal amount to the
unredeemed or unpurchased portion of the Security surrendered.



17









 





ARTICLE 4.

COVENANTS




Section 4.01 Payment of Securities




     The Company will pay or cause to be paid the principal of, premium, if any, and interest, on
each Series of Securities on the dates and in the manner provided for the Securities of such Series
by the Board Resolution, supplemental indenture or Officer’s Certificate establishing the terms of
such Series. Principal, premium, if any, and interest will be considered paid on the date due if
the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern
Time on the due date money deposited by the Company in immediately available funds in U.S. Legal
Tender and designated for and sufficient to pay all principal, premium, if any, and interest then
due. If the Company or Subsidiary is acting as Paying Agent, the Company shall, prior to 10:00
a.m. New York City time on the due date, segregate and hold in trust U.S. Legal Tender sufficient
to make payments of principal, premium and interest due on such date.



     Unless otherwise indicated for a Series of Securities in the Board Resolution, supplemental
indenture or Officer’s Certificate described in Section 2.02, the Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal,
and on overdue installments of interest (without regard to any applicable grace period), at the
rate equal to 1% per annum in excess of the then applicable interest rate on each Series of
Securities to the extent lawful. Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income
or other similar taxes imposed by the United States of America from principal or interest payments
hereunder.



Section 4.02 Maintenance of Office or Agency




     The Company will maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee, being [•], located at [•], or an
affiliate of the Trustee, Registrar or co-registrar) where Securities of each Series may be
surrendered for registration of transfer or for exchange and where notices and demands to or upon
the Company in respect of Securities of each Series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company fails to maintain any such required office or
agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities of each Series 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 will in any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, the City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.



     The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.04 hereof.



Section 4.03 Reports
(a) Whether or not required by the rules and regulations of the SEC, so long as Securities of
any Series are outstanding, the Company will file a copy of all of the information and



18









 







reports
referred to in clauses (1) and (2) below with the SEC for public availability within the time
periods specified in the SEC’s rules and regulations:




     (1) all quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to
file such forms, and, with respect to the annual information only, a report thereon by the
Company’s certified independent accountants; and




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


If the SEC will not accept a filing referred to above, then the Company will furnish such
information and reports to the Trustee and Holders within 15 days of the time periods specified in
the SEC’s rules and regulations, and make such information available to prospective investors upon
request. The Company will at all times comply with TIA § 314(a).




     (b) The Trustee shall not be under a duty to review or evaluate any report or information
delivered to the Trustee pursuant to the provisions of this Section 4.03 for the purposes of making
such reports available to it and to the Holders of Securities of any Series who may request such
information. Delivery of such reports, information and documents to the Trustee as may be required
under this Section 4.03 is for informational purposes only and the Trustee’s receipt of such shall
not constitute 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 4.04 Compliance Certificate




     (a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers’ Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture and further stating, as to each such Officer signing such
certificate, that to his or her knowledge after due inquiry the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default has occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is taking or proposes to
take with respect thereto) and that to his or her knowledge after due inquiry no event has occurred
and remains in existence by reason of which payments on account of the principal of or interest, if
any, on the Securities of any Series is prohibited or if such event has occurred, a description of
the event and what action the Company is taking or proposes to take with respect thereto.



     (b) So long as any of the Securities of any Series are outstanding, the Company will deliver
to the Trustee, promptly upon any Officer becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what action the Company
is taking or proposes to take with respect thereto.



Section 4.05 Taxes




     The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by



19









 







appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Securities of any Series.



Section 4.06 Stay, Extension and Usury Laws




     The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.



Section 4.07 Corporate Existence




     Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect:




     (1) its corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any such Subsidiary; and




     (2) the rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Subsidiaries, taken
as a whole, and that the loss thereof is not adverse in any material respect to the Holders
of the Securities of any Series.



ARTICLE 5.

