EXHIBIT
4.9


 


 


 


 


ALEXANDRIA REAL ESTATE EQUITIES, INC.

as Issuer,


ALEXANDRIA REAL ESTATE EQUITIES, L.P.


as Guarantor,


and

WILMINGTON TRUST COMPANY

as Trustee


 


INDENTURE

Dated as of April 27, 2009


 


$240,000,000
Principal Amount

8.00% Senior Convertible Notes due 2029


 













 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS AND INCORPORATION BY
  REFERENCE

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.02.

  	
  Other Definitions

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 1.03.

  	
  Incorporation by Reference of the
  Trust Indenture Act

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 1.04.

  	
  Effect of Headings and Table of
  Contents

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE SECURITIES

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Designation, Amount and Issue of
  the Securities

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 2.02.

  	
  Form of Securities

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 2.03.

  	
  Date and Denomination of Securities;
  Payment of Interest

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 2.04.

  	
  Execution of Securities

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 2.05.

  	
  Registrar, Paying Agent and
  Conversion Agent

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 2.06.

  	
  Restrictions on Transfer

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 2.07.

  	
  Book-Entry Provisions for and
  Restrictions on Transfer and Exchange of Global Securities

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 2.08.

  	
  Ranking

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 2.09.

  	
  Mutilated, Destroyed, Lost and
  Stolen Securities

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 2.10.

  	
  [RESERVED]

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 2.11.

  	
  Cancellation of Securities

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 2.12.

  	
  CUSIP Numbers

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REDEMPTION AND REPURCHASE

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Redemption and Repurchase

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 3.02.

  	
  Notices to Trustee

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 3.03.

  	
  Selection of Securities to Be
  Redeemed

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 3.04.

  	
  Notice of Redemption

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 3.05.

  	
  Effect of Notice of Redemption

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 3.06.

  	
  Deposit of Redemption Price

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.07.

  	
  Payment of Securities Called for
  Redemption by the Company

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.08.

  	
  Securities Redeemed in Part

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.09.

  	
  Repurchase of Securities at Option
  of the Holder

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 3.10.

  	
  [RESERVED]

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 3.11.

  	
  Repurchase at Option of Holder Upon
  a Fundamental Change

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  COVENANTS

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Principal, Interest and
  Additional Interest

  	
  31

  
				



 


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TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 4.03.

  	
  Money for Securities Payments to be
  Held in Trust

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 4.04.

  	
  [RESERVED]

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 4.05.

  	
  Statement by Officers as to Default

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 4.06.

  	
  Rule 144A Information
  Requirement

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 4.07.

  	
  SEC Report and Report to Trustee

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 4.08.

  	
  Corporate Existence

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 4.09.

  	
  Additional Interest Notice

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 4.10.

  	
  [RESERVED]

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 4.11.

  	
  Further Instruments and Acts

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  DEFAULTS AND REMEDIES

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Events of Default

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 5.02.

  	
  Acceleration

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.03.

  	
  Collection of Indebtedness and
  Suits for Enforcement by Trustee

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.04.

  	
  Trustee May File Proofs of
  Claim

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.05.

  	
  Trustee May Enforce Claims
  Without Possession of Securities

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.06.

  	
  Application of Money Collected

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.07.

  	
  Limitation on Suits

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 5.08.

  	
  Rights of Holders to Convert
  Securities

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 5.09.

  	
  Notice of Defaults

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.10.

  	
  Unconditional Rights of Holders to
  Receive Principal, Additional Interest and Interest

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.11.

  	
  Restoration of Rights and Remedies

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.12.

  	
  Rights and Remedies Cumulative

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.13.

  	
  Delay or Omission Not Waiver

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.14.

  	
  Control by Holders

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.15.

  	
  Waiver of Past Defaults

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.16.

  	
  Undertaking for Costs

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.17.

  	
  Waiver of Usury, Stay or Extension
  Laws

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  THE TRUSTEE

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Certain Duties and Responsibilities

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 6.02.

  	
  Reliance on
  Documents, Opinions, etc.

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 6.03.

  	
  [RESERVED]

  	
  42

  
				



 


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TABLE OF
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(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.04.

  	
  [RESERVED]

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.05.

  	
  Not Responsible for Recitals or
  Issuance of Securities

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.06.

  	
  May Hold Securities

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.07.

  	
  Money Held in Trust

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 6.08.

  	
  Compensation, Reimbursement and
  Indemnification

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 6.09.

  	
  Conflicting Interests

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 6.10.

  	
  Corporate Trustee Required;
  Eligibility

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 6.11.

  	
  Resignation and Removal;
  Appointment of Successor

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 6.12.

  	
  Acceptance of Appointment by
  Successor

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.13.

  	
  Merger, Conversion, Consolidation
  or Succession to Business of Trustee

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.14.

  	
  Preferential Collection of Claims
  Against Company

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 6.15.

  	
  Appointment of Authenticating Agent

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  CONSOLIDATION, MERGER AND SALES OF
  ASSETS

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Company May Consolidate, Etc.,
  Only on Certain Terms

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 7.02.

  	
  Successor Substituted

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 7.03.

  	
  Guarantor May Consolidate on
  Certain Terms

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 7.04.

  	
  Guarantor Successor to be
  Substituted

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  SATISFACTION AND DISCHARGE

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Termination of the Obligations of
  the Company

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 8.02.

  	
  Application of Trust Money

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL INDENTURES

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Supplemental Indentures Without
  Consent of Holders

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 9.02.

  	
  Supplemental Indentures or Waivers
  With Consent of Holders

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 9.03.

  	
  Compliance with Trust Indenture Act

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 9.04.

  	
  Revocation and Effect of Consents

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 9.05.

  	
  Notation on or Exchange of
  Securities

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 9.06.

  	
  Trustee Protected

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  CONVERSION

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Conversion Privilege

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 10.02.

  	
  Conversion Procedure and Payment
  Upon Conversion

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 10.03.

  	
  Fractional Shares

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 10.04.

  	
  Taxes on Conversion

  	
  58

  
				



 


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TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.05.

  	
  Company to Provide Stock

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 10.06.

  	
  Adjustment of Conversion Rate

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 10.07.

  	
  No Adjustment

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 10.08.

  	
  Other Adjustments

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 10.09.

  	
  Adjustments for Tax Purposes

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 10.10.

  	
  Notice of Adjustment

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 10.11.

  	
  Notice of Certain Transactions

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 10.12.

  	
  Effect of Reclassifications,
  Consolidations, Amalgamations, Statutory Arrangements, Mergers,

  Binding Share Exchanges or Asset Sales on Conversion Privilege

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 10.13.

  	
  Trustee’s Disclaimer

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 10.14.

  	
  Rights Distributions Pursuant to
  Stockholders’ Rights Plans

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 10.15.

  	
  Increased Conversion Rate
  Applicable to Certain Securities Surrendered in Connection With

  Make-Whole Fundamental Changes

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 10.16.

  	
  Additional Interest

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 10.17.

  	
  Ownership Limit

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  LIST OF SECURITYHOLDERS AND REPORTS
  BY TRUSTEE AND COMPANY

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Company to Furnish Trustee Names
  and Addresses of Holders

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 11.02.

  	
  Preservation of Information;
  Communications to Holders

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 11.03.

  	
  Reports by Trustee

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  THE SECURITYHOLDERS

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Action by Securityholders

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 12.02.

  	
  Proof of Execution by
  Securityholders

  	
  72

  
	
   

  	
   

  	
   

  
	
  Section 12.03.

  	
  Absolute Owners

  	
  72

  
	
   

  	
   

  	
   

  
	
  Section 12.04.

  	
  Company-owned Securities
  Disregarded

  	
  72

  
	
   

  	
   

  	
   

  
	
  Section 12.05.

  	
  Revocation of Consents; Future
  Holders Bound

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  MEETINGS OF THE SECURITYHOLDERS

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Purposes for Which Meetings
  May Be Called

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 13.02.

  	
  Call, Notice and Place of Meetings

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 13.03.

  	
  Persons Entitled to Vote at
  Meetings

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 13.04.

  	
  Quorum; Action

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 13.05.

  	
  Determination of Voting Rights;
  Conduct and Adjournment of Meetings

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 13.06.

  	
  Counting Votes and Recording Action
  of Meetings

  	
  75

  
				



 


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TABLE OF
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  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  GUARANTY

  	
  75

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Guaranty

  	
  75

  
	
   

  	
   

  	
   

  
	
  Section 14.02.

  	
  Execution and Delivery of Guaranty

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 14.03.

  	
  Limitation of Guarantor’s
  Liability; Certain Bankruptcy Events

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 14.04.

  	
  [RESERVED]

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 14.05.

  	
  Application of Certain Terms and
  Provisions to the Guarantor

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 14.06.

  	
  Subordination of Subrogation and
  Other Rights

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  MISCELLANEOUS

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 15.01.

  	
  Conflict with Trust Indenture Act

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 15.02.

  	
  Notices

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 15.03.

  	
  Successors

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 15.04.

  	
  Governing Law

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 15.05.

  	
  Waiver of Jury Trial

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 15.06.

  	
  Force Majeure

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 15.07.

  	
  Severability Clause

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 15.08.

  	
  Benefits of Indenture

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 15.09.

  	
  Acts of Holders; Record Dates

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 15.10.

  	
  Legal Holidays

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 15.11.

  	
  No Personal Liability

  	
  81

  
	
   

  	
   

  	
   

  
	
  Section 15.12.

  	
  Evidence of Compliance with
  Conditions Precedent; Certificates to Trustee

  	
  81

  
	
   

  	
   

  	
   

  
	
  Section 15.13.

  	
  No Adverse Interpretation of Other
  Agreements

  	
  81

  
	
   

  	
   

  	
   

  
	
  Section 15.14.

  	
  Calculations in Respect of the
  Securities

  	
  81

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  —

  	
  Form of
  Global Security

  	
   

  
	
  Exhibit B

  	
  —

  	
  Form of
  Guaranty

  	
   

  
						



 


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INDENTURE


 


This
Indenture, dated as of April 27, 2009, among Alexandria Real Estate
Equities, Inc., a corporation duly organized and existing under the laws
of the State of Maryland (the “Company”), and Alexandria Real Estate
Equities, L.P., a limited partnership duly organized and existing under the
laws of the State of Delaware (the “Guarantor”), each having its
principal offices at 385 East Colorado Boulevard, Suite 299, Pasadena,
California 91101, and Wilmington Trust Company, a Delaware banking corporation
(the “Trustee”), having its principal offices at Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19801.


 


RECITALS:


 


WHEREAS,
the Company and the Guarantor have each duly authorized the execution and
delivery of this Indenture to provide for the future issuance of the Company’s
senior debt securities to be known as its 8.00% Senior Convertible Notes due
2029 (the “Securities”), guaranteed to the extent provided herein (the “Guaranty”)
by the Guarantor, the form and substance of such Securities and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture.


 


WHEREAS,
each of the Company and the Guarantor have taken all actions necessary to make
this Indenture a valid and legally binding agreement of the Company and the
Guarantor, in accordance with its terms.


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


For
and in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities, as follows:


 


ARTICLE
I



DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.                  Definitions.


 


For
all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:


 


(A)          The
terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;


 


(B)           All
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;


 


(C)           All
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and, except
as otherwise herein expressly provided, the term “generally accepted
accounting principles” with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;


 













 


(D)          Unless
otherwise specifically set forth herein, all calculations or determinations of
a Person shall be performed or made on a consolidated basis in accordance with
generally accepted accounting principles;


 


(E)           Unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this Indenture;
and


 


(F)           The
words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.


 


“Act,”
when used with respect to any Holder, has the meaning specified in Section 15.09
of this Indenture.


 


“Additional
Interest” means a one-time payment of 50 basis points made by the Company
to the Holders of the Securities (or, with respect to any Securities that have
been previously converted, to the Holders of such converted Securities at the
time of such conversion) in the circumstances described in Section 10.16.  The amount of the payment to any Holder (or
previous Holder in the case of previously converted Securities) shall be
determined by applying 50 basis points to the current principal amount of such
Holder’s Securities then outstanding and to the principal amount of such
previous Holder’s converted Securities immediately prior to their conversion.


 


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


 


“Agent”
means any Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent (as
defined below) or co-Registrar or co-agent.


 


“Asset
Sale Make-Whole Fundamental Change” means a sale, transfer, lease,
conveyance or other disposition of all or substantially all of the property or
assets of the Company to any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), including any
group acting for the purpose of acquiring, holding, voting or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange
Act.


 


“Bid
Solicitation Agent” means a Company-appointed agent that performs
calculations as set forth in Section 10.01 hereof.


 


“Board”
means either the board of directors of the Company or the board of directors of
the General Partner or any duly authorized committee of each of those boards.


 


“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the General Partner to have been duly
adopted by the applicable Board and to be in full force and effect on the date
of such certification, and delivered to the Trustee.


 


“Business
Day,” when used with respect to any place of payment, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that place of payment are authorized or obligated by law or
executive order to close.


 


2













 


“Capital
Stock” of any Person means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of such Person and all
warrants or options to acquire such capital stock.


 


“Closing
Sale Price” on any date means the price of a share of Common Stock on such
date, determined (i) on the basis of the closing sale price per share (or
if no closing sale price per share is reported, the average of the bid and ask
prices or, if more than one in either case, the average of the average bid and
the average ask prices) on such date on the U.S. principal national or regional
securities exchange on which the Common Stock is listed; or (ii) if the
Common Stock is not listed on a U.S. national or regional securities exchange,
as reported by the National Association of Securities Dealers Automated
Quotation System; or (iii) if not so reported, as reported by Pink Sheets
LLC or a similar organization.  In the
absence of a quotation, the Closing Sale Price shall be the average of the
mid-point of the last bid and ask prices for the Common Stock on the relevant
date from each of at least three nationally recognized independent investment
banking firms selected by the Company for this purpose.


 


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


 


“Common
Stock” means the common stock, $0.01 par value per share, of the Company,
or such other Capital Stock of the Company into which the Company’s common
stock is reclassified or changed.


 


“Common
Stock Change Make-Whole Fundamental Change” means any transaction or series
of related transactions (other than a Listed Stock Business Combination), in
connection with which (whether by means of an exchange offer, liquidation,
tender offer, consolidation, amalgamation, statutory arrangement, merger,
combination, reclassification, recapitalization, asset sale, lease of assets or
otherwise) the Common Stock is exchanged for, converted into, acquired for or
constitutes solely the right to receive other securities, other property,
assets or cash.


 


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


 


“Company
Request” or “Company Order” means a written request or order signed
in the name of the Company by its Chairman of the Board, its Chief Executive
Officer, its Chief Operating Officer, its Chief Financial Officer, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.


 


“Conversion
Price” means, as of any date of determination, the dollar amount derived by
dividing one thousand dollars ($1,000) by the Conversion Rate in effect on such
date.


 


“Conversion
Rate” means the number of shares of Common Stock issuable upon conversion
of a Security per $1,000 principal amount, which Conversion Rate shall
initially be 24.1546 shares of Common Stock per $1,000 principal amount of
Securities, subject to adjustment as provided in Section 10.06 hereof.


 


“Corporate
Trust Office” means the principal office of the Trustee at which, at any
particular time its corporate trust business shall be administered.


 


3













 


“Corporation”
means a corporation, association, company, joint-stock company, real estate
investment trust or business trust.


 


“Custodian”
means any receiver, trustee, assignee, liquidator or other similar official
under any Bankruptcy Law.


 


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


 


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


 


“Depositary”
means, with respect to Securities issuable in whole or in part in the form of
one or more Global Securities, a clearing agency registered under the Exchange
Act that is designated to act as Depositary for such Securities as contemplated
by Section 2.07 of this Indenture.


 


“DTC”
means The Depository Trust Company, its nominees and successors.


 


“Exchange
Act” means the Securities Exchange Act of 1934 and any statute successor
thereto, in each case as amended from time to time.


 


“General
Partner” means ARS-QRS Corp., the sole general partner of the Guarantor or
any successor general partner of the Guarantor.


 


“Global
Security” means a Security that evidences all or part of the Securities and
bears the legend set forth in Section 2.06 of this Indenture.


 


“Guarantor”
means the Person named as the “Guarantor” in the first paragraph of this
Indenture until a successor and/or additional Person(s) shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor”
shall mean such successor and/or additional Person(s).