SUCCESSORS




Section 5.01 Merger, Consolidation, or Sale of Assets




     The Company shall not consolidate with or merge into, or convey, transfer or lease all or
substantially all of its properties and assets to, any Person (a “Successor Person”), and may not
permit any Person to merge into, or convey, transfer or lease its properties and assets
substantially as an entirety to, the Company, unless:




     (1) the Successor Person (if any) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic jurisdiction and
expressly assumes the Company’s obligations on the Securities and under this Indenture and




     (2) immediately after giving effect to the transaction, no Default or Event of Default,
shall have occurred and be continuing.



     The Company shall deliver to the Trustee prior to the consummation of the proposed transaction
an Officers’ Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this Indenture.



20









 





Section 5.02 Successor Person Substituted




     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in a transaction that is
subject to, and that complies with the provisions of, Section 5.01 hereof, the Successor Person
formed by such consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall
refer instead to the Successor Person and not to the Company), 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; provided, however, that the predecessor Company shall not be relieved
from the obligation to pay the principal of and interest on the Securities except in the case of a
sale of all of the Company’s assets in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof.



ARTICLE 6.

DEFAULTS AND REMEDIES




Section 6.01 Events of Default




     “Event of Default,” wherever used herein with respect to Securities of any Series, means any
one of the following events, subject to any modifications, deletions or additions relating to any
Series of Securities, as provided in the establishing Board Resolution, supplemental indenture or
Officers’ Certificate for such Series:




     (1) the Company defaults for 30 days in the payment when due of interest on, any
Security of that Series;




     (2) the Company defaults in the payment when due (at Maturity) of the principal of, or
premium, if any, on any Security of that Series;




     (3) the Company fails to observe or perform any other covenant, representation,
warranty or other agreement in this Indenture (other than a covenant or warranty that has
been included in this Indenture solely for the benefit of Series of Securities other than
that Series) or the Securities of that Series for 60 consecutive days after notice to the
Company by the Trustee or the Holders of Securities of that Series of at least 25% in
aggregate principal amount of such Securities then outstanding voting as a single class;




     (4) a default occurs under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Subsidiaries), whether such Indebtedness or guarantee now exists, or
is created after the date of this Indenture, if that default:




     (A) is caused by a failure to pay principal of, or interest or premium, if any,
on such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment Default”); or




     (B) results in the acceleration of such Indebtedness prior to its express
maturity,



21









 






and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $25.0 million or more;




     (5) the Company or any Subsidiary that is a Significant Subsidiary or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary pursuant to
or within the meaning of Bankruptcy Law:




     (A) commences a voluntary case,




     (B) consents to the entry of an order for relief against it in an involuntary
case,




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




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




     (E) generally is not paying its debts as they become due; or




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




     (A) is for relief against the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary in an involuntary case;




     (B) appoints a custodian of the Company or any of its Significant Subsidiaries
or any group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary or for all or substantially all of the property of the Company or any of
its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary; or




     (C) orders the liquidation of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary;




and the order or decree remains unstayed and in effect for 60 consecutive days; or




     (7) any other Event of Default with respect to Securities of that Series, which is
specified in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with Section 2.02(s).



Section 6.02 Acceleration




     In the case of an Event of Default with respect to Securities of any Series at the time
outstanding specified in clause (5) or (6) of Section 6.01 hereof, with respect to the Company, any
Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, all outstanding Securities of such Series shall become
due and payable immediately without further action or notice. If any other Event of Default with
respect to Securities of any Series at the time outstanding occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the



22









 







then outstanding Securities of such
Series may declare all the Securities of such Series to be due and payable immediately.



     Upon any such declaration, the Securities of such Series shall become due and payable
immediately. The Holders of a majority in aggregate principal amount of the then outstanding
Securities of such Series by written notice to the Trustee may on behalf of all of the Holders of
Securities of such Series rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default with respect to
Securities of such Series (except nonpayment of principal, interest or premium that has become due
solely because of the acceleration) have been cured or waived.



Section 6.03 Other Remedies




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



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



Section 6.04 Waiver of Past Defaults




     Holders of not less than a majority in aggregate principal amount of the then outstanding
Securities of a Series by notice to the Trustee may on behalf of the Holders of all of the
Securities of such Series waive an existing Default or Event of Default with respect to such Series
and its consequences hereunder, except a continuing Default or Event of Default in the payment of
the principal of, premium, if any, or interest on, the Securities of such Series (including in
connection with any offer to purchase); provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Securities of such Series may rescind an
acceleration and its consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.



Section 6.05 Control by Majority




     Holders of a majority in principal amount of the then outstanding Securities of a Series may
direct the time, method and place of conducting any proceeding for exercising any remedy available
to the Trustee or exercising any trust or power conferred on it with respect to the Securities of
such Series.
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 other Holders of
Securities of such Series or that may involve the Trustee in personal liability. The Trustee shall
be entitled to take any other action deemed proper by the Trustee which is not inconsistent with
such direction or this Indenture.



23









 





Section 6.06 Limitation on Suits




     A Holder of a Security of any Series may pursue a remedy with respect to this Indenture or the
Securities of that Series only if:




     (1) such Holder of a Security of that Series has previously given to the Trustee
written notice of a continuing Event of Default with respect to Securities of that Series;




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




     (3) such Holder of a Security of that Series or Holders of Securities of that Series
offer and, if requested, provide to the Trustee indemnity satisfactory 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 and, if requested, the provision of indemnity; and




     (5) during such 60-day period the Holders of a majority in principal amount of the then
outstanding Securities of that Series do not give the Trustee a written direction
inconsistent with the request.



     A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of
a Security of the same Series or to obtain a preference or priority over another Holder of a
Security of the same Series.



Section 6.07 Rights of Holders of Securities to Receive Payment




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



Section 6.08 Collection Suit by Trustee




     If an Event of Default with respect to Securities of any Series specified in Section 6.01(1)
or (2) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of principal of, premium,
if any, and interest remaining unpaid on the Securities of that Series and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.



Section 6.09 Trustee May File Proofs of Claim




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Securities of any Series allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Securities of any Series), its creditors or
its property and shall be entitled and



24









 







empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the Holders may be entitled
to receive in such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of any Series or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.



Section 6.10 Priorities




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




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




     Second: to Holders of Securities in respect of which or for the benefit of which such
money has been collected for amounts due and unpaid on such Securities for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal, premium, if any
and interest, respectively; and




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



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



Section 6.11 Undertaking for Costs




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in 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, 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 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Security
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of
the then outstanding Securities of any Series.



25









 





ARTICLE 7.

TRUSTEE




Section 7.01 Duties of Trustee




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



     (b) Except during the continuance of an Event of Default with respect to any Series of
Securities:




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




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to the Trustee, the Trustee will
examine the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.



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




     (1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;




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




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



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



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



     (f) The Trustee will 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.



26









 





Section 7.02 Rights of Trustee




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



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



     (c) The Trustee may act through its attorneys and agents and will not be responsible for the
misconduct or negligence of any agent appointed with due care.



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



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



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



     (g) The Trustee shall not be deemed to have notice of any Default or Event of Default with
respect to any Series of Securities unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a Default or Event of
Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Series Securities governed by this Indenture with respect to which such Default or
Event of Default relates.



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



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



Section 7.03 Individual Rights of Trustee




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



27









 





Section 7.04 Trustee’s Disclaimer




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



Section 7.05 Notice of Defaults




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



Section 7.06 Reports by Trustee to Holders of the Securities




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



     (b) A copy of each report at the time of its mailing to the Holders of Securities of any
Series will be mailed by the Trustee to the Company and filed by the Trustee with the SEC and each
stock exchange on which the Securities of such Series are listed in accordance with TIA § 313(d).
The Company will promptly notify the Trustee when the Securities of any Series are listed on any
stock exchange.



Section 7.07 Compensation and Indemnity




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



     (b) The Company shall indemnify the Trustee against any and all losses, liabilities or
expenses incurred by it arising out of or in connection with the acceptance or administration of
its duties under this Indenture, including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in connection with the
exercise or performance of any of its



28









 




powers or duties hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith or willful misconduct. The Trustee will notify the
Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company will not relieve the Company of its obligations hereunder. The Company will defend the
claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the
Company will pay the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent will not be unreasonably withheld.