 


“Guaranty”
has the meaning given in the Recitals hereof and as contemplated by Article XIV
hereof.


 


“Holder”
or “Securityholder” means a person in whose name a Security is
registered on the register of the Registrar (as defined below).


 


“Indebtedness”
of a Person means the principal of, premium, if any and interest on and all
other obligations in respect of (a) all indebtedness of such Person for
borrowed money (including all indebtedness evidenced by notes, bonds,
debentures or other securities), (b) all obligations incurred by such
Person in the acquisition (whether by way of purchase, merger, consolidation or
otherwise and whether by such Person or another Person) of any business, real
property or other assets, (c) all reimbursement obligations of such Person
with respect to letters of credit, bankers’ acceptances or similar facilities
issued for the account of such Person, (d) all capital lease obligations
of such Person, (e) all net obligations of such Person under interest rate
swap, currency exchange or similar agreements of such Person, (f) all
obligations and other liabilities, contingent or otherwise, under any lease or
related document, including a purchase agreement, conditional sale or other
title retention agreement, in connection with the lease of real property or
improvements thereon (or any personal property included as part of any such
lease) which provides that such Person is contractually obligated to purchase
or cause a third party to purchase the leased property or pay an agreed-upon
residual value of the leased property, including such Person’s obligations
under such lease or related document to purchase or cause a third party to
purchase such leased property or pay an agreed-upon residual value of the
leased property to the 


 


4













 


lessor, (g) guarantees by such Person of
indebtedness described in clauses (a) through (f) of another Person,
and (h) all renewals, extensions, refundings, deferrals, restructurings,
amendments and modifications of any indebtedness, obligation, guarantee or
liability of the kind described in clauses (a) through (g).


 


“Indenture”
means this instrument as originally executed and 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, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.


 


“Initial
Purchasers” means Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities, Inc. and Citigroup Global Markets
Inc.


 


“Interest
Payment Date” means each April 15 and October 15 of each year
beginning on October 15, 2009.


 


“Investment
Company Act” means the Investment Company Act of 1940 and any statute
successor thereto, in each case as amended from time to time.


 


“Issue
Date” means April 27, 2009.


 


“Make-Whole
Fundamental Change” means an Asset Sale Make-Whole Fundamental Change or a
Common Stock Change Make-Whole Fundamental Change that occurs prior to the
Maturity Date.


 


“Market
Disruption Event” generally means either (i) a failure by the primary
U.S. national securities exchange or market on which the Common Stock is listed
or admitted to trading to open for trading during its regular trading session;
or (ii) the occurrence or existence, prior to 1:00 p.m. New York City
Time on any day during which trading in the Common Stock generally occurs on
the primary U.S. national securities exchange or market on which the Common
Stock is listed or admitted to trading, for an aggregate of at least thirty
(30) minutes, of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the stock exchange or
otherwise) in the Common Stock or in any options, contracts or future contracts
relating to the Common Stock.


 


“Maturity
Date” means April 15, 2029.


 


“Notice
of Default” means a written notice of the kind specified in Section 5.01
hereof.


 


“Officer”
means the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer (if any), the Chief Financial Officer, any
Executive Vice President, any Senior Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.


 


“Officers’
Certificate” means a certificate signed by (i) the Chairman of the
Board, the Chief Executive Officer, the Chief Operating Officer (if any), the
President or a Vice President, and (ii) the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.


 


“Offering
Memorandum” means the confidential offering memorandum dated April 21,
2009, relating to the private placement of up to $260,000,000 aggregate
principal amount of the Securities (assuming full exercise by the Initial
Purchasers of the $35,000,000 option described therein).


 


5













 


“Opinion
of Counsel” means a written opinion of legal counsel reasonably acceptable
to the Trustee, who may be counsel for the Company.


 


“outstanding,”
when used with respect to Securities, and subject to the provisions of Section 12.04,
means, as of any particular time, all Securities authenticated and delivered by
the Trustee under this Indenture, except:


 


(i)            Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;


 


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


 


(iii)          Securities
in lieu of which, or in substitution for which, other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.09;
and


 


(iv)          Securities
converted pursuant to Article X, and Securities paid or redeemed or
repurchased pursuant to Article III.


 


“Over-Allotment
Option” means the Initial Purchasers’ option to acquire up to $35,000,000
aggregate principal amount of additional Securities as provided for in the Purchase
Agreement.


 


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


 


“Predecessor
Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.09 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Security.


 


“Purchase
Agreement” means the Purchase Agreement dated April 21, 2009, among
the Company, the Guarantor and the Initial Purchasers.


 


“Purchase
Notice” means a Purchase Notice in the form set forth in the Securities.


 


“Record
Date” with respect to the payment of interest of any Interest Payment Date
has the meaning specified in Section 2.03 hereof.


 


“Redemption
Date,” when used with respect to any Security to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture, which date
shall be a Business Day.


 


“Redemption
Price,” when used with respect to any Security to be redeemed, means the
price at which it is to be redeemed pursuant to this Indenture.


 


“Registrar”
have the meaning specified in Section 2.05 of this Indenture.


 


6













 


“Regular
Quarterly Cash Dividend” shall mean any regular quarterly cash dividend
paid in a single quarterly installment or any combination of cash dividends
paid in any calendar quarter that are designated by the Company pursuant to a
resolution of the Board as being portions of the Company’s regular quarterly
cash dividend and that are paid in lieu of a single regular quarterly cash
dividend (provided, that, in the case of a regular
quarterly cash dividend paid in portions, the aggregate amount of such portions
is no greater than the regular quarterly cash dividend paid in the immediately
preceding calendar quarter).


 


“Responsible
Officer,” when used with respect to the Trustee, means any vice president,
the treasurer, any assistant treasurer, any trust officer or assistant trust officer,
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.


 


“Securities”
means the 8.00% Senior Convertible Notes due 2029 issued by the Company pursuant
to this Indenture.


 


“Securities
Act” means the Securities Act of 1933 and any statute successor thereto, in
each case as amended from time to time.


 


“Significant
Subsidiary” means any Subsidiary which is a “significant subsidiary” (as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated under
the Securities Act) of the Company.


 


“Special
Record Date” for the payment of any Defaulted Interest means a date fixed
by the Trustee pursuant to Section 2.03.


 


“Subsidiary”
means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.  For the purposes of this definition, “voting
stock” means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.


 


“Trading
Day” means any day during which:  (i) trading
in the Common Stock generally occurs on the primary U.S. national securities
exchange or market on which the Common Stock is listed or admitted to trading; (ii) there
is no Market Disruption Event; and (iii) a closing sale price for the
Common Stock is provided on the New York Stock Exchange or, if the Common Stock
is not then listed on the New York Stock Exchange, on the principal other U.S.
national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a U.S. national or
regional securities exchange, on the principal other market on which the Common
Stock is then traded.


 


“Trading
Price” means, on any day, the average of the secondary market bid
quotations for the Securities obtained by the Bid Solicitation Agent for five
million dollars ($5,000,000) principal amount of Securities at approximately
4:00 p.m., New York City time, on such day, from three (3) independent,
nationally recognized securities dealers selected by the Company; provided, that if the Bid Solicitation Agent can reasonably
obtain only two (2) such bids, then the average of such two (2) bids
shall instead be used; provided  further, that if the Bid Solicitation Agent can reasonably
obtain only one (1) such bid, then such bid shall instead be used; provided  further, that
if, on a given date, the Bid Solicitation Agent cannot reasonably obtain at
least one (1) bid for five million dollars ($5,000,000) principal amount
of Securities from an independent, nationally recognized securities dealer, or
if, in the reasonable, good faith judgment of the Board of the Company, the bid
quotation or quotations that the Bid Solicitation Agent has obtained 


 


7













 


are not indicative of the secondary market value of
the Securities, then, in each case, the Trading Price per $1,000 principal
amount of Securities on such day shall be deemed to be equal to 98% of the
product of the Closing Sale Price in effect on such day and the Conversion Rate
in effect on such day.


 


“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument 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.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939 as in force at the
date this instrument is executed; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, “Trust Indenture Act” means, to the extent required
by any such amendment or as provided in Section 9.03 hereof, the Trust
Indenture Act of 1939 as so amended.


 


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


 


Section 1.02.                  Other
Definitions.


 


	
  Term

  	
   

  	
  Defined
  in Section

  
	
  “Additional Interest Notice”

  	
   

  	
  4.09

  
	
  “Additional Securities”

  	
   

  	
  2.01

  
	
  “Agent Members”

  	
   

  	
  2.06

  
	
  “Aggregate Amount”

  	
   

  	
  10.06

  
	
  “Applicable Price”

  	
   

  	
  10.15

  
	
  “Asset Sale Control Change”

  	
   

  	
  3.11

  
	
  “Authentication Order”

  	
   

  	
  2.01

  
	
  “Bankruptcy Law”

  	
   

  	
  5.01

  
	
  “BCF Make-Whole Cap”

  	
   

  	
  10.15

  
	
  “Benefited Party”

  	
   

  	
  14.01

  
	
  “Cash Settlement Averaging Period”

  	
   

  	
  10.02

  
	
  “Change in Control”

  	
   

  	
  3.11

  
	
  “Collective Election”

  	
   

  	
  10.12

  
	
  “Common Stock Legend”

  	
   

  	
  2.06

  
	
  “Conversion Agent”

  	
   

  	
  2.05

  
	
  “Conversion Date”

  	
   

  	
  10.02

  
	
  “Conversion Shares”

  	
   

  	
  10.06

  
	
  “Conversion Value”

  	
   

  	
  10.01

  
	
  “current market price”

  	
   

  	
  10.06

  
	
  “CUSIP”

  	
   

  	
  2.12

  
	
  “Custodian”

  	
   

  	
  5.01

  
	
  “Daily Conversion Value”

  	
   

  	
  10.02

  
	
  “Daily Measurement Value”

  	
   

  	
  10.02

  
	
  “Daily Settlement Amount”

  	
   

  	
  10.02

  
	
  “Distribution Date”

  	
   

  	
  10.06

  
	
  “Effective Date”

  	
   

  	
  10.15

  
	
  “Event of Default”

  	
   

  	
  5.01

  
	
  “Ex Date”

  	
   

  	
  10.06

  
	
  “Expiration Date”

  	
   

  	
  10.06

  
	
  “Expiration Time”

  	
   

  	
  10.06

  



 


8













 


	
  Term

  	
   

  	
  Defined
  in Section

  
	
  “Extension Period”

  	
   

  	
  10.01

  
	
  “Fundamental Change”

  	
   

  	
  3.11

  
	
  “Fundamental Change Notice”

  	
   

  	
  3.11

  
	
  “Fundamental Change Repurchase Date”

  	
   

  	
  3.11

  
	
  “Fundamental Change Repurchase Price”

  	
   

  	
  3.11

  
	
  “Fundamental Change Repurchase Right”

  	
   

  	
  3.11

  
	
  “Global Security”

  	
   

  	
  2.02

  
	
  “Guaranty Obligations”

  	
   

  	
  14.01

  
	
  “Listed Stock Business Combination”

  	
   

  	
  3.11

  
	
  “Make-Whole Applicable Increase”

  	
   

  	
  10.15

  
	
  “Make-Whole Consideration”

  	
   

  	
  10.15

  
	
  “Make-Whole Conversion Period”

  	
   

  	
  10.15

  
	
  “Notice of Default”

  	
   

  	
  5.01

  
	
  “Option Repurchase Date”

  	
   

  	
  3.09

  
	
  “Option Repurchase Notice”

  	
   

  	
  3.09

  
	
  “Option Repurchase Price”

  	
   

  	
  3.09

  
	
  “Participants”

  	
   

  	
  2.07

  
	
  “Paying Agent”

  	
   

  	
  2.05

  
	
  “Physical Securities”

  	
   

  	
  2.07

  
	
  “record date”

  	
   

  	
  10.06

  
	
  “Redemption”

  	
   

  	
  3.01

  
	
  “Reference Dividend Amount”

  	
   

  	
  10.06

  
	
  “Reference Property”

  	
   

  	
  10.12

  
	
  “Relevant Date”

  	
   

  	
  10.02

  
	
  “Repurchase at Holder’s Option”

  	
   

  	
  3.01

  
	
  “Repurchase Upon Fundamental Change”

  	
   

  	
  3.01

  
	
  “Repurchased Shares”

  	
   

  	
  10.06

  
	
  “Restricted Securities”

  	
   

  	
  2.06

  
	
  “Restricted Securities Legend”

  	
   

  	
  2.06

  
	
  “Rights”

  	
   

  	
  10.06

  
	
  “Security Measurement Period”

  	
   

  	
  10.01

  
	
  “Settlement Amount”

  	
   

  	
  10.02

  
	
  “Specified Dollar Amount”

  	
   

  	
  10.02

  
	
  “Spin-Off”

  	
   

  	
  10.06

  
	
  “Termination of Trading”

  	
   

  	
  3.11

  
	
  “Trading Price Condition”

  	
   

  	
  10.01

  
	
  “transfer”

  	
   

  	
  2.06

  
	
  “Trigger Event”

  	
   

  	
  10.06

  
	
  “Underlying Shares”

  	
   

  	
  10.06

  
	
  “Volume-Weighted Average Price”

  	
   

  	
  10.02

  
	
  “Voting Stock”

  	
   

  	
  3.11

  



 


Section 1.03.                  Incorporation
by Reference of the Trust Indenture Act.


 


Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture.  The following Trust Indenture Act terms used
in this Indenture have the following meanings:


 


“indenture securities” means the Securities;


 


9













 


“indenture security holder” means a Securityholder or a
Holder;


 


“indenture to be qualified” means this Indenture;


 


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


 


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


 


All
other terms used in this Indenture that are defined by the Trust Indenture Act,
defined by the Trust Indenture Act by reference to another statute or defined
by Commission rule under the Trust Indenture Act and not otherwise defined
herein have the meanings so assigned to them.


 


Section 1.04.                  Effect
of Headings and Table of Contents.


 


The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.


 


ARTICLE
II


 


THE
SECURITIES


 


Section 2.01.                  Designation,
Amount and Issue of the Securities


 


The
Securities shall be designated as “8.00% Senior Convertible Notes due 2029.”
Upon the execution of this Indenture, and from time to time thereafter,
Securities may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver
Securities upon a written order of the Company, such order signed by two
Officers (an “Authentication Order”), without any further action by the
Company hereunder.


 


The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited; provided that
upon initial issuance, the aggregate principal amount of Securities outstanding
shall not exceed $260,000,000 (including any issuance upon exercise of the
Over-Allotment Option described in the Purchase Agreement), except as provided
in Section 2.09.  The Company may,
without the consent of the Holders of Securities, issue additional Securities
(the “Additional Securities”) from time to time in the future with the
same terms and the same CUSIP number as the Securities originally issued under
this Indenture (the “Initial Securities”) in an unlimited principal
amount, provided that such Additional Securities
must be part of the same issue as and fungible with the Initial Securities for
United States federal income tax purposes. 
The Initial Securities and any such Additional Securities will
constitute a single series of debt securities, and in circumstances in which this
Indenture provides for the Holders of Securities to vote or take any action,
the Holders of Initial Securities and the Holders of any such Additional
Securities will vote or take that action as a single class.


 


Section 2.02.                  Form of
Securities.


 


The
Securities and the Trustee’s certificate of authentication shall be
substantially in the form set forth in Exhibit A and the notation
of Guaranty shall be substantially in the form set forth in Exhibit B,
each of which are incorporated in and form a part of this Indenture.  The terms and provisions contained in the
form of Security attached as Exhibit A hereto shall constitute, and
are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.


 


10












 


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


 


So
long as the Securities are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, or otherwise contemplated by Section 2.07,
all of the Securities will be represented by one or more Securities in global
form registered in the name of the Depositary or the nominee of the Depositary
(a “Global Security”).  The
transfer and exchange of beneficial interests in any such Global Security shall
be effected through the Depositary in accordance with this Indenture and the
applicable procedures of the Depositary. 
Except as provided in Section 2.07, beneficial owners of a Global
Security shall not be entitled to have certificates registered in their names,
will not receive or be entitled to receive physical delivery of certificates in
definitive form and will not be considered Holders of such Global Security.