     (c) The obligations of the Company under this Section 7.07 will survive the satisfaction and
discharge of this Indenture.



     (d) To secure the Company’s payment obligations in this Section 7.07, the Trustee will have a
Lien prior to the Securities of each Series on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular Securities of a
Series. Such Lien will survive the satisfaction and discharge of this Indenture.



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(5) or (6) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.



     (f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.



Section 7.08 Replacement of Trustee




     (a) A resignation or removal of the Trustee and appointment of a successor Trustee with
respect to the Securities of one or more Series will become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section 7.08.



     (b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in principal amount of the then
outstanding Securities of a Series may remove the Trustee with respect to such Series by so
notifying the Trustee and the Company in writing. The Company may remove the Trustee with respect
to the Securities of one or more Series if:




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




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




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




     (4) the Trustee becomes incapable of acting.



     (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason with respect to the Securities of one or more Series, the Company will promptly appoint
a successor Trustee with respect to the Securities of that or those Series (it being understood
that any such successor Trustee may be appointed with respect to the Securities of one or more or
all of such Series and that at any time there shall be only one Trustee with respect to the
Securities of any Series). Within one year after a successor Trustee takes office, the Holders of
a majority in principal amount of the then



29









 




outstanding Securities of a Series may appoint a successor Trustee with respect to such Series
to replace the successor Trustee for such Series appointed by the Company.




     (d) If a successor Trustee for a Series does not take office within 60 days after the retiring
Trustee for such Series resigns or is removed, the retiring Trustee, the Company, or the Holders of
at least 10% in principal amount of the then outstanding Securities of such Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to such
Series.



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



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


Section 7.09 Successor Trustee by Merger, etc.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act will be the successor Trustee.



Section 7.10 Eligibility; Disqualification




     There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition.



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



Section 7.11 Preferential Collection of Claims Against Company




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



30









 





ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance




     If, pursuant to Section 2.02, provision is made for either or both of (a) defeasance of the
Securities of or within a Series under Section 8.02 or (b) covenant defeasance of the Securities of
or within a Series under Section 8.03 to be applicable to the Securities of a Series, then the
provisions of such Section or Sections, as the case may be, together with the other provisions of
this Article (with such modifications thereto as may be specified pursuant to Section 2.02 with
respect to the Securities of such Series), shall be applicable to the Securities of such Series,
and the Company may, at the option of the Board of Directors evidenced by a resolution set forth in
an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be applied
to all outstanding Securities of such Series upon compliance with the conditions set forth below in
this Article 8.



Section 8.02 Legal Defeasance and Discharge




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Securities of a Series on the date the conditions set forth below are satisfied with respect to the
Securities of such Series (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance
means that the Company will be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities of such Series, which will thereafter be deemed to be
“outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under
the Securities of such Series and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except for the following
provisions which will survive until otherwise terminated or discharged hereunder:




     (1) the rights of Holders of outstanding Securities of such Series to receive payments
in respect of the principal of, or interest or premium, if any, on such Securities when such
payments are due from the trust referred to in Section 8.04 hereof;




     (2) the Company’s obligations with respect to the Securities of such Series under
Article 2 and Section 4.02 hereof;




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




     (4) this Article 8.



     Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 with respect to Securities of a Series notwithstanding the prior exercise of its
option under Section 8.03 hereof with respect to Securities of such Series.



Section 8.03 Covenant Defeasance




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from each of their obligations under the covenants contained in Sections 4.3
and 4.4, as well as



31









 




any additional covenants contained in a supplemental indenture hereto for a particular Series
of Securities, with respect to the outstanding Securities of a Series on and after the date the
conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and
the Securities of such Series shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders of Securities of such Series (and the
consequences of any thereof) in connection with such covenants, but will continue to be deemed
“outstanding” for all other purposes hereunder (it being understood that the Securities of such
Series will not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Securities of such Series, the Company may
omit to comply with and will have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply will not constitute a Default
or an Event of Default with respect to Securities of such Series under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and the Securities of such Series will
be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the
option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(5) hereof will not constitute Events of
Default.




Section 8.04 Conditions to Legal or Covenant Defeasance




     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02
or 8.03 hereof:




     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of Securities of a Series, cash in such currency, currencies or currency units
in which such Securities are then specified as payable at Stated Maturity, non-callable
Government Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the outstanding Securities of such Series on
the stated date for payment thereof or on the applicable redemption date, as the case may
be, and the Company must specify whether the Securities of such Series are being defeased to
maturity or to a particular redemption date;




     (2) in the case of an election under Section 8.02 hereof, the Company has delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that:




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




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




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




     (3) in the case of an election under Section 8.03 hereof, the Company must deliver to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee



32









 







confirming that the Holders of the outstanding Securities of such Series will not
recognize income, gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance had not
occurred;




     (4) no Default or Event of Default with respect to Securities of such Series shall have
occurred and be continuing on the date of such deposit (other than a Default or Event of
Default with respect to Securities of such Series resulting from the borrowing of funds to
be applied to such deposit);




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) with respect to such Securities to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;




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




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



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



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



     Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.



Section 8.06 Repayment to Company
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or



33









 







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



Section 8.07 Reinstatement
If the Trustee or Paying Agent is unable to apply any United States dollars or other currency
or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case
may be, by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s obligations under this
Indenture and each applicable Series of Securities will be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof,
as the case may be; provided, however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Series of Securities following the reinstatement of its
obligations, the Company will be subrogated to the rights of the Holders of such Series of
Securities to receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE 9.

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01 Without Consent of Holders of Securities
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or any Series of Securities without the consent of any Holder of
Securities:




     (1) to evidence the succession of another Person to the Company or a Guarantor and the
assumption by any such successor of the covenants of the Company or such Guarantor herein,
in any Security Guarantee and in the Securities contained; provided that such succession is
otherwise in compliance with this Indenture and applicable law;




     (2) to add to the covenants of the Company or any Guarantor for the benefit of the
Holders of all or any Series of Securities (and, if such covenants are to be for the benefit
of less than all Series of Securities, stating that such covenants are expressly being
included solely for the benefit of such Series) or to surrender any right or power herein
conferred upon the Company or any Guarantor;




     (3) to add any additional Events of Default for the benefit of the Holders of all or
any Series of Securities (and if such Events of Default are to be for the benefit of less
than all Series of Securities, stating that such Events of Default are expressly being
included solely for the
benefit of such Series); provided, however, that in respect of any such additional
Events of Default such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those Series of Securities to which such
additional Events of Default apply to waive such default;



34









 






     (4) to permit or facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interest of the Holders of Securities of
any Series in any material respect;




     (5) to add to, change or eliminate any of the provisions of this Indenture or any
Guarantee in respect of any Series of Securities, provided that any such addition, change or
elimination shall (i) neither (A) apply to any Security of any Series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision, nor
(B) modify the rights of the Holder of any such Security with respect to such provision; or
(ii) become effective only when there is no Security Outstanding;




     (6) to secure the Securities of any Series;




     (7) to establish the form or terms of Securities of any Series as permitted by Sections
2.01 and 2.02, including the provisions and procedures relating to Securities convertible
into or exchangeable for other securities or property of the Company;




     (8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more Series and to add or change any of the
provisions of the Indenture or any Guarantee as shall be reasonable and necessary solely to
provide for or facilitate the administration of the trusts hereunder by more than one
Trustee; provided that such succession is otherwise in compliance with this Indenture and
applicable law;




     (9) to cure any ambiguity, defect or inconsistency;




     (10) to provide for uncertificated Securities in addition to or in place of
certificated Securities or to alter the provisions of Article 2 hereof (including the
related definitions) in a manner that does not materially adversely affect any Holder of any
Series of Securities;




     (11) to provide for the assumption of the Company’s obligations to the Holders of each
Series of Securities by a successor to the Company pursuant to Article 5 hereof;




     (12) to make any change that would provide any additional rights or benefits to the
Holders of each Series of Securities or that does not adversely affect the legal rights
hereunder of any Holder of any Series of Securities; or




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



     Upon the request of the Company accompanied by a resolution of the Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company
in the execution of any amended or supplemental Indenture authorized or permitted by the terms of
this
Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee will not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture or otherwise.