 


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


 


Section 2.03.                  Date
and Denomination of Securities; Payment of Interest.


 


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


 


The
Person in whose name any Security (or its Predecessor Security) is registered
on the register of the Registrar (as defined below) at 5:00 p.m., New York
City time, on any Record Date with respect to any Interest Payment Date shall
be entitled to receive the interest payable on such Interest Payment Date.  Notwithstanding the foregoing, any Security
or portion thereof surrendered for redemption during the period from 5:00 p.m.,
New York City time, on the Record Date for any Interest Payment Date to 5:00 p.m.,
New York City time, on the applicable Interest Payment Date must be accompanied
by payment, in immediately available funds or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being redeemed; provided,
however, that no such payment need be
made (1) if the Company redeems its Securities in connection with a
Redemption and the Company has specified a Redemption Date that is after a
Record Date and on or prior to the Business Day immediately succeeding such
Interest Payment Date, (2) if a 


 


11













 


Holder exercises its Fundamental Change Repurchase
Right and the Company has specified a Fundamental Change Repurchase Date that
is after a Record Date and on or prior to such Interest Payment Date or (3) to
the extent of any Defaulted Interest (as defined below), if any Defaulted
Interest (as defined below) exists at the time of Redemption or Repurchase Upon
Fundamental Change with respect to such Security.  Interest shall be payable at the office of
the Company maintained by the Company for such purposes, which shall initially
be an office or agency of the Trustee. 
The Company shall pay interest (i) on any Securities in
certificated form by check mailed to the address of the Person entitled thereto
as it appears in the register of the Registrar (as defined below); provided, however, that a
Holder of any Securities in certificated form in the aggregate principal amount
of more than $5.0 million may specify by written notice to the Company that it
pay interest by wire transfer of immediately available funds to the account
specified by the Securityholder in such notice, or (ii) on any Global
Security by wire transfer of immediately available funds to the account of the
Depositary or its nominee.  If a payment
date is not a Business Day, payment shall be made on the next succeeding
Business Day, and no additional interest shall accrue thereon.  The term “Record Date” with respect to
any Interest Payment Date shall mean the April 1 or October 1
preceding the applicable April 15 or October 15 Interest Payment
Date, respectively.


 


Any
interest on any Security which is payable, but is not punctually paid or duly
provided for, on any April 15 or October 15 or the date of any other
interest payment specified under this Indenture (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Securityholder
registered as such on the relevant Record Date, and such Defaulted Interest
shall be paid by the Company as provided in the paragraph below.  Interest shall accrue on unpaid Defaulted
Interest at an annual rate of 1.0% above the then applicable interest rate from
and including the date that such Defaulted Interest arises until such Defaulted
Interest is either paid by the Company as provided in the following paragraph
or paid by application of money collected in accordance with Section 5.06
hereof.


 


The
Company shall make payment of any Defaulted Interest to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at 5:00 p.m., New York City time, on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner.  The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Security and the date of the proposed payment (which shall be not less
than twenty-five (25) calendar days after the receipt by the Trustee of such
notice), and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. 
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than fifteen (15) calendar days
and not less than ten (10) calendar days prior to the date of the proposed
payment, and not less than ten (10) calendar days after the receipt by the
Trustee of the notice of the proposed payment. 
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at its
address as it appears in the register of the Registrar, not less than ten (10) calendar
days prior to such Special Record Date. 
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at 5:00 p.m., New York City time,
on such Special Record Date.


 


Section 2.04.                  Execution
of Securities.


 


12













 


The
Securities shall be signed in the name and on behalf of the Company by the
manual or facsimile signature of an Officer. 
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form set forth on the form of Security
attached as Exhibit A hereto, executed manually by the Trustee (or
an authenticating agent appointed by the Trustee as provided by Section 6.15),
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose.  Such certificate by the
Trustee (or such an authenticating agent) upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the Holder is entitled
to the benefits of this Indenture.


 


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


 


Section 2.05.                  Registrar,
Paying Agent and Conversion Agent.


 


The
Company shall maintain, or shall cause to be maintained, (i) an office or
agency where Securities may be presented for registration of transfer or for
exchange (“Registrar”), (ii) an office or agency where Securities
may be presented for payment (“Paying Agent”) and (iii) an office
or agency where Securities may be presented for conversion (“Conversion
Agent”).  The Registrar shall keep a
register of the Securities and of their transfer and exchange.  The Company may appoint or change one or more
co-Registrars, one or more additional paying agents and one or more additional
conversion agents without notice and may act in any such capacity on its own
behalf.  The term “Registrar”
includes any co-Registrar; the term “Paying Agent” includes any
additional paying agent; and the term “Conversion Agent” includes any
additional conversion agent.


 


The
Company shall enter into an appropriate agency agreement with any agent not a
party to this Indenture.  The agreement
shall implement the provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee of the
name and address of any agent not a party to this Indenture.  If the Company fails to maintain a Registrar,
Paying Agent or Conversion Agent, the Trustee shall act as such.


 


The
Company initially appoints DTC to act as Depositary with respect to the Global
Securities.


 


The
Company initially appoints the Trustee as Paying Agent, Bid Solicitation Agent,
Registrar and Conversion Agent.


 


Section 2.06.                  Restrictions
on Transfer.


 


Every
Security (and all securities issued in exchange therefor or in substitution
thereof) that bears or is required under this Section 2.06 to bear the
legend set forth in this Section 2.06 (the “Restricted Securities
Legend”), and any Common Stock that bears or is required under this Section 2.06
to bear the Common Stock legend set forth in this Section 2.06 (the “Common
Stock Legend”) (collectively, the “Restricted Securities”) shall be
subject to the restrictions on transfer set forth in this Section 2.06
(including those set forth in the legends below) unless such restrictions on
transfer shall be waived by written consent of the Company, with written notice
thereof to the Trustee, and the Holder of each such Restricted Security, by
such Security Holder’s acceptance thereof, agrees to be bound by all such 


 


13













 


restrictions on transfer.  As used in this Section 2.06, the term “transfer”
means any sale, pledge, loan, transfer or other disposition whatsoever of any
Restricted Security or any interest therein.


 


Until
the Maturity Date for the Securities any certificate evidencing a Restricted
Security shall bear a legend in substantially the following form, or unless
otherwise agreed by the Company in writing, with written notice thereof to the
Trustee:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE.  BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY, EXCEPT (A) TO ALEXANDRIA REAL ESTATE EQUITIES,
INC. OR A SUBSIDIARY OF ALEXANDRIA REAL ESTATE EQUITIES, INC.; OR (B) TO A
PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE).


 


Until
the expiration of the holding period applicable to sales thereof under Rule 144
under the Securities Act (or any successor provision), any certificate
evidencing any stock certificate representing Common Stock issued upon exchange
of any Security, shall bear a Common Stock Legend unless such Common Stock has
been sold pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the time of
such transfer) or pursuant to Rule 144 under the Securities Act or any
similar provision then in force, or unless otherwise agreed by the Company in
writing, with written notice thereof to the Trustee:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE.  BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO ALEXANDRIA REAL
ESTATE EQUITIES, INC. OR A SUBSIDIARY OF ALEXANDRIA REAL ESTATE EQUITIES, INC.;
(B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A ADOPTED UNDER THE
SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH
RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL,
PRIOR TO ANY TRANSFER OF THIS SECURITY, FURNISH TO THE TRANSFER AGENT AND THE
ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE
REQUIRED TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


14













 


Any
such Common Stock as to which such restrictions on transfer shall have expired
in accordance with their terms or as to which the conditions for removal of the
Common Stock Legend set forth therein have been satisfied may, upon surrender
of the certificates representing such Common Stock for exchange in accordance
with the procedures of the transfer agent for the Common Stock, be exchanged
for a new certificate or certificates for a like number of Common Stock, which
shall not bear the Common Stock Legend required by this Section 2.06.


 


(A)          By
its acceptance of any Security bearing the Restricted Securities Legend, each
Holder of such Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in the Restricted Securities Legend
and agrees that it will transfer such Security only as provided in this
Indenture and as permitted by applicable law.


 


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


 


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


 


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


 


Section 2.07.                  Book-Entry
Provisions for and Restrictions on Transfer and Exchange of Global Securities.


 


(A)          The
Global Securities initially shall (i) be deposited with, on or behalf of,
DTC, (ii) be registered in the name of DTC’s nominee, Cede & Co.,
(iii) be delivered to the Trustee as custodian for DTC, and (iv) bear
the following legend, as well as, to the extent applicable, the restricted
securities legend set forth in Section 2.06:


 


THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.  THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED 


 


15













 


CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.06 OF THE INDENTURE.


 


Members
of, or participants in, DTC (“Participants”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by DTC,
or the Trustee as its custodian, or under the Global Security, and so long as
DTC or its nominee, as the case may be, is the registered owner of a Global
Security, DTC or its nominee, as the case may be, will be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever, and the
beneficial owners of the Securities will be entitled only to those rights and
benefits afforded to them in accordance with DTC’s regular operating
procedures.  Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by DTC or its nominee, as the case may
be, or impair, as between DTC and Participants, the operation of customary
practices governing the exercise of the rights of a Holder of any Security.


 


(B)           Transfers
of Global Securities shall be limited to transfers in whole, but not in part,
to DTC, its successors or their respective nominees.  In addition, physical securities shall be
transferred to all beneficial owners, as identified by DTC, in exchange for
their beneficial interests in Global Securities (the “Physical Securities”)
only if (i) DTC notifies the Company that DTC is unwilling or unable to
continue as depositary for any Global Security (or DTC ceases to be a “clearing
agency” registered under Section 17A of the Exchange Act) and a successor
Depositary is not appointed by the Company within ninety (90) days of such
notice or cessation, or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a written request from DTC to issue
Physical Securities, or (iii) the Company, in its sole discretion,
determines at any time that the Securities shall no longer be represented by a
Global Security.  In any such instance,
an owner of a beneficial interest in a Global Security will be entitled to
physical delivery of individual Securities in certificated form of the same
series and like tenor, equal in principal amount to such beneficial interest
and to have the Securities in certificated form registered in its name.  Securities so issued in certificated form
will be issued in denominations of $1,000 or any integral multiple thereof and
will be issued in registered form only, without coupons.


 


(C)           In
connection with the transfer of a Global Security in its entirety to beneficial
owners pursuant to Section 2.07(B) hereof, such Global Security shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall upon receipt of an Authentication Order
from the Company authenticate and deliver, to each beneficial owner identified
by DTC in exchange for its beneficial interest in such Global Security, an
equal aggregate principal amount of Physical Securities of authorized
denominations.


 


(D)          The
Holder of any Global Security may grant proxies and otherwise authorize any
Person, including Participants and Persons that may hold interests through
Participants, to take any action which a Holder is entitled to take under this
Indenture or the Securities.


 


16












 


(E)           Notwithstanding
any other provisions of this Indenture, but except as provided in Section 2.07(B) hereof,
a Global Security may not be transferred except as a whole by DTC to a nominee
of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.


 


Section 2.08.                  Ranking.


 


The
indebtedness of the Company arising under or in connection with this Indenture
and every outstanding Security issued under this Indenture from time to time,
including any Additional Securities, constitutes and will constitute a senior
unsecured obligation of the Company, ranking equally with other existing and
future senior unsecured indebtedness of the Company and ranking senior to any
existing or future subordinated indebtedness of the Company.


 


Section 2.09.                  Mutilated,
Destroyed, Lost and Stolen Securities.


 


If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee, upon receipt of an Authentication Order, shall authenticate and
deliver in exchange therefor, at the expense of the Holder, a new Security of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.


 


If
there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the destruction, loss or theft of any Security and (b) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee, upon receipt of an Authentication
Order, shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, at the expense of the Holder, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.


 


In
case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.


 


Upon
the issuance of any new Security under this Section, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.


 


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


 


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


 


Section 2.10.                  [RESERVED].


 


Section 2.11.                  Cancellation
of Securities.


 


All
Securities surrendered for the purpose of payment, redemption, repurchase,
exchange or registration of transfer shall, if surrendered to the Company or
any Paying Agent, which shall initially be 


 


17













 


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


 


Section 2.12.                  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 Securityholders; 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
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee
of any change in the “CUSIP” numbers.


 


ARTICLE
III


 


REDEMPTION
AND REPURCHASE


 


Section 3.01.                  Redemption
and Repurchase.


 


(A)          (i) Redemption
of the Securities at the Company’s option, as permitted by this Indenture,
shall be made in accordance with paragraphs 6 and 7 of the Securities (a “Redemption”),
(ii) repurchases at the Holder’s option, as permitted by this Indenture,
shall be made in accordance with paragraph 8 of the Securities (a “Repurchase
at Holder’s Option”) and (iii) repurchases upon a Fundamental Change,
as permitted by this Indenture, shall be made in accordance with
paragraph 9 of the Securities (a “Repurchase Upon Fundamental Change”),
in each case in accordance with the applicable provisions of this Article III.


 


(B)           The
Company will comply with all federal and state securities laws, and the
applicable laws of any foreign jurisdiction, in connection with any offer to
sell or solicitations of offers to buy Securities pursuant to this Article III.


 


(C)           The
Company shall not have the right to redeem any Securities prior to April 20,
2014, except to preserve the Company’s qualification as a real estate
investment trust.  If, at any time, the
Company determines that it is necessary to redeem the Securities in order to
preserve the Company’s qualification as a real estate investment trust, the
Company may redeem all or any part of the Securities at a Redemption Price,
payable in cash, equal to one hundred percent (100%) of the principal amount of
the Securities redeemed plus accrued and unpaid interest, if any, to, but
excluding, the Redemption Date.  In such
case, the Company shall provide the Trustee with an Officers’ Certificate
evidencing that the Board of the Company has, in good faith, made the
determination that it is necessary to redeem the Securities in order to
preserve the Company’s qualification as a real estate investment trust, on
which the Trustee may conclusively rely.


 


The
Company shall have the right, at the Company’s option, at any time, and from
time to time, on a Redemption Date on or after April 20, 2014, to redeem
all or any part of the Securities at a price payable in cash equal to the
Redemption Price plus accrued and unpaid interest, if any, to, but excluding,
the Redemption Date.  In no event shall
any Redemption Date be a legal holiday; provided  further, that if 


 


18













 


the Redemption Date with respect to a Security is
after a Record Date for the payment of an installment of interest and on or
before the related interest payment date, then accrued and unpaid interest to,
but excluding, such interest payment date shall be paid, on such interest
payment date, to the Holder of record of such Security at the close of business
on such Record Date, and the Redemption Price shall not include any accrued or
unpaid interest.


 


(D)          Securities
in denominations larger than $1,000 principal amount may be redeemed in part
but only in integral multiples of $1,000 principal amount.


 


Section 3.02.                  Notices
to Trustee.


 


If the
Company elects to redeem Securities pursuant to paragraph 6 of the
Securities, it shall notify the Trustee of the Redemption Date, the applicable
provision of this Indenture pursuant to which the Redemption is to be made and
the aggregate principal amount of Securities to be redeemed, which notice shall
be provided to the Trustee by the Company at least fifteen (15) days prior to
the mailing, in accordance with Section 3.04 hereof, of the notice of Redemption
(unless a shorter notice period shall be satisfactory to the Trustee).


 


Section 3.03.                  Selection
of Securities to Be Redeemed.


 


If the
Company has elected to redeem less than all the Securities pursuant to
paragraph 6 of the Securities, the Trustee shall, promptly after receiving
the notice specified in Section 3.02 hereof, select the Securities to be
redeemed by lot, on a pro rata basis
or in accordance with any other method the Trustee considers fair and
appropriate.  The Trustee shall make such
selection from Securities then outstanding and not already to be redeemed by
virtue of having been previously called for Redemption.  The Trustee may select for Redemption
portions of the principal amount of Securities that have denominations larger
than $1,000 principal amount.  Securities
and portions of them the Trustee selects for Redemption shall be in amounts of
$1,000 principal amount or integral multiples of $1,000 principal amount.  The Trustee shall promptly notify the Company
in writing of the Securities selected for Redemption and the principal amount
thereof to be redeemed.


 


The
Registrar need not register the transfer of or exchange any Securities that
have been selected for Redemption, except the unredeemed portion of the
Securities being redeemed in part.