Section 9.02 With Consent of Holders of Securities
Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture and the Securities of an affected Series with the consent of the Holders
of at least a majority in principal amount of the Securities of such affected Series then
outstanding, voting as a separate class, (including, without limitation, consents



35









 







obtained in
connection with a tender offer or exchange offer for, or purchase of, the Securities of each
affected Series). Subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default with respect to a Series of Securities (other than a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on the Securities of such Series, except
a payment default resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture or the Securities of such Series may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Securities of such Series voting
as a single class (including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Securities of such Series). Section 2.08 hereof shall determine which
Securities are considered to be “outstanding” for purposes of this Section 9.02.



     Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such amended or supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Securities of each required Series as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
will not be obligated to, enter into such amended or supplemental Indenture.



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



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company will mail to the Holders of Securities of each Series affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or
any defect therein, will not, however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Securities of any Series then outstanding voting as a
single class may waive compliance in a particular instance by the Company with any provision of
this Indenture with respect to such Series or such Series of Securities. However, without the
consent of each Holder affected, an amendment or waiver under this Section 9.02 may not (with
respect to any Securities held by a non-consenting Holder):




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




     (2) reduce the principal of or change the fixed maturity of any Security or alter or
waive any of the provisions with respect to the redemption of the Securities;




     (3) reduce the rate of or change the time for payment of interest, including default
interest, on any Security;




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




     (5) make any Security payable in currency other than that stated in the Securities;



36









 






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




     (7) waive a redemption payment, if any, with respect to any Securities or change any of
the provisions with respect to the redemption of any Securities; or




     (8) make any change in the foregoing amendment and waiver provisions.



Section 9.03 Compliance with Trust Indenture Act
Every amendment or supplement to this Indenture or the Securities will be set forth in a
amended or supplemental Indenture that complies with the TIA as then in effect.



Section 9.04 Revocation and Effect of Consents
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder of a Security 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 of a
Security or subsequent Holder of a Security may revoke the consent as to its Security if the
Trustee receives written notice of revocation before the date the waiver, supplement or amendment
becomes effective. An amendment, supplement or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.



Section 9.05 Notation on or Exchange of Securities
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Security thereafter authenticated. If the Company so determines, the Company in exchange for all
Securities of a Series may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Securities of such Series that reflect the amendment, supplement or waiver.



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


Section 9.06 Trustee to Sign Amendments, etc.




     The Trustee will sign any amended or supplemental Indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amendment or supplemental Indenture
until the Board of Directors approves it. In executing any amended or supplemental indenture, the
Trustee will be entitled
to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in
addition to the documents required by Section 12.04 hereof, an Officers’ Certificate and an Opinion
of Counsel stating that the execution of such amended or supplemental Indenture is authorized or
permitted by this Indenture.



ARTICLE 10.

GUARANTEES



Section 10.01 Guarantees.




     (a) If, pursuant to Section 2.02, provision is made for the Guarantee of the Securities of a
Series, then subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Security of such Series authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of



37









 







this Indenture, the Securities of such Series or the obligations of the Company
hereunder or thereunder, that:




     (1) the principal of, premium, and interest on such Securities and any Additional
Amounts will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest on such
Securities, if any, if lawful, and all other obligations of the Company to the Holders of
Securities of such Series or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and




     (2) in case of any extension of time of payment or renewal of any such Securities or
any of such other obligations, that same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.



     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.



     (b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Securities
with respect to any provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that the Security Guarantee will not be discharged
except by complete performance of the obligations contained in such Securities and this Indenture.



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



     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of the
Security Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of the Security Guarantee. The Guarantors will have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Security Guarantee.


Section 10.02 Limitation on Guarantor Liability.




     Each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is
the intention of all such parties that the Security Guarantee of such Guarantor not constitute a
fraudulent



38









 







transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Security Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor under
its Security Guarantee and this Article 10 shall be limited to the maximum amount as will, after
giving effect to such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 10, result in the obligations
of such Guarantor under its Security Guarantee not constituting a fraudulent transfer or
conveyance.


Section 10.03 Execution and Delivery of Security Guarantee.




     To evidence its Security Guarantee set forth in Section 10.01, each Guarantor hereby agrees
that a notation of such Security Guarantee will be endorsed by an Officer of such Guarantor on each
Security of a guaranteed Series authenticated and delivered by the Trustee and that this Indenture
will be executed on behalf of such Guarantor by one of its Officers.



     Each Guarantor hereby agrees that its Security Guarantee set forth in Section 10.01 will
remain in full force and effect notwithstanding any failure to endorse on each Security of a
guaranteed Series a notation of such Security Guarantee.



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



     The delivery of any Security of a guaranteed Series by the Trustee, after the authentication
thereof hereunder, will constitute due delivery of the Security Guarantee set forth in this
Indenture on behalf of the Guarantors.


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




     Except as otherwise provided in Section 10.05, no Guarantor may sell or otherwise dispose of
all or substantially all of its assets to, or consolidate with or merge with or into (whether or
not such Guarantor is the surviving Person) another Person, other than the Company or another
Guarantor, unless:




     (1) immediately after giving effect to such transaction, no Default or Event of Default
exists; and




     (2) subject to Section 10.05 hereof, the Person acquiring the property in any such sale
or disposition or the Person formed by or surviving any such consolidation or merger
unconditionally assumes all the obligations of that Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee, under the Securities
of a guaranteed Series, this Indenture and the Security Guarantee on the terms set forth
herein or therein.



     In case of any such consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Security Guarantee endorsed upon the Securities of a guaranteed
Series and the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Guarantor, such successor Person will succeed to and be
substituted for the Guarantor with the same



39









 







effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the Security Guarantees to be
endorsed upon all of the Securities of a guaranteed Series issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee. All the Security
Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture
as the Security Guarantees theretofore and thereafter issued in accordance with the terms of this
Indenture as though all of such Security Guarantees had been issued at the date of the execution
hereof.



     Except as set forth in Articles 4 and 5 hereof, nothing contained in this Indenture or in any
of the Securities will prevent any consolidation or merger of a Guarantor with or into the Company
or another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety to the Company or another Guarantor.


Section 10.05 Releases Following Sale of Assets.




     In the event of any sale or other disposition of all or substantially all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all to
the Capital Stock of any Guarantor, in each case to a Person that is not (either before or after
giving effect to such transactions) a wholly-owned Subsidiary of the Company, then such Guarantor
(in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all
of the capital stock of such Guarantor) or the corporation acquiring the property (in the event of
a sale or other disposition of all or substantially all of the assets of such Guarantor) will be
released and relieved of any obligations under its Security Guarantee; provided that the net
proceeds of such sale or other disposition are applied in accordance with applicable provisions of
this Indenture, if any, including, without limitation, provisions included in any Board Resolution
or Officers’ Certificate pursuant to a Board Resolution described in Section 2.02. Upon delivery
by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect
that such sale or other disposition was made by the Company in accordance with the provisions of
this Indenture, the Trustee will execute any documents reasonably required in order to evidence the
release of any Guarantor from its obligations under its Security Guarantee.



     Any Guarantor not released from its obligations under its Security Guarantee will remain
liable for the full amount of principal of and interest on the Securities of a Series that it has
guaranteed and for the other obligations of any Guarantor of Securities of a Series that it has
guaranteed under this Indenture as provided in this Article 10.



ARTICLE 11.