 


Section 3.04.                  Notice
of Redemption.


 


At
least thirty (30) days but not more than sixty (60) days before a Redemption
Date, the Company shall mail, or cause to be mailed, by first-class mail a
notice of Redemption to each Holder whose Securities are to be redeemed, at the
address of such Holder appearing in the register of the Registrar.  The notice shall identify the Securities and
the aggregate principal amount thereof to be redeemed pursuant to the Redemption
and shall state:


 


(i)            the Redemption
Date;


 


(ii)           the Redemption
Price plus accrued and unpaid interest, if any, to, but excluding, the
Redemption Date;


 


(iii)          the Conversion Rate
and the Conversion Price;


 


(iv)          the names and
addresses of the Paying Agent and the Conversion Agent;


 


19













 


(v)           that the right to
convert the Securities called for Redemption will terminate at the close of
business on the last Business Day immediately preceding the Redemption Date,
unless there shall be a Default in the payment of the Redemption Price or
accrued and unpaid interest, if any, payable as herein provided upon
Redemption;


 


(vi)          that Holders who
want to convert Securities must satisfy the requirements of Article X
hereof;


 


(vii)         the paragraph of the
Securities pursuant to which the Securities are to be redeemed;


 


(viii)        that Securities
called for Redemption must be surrendered to the Paying Agent to collect the
Redemption Price plus accrued and unpaid interest, if any, payable as herein
provided upon Redemption;


 


(ix)           that, unless there
shall be a Default in the payment of the Redemption Price or accrued and unpaid
interest, if any, payable as herein provided upon Redemption (including, where
the Redemption Date is after a Record Date for the payment of an installment of
interest and on or before the related Interest Payment Date, the payment, on
such Interest Payment Date, of accrued and unpaid interest to, but excluding,
such Interest Payment Date to the Holder of record at the close of business on
such Record Date), interest on Securities called for Redemption ceases to
accrue on and after the Redemption Date, except as otherwise provided herein,
such Securities will cease to be convertible after the close of business on the
last Business Day immediately preceding the Redemption Date, and all rights of
the Holders of such Securities shall terminate on and after the Redemption
Date, other than the right to receive, upon surrender of such Securities and in
accordance with this Indenture, the amounts due hereunder on such Securities
upon Redemption (and the rights of the Holder(s) of record of such
Securities to receive, on the applicable Interest Payment Date, accrued and
unpaid interest in accordance herewith in the event the Redemption Date is
after a Record Date for the payment of an installment of interest and on or
before the related Interest Payment Date); and


 


(x)            the CUSIP number or
numbers, as the case may be, of the Securities.


 


The
right, pursuant to Article X hereof, to convert Securities called for Redemption
shall terminate at the close of business on the last Business Day immediately
preceding the Redemption Date, unless there shall be a Default in the payment
of the Redemption Price or accrued and unpaid interest, if any, payable as
herein provided upon Redemption.


 


At the
Company’s request, the Trustee shall mail the notice of Redemption in the
Company’s name and at the Company’s expense; provided,
however, that the form and content of
such notice shall be prepared by the Company.


 


Section 3.05.                  Effect
of Notice of Redemption.


 


Once
notice of Redemption is mailed, Securities called for Redemption become due and
payable on the Redemption Date at the consideration set forth herein, and, on
and after such Redemption Date (unless there shall be a Default in the payment
of such consideration), except as otherwise provided herein, such Securities
shall cease to bear interest, and all rights of the Holders of such Securities
shall terminate, other than the right to receive such consideration upon
surrender of such Securities to the Paying Agent.


 


20













 


If any
Security shall not be fully and duly paid in accordance herewith upon
Redemption, the principal of, and accrued and unpaid interest on, such Security
shall, until paid, bear interest at the rate borne by such Security on the
principal amount of such Security, and such Security shall continue to be
convertible pursuant to Article X hereof.


 


Notwithstanding
anything herein to the contrary, the Company shall not redeem any Securities on
any date if the principal amount of the Securities has been accelerated, and
such acceleration has not been rescinded on or prior to Redemption Date (except
in the case of an acceleration resulting from a Default by the Company in the
payment of the Redemption Price with respect to such Securities).


 


Section 3.06.                  Deposit
of Redemption Price.


 


Prior
to 11:00 A.M., New York City time on the Redemption Date, the Company
shall deposit with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust) money, in funds immediately
available on the Redemption Date, sufficient to pay the consideration payable
as herein provided upon Redemption on all Securities to be redeemed on that
date.  The Paying Agent shall return to
the Company, as soon as practicable, any money not required for that purpose.


 


Section 3.07.                  Payment
of Securities Called for Redemption by the Company.


 


If
notice of redemption has been given as provided in Section 3.02, the
Securities or portion of Securities with respect to which such notice has been
given shall, unless exchanged pursuant to the terms hereof, become due and
payable on the Redemption Date and at the place or places stated in such notice
at the Redemption Price, and unless the Company shall default in the payment of
the Redemption Price, interest on the Securities or portion of Securities so
called for redemption shall cease to accrue on and after the Redemption Date
and, after 5:00 p.m., New York City time, on the last Business Day
immediately preceding the Redemption Date (unless the Company shall default in
the payment of the Redemption Price) such Securities shall cease to be
convertible pursuant to this Indenture and, except as provided in Section 4.03,
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the Redemption Price thereof.  On
presentation and surrender of such Securities at a place of payment specified
in said notice, the said Securities or the specified portions thereof shall be
paid and redeemed by the Company at the Redemption Price, together with
interest accrued thereon to, but excluding, the Redemption Date.


 


Upon
presentation of any Security redeemed in part only, the Company shall execute
and the Trustee shall, upon receipt of an Authentication Order, authenticate
and make available for delivery to the Holder thereof, at the expense of the
Company, a new Security or Securities, of authorized denominations, in
principal amount equal to the unredeemed portion of the Securities so
presented.


 


Section 3.08.                  Securities
Redeemed in Part.


 


Any
Security to be submitted for Redemption only in part shall be delivered
pursuant to Section 3.04 hereof (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or its attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall, upon receipt of an Authentication Order,
authenticate and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate
principal amount equal to the portion of such Security not submitted for
Redemption.


 


21













 


If any
Security selected for partial Redemption is converted in part, the principal of
such Security subject to Redemption shall be reduced by the principal amount of
such Security that is converted.


 


Section 3.09.                  Repurchase
of Securities at Option of the Holder.


 


(A)          At
the option of the Holder thereof, Securities (or portions thereof that are
integral multiples of $1,000 in principal amount) shall be purchased by the
Company pursuant to paragraph 8 of the Securities on each of April 15,
2014, April 15, 2019 and April 15, 2024 (each, an “Option
Repurchase Date”), at a purchase price, payable in cash, equal to one
hundred percent (100%) of the principal amount of the Securities (or such
portions thereof) to be so purchased (the “Option Repurchase Price”),
plus accrued and unpaid interest, if any, to, but excluding, the applicable
Option Repurchase Date (provided, that
such accrued and unpaid interest shall be paid to the Holder of record of such
Securities at the close of business on the Record Date immediately preceding
such Option Repurchase Date), upon:


 


(i)            delivery to the Company
(if it is acting as its own Paying Agent), or to a Paying Agent designated by
the Company for such purpose in the Option Repurchase Notice, by such Holder,
at any time from the opening of business on the date that is twenty (20)
Business Days prior to the applicable Option Repurchase Date until the close of
business on the Business Day immediately preceding the applicable Option
Repurchase Date, of a Purchase Notice, in the form set forth in the Securities
or any other form of written notice substantially similar thereto, in each
case, duly completed and signed, with appropriate signature guarantee, stating:


 


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


 


(b)           the principal amount
of Securities to be purchased, which must be $1,000 or an integral multiple
thereof; and


 


(c)           that such principal
amount of Securities are to be purchased by the Company as of the applicable
Option Repurchase Date pursuant to the terms and conditions specified in
paragraph 8 of the Securities and in this Indenture; and


 


(ii)           delivery to the
Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Option Repurchase Notice, at
any time after delivery of such Purchase Notice, of such Securities (together
with all necessary endorsements), such delivery being a condition to receipt by
the Holder of the Option Repurchase Price therefor plus accrued and unpaid
interest, if any, payable as herein provided upon Repurchase at Holder’s Option
(provided, however,
that the Holder of record of such Securities on the record date immediately
preceding such Option Repurchase Date need not surrender such Securities in
order to be entitled to receive, on the Option Repurchase Date, the accrued and
unpaid interest due thereon).


 


If
such Securities are held in book-entry form through DTC, the Purchase Notice
shall comply with applicable procedures of DTC.


 


Upon
such delivery of Securities to the Company (if it is acting as its own Paying
Agent) or such Paying Agent, such Holder shall be entitled to receive from the
Company or such Paying Agent, as the case may be, a nontransferable receipt of
deposit evidencing such delivery.


 


22













 


Notwithstanding
anything herein to the contrary, any Holder that has delivered the Purchase
Notice contemplated by this Section 3.09(A) to the Company (if it is
acting as its own Paying Agent) or to a Paying Agent designated by the Company
for such purpose in the Option Repurchase Notice shall have the right to
withdraw such Purchase Notice by delivery, at any time prior to the close of
business on the Business Day immediately preceding the applicable Option
Repurchase Date, of a written notice of withdrawal to the Company (if acting as
its own Paying Agent) or the Paying Agent, which notice shall contain the
information specified in Section 3.09(B)(vii) hereof.


 


The
Paying Agent shall promptly notify the Company of the receipt by it of any
Purchase Notice or written notice of withdrawal thereof.


 


(B)           The
Company shall give notice (the “Option Repurchase Notice”) on a date not
less than twenty (20) Business Days prior to each Option Repurchase Date to
each Holder at its address shown in the register of the Registrar and to each
beneficial owner as required by applicable law. 
Such notice shall state:


 


(i)            the Option
Repurchase Price plus accrued and unpaid interest, if any, to, but excluding,
such Option Repurchase Date and the Conversion Rate;


 


(ii)           the names and
addresses of the Paying Agent and the Conversion Agent;


 


(iii)          that Securities
with respect to which a Purchase Notice is given by a Holder may be converted
pursuant to Article X hereof only if such Purchase Notice has been
withdrawn in accordance with this Section 3.09 or if there shall be a
Default in the payment of such Option Repurchase Price or in accrued and unpaid
interest, if any, payable as herein provided upon Repurchase at Holder’s
Option;


 


(iv)          that Securities must
be surrendered to the Paying Agent to collect payment of the Option Repurchase
Price plus (if such Holder was the Holder of record of the applicable Security
at the close of business on the record date immediately preceding the Option
Repurchase Date) accrued and unpaid interest, if any, payable as herein
provided upon Repurchase at Holder’s Option;


 


(v)           that the Option
Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding,
such Option Repurchase Date, for any Security as to which a Purchase Notice has
been given and not withdrawn will be paid as promptly as practicable, but in no
event later than the later of such Option Repurchase Date or the time of
delivery of the Security as described in clause (iv) above; provided, however, that
such accrued and unpaid interest shall be paid, on the applicable interest
payment date, to the Holder of record of such Security at the close of business
on the record date immediately preceding such Option Repurchase Date;


 


(vi)          the procedures the Holder
must follow to exercise rights under this Section 3.09 (including the name
and address of the Paying Agent) and a brief description of those rights;


 


(vii)         that a Holder will
be entitled to withdraw its election in the Purchase Notice if the Company (if
acting as its own Paying Agent) or the Paying Agent receives, at any time prior
to the close of business on the Business Day immediately preceding the
applicable Option Repurchase Date, or such longer period as may be required by
law, a letter or telegram, telex or facsimile transmission (receipt of which is
confirmed and promptly followed by a letter) setting forth (I) the name of
such Holder, (II) a statement that such Holder is withdrawing its 


 


23













 


election to have
Securities purchased by the Company on such Option Repurchase Date pursuant to
a Repurchase at Holder’s Option, (III) the certificate number(s) of
such Securities to be so withdrawn, if such Securities are in certificated
form, (IV) the principal amount of the Securities of such Holder to be so
withdrawn, which amount must be $1,000 or an integral multiple thereof and (V) the
principal amount, if any, of the Securities of such Holder that remain subject
to the Purchase Notice delivered by such Holder in accordance with this Section 3.09,
which amount must be $1,000 or an integral multiple thereof;


 


(viii)        that, except as
otherwise provided herein, on and after the applicable Option Repurchase Date
(unless there shall be a Default in the payment of the consideration payable as
herein provided upon a Repurchase at Holder’s Option), interest on Securities
subject to Repurchase at Holder’s Option will cease to accrue, and all rights
of the Holders of such Securities shall terminate, other than the right to
receive, in accordance herewith, the consideration payable as herein provided
upon a Repurchase at Holder’s Option; and


 


(ix)           the CUSIP number or
numbers, as the case may be, of the Securities. 
At the Company’s request, the Trustee shall mail such Option Repurchase
Notice in the Company’s name and at the Company’s expense; provided,
however, that the form and content of
such Option Repurchase Notice shall be prepared by the Company.


 


No
failure of the Company to give an Option Repurchase Notice shall limit any
Holder’s right to exercise its rights to require the Company to purchase such
Holder’s Securities pursuant to a Repurchase at Holder’s Option.


 


(C)           Subject
to the provisions of this Section 3.09, the Company shall pay, or cause to
be paid, the Option Repurchase Price, plus accrued and unpaid interest, if any,
to, but excluding, the applicable Option Repurchase Date, with respect to each
Security subject to Repurchase at Holder’s Option to the Holder thereof as
promptly as practicable, but in no event later than the later of the applicable
Option Repurchase Date and the time such Security (together with all necessary
endorsements) is surrendered to the Paying Agent; provided,
however, that such accrued and unpaid
interest shall only be paid, on the applicable Interest Payment Date, to the
Holder of record of such Security at the close of business on the Record Date
immediately preceding such Option Repurchase Date.


 


(D)          Prior
to 11:00 A.M., New York City time on the applicable Option Repurchase Date,
the Company shall deposit with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust) money, in funds immediately
available on the applicable Option Repurchase Date, sufficient to pay the
Option Repurchase Price, plus accrued and unpaid interest, if any, to, but
excluding, such Option Repurchase Date, of all of the Securities that are to be
purchased by the Company on such Option Repurchase Date pursuant to a
Repurchase at Holder’s Option.  The
Paying Agent shall return to the Company, as soon as practicable, any money not
required for that purpose.


 


(E)           Once
the Purchase Notice has been duly delivered in accordance with this Section 3.09,
the Option Repurchase Price, plus accrued and unpaid interest, if any, relating
to the Securities to be purchased pursuant to the Repurchase at Holder’s Option
shall, on the applicable Option Repurchase Date, become due and payable in
accordance herewith, and, on and after such date (unless there shall be a
Default in the payment of the consideration payable as herein provided upon a
Repurchase at Holder’s Option), except as otherwise herein provided, such
Securities shall cease to bear interest, and all rights of the Holders of such
Securities shall terminate, other than the right to receive, in accordance
herewith, the such consideration.


 


24












 


(F)           Securities
with respect to which a Purchase Notice has been duly delivered in accordance
with this Section 3.09 may be converted pursuant to Article X hereof,
if otherwise convertible in accordance with Article X hereof, only if such
Purchase Notice has been withdrawn in accordance with this Section 3.09 or
if there shall be a Default in the payment of the consideration payable as
herein provided upon a Repurchase at Holder’s Option.


 


(G)           If
the Option Repurchase Price, plus accrued and unpaid interest (to the extent
specified in clause (C) above) with respect to any Security subject to
Repurchase at Holder’s Option shall not be paid in accordance herewith, the
principal of, and accrued and unpaid interest on, such Security shall, until
paid, bear interest, payable in cash, at the rate borne by such Security on the
principal amount of such Security, and such Security shall continue to be
convertible pursuant to Article X hereof.


 


(H)          Any
Security which is to be submitted for Repurchase at Holder’s Option only in
part shall be delivered pursuant to this Section 3.09 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall, upon receipt of an Authentication
Order, authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, of the same tenor and in
aggregate principal amount equal to the portion of such Security not submitted
for Repurchase at Holder’s Option.


 


(I)            Notwithstanding
anything herein to the contrary, no Securities shall be purchased by the
Company at the option of the Holders on any Option Repurchase Date if the
principal amount of the Securities has been accelerated, and such acceleration
has not been rescinded, on or prior to such Option Repurchase Date (except in
the case of an acceleration resulting from a Default by the Company in the
payment of the Option Repurchase Price with respect to such Securities).  The Paying Agent will promptly return to the
respective Holders thereof any Securities held by it during the continuance of
such acceleration.


 


(J)            Notwithstanding
anything herein to the contrary, if the option granted to Holders to require
the purchase of the Securities on the applicable Option Repurchase Date is
determined to constitute a tender offer, the Company shall comply with all
applicable tender offer rules under the Exchange Act, including Rule 13e-4
and Regulation 14E thereunder, and with all other applicable laws, and will
file a Schedule TO or any other schedules required under the Exchange Act or
any other applicable laws.


 


Section 3.10.                  [RESERVED].


 


Section 3.11.                  Repurchase
at Option of Holder Upon a Fundamental Change.


 


(A)          In
the event any Fundamental Change (as defined below) shall occur, each Holder of
Securities shall have the right (the “Fundamental Change Repurchase Right”),
at such Holder’s option, to require the Company to repurchase all of such
Holder’s Securities (or portions thereof that are integral multiples of $1,000
in principal amount), on a date selected by the Company (the “Fundamental
Change Repurchase Date”), which Fundamental Change Repurchase Date shall be
no later than thirty-five (35) days, nor earlier than twenty (20) days, after
the date the Fundamental Change Notice (as defined below) is mailed in
accordance with Section 3.11(B) hereof, at a price, payable in cash,
equal to one hundred percent (100%) of the principal amount of the Securities
(or portions thereof) to be so repurchased (the “Fundamental Change
Repurchase Price”), plus accrued and unpaid interest, if any, to, but
excluding, the Fundamental Change Repurchase Date, upon:


 


25













 


(i)            delivery to the
Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Notice, no
later than the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date, of a Purchase Notice, in the form set forth
in the Securities or any other form of written notice substantially similar
thereto, in each case, duly completed and signed, with appropriate signature
guarantee, stating:


 


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


 


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


 


(c)           that such principal
amount of Securities are to be repurchased pursuant to the terms and conditions
specified in paragraph 9 of the Securities and in this Indenture; and


 


(ii)           delivery to the
Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Notice, at
any time after the delivery of such Purchase Notice, of such Securities
(together with all necessary endorsements) with respect to which the
Fundamental Change Repurchase Right is being exercised;


 


provided, however, that
if such Fundamental Change Repurchase Date is after a record date for the
payment of an installment of interest and on or before the related interest
payment date, then the accrued and unpaid interest, if any, to, but excluding,
such interest payment date will be paid on such interest payment date to the
Holder of record of such Securities at the close of business on such record
date (without any surrender of such Securities by such Holder), and the Holder
surrendering such Securities for repurchase will not be entitled to any such
accrued and unpaid interest unless such Holder was also the Holder of record of
such Securities at the close of business on such record date.


 


If
such Securities are held in book-entry form through DTC, the Purchase Notice
shall comply with applicable procedures of DTC.


 


Upon
such delivery of Securities to the Company (if it is acting as its own Paying
Agent) or such Paying Agent, such Holder shall be entitled to receive from the
Company or such Paying Agent, as the case may be, a nontransferable receipt of
deposit evidencing such delivery.


 


Notwithstanding
anything herein to the contrary, any Holder that has delivered the Purchase
Notice contemplated by this Section 3.11(A) to the Company (if it is
acting as its own Paying Agent) or to a Paying Agent designated by the Company
for such purpose in the Fundamental Change Notice shall have the right to
withdraw such Purchase Notice by delivery, at any time prior to the close of
business on the Business Day immediately preceding the Fundamental Change
Repurchase Date, of a written notice of withdrawal to the Company (if acting as
its own Paying Agent) or the Paying Agent, which notice shall contain the
information specified in Section 3.11(B)(xi) hereof.


 


The
Paying Agent shall promptly notify the Company of the receipt by it of any
Purchase Notice or written notice of withdrawal thereof.


 


(B)           Within
twenty (20) Business Days after the occurrence of a Fundamental Change, the
Company shall mail, or cause to be mailed, to all Holders of record of the
Securities at their 


 


26













 


addresses shown in the register of the Registrar, and
to beneficial owners as required by applicable law, a notice (the “Fundamental
Change Notice”) of the occurrence of such Fundamental Change and the
Fundamental Change Repurchase Right arising as a result thereof.  The Company shall deliver a copy of the
Fundamental Change Notice to the Trustee and shall cause a copy to be published
at the expense of the Company in The New York Times or The Wall Street Journal
or another newspaper of national circulation.


 


Each Fundamental Change Notice shall state:


 


(i)            the events causing
the Fundamental Change;


 


(ii)           the date of such
Fundamental Change;


 


(iii)          the Fundamental
Change Repurchase Date;


 


(iv)          the last date by
which the Fundamental Change Repurchase Right must be exercised;


 


(v)           the Fundamental
Change Repurchase Price plus accrued and unpaid interest, if any, to, but
excluding, the Fundamental Change Repurchase Date;


 


(vi)          the names and
addresses of the Paying Agent and the Conversion Agent;


 


(vii)         a description of the
procedures which a Holder must follow to exercise the Fundamental Change
Repurchase Right;


 


(viii)        that, in order to
exercise the Fundamental Change Repurchase Right, the Securities must be
surrendered for payment of the Fundamental Change Repurchase Price plus accrued
and unpaid interest, if any, payable as herein provided upon Repurchase Upon
Fundamental Change;


 


(ix)           that the
Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any,
to, but excluding, the Fundamental Change Repurchase Date, for any Security as
to which a Purchase Notice has been given and not withdrawn will be paid as
promptly as practicable, but in no event more than the later of such
Fundamental Change Repurchase Date and the time of delivery of the Security
(together with all necessary endorsements) as described in clause (viii) above;
provided, however,
that if such Fundamental Change Repurchase Date is after a record date for the
payment of an installment of interest and on or before the related interest
payment date, then the accrued and unpaid interest, if any, to, but excluding,
such interest payment date will be paid on such interest payment date to the
Holder of record of such Security at the close of business on such record date
(without any surrender of such Securities by such Holder), and the Holder
surrendering such Security for repurchase will not be entitled to any such
accrued and unpaid interest unless such Holder was also the Holder of record of
such Security at the close of business on such record date;


 


(x)            that, except as
otherwise provided herein, on and after such Fundamental Change Repurchase Date
(unless there shall be a Default in the payment of the consideration payable as
herein provided upon Repurchase Upon Fundamental Change), interest on
Securities subject to Repurchase Upon Fundamental Change will cease to accrue,
and all rights of the Holders of such Securities shall terminate, other than
the right to receive, in accordance herewith, the consideration payable as
herein provided upon Repurchase Upon Fundamental Change;


 


27













 


(xi)           that a Holder will
be entitled to withdraw its election in the Purchase Notice if the Company (if
acting as its own Paying Agent), or the Paying Agent receives, prior to the
close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date, or such longer period as may be required by law, a
letter or telegram, telex or facsimile transmission (receipt of which is
confirmed and promptly followed by a letter) setting forth (I) the name of
such Holder, (II) a statement that such Holder is withdrawing its election
to have Securities purchased by the Company on such Fundamental Change
Repurchase Date pursuant to a Repurchase Upon Fundamental Change, (III) the
certificate number(s) of such Securities to be so withdrawn, if such
Securities are in certificated form, (IV) the principal amount of the
Securities of such Holder to be so withdrawn, which amount must be $1,000 or an
integral multiple thereof and (V) the principal amount, if any, of the
Securities of such Holder that remain subject to the Purchase Notice delivered
by such Holder in accordance with this Section 3.11, which amount must be
$1,000 or an integral multiple thereof;


 


(xii)          the Conversion Rate
and any adjustments to the Conversion Rate that will result from such
Fundamental Change;


 


(xiii)         that Securities
with respect to which a Purchase Notice is given by a Holder may be converted
pursuant to Article X hereof only if such Purchase Notice has been
withdrawn in accordance with this Section 3.11 or if there shall be a
Default in the payment of the Fundamental Change Repurchase Price or in the
accrued and unpaid interest, if any, payable as herein provided upon Repurchase
Upon Fundamental Change; and


 


(xiv)        the CUSIP number or
numbers, as the case may be, of the Securities. 
At the Company’s request, the Trustee shall mail such Fundamental Change
Notice in the Company’s name and at the Company’s expense; provided,
however, that the form and content of
such Fundamental Change Notice shall be prepared by the Company.


 


No
failure of the Company to give a Fundamental Change Notice shall limit any
Holder’s right to exercise a Fundamental Change Repurchase Right.


 


(C)           Subject
to the provisions of this Section 3.11, the Company shall pay, or cause to
be paid, the Fundamental Change Repurchase Price, plus accrued and unpaid
interest, if any, to, but excluding, the Fundamental Change Repurchase Date,
with respect to each Security as to which the Fundamental Change Repurchase
Right shall have been exercised to the Holder thereof as promptly as
practicable, but in no event later than the later of the Fundamental Change
Repurchase Date and the time such Security is surrendered to the Paying Agent; provided, however, that
if such Fundamental Change Repurchase Date is after a Record Date for the
payment of an installment of interest and on or before the related Interest
Payment Date, then the accrued and unpaid interest, if any, to, but excluding,
such Interest Payment Date will be paid on such Interest Payment Date to the
Holder of record of such Security at the close of business on such Record Date,
and the Holder surrendering such Security for repurchase will not be entitled
to any such accrued and unpaid interest unless such Holder was also the Holder
of record of such Security at the close of business on such Record Date.


 


(D)          Prior
to 11:00 A.M., New York City time on a Fundamental Change Repurchase Date,
the Company shall deposit with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust) money, in funds immediately
available on the Fundamental Change Repurchase Date, sufficient to pay the
consideration payable as herein provided upon Repurchase Upon Fundamental
Change for all of the Securities that are to be repurchased by the Company on
such 


 


28













 


Fundamental Change Repurchase Date pursuant to a
Repurchase Upon Fundamental Change.  The
Paying Agent shall return to the Company, as soon as practicable, any money not
required for that purpose.


 


(E)           Once
the Fundamental Change Notice and the Purchase Notice have been duly given in
accordance with this Section 3.11, the Fundamental Change Repurchase
Price, plus accrued and unpaid interest, if any, relating to the Securities to
be repurchased pursuant to a Repurchase Upon Fundamental Change shall, on the
Fundamental Change Repurchase Date, become due and payable in accordance herewith,
and, on and after such date (unless there shall be a Default in the payment of
the consideration payable as herein provided upon Repurchase Upon Fundamental
Change), except as otherwise herein provided, such Securities shall cease to
bear interest, and all rights of the Holders of such Securities shall
terminate, other than the right to receive, in accordance herewith, such
consideration.


 


(F)           Securities
with respect to which a Purchase Notice has been duly delivered in accordance
with this Section 3.11 may be converted pursuant to Article X hereof,
if otherwise convertible in accordance with Article X hereof, only if such
Purchase Notice has been withdrawn in accordance with this Section 3.11 or
if there shall be a Default in the payment of the consideration payable as
herein provided upon Repurchase Upon Fundamental Change.


 


(G)           If
the Fundamental Change Repurchase Price, plus accrued and unpaid interest (to
the extent provided in clause (C) above) with respect to any Security
shall not be paid upon surrender thereof for Repurchase Upon Fundamental
Change, the principal of, and accrued and unpaid interest on, such Security
shall, until paid, bear interest, payable in cash, at the rate borne by such
Security on the principal amount of such Security, and such Security shall
continue to be convertible pursuant to Article X hereof.


 


(H)          Any
Security which is to be submitted for Repurchase Upon Fundamental Change only
in part shall be delivered pursuant to this Section 3.11 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee upon receipt of an Authentication Order
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, of the same tenor and in aggregate
principal amount equal to the portion of such Security not duly submitted for
Repurchase Upon Fundamental Change.


 


(I)            Notwithstanding
anything herein to the contrary, no Securities shall be repurchased by the
Company at the option of the Holders upon a Fundamental Change pursuant to this
Section 3.11 if the principal amount of the Securities has been
accelerated, and such acceleration has not been rescinded, on or prior to the
Fundamental Change Repurchase Date (except in the case of an acceleration
resulting from a Default by the Company in the payment of the Fundamental
Change Repurchase Price with respect to such Securities).  The Paying Agent will promptly return to the
respective Holders thereof any Securities held by it during the continuance of
such acceleration.


 


(J)            Notwithstanding
anything herein to the contrary, if the option granted to Holders to require
the repurchase of the Securities upon the occurrence of a Fundamental Change is
determined to constitute a tender offer, the Company shall comply with all
applicable tender offer rules under the Exchange Act, including Rule 13e-4
and Regulation 14E thereunder, and with all other applicable laws, and will
file a Schedule TO or any other schedules required under the Exchange Act or
any other applicable laws.


 


29













 


(K)          As
used herein and in the Securities, a “Fundamental Change” shall be
deemed to have occurred upon the occurrence of either a “Change in Control”
or a “Termination of Trading.”


 


(i)            A “Change in
Control” shall be deemed to have occurred at such time as:


 


(a)           any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the “beneficial owner” (as such term is used in Rule 13d-3
under the Exchange Act), directly or indirectly, of fifty percent (50%) or more
of the total outstanding voting power of all classes of Common Stock entitled
to vote generally in the election of directors (“Voting Stock”); or


 


(b)           there occurs a sale,
transfer, lease, conveyance or other disposition of all or substantially all of
the property or assets of the Company or the Guarantor to any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), including any group acting for the purpose of acquiring,
holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act (such an event, an “Asset Sale Control Change”); or


 


(c)           the Company
consolidates with, or merges with or into, another person or any person
consolidates with, or merges with or into, the Company, unless either:


 


(1)           the persons that “beneficially
owned” (as such term is used in Rule 13d-3 under the Exchange Act),
directly or indirectly, the shares of the Voting Stock immediately prior to
such consolidation or merger, “beneficially own,” directly or indirectly,
immediately after such consolidation or merger, shares of the surviving or
continuing corporation’s Voting Stock representing at least a majority of the
total outstanding voting power of all outstanding classes of the Voting Stock
of the surviving or continuing corporation in substantially the same proportion
as such ownership immediately prior to such consolidation or merger; or


 


(2)           at least ninety
percent (90%) of the consideration (other than cash payments for fractional
shares or cash payments pursuant to statutory appraisal rights) in such
consolidation or merger consists of common stock and any associated rights
traded on a U.S. national securities exchange (or which will be so traded when
issued or exchanged in connection with such consolidation or merger), and, as a
result of such consolidation or merger, the Securities, will be convertible
into such common stock and associated rights (such a consolidation or merger that
satisfies the conditions set forth in this clause (2), a “Listed Stock
Business Combination”); or


 


(d)           the following
persons cease for any reason to constitute a majority of the Company’s Board:


 


(1)           individuals who on
the Issue Date constituted the Company’s Board; and


 


(2)           any new directors
whose election to the Company’s Board or whose nomination for election by the
Company’s stockholders was approved by at least a majority of the directors of
the Company then still in office 


 


30

















 


either who were
directors of the Company on the Issue Date or whose election or nomination for
election was previously so approved; or


 


(e)           the Company is
liquidated or dissolved or the holders of the Company’s Capital Stock approve
any plan or proposal for the liquidation or dissolution of the Company.


 


(ii)           A “Termination
of Trading” shall be deemed to occur if the Common Stock (or other common
stock into which the Securities are then convertible) is no longer listed for
trading on a U.S. national securities exchange.


 


ARTICLE
IV



COVENANTS


 


Section 4.01.                  Payment
of Principal, Interest and Additional Interest.


 


The
Company covenants and agrees for the benefit of each of the Securities that it
will duly and punctually pay the principal of, interest on and any Additional
Interest on those Securities in accordance with the terms of the Securities and
this Indenture.


 


Section 4.02.                  Maintenance
of Office or Agency.


 


The
Company will maintain in each place of payment for any Securities an office or
agency where those Securities may be presented or surrendered for payment,
where those Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities 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 shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


 


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


 


Section 4.03.                  Money
for Securities Payments to be Held in Trust.


 


If the
Company shall at any time act as its own Paying Agent with respect to any
Securities, it will, on or before each due date of the principal of, interest
on or any Additional Interest on any of those Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, interest or any Additional Interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.


 


Whenever
the Company shall have one or more Paying Agents for any Securities, it will,
prior to each due date of principal of, interest on or any Additional Interest
on any of those Securities, deposit 


 


31













 


with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.


 


The
Company will cause each Paying Agent (other than the Trustee) for any
Securities to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon those
Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of those Securities.


 


The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of principal of, interest on or any
Additional Interest on any Security and remaining unclaimed for two years after
such principal, interest or Additional Interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, 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, shall 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 mailed to each Holder or published once, in a newspaper published in the
English language, customarily published on each Business Day and of general
circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.


 


Section 4.04.                  [RESERVED].


 


Section 4.05.                  Statement
by Officers as to Default.


 


The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not, to the best knowledge of the signers thereof,
the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
qualification thereof of which they may have knowledge.  The Company will also deliver to the Trustee,
promptly after an officer of the Company becomes aware of the occurrence of any
Event of Default, an Officers’ Certificate setting forth the nature and status
of such Event of Default and, if then formulated, the action that the Company
proposes to take with respect thereto.


 


Section 4.06.                  Rule 144A
Information Requirement.


 


If so
required by Rule 144A the Company will promptly furnish to the Holders,
beneficial owners and prospective purchasers of the Securities and of any
Common Stock delivered upon exchange of the 


 


32













 


Securities, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) to facilitate
the resale of the Securities and the Common Stock pursuant to Rule 144A.


 


Section 4.07.                  SEC
Report and Report to Trustee.


 


The
Company shall deliver to the Trustee, no later than the time such report is
required to be filed with the Commission pursuant to the Exchange Act
(including, without limitation, to the extent applicable, any extension
permitted by Rule 12b-25 under the Exchange Act), a copy of each report
the Company is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act; provided, however, that the Company shall not be required to deliver
to the Trustee any material for which the Company has sought and received
confidential treatment by the Commission; and provided
further, each such report will be deemed
to be so delivered to the Trustee if the Company files such report with the
Commission through the Commission’s EDGAR database no later than the time such
report is required to be filed with the Commission pursuant to the Exchange Act
(including, without limitation, to the extent applicable, any extension
permitted by Rule 12b-25 under the Exchange Act).  In the event the Company is at any time no
longer subject to the reporting requirements of Section 13 or Section 15(d) of
the Exchange Act, the Company shall continue to provide the Trustee and, upon
request, any Holder, within the time period that the Company would have been
required to file such reports with the Commission (including, without
limitation, to the extent applicable, any extension permitted by Rule 12b-25
under the Exchange Act), annual and quarterly consolidated financial statements
substantially equivalent to financial statements that would have been included
in reports filed with the Commission if the Company were subject to the
reporting requirements of Section 13 or Section 15(d) of the
Exchange Act, including, with respect to annual information only, a report
thereon by the Company’s certified independent public accountants as such would
be required in such reports filed with the Commission and, in each case,
together with a management’s discussion and analysis of financial condition and
results of operations which would be so required.  The Company also shall comply with the other
provisions of Trust Indenture Act § 314(a). 
Delivery of such reports, information and documents to the Trustee is
for informational purposes only, and the Trustee’s receipt thereof 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 an Officers’ Certificate).


 


In
addition, the Company shall regularly furnish to the Trustee copies of its
annual report to stockholders, containing audited financial statements, and any
other financial reports which the Company furnish to its stockholders.


 


Section 4.08.                  Corporate
Existence.


 


Subject
to Section 7.01 hereof, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate existence of each of its Subsidiaries, in accordance with the
respective organizational documents of the Company and of each Subsidiary, and
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 existence of any Subsidiary, if in the good faith
judgment of the executive management of the Company (i) such preservation
or existence is not material to the conduct of business of the Company and (ii) the
loss of such right, license or franchise or the dissolution of such Subsidiary
does not have a material adverse impact on the Holders.


 


Section 4.09.                  Additional
Interest Notice.


 


33













 


In the
event that the Company is required to pay Additional Interest to Holders of
Securities, the Company will provide written notice (“Additional Interest
Notice”) to the Trustee of its obligation to pay Additional Interest no
later than ten (10) calendar days prior to the proposed Interest Payment
Date for Additional Interest, and the Additional Interest Notice shall set
forth the amount of Additional Interest to be paid by the Company on such
Interest Payment Date.  The Trustee shall
not at any time be under any duty or responsibility to any Holder of Securities
to determine the Additional Interest, or with respect to the nature, extent or
calculation of the amount of Additional Interest when made, or with respect to
the method employed in such calculation of the Additional Interest.


 


Section 4.10.                  [RESERVED].


 


Section 4.11.                  Further
Instruments and Acts.


 


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


 


ARTICLE
V


 


DEFAULTS
AND REMEDIES


 


Section 5.01.                  Events
of Default.


 


An “Event
of Default” occurs if:


 


(i)            the Company fails
to pay the principal of, or Additional Interest, if any, on, any Security when
the same becomes due and payable, whether at maturity, upon Redemption, on an
Option Repurchase Date with respect to a Repurchase at Holder’s Option, on a
Fundamental Change Repurchase Date with respect to a Repurchase Upon
Fundamental Change or otherwise;


 


(ii)           the Company fails
to pay an installment of interest on any Security when due, if such failure
continues for thirty (30) days after the date when due;


 


(iii)          the Company fails
to satisfy its conversion obligations upon exercise of a Holder’s conversion
rights pursuant hereto;


 


(iv)          the Company fails to
timely provide a Fundamental Change Notice or an Option Repurchase Notice, as
required by the provisions of this Indenture, or fails to timely provide any
notice pursuant to, and in accordance with, Section 10.15(D) hereof;


 


(v)           the Company fails to
comply with any other term, covenant or agreement set forth in the Securities,
this Indenture or the Guaranty if the failure is not cured within sixty (60)
days after notice to the Company by the Trustee or to the Company and the
Trustee by Holders of at least twenty five percent (25%) in aggregate principal
amount of the Securities then outstanding in accordance with this Indenture;


 


(vi)          the Company, the
Guarantor or any of the Company’s Subsidiaries defaults in the payment when
due, after the expiration of any applicable grace period, of principal of or
interest on Indebtedness for money borrowed, in the aggregate principal amount
then outstanding of fifty million dollars ($50,000,000) or more, which default
results in the acceleration of Indebtedness of the Company, the Guarantor or
any of the Company’s other Subsidiaries for money borrowed in such aggregate 


 


34













 


principal amount or more so that it becomes due and
payable prior to the date on which it would otherwise become due and payable
and such default is not cured or waived, or such acceleration is not rescinded,
within ten (10) days after written notice to the Company by the Trustee or
to the Company and the Trustee by Holders of at least twenty five percent (25%)
in aggregate principal amount of the Securities then outstanding, each in
accordance with this Indenture;


 


(vii)         the Company, the
Guarantor or any of the Company’s other Subsidiaries fails, within thirty (30)
days, to pay, bond or otherwise discharge any final, non-appealable judgments
or orders for the payment of money the total uninsured amount of which for the
Company or any of its Subsidiaries exceeds fifty million dollars ($50,000,000),
which are not stayed on appeal;


 


(viii)        the Company, the
Guarantor or any of their Significant Subsidiaries, pursuant to, or within the
meaning of, any Bankruptcy Law, insolvency law, or other similar law now or
hereafter in effect or otherwise, either:


 


(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, or


 


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


 


(ix)           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 in an involuntary case or
proceeding, or adjudicates the Company or any of its Significant Subsidiaries
insolvent or bankrupt,


 


(B)           appoints a Custodian
of the Company or any of its Significant Subsidiaries for all or substantially
all of the property of the Company or any such Significant Subsidiary, as the
case may be, or


 


(C)           orders the winding
up or liquidation of the Company or any of its Significant Subsidiaries, and,
in the case of each of clauses (A), (B) and (C) of this Section 5.01(ix),
the order or decree remains unstayed and in effect for at least sixty (60)
consecutive days.


 


(x)            the Guaranty ceases
to be in full force and effect (other than in accordance with the terms of the
Guaranty and this Indenture) or is declared null and void and unenforceable or
found to be invalid or the Guarantor denies its liability under the Guarantee
(other than by reason of release of the Guarantor from the Guaranty in
accordance with the terms of this Indenture and the Guarantee).


 


The
term “Bankruptcy Law” means Title 11, U.S. Code or any similar U.S.
Federal or State law for the relief of debtors. 
The term “Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.


 


35












 


For
the avoidance of doubt, a Default under clause (v) above is not an Event
of Default until (I) the Trustee notifies the Company in writing, or the
Holders of at least twenty five percent (25%) in aggregate principal amount of
the Securities then outstanding notify the Company and the Trustee in writing,
of the Default and (II) the Default is not cured within sixty (60) days
after receipt of such notice.  Such
notice must specify the Default, demand that it be remedied and state that the
notice is a “Notice of Default.” 
If the Holders of at least twenty five percent (25%) in aggregate
principal amount of the outstanding Securities request the Trustee to give such
notice on their behalf, the Trustee shall do so.  When a Default is cured, it ceases to exist
for all purposes under this Indenture.


 


Section 5.02.                  Acceleration.


 


If an
Event of Default (excluding an Event of Default specified in Section 5.01(viii) or
(ix) hereof with respect to the Company (but including an Event of Default
specified in Section 5.01(viii) or (ix) hereof solely with
respect to a Significant Subsidiary of the Company)) occurs and is continuing,
the Trustee by written notice to the Company, or the Holders of at least twenty
five percent (25%) in aggregate principal amount of the Securities then
outstanding by written notice to the Company and the Trustee, may declare the
Securities to be due and payable.  Upon
such declaration, the principal of, and accrued and unpaid interest and any
Additional Interest on, all Securities shall be due and payable
immediately.  If an Event of Default
specified in Section 5.01(viii) or (ix) hereof with respect to
the Company (excluding, for purposes of this sentence, an Event of Default
specified in Section 5.01(viii) or (ix) hereof solely with
respect to a Significant Subsidiary of the Company) occurs, the principal of,
and accrued and unpaid interest and any Additional Interest, on, all the
Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.  The Holders
of a majority in aggregate principal amount of the Securities then outstanding
by written notice to the Trustee may rescind or annul an acceleration and its
consequences if (A) the rescission would not conflict with any order or
decree, (B) all existing Events of Default, except the non-payment of
principal, interest or Additional Interest, if any, that has become due solely
because of the acceleration, have been cured or waived and (C) all amounts
due to the Trustee under Section 6.08 hereof have been paid.


 


Section 5.03.                  Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The
Company covenants that if:


 


(A)          default
is made in the payment of any interest or Additional Interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or


 


(B)           default
is made in the payment of the principal of any Security at the Maturity Date
thereof, the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and interest and any Additional
Interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and on any overdue interest and
Additional Interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the amounts owed to the Trustee, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


If an
Event of Default occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of the
Securities by such appropriate judicial proceedings as the Trustee shall deem
necessary to protect and enforce any such rights, whether for the 


 


36













 


specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.


 


Section 5.04.                  Trustee
May File Proofs of Claim.


 


In
case of any judicial proceeding relative to the Company (or any other obligor
upon the Securities), its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
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 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 6.08.  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 6.08 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.


 


No
provision of this Indenture 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
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf
of the Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors’ or other similar committee.


 


Section 5.05.                  Trustee
May Enforce Claims Without Possession of Securities.


 


All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.


 


Section 5.06.                  Application
of Money Collected.


 


Any
money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or interest or any
Additional Interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:


 


FIRST:  To the payment of all amounts due the Trustee
under Section 6.08;


 


SECOND:  In case the principal of the outstanding
Securities shall not have become due and be unpaid, to the payment of accrued
and unpaid interest, if any, and Additional Interest, if any, on the 


 


37













 


Securities in default in the order of the maturity of
the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) as provided in Section 2.03
hereof, such payments to be made ratably to the Persons entitled thereto;


 


THIRD:  In case the principal of the outstanding
Securities shall have become due, by declaration or otherwise, and be unpaid to
the payment of the whole amount then owing and unpaid upon the Securities for
principal and interest, with interest on the overdue principal, if any, and (to
the extent that such interest has been collected by the Trustee) upon overdue
installments of accrued and unpaid interest, as provided in Section 2.03
hereof, and in case such monies shall be insufficient to pay in full the whole
amounts so due and unpaid upon the Securities, then to the payment of such
principal and interest, without preference or priority of principal, over
interest, or of interest over principal or of any installment of interest over
any other installment of interest, or of any Security over any other Security,
ratably to the aggregate of such principal and accrued and unpaid interest; and


 


FOURTH:  To the Person entitled to receive the same;
if no other Person shall be entitled thereto, then to the Company, or to
whomsoever may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.


 


Section 5.07.                  Limitation
on Suits.


 


Except
as provided in Sections 5.08 and 5.10 hereof, a Securityholder may not
institute any proceeding under this Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy under this Indenture unless:


 


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


 


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


 


(iii)          such Holder or
Holders offer and, if requested, provide to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense to or of the Trustee in
connection with pursuing such remedy;


 


(iv)          the Trustee fails to
comply with the request within sixty (60) days after receipt of such notice,
request and offer of indemnity; and


 


(v)           during such sixty
(60) day period, the Holders of a majority in aggregate principal amount of the
Securities then outstanding do not give the Trustee a direction inconsistent
with the request.


 


The
limitations set forth above do not apply to a suit by any Holder to enforce:


 


(i)            the payment of any
amounts due on that Holder’s Securities after the applicable due date; or


 


(ii)           the right to
convert that Holder’s Securities in accordance with this Indenture.


 


A
Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder.


 


Section 5.08.                  Rights
of Holders to Convert Securities.


 


38













 


Notwithstanding
any other provision of this Indenture, the right of any Holder to convert the
Security in accordance with this Indenture, or to bring suit for the
enforcement of such right, shall not be impaired or affected without the
consent of the Holder.


 


Section 5.09.                  Notice
of Defaults.


 


If a
Default or Event of Default occurs and is continuing as to which the Trustee
has received written notice pursuant to the provisions of the Indenture, or as
to which a Responsible Officer of the Trustee shall have actual knowledge, then
the Trustee shall mail to each Holder a notice of the Default or Event of
Default within thirty (30) days after receipt of such notice or after acquiring
such knowledge, as applicable, unless such Default or Event of Default has been
cured or waived; provided, however,
that, except in the case of a Default or Event of Default in payment of any
amounts due with respect to any Security, the Trustee may withhold such notice
if, and so long as it in good faith determines that, withholding such notice is
in the best interests of Holders.


 


Section 5.10.                  Unconditional
Rights of Holders to Receive Principal, Additional Interest and Interest.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the
principal of and any Additional Interest and (subject to Section 2.03
hereof) interest on such Security on the Maturity Date (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.


 


Section 5.11.                  Restoration
of Rights and Remedies.


 


If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.


 


Section 5.12.                  Rights
and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 2.09,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


Section 5.13.                  Delay
or Omission Not Waiver.


 


No
delay or omission of the Trustee or of any Holder of any Securities to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.


 


39













 


Section 5.14.                  Control
by Holders.


 


The
Holders of a majority in aggregate principal amount of the outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided
that:


 


(A)          such
direction shall not be in conflict with any rule of law or with this
Indenture that the Trustee determines may be unduly prejudicial to the rights
of other Holders and the Securities or that may involve the Trustee in personal
liability, and


 


(B)           the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.


 


Section 5.15.                  Waiver
of Past Defaults.


 


Subject
to Section 5.10 of this Article V and Section 9.02 hereof, the
Holders of a majority in aggregate principal amount of the Securities then
outstanding may, by written notice to the Trustee, waive any past Default or
Event of Default and its consequences, other than (A) a Default or Event
of Default in the payment of the principal of, or interest on, or Additional
Interest, if any, on any Security, or in the payment of the Redemption Price,
the Option Repurchase Price or the Fundamental Change Repurchase Price (or
accrued and unpaid interest, if any, payable as herein provided, upon
Redemption, Repurchase at Holder’s Option or Repurchase Upon Fundamental
Change), (B) a Default or Event of Default arising from a failure by the
Company to convert any Securities in accordance with this Indenture or (C) any
Default or Event of Default in respect of any provision of this Indenture or
the Securities which, under Section 9.02 hereof, cannot be modified or
amended without the consent of the Holder of each outstanding Security affected.  When a Default or an Event of Default is
waived, it is cured and ceases to exist for all purposes under this
Indenture.  This Section 5.15 shall
be in lieu of Trust Indenture Act § 316(a)(1)(B), and, as permitted by the
Trust Indenture Act, Trust Indenture Act § 316(a)(1)(B) is hereby
expressly excluded from this Indenture.


 


Section 5.16.                  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, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor
the Trust Indenture Act shall be deemed to authorize any court to require such
an undertaking or to make such an assessment in any suit instituted by the
Trustee, a suit by a Holder of a Security pursuant to Section 5.08 and Section 5.10
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Securities.


 


Section 5.17.                  Waiver
of Usury, Stay or Extension Laws.


 


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


 


40













 


ARTICLE
VI


 


THE
TRUSTEE


 


Section 6.01.                  Certain
Duties and Responsibilities.


 


The
duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act.  Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.  Whether or
not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.


 


Section 6.02.                  Reliance on Documents, Opinions,
etc.


 


Except
as otherwise provided in Section 6.01:


 


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


 


(B)           before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate, an Opinion of Counsel or both. 
The Trustee shall not be liable for any action it takes or omits to take
in reliance on such Officers’ Certificate or Opinion of Counsel.  No such Officers’ Certificate or Opinion of
Counsel shall be at the expense of the Trustee;


 


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


 


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


 


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


 


(F)           the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it with due care hereunder;


 


41













 


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


 


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


 


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


 


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


 


(K)          whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate;


 


(L)           any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
may be sufficiently evidenced by a Board Resolution;


 


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


 


(N)          the
Trustee shall not be deemed to have notice of any Default or Event of Default
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 Securities and this Indenture.


 


Section 6.03.                  [RESERVED].


 


Section 6.04.                  [RESERVED].


 


Section 6.05.                  Not
Responsible for Recitals or Issuance of Securities.


 


The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. 
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. 
Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds
thereof.


 


Section 6.06.                  May Hold
Securities.


 


42













 


The
Trustee, any Authenticating Agent, any Paying Agent, any Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of the Securities and, subject to Sections 6.09 and 6.14
hereof, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Registrar or such
other agent.


 


Section 6.07.                  Money
Held in Trust.


 


Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. 
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.


 


Section 6.08.                  Compensation,
Reimbursement and Indemnification.


 


The
Company agrees:


 


(a)           to pay to the
Trustee from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);


 


(b)           except as otherwise
expressly provided herein, to reimburse the Trustee upon its request for all
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as shall have been caused by
its own negligence or willful misconduct, as determined by a court of competent
jurisdiction in a final non-appealable decision; and


 


(c)           to fully indemnify
the Trustee for, and to hold it harmless against, any loss, liability, claim,
damage or expense incurred without negligence or willful misconduct on its
part, as determined by a court of competent jurisdiction in a final non-appealable
decision, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.


 


To
secure the Company’s payment obligations in this Section 6.08, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 5.01(viii) or (ix) 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.


 


The
benefits of this Section shall survive the termination of the Indenture
and resignation or removal of the Trustee.


 


Section 6.09.                  Conflicting
Interests.


 


If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, 


 


43













 


and subject to the provisions of, the Trust Indenture
Act and this Indenture, or apply to the SEC for permission to continue to act
as Trustee, to the extent permitted by the Trust Indenture Act.  To the extent permitted by the Trust
Indenture Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture and being a trustee another
indenture between the Company and the Trustee.


 


Section 6.10.                  Corporate
Trustee Required; Eligibility.


 


There
shall at all times be one (and only one) Trustee hereunder, which may be
Trustee hereunder for the Securities. 
Each Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such, and has a combined capital and surplus of at
least $50,000,000.  If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section and to the extent permitted by the Trust Indenture Act,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.


 


Section 6.11.                  Resignation
and Removal; Appointment of Successor.


 


No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.12.


 


The
Trustee may resign at any time by giving written notice thereof to the
Company.  If the instrument of acceptance
by a successor Trustee required by Section 6.12 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Trustee.


 


The
Trustee may be removed at any time by Act of the Holders of a majority in
aggregate principal amount of the outstanding Securities, delivered to the
Trustee and to the Company.  If the
instrument of acceptance by a successor Trustee required by Section 6.12
shall not have been delivered to the Trustee within 30 days after such removal,
the retiring Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.


 


If at
any time:


 


(a)           the Trustee shall
fail to comply with Section 6.09 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for at
least six months, or


 


(b)           the Trustee shall
cease to be eligible under Section 6.10 and shall fail to resign after
written request therefor by the Company or by any such Holder, or


 


(c)           the Trustee shall
become incapable of acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then,
in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 5.16
hereof, any Holder who has been a bona fide 


 


44













 


Holder of a
Security for at least six months may, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction for or the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.


 


If the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees and shall
comply with the applicable requirements of Section 6.12.  If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
shall be appointed by Act of the Holders of a majority in principal amount of
the outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.12,
become the successor Trustee and to that extent supersede the successor Trustee
appointed by the Company.  If no
successor Trustee shall have been so appointed by the Company or the Holders
and accepted appointment in the manner required by Section 6.12, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of such Holder and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.


 


The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee to all Holders of Securities in the
manner provided in this Section 6.11. 
Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.


 


Section 6.12.                  Acceptance
of Appointment by Successor.


 


In
case of the appointment hereunder of a successor Trustee, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.


 


Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.


 


No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.


 


Section 6.13.                  Merger,
Conversion, Consolidation or Succession to Business of Trustee.


 


Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.  In case any
Securities shall have been authenticated, 


 


45













 


but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.


 


Section 6.14.                  Preferential
Collection of Claims Against Company.


 


If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).


 


Section 6.15.                  Appointment
of Authenticating Agent.


 


The
Trustee may appoint an Authenticating Agent or Agents which shall be authorized
to act on behalf of the Trustee to authenticate the Securities issued upon
original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 2.09 hereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.  Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. 
Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. 
If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.


 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company.  The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give notice of such appointment in the
manner provided in Section 15.02 to all Holders of Securities with respect
to which such Authenticating Agent will serve. 
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.  No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.


 


46












 


The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.  If an appointment with respect the Securities
is made pursuant to this Section, the Securities may have endorsed thereon, in
addition to the Trustee’s certificate of authentication, an alternative
certificate of authentication in the following form:


 


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


 


As
Trustee


 


By


 


Authorized
Signatory


 


 


As
Authenticating Agent


 


By


 


Authorized
Signatory


 


ARTICLE
VII



CONSOLIDATION, MERGER AND SALES OF ASSETS


 


Section 7.01.                  Company
May Consolidate, Etc., Only on Certain Terms.


 


The
Company shall not consolidate with or merge with or into any other Person, or
sell, transfer, lease, convey, or otherwise dispose of all or substantially all
of its properties or assets to any Person (including pursuant to a statutory
arrangement), whether in a single transaction or series of related
transactions, unless (i) the Person formed by such consolidation or into
which the Company is merged or the Person that leases or acquires, by sale,
transfer, conveyance or otherwise, all or substantially all of the property or
assets of the Company expressly assumes, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Securities, this Indenture and any
supplement or amendment to this Indenture then in effect with respect to any
Securities; (ii) immediately after giving effect to such transaction or
series of transactions, no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall have happened
and be continuing; and (iii) the Person formed by such consolidation, the
Person into which the Company is merged or the Person that leases or acquires,
by sale, transfer, conveyance or otherwise, all or substantially all of the
property or assets of the Company, shall be a corporation, partnership, limited
liability company or trust and shall be organized and validly existing under
the laws of the United States of America, any State thereof or the District of
Columbia.  The Company shall deliver to
the Trustee prior to the consummation of the proposed transaction an Officers’
Certificate and an Opinion of Counsel, each stating that such proposed
transaction and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.


 


No
such consolidation, merger, sale, conveyance, transfer or lease shall be
permitted by this Section 7.01 unless prior thereto the Guarantor shall
have delivered to the Trustee an Officers’ Certificate 


 


47













 


of the Guarantor and an Opinion of Counsel, each
stating that the Guarantor’s obligations hereunder shall remain in full force and
effect thereafter.


 


Section 7.02.                  Successor
Substituted.


 


Upon
any consolidation of the Company with, or merger of the Company into, any other
Person or any sale, transfer, lease or conveyance of all or substantially all
of the properties and assets of the Company in accordance with Section 7.01,
the successor Person formed by such consolidation or into which the Company is
merged or to which such sale, transfer, lease or conveyance is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.


 


Section 7.03.                  Guarantor
May Consolidate on Certain Terms.


 


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


 


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


 


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


 


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


 


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


 


Section 7.04.                  Guarantor
Successor to be Substituted.


 


Upon
any consolidation or merger or any sale, conveyance, transfer or lease of all
or substantially all of the properties and assets of the Guarantor to any
Person in accordance with Section 7.03, the successor Person formed by
such consolidation or into which the Guarantor is merged or to which such sale,
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Guarantor under this Indenture
with the same effect as if such successor Person had been named as the
Guarantor herein, and thereafter, except in the case of a lease, the
predecessor Person shall be released from all obligations and covenants under
this Indenture.


 


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


 


ARTICLE
VIII



SATISFACTION AND DISCHARGE


 


Section 8.01.                  Termination
of the Obligations of the Company.


 


This
Indenture shall cease to be of further effect if (a) either (i) all
outstanding Securities have been delivered to the Trustee for cancellation or (ii) all
outstanding Securities have become due and payable at their scheduled maturity
or upon Redemption, Repurchase at Holder’s Option or Repurchase Upon
Fundamental Change, and in either case the Company irrevocably deposits, prior
to the applicable due date, with the Trustee or the Paying Agent (if the Paying
Agent is not the Company or any of its Affiliates) cash, and, if applicable as
herein provided and in accordance herewith, such other consideration,
sufficient to pay all amounts due and owing on all outstanding Securities on
the Maturity Date, Redemption Date, or an Option Repurchase Date or Fundamental
Change Repurchase Date, as the case may be; (b) the Company pays to the
Trustee all other sums payable hereunder by the Company; (c) no Default or
Event of Default with respect to the Securities shall exist on the date of such
deposit; (d) such deposit will not result in a breach or violation of, or
constitute a Default or Event of Default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is
bound; and (e) the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture have been complied with; provided, however, that the obligations of the Company to the Trustee
under Section 6.08 hereof, the obligations of the Trustee to any
Authenticating Agent under Section 6.15 hereof, the obligations of the
Trustee under Section 8.02 hereof and the last paragraph of Section 4.03
hereof, Section 5.17 hereof, Sections 4.01 and 4.02 hereof,
Sections 2.01, 2.04, 2.05 and 2.07, Sections 3.04, 3.09 and 3.11
hereof, and Articles VIII and X hereof shall survive any discharge of this
Indenture until such time as the Securities have been paid in full and there
are no Securities outstanding.


 


Section 8.02.                  Application
of Trust Money.


 


Subject
to the provisions of the last paragraph of Section 4.03 hereof, all money
deposited with the Trustee pursuant to Section 8.01 hereof shall be held
in trust and applied by it, in accordance with the provisions of the Securities
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 interest and
any Additional Interest for whose payment such money has been deposited with
the Trustee.


 


ARTICLE
IX



SUPPLEMENTAL INDENTURES


 


Section 9.01.                  Supplemental
Indentures Without Consent of Holders.


 


Without
notice to or the consent of any Holders, the Company and the Guarantor, when
each is authorized by a Board Resolution of their respective Boards, and the
Trustee, at any time and from time to time, may amend or supplement this
Indenture, the Securities or the Guaranty, in form satisfactory to the Trustee,
for any of the following purposes


 


49













 


(A)          to
evidence the succession of another Person to the Company and/or the Guarantor
and the assumption by any such successor of the obligations of the Company
and/or the Guarantor herein and in the Securities, in each case in accordance
with Article VII hereof; or


 


(B)           to
make adjustments to the right to convert Securities upon the occurrence of
changes specified in Section 10.12 hereof and Article VII hereof, in
each case in accordance with Section 10.12 hereof and/or Article VII
hereof, as applicable; or


 


(C)           to
secure the obligations of the Company with respect to the Securities, or to
provide for the issuance of Additional Securities in accordance with the
limitations set forth in this Indenture; or


 


(D)          to
add to the covenants of the Company for the benefit of all of the Holders of
the Securities, or to surrender any right or power herein conferred upon the
Company; or


 


(E)           to
make provisions with respect to adjustments to the Conversion Rate as required
by this Indenture or to increase the Conversion Rate in accordance with this
Indenture;


 


(F)           to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trust
hereunder pursuant to the requirements of Section 6.12 hereof; or;


 


(G)           to
cure any ambiguity, defect, omission or inconsistency in this Indenture,
provided that such action pursuant to this clause (G) shall not adversely
affect the rights of any Holder in any material respect.


 


In
addition, the Company and the Trustee may enter into a supplemental indenture
without the consent of Holders of the Securities to conform the Indenture or
the Securities to the description thereof contained in the Offering Memorandum,
under the caption “Description Of Notes.”


 


Promptly
after an amendment, supplement or waiver under this Section 9.01 becomes
effective, the Company shall mail, or cause to be mailed, to Securityholders a
notice (which may include the notice required by the last paragraph of Section 9.02
hereof) briefly describing such amendment, supplement or waiver.  Any failure of the Company to mail such
notice shall not in any way impair or affect the validity of such amendment,
supplement or waiver.


 


Section 9.02.                  Supplemental
Indentures or Waivers With Consent of Holders.


 


Subject
to Section 5.10 hereof, the Company and the Guarantor, when each is
authorized by a Board Resolution of their respective Boards, and the Trustee
may amend or supplement this Indenture or the Securities or the Guaranty without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding
Securities.  Subject to Section 5.10
hereof, the Holders of a majority in aggregate principal amount of the
outstanding Securities may, by notice to the Trustee, waive compliance by the
Company or the Guarantor with any provision of this Indenture or the Securities
without notice to any other Securityholder.


 


Notwithstanding
anything herein to the contrary, without the consent of each Holder of each
outstanding Security affected, no supplemental indenture shall:


 


50













 


(a)           change
the Maturity Date or the payment date of any installment of interest or any
Additional Interest on any Security;


 


(b)           reduce
the principal amount of any Security or the rate of interest thereon or any
Additional Interest payable thereon;


 


(c)           change
the place, manner or currency of payment of principal of, or any Additional
Interest or interest on, any Security;


 


(d)           impair
the right to institute suit for the enforcement of any payment on, or with
respect to, or of the conversion of, any Security;


 


(e)           modify,
in a manner adverse to Holders, the provisions with respect to the right of
Holders pursuant to Article III hereof to require the Company to purchase
Securities on an Option Repurchase Date or to repurchase Securities upon the
occurrence of a Fundamental Change;


 


(f)            modify
the provisions of Section 2.08 hereof in a manner adverse to Holders;


 


(g)           adversely
affect the right of Holders to convert Securities in accordance with the terms
hereof;


 


(h)           reduce
the percentage in aggregate principal amount of outstanding Securities whose
Holders must consent to a modification to or amendment of any provision of this
Indenture or the Securities;


 


(i)            reduce
the percentage in aggregate principal amount of outstanding Securities whose
holders must consent to a waiver of compliance with any provision of this
Indenture or the Securities or a waiver of any Default or Event of Default; or


 


(j)            modify
the provisions of this Indenture with respect to modification and waiver
(including waiver of a Default or an Event of Default), except to increase the
percentage required for modification or waiver or to provide for the consent of
each affected Holder.


 


Promptly after an amendment, supplement or waiver
under this Section 9.02 becomes effective, the Company shall mail, or
cause to be mailed, to Securityholders a notice (which may include the notice
required by the last paragraph of Section 9.01 hereof) briefly describing
such amendment, supplement or waiver. 
Any failure of the Company to mail such notice shall not in any way
impair or affect the validity of such amendment, supplement or waiver.


 


Section 9.03.                  Compliance
with Trust Indenture Act.


 


Every
amendment to or supplement of this Indenture, the Securities or the Guaranty
shall comply with the Trust Indenture Act 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 is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on
any Security.  However, any such Holder
or subsequent Holder may revoke the consent as to its Security or portion of a
Security if the Trustee receives the notice of revocation before the date the 


 


51













 


amendment, supplement or waiver becomes
effective.  An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.


 


After
an amendment, supplement or waiver becomes effective with respect to the
Securities, it shall bind every Holder unless such amendment, supplement or
waiver makes a change that requires, pursuant to Section 9.02 hereof, the
consent of each Holder affected.  In that
case, the amendment, supplement or waiver shall bind each Holder of a Security
who has consented to it and, provided, that
notice of such amendment, supplement or waiver is reflected on a Security that
evidences the same debt as the consenting Holder’s Security, every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security.


 


Nothing
in this Section 9.04 shall impair the Company’s rights pursuant to Section 9.01
hereof to amend this Indenture or the Securities without the consent of any
Securityholder in the manner set forth in, and permitted by, this Section 9.04.


 


Section 9.05.                  Notation
on or Exchange of Securities.


 


If an
amendment, supplement or waiver changes the terms of a Security, the Trustee
may require the Holder of the Security to deliver it to the Trustee.  The Trustee may place an appropriate notation
on the Security as directed and prepared by the Company about the changed terms
and return it to the Holder. 
Alternatively, if the Company so determines, the Company in exchange for
the Security shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a new Security that reflects the changed terms.


 


Section 9.06.                  Trustee
Protected.


 


The
Trustee shall sign any amendment, supplemental indenture or waiver authorized
pursuant to this Article IX; provided, however, that the Trustee need not sign any amendment,
supplement or waiver authorized pursuant to this Article IX that adversely
affects the Trustee’s rights, duties, liabilities or immunities.  The Trustee shall be provided with and may
conclusively rely upon an Opinion of Counsel as to legal matters and an
Officers’ Certificate as to factual matters that any supplemental indenture,
amendment or waiver is permitted or authorized pursuant to this Indenture.


 


ARTICLE
X


 


CONVERSION


 


Section 10.01.                Conversion
Privilege.


 


(A)          Subject
to the provisions of Article III hereof, the Securities shall be
convertible into cash, shares of Common Stock or a combination thereof in
accordance with this Article X and as set forth below if any of the
following conditions are satisfied:


 


(i)            Conversion Based on Closing Sale Price of Common Stock.  Prior to the Maturity Date or earlier
Redemption, Repurchase at Holder’s Option or Repurchase Upon Fundamental
Change, the Securities may be surrendered for conversion into cash, shares of
Common Stock or a combination thereof during any calendar quarter after the
calendar quarter ending June 30, 2009, if the Closing Sale Price for at
least twenty (20) Trading Days in a period of thirty (30) consecutive Trading
Days ending on the last Trading Day of the immediately preceding calendar
quarter exceeds or is equal to one hundred and thirty percent (130%) of the
Conversion Price in effect on the last Trading Day of the immediately preceding
calendar quarter.  


 


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Solely for
purposes of determining whether the Securities shall have become convertible
pursuant to this Section 10.01(A)(i), the Board shall, in its good faith
determination, make appropriate adjustments to the Closing Sale Prices and/or
such Conversion Price used to determine whether the Securities shall have
become convertible pursuant to this Section 10.01(A)(i) to account
for any adjustments to the Conversion Rate which shall have become effective,
or any event requiring an adjustment to the Conversion Rate where the Ex Date
of such event occurs, during the period of thirty (30) consecutive Trading Days
ending on the last Trading Day of the immediately preceding calendar quarter.


 


(ii)           Conversion Upon Satisfaction of Trading Price Condition.  Prior to the Maturity Date or earlier
Redemption, Repurchase at Holder’s Option or Repurchase Upon Fundamental
Change, the Securities may be surrendered for conversion into cash, shares of
Common Stock or a combination thereof during the five (5) consecutive
Business Days immediately after any five (5) consecutive Trading Day
period (such five (5) consecutive Trading Day period, the “Security
Measurement Period”) in which the average Trading Price per $1,000
principal amount of the Securities was equal to or less than ninety eight
percent (98%) of the average Conversion Value during the Security Measurement
Period (such condition, the “Trading Price Condition”).  The Bid Solicitation Agent shall not have any
obligation to determine the Trading Price unless the Company has requested such
determination, and the Company shall have no obligation to make such request
unless a Holder of at least one million dollars ($1,000,000) in aggregate
principal amount of the Securities provides the Company with reasonable
evidence that the Trading Price per $1,000 principal amount of the Securities
would be equal to or less than ninety eight percent (98%) of the product of the
Closing Sale Price and the Conversion Rate. 
Upon receipt of such evidence, the Company shall instruct the Bid
Solicitation Agent to determine the Trading Price per $1,000 principal amount
of the Securities for each of the five (5) successive Trading Days
immediately after the Company receives such evidence and on each Trading Day
thereafter until the first Trading Day on which the Trading Price Condition is
no longer satisfied.  For purposes of
this paragraph, the “Conversion Value” per $1,000 principal amount of
Securities, on a given Trading Day, means the product of the Closing Sale Price
on such Trading Day and the Conversion Rate in effect on such Trading Day.


 


(iii)          Conversion Based on Redemption.  A Security, or portion of a Security, which
has been called for Redemption pursuant to paragraph 6 of the Securities
may be surrendered for conversion into cash, shares of Common Stock or a
combination thereof; provided, however, that such Security or portion thereof may be
surrendered for conversion pursuant to this paragraph at any time before the
close of business on the Business Day immediately preceding the Redemption
Date.


 


(iv)          Conversion
Upon Certain Distributions. 
If the Company takes any action, or becomes aware of any event, that
would require an adjustment to the Conversion Rate pursuant to
Sections 10.06(b), 10.06(c), 10.06(d) (other than by reason of the
distribution of Regular Quarterly Cash Dividends) or 10.06(e) hereof, the
Securities may, prior to the Maturity Date or earlier Redemption, Repurchase at
Holder’s Option or Repurchase Upon Fundamental Change, be surrendered for
conversion into cash, shares of Common Stock or a combination thereof beginning
on the date the Company mails the notice to the Holders as provided in Section 10.11
hereof (or, if earlier, the date the Company is required to mail such notice)
and at any time thereafter until the close of business on the Business Day
immediately preceding the Ex Date (as defined in Section 10.06(g) hereof)
or the expiration date of the applicable transaction or until the Company announces
that such transaction will not take place.


 


53













 


(v)           Conversion
Upon Occurrence of Certain Corporate Transactions.  If either:


 


(a)           a Fundamental Change
or a Make-Whole Fundamental Change occurs; or


 


(b)           the Company or the
Guarantor is a party to a consolidation, amalgamation, statutory arrangement,
merger or binding share exchange pursuant to which the Common Stock would be
converted into or exchanged for, or would constitute solely the right to receive,
cash, securities or other property,


 


then, in each case, the
Securities may be surrendered for conversion into cash, shares of Common Stock
or a combination thereof at any time during the period that begins on, and
includes, the date that is thirty (30) calendar days prior to the date
originally announced by the Company as the anticipated effective date of such
transaction (which anticipated effective date the Company shall disclose, in
good faith, in the written notice and public announcement referred to in Section 10.01(C) hereof)
and ends on, and includes, the date that is thirty (30) calendar days after the
actual effective date of such transaction; provided, however, that if such transaction is a Make-Whole
Fundamental Change, then the Securities may also be surrendered for conversion
into cash, shares of Common Stock or a combination thereof at any time during
the Make-Whole Conversion Period applicable to such Make-Whole Fundamental
Change; provided, further,
that if such transaction is a Fundamental Change, then the Securities may also
be surrendered for conversion into cash, shares of Common Stock or a
combination thereof at any time until, and including, the Fundamental Change
Repurchase Date applicable to such Fundamental Change.


 


(vi)          Conversion
during specified periods.  The
Securities may be surrendered for conversion into cash, shares of Common Stock
or a combination thereof at any time from, and including, March 15, 2029
until the close of business on the Business Day immediately preceding April 15,
2029 or earlier Redemption, Repurchase at Holder’s Option or Repurchase Upon
Fundamental Change.


 


Notwithstanding
anything herein to the contrary, no Security may be converted after the close
of business on the Business Day immediately preceding the Maturity Date.


 


(B)           The
initial Conversion Rate shall be 24.1546 shares of Common Stock per $1,000
principal amount of Securities.  The
Conversion Rate shall be subject to adjustment in accordance with
Sections 10.06 through 10.15 hereof.


 


(C)           Whenever
any event described in Section 10.01 hereof shall occur which shall cause
the Securities to become convertible as provided in this Article X, the
Company shall promptly deliver written notice of the convertibility of the
Securities to the Trustee and each Holder and shall, as soon as practicable,
but in no event later than the open of business on the first Business Day the
Securities shall become convertible as provided in this Article X as a
result of such event (or, in the case of a Fundamental Change or a Make-Whole
Fundamental Change or a consolidation, amalgamation, statutory arrangement,
merger or binding share exchange to which the Company is a party and pursuant
to which the Common Stock would be converted into or exchanged for, or would
constitute solely the right to receive, cash, securities or other property, no
later than the thirtieth (30th) calendar day prior to the date originally
announced by the Company as the anticipated effective date of such
transaction), publicly announce, through a reputable national newswire service,
and publish on the Company’s website, that the Securities have become
convertible.  Such written notice and
public announcement shall include:


 


54













 


(i)            a description of
such event and the method of settlement the Company has elected;


 


(ii)           a description of
the periods during which the Securities shall be convertible as provided in
this Article X as a result of such event;


 


(iii)          the anticipated
effective date and the Ex Date of such event, if applicable; and


 


(iv)          the procedures
Holders must follow to convert their Securities in accordance with this Article X,
including the name and address of the Conversion Agent.


 


If the
Company shall fail to mail the notice or make such public announcement and
publication on or before the open of business on the first date the Securities
shall become convertible as provided in this Article X as a result of such
event, then (1) the Securities shall remain convertible for an additional
Business Day for each Business Day, on or after such first date the Securities
become convertible, that the Company shall fail to mail such notice or make
such public announcement or publication (an “Extension Period”); and (2) if
the event causing the Securities to become convertible shall be a Make-Whole
Fundamental Change, then the increased Conversion Rate applicable, pursuant to Section 10.15
hereof, to Securities surrendered within the time periods specified in Section 10.15
hereof shall continue to apply to Securities surrendered for conversion during
any such Extension Period.


 


(D)          A
Holder may convert a portion of the principal amount of a Security if such
portion is $1,000 principal amount or an integral multiple of $1,000 principal
amount.  Provisions of this Indenture
that apply to conversion of all of a Security also apply to conversion of a
portion of such Security.


 


Section 10.02.                Conversion
Procedure and Payment Upon Conversion.


 


(A)          Upon
conversion, the Company may elect to deliver either cash, shares of Common
Stock or a combination thereof in accordance with this Article X.  All conversions on or after March 15,
2029 shall be settled in the same relative proportions of cash and/or shares of
Common Stock.  If  the Company has not delivered a notice of its
election of settlement method prior to March 15, 2029, the Company will be
deemed to have elected to deliver cash, shares of Common Stock or a combination
thereof, as the case may be, in respect of the Company’s conversion obligation
and the Specified Dollar Amount (defined below) will be equal to $1,000.


 


(B)           Prior
to March 15, 2029, the Company shall use the same settlement method for
all conversions occurring on any given conversion date.  Except for any conversions that occur on or
after March 15, 2029, however, the Company shall not have any obligation
to use the same settlement method with respect to conversions that occur on
different Trading Days.  If the Company
elects to change the settlement method, the Company shall inform Holders so
converting through the Trustee of the selected settlement method no later than
the second Trading Day immediately following the related Conversion Date (as
defined below).  If the Company does not
make such an election, it will be deemed to have elected to deliver cash,  shares of Common Stock or a combination
thereof, as the case may be, in respect of the Company’s conversion obligation
and the Specified Dollar Amount will be equal to $1,000.


 


(C)           To
convert a Security, a Holder must satisfy the requirements of paragraph 10
of the Securities, and the Securities must be convertible pursuant to Section 10.01
hereof.  Upon conversion of a Holder’s
Security, the Company shall deliver, through the Conversion Agent, the
following to such Holder:


 


55













 


(i)            if the Company
elects to satisfy its conversion obligation solely in shares of Common Stock, a
number of shares of Common Stock equal to (1) the aggregate principal
amount of Securities to be converted divided by $1,000 multiplied by (2) the
Conversion Rate;


 


(ii)           if the Company
elects to satisfy its conversion obligation solely in cash, an
amount in cash equal
to the sum of the Daily Conversion Values for each of the 20 consecutive
Trading Days during the related Cash Settlement Averaging Period; and


 


(iii)          if the Company
elects to satisfy its conversion obligation through a combination of cash and
shares of Common Stock, in respect of each $1,000 principal amount of
Securities being converted, a settlement amount (the “Settlement Amount”)
equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive
Trading Days during the Cash Settlement Averaging Period.


 


The
Company shall deliver, as the case may be, cash, shares of Common Stock or a
combination thereof as soon as practicable following the Business Day (the “Conversion
Date”) on which such Holder satisfies all the requirements for such
conversion specified in paragraph 10 of the Securities, but in no event later
than (i) three (3) Business Days immediately following the relevant
Conversion Date, if the Company elects to satisfy its Conversion obligation
solely by shares of Common Stock, and (ii) three (3) Business Days
after the last Trading Day in the Cash Settlement Averaging Period in the case
of any other settlement method; provided, however, that any Make-Whole Consideration payable pursuant
to Section 10.15 hereof shall be delivered by the Company within the time
period specified in Section 10.15 hereof.


 


(D)          “Cash
Settlement Averaging Period” shall mean, with respect to a Security that is
tendered for conversion in accordance with this Article X, the twenty (20)
consecutive Trading Day period that begins on, and includes, the third (3rd)
Trading Day after the Conversion Date for such Security; provided,
however, that if such Conversion Date is
on or after the twenty third (23rd) scheduled Trading Day prior to the Maturity
Date, then the Cash Settlement Averaging Period with respect to such conversion
shall be deemed to be the twenty (20) consecutive Trading Day period that
begins on and includes the twentieth (20th) scheduled Trading Day prior to the
Maturity Date.


 


“Daily
Conversion Value” shall mean, with respect to a Trading Day, one-twentieth
(1/20th) of the product of (i) the Conversion Rate in effect on such
Trading Day and (ii) the Volume-Weighted Average Price per share of Common
Stock on such Trading Day.


 


“Daily
Settlement Amount” shall mean, for each of the 20 Trading Days during the
Cash Settlement Averaging Period:


 


(i)            cash equal to the
lesser of (A) the dollar amount per Security to be received upon
conversion as specified in the notice regarding the Company’s chosen settlement
method (the “Specified Dollar Amount”), if any, divided by 20 (such
quotient being referred to as the “Daily Measurement Value”) and (B) the
Daily Conversion Value; and


 


(ii)           to the extent the
Daily Conversion Value exceeds the Daily Measurement Value, a number of shares
of Common Stock equal to (A) the difference between the Daily Conversion
Value and the Daily Measurement Value divided by (B) the Volume-Weighted
Average Price (as defined below) per share of Common Stock on such Trading Day.


 


“Volume-Weighted
Average Price” per share of Common Stock on any Trading Day means the
volume-weighted average price per share of the Common Stock on the New York
Stock Exchange or, if the Common Stock is not listed on the New York Stock
Exchange, on the principal exchange or over-the-


 


56













 


counter market on which the Common Stock is then
listed or traded, from 9:30 a.m. to 4:00 p.m., New York City time, on
such Trading Day, as displayed by Bloomberg or, if such price is not available,
the market value per share of Common Stock on such Trading Day as determined by
a nationally recognized investment banking firm retained for this purpose by
the Company.


 


(E)           With
respect to a conversion of a Security pursuant hereto, at and after the close
of business on the last Trading Day (the “Relevant Date”) of the Cash
Settlement Averaging Period applicable to such conversion, the person in whose
name any certificate representing any shares of Common Stock issuable upon such
conversion is