SATISFACTION AND DISCHARGE




Section 11.01 Satisfaction and Discharge
This Indenture will be discharged and will cease to be of further effect as to all Securities
of a Series issued hereunder, when:




     (1) either:




          (a) all Securities of such Series that have been authenticated (except lost, stolen or
destroyed Securities that have been replaced or paid and Securities for whose payment money
has theretofore been deposited in trust and thereafter repaid to the Company) have been
delivered to the Trustee for cancellation; or




          (b) all Securities of such Series that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the making of a notice of redemption
or otherwise or will become due and payable within one year and the Company has irrevocably



40









 







deposited or caused to be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders of such Series, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest to pay and discharge the entire indebtedness
on the Securities of such Series not delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest to the date of maturity or redemption;




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




     (3) the Company has paid or caused to be paid all sums payable by it under this
Indenture; and




     (4) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Securities of such Series
at maturity or the redemption date, as the case may be.



     In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to
the Trustee stating that all conditions precedent to satisfaction and discharge have been
satisfied.



     Notwithstanding the satisfaction and discharge of this Indenture as to all Securities of any
Series under this Indenture, if money has been deposited with the Trustee pursuant to subclause (b)
of clause (1) of this Section with respect to a Series of Securities, the provisions of Section
11.02 and Section 8.06 will survive with respect to such Series of Securities. In addition,
nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof,
that, by their terms, survive the satisfaction and discharge of this Indenture.



Section 11.02 Application of Trust Money
Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to
Section 11.01 shall be held in trust and applied by it, in accordance with the provisions of the
Securities
of such Series and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.



     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 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, the Company’s obligations under this Indenture and the Securities of such Series
shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01;
provided that if the Company has made any payment of principal of, premium, if any, or interest on
any Securities of such Series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of Securities of such Series to receive such payment from
the money or Government Securities held by the Trustee or Paying Agent.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
or assessed against the Trustee with respect to the money deposited with the Trustee pursuant to
Section 11.01 hereof.



41









 





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
TIA §318(c), the imposed duties will control.



Section 12.02 Notices
Any notice or communication by the Company or the Trustee to the others is duly given if in
writing and delivered in Person or mailed by first class mail (registered or certified, return
receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others’ address:


If to the Company:





Gladstone Commercial Corporation

1521 Westbranch Drive, Suite 200,

McLean, Virginia 22102

Fax No.: (901) 259-2594

Telephone No.: (703) 287-5899

Attention: David J. Gladstone


With a copy to:





Bass, Berry & Sims PLC

The Tower at Peabody Place

100 Peabody Place Suite 900

Memphis, Tennessee 38103

Fax No.: (888) 543-4644

Telephone No.: (901) 543-5901

Attention: John A. Good


If to the Trustee:





[•]

[•]

[•]

Fax No.: [•]

Telephone No.: [•]

Attention: [•]



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



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.



     Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its



42









 







address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.



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



     If the Company mails a notice or communication to Holders of a Series of Securities, it will
mail a copy to the Trustee and each Agent for such Series of Securities at the same time.



Section 12.03 Communication by Holders of Securities with Other Holders of Securities




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




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




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



Section 12.05 Statements Required in Certificate or Opinion




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




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



     In giving an Opinion of Counsel, counsel may rely as to factual matters on an Officers’
Certificate or certificates of public officials.



43









 





Section 12.06 Rules by Trustee and Agents




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



Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders




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



Section 12.08 Governing Law




     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE
AND THE SECURITIES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



Section 12.09 No Adverse Interpretation of Other Agreements




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



Section 12.10 Successors




     All agreements of the Company in this Indenture and the Securities will bind its successors.
All agreements of the Trustee in this Indenture will bind its successors.



Section 12.11 Severability




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



Section 12.12 Counterpart Originals




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


Section 12.13 Table of Contents, Headings, etc.




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








44









 








SIGNATURES



Dated as of [•], 2010




	 	 	 	 	 	 	 

	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	GLADSTONE COMMERCIAL CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	GUARANTORS:	 	 
	 
	 	 	 	 	 	 
	 

	 	[•]	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	[•]	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	each as a Guarantor	 	 
	 
	 	 	 	 	 	 
	 	 	TRUSTEE:	 	 
	 
	 	 	 	 	 	 
	 

	 	[•]	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title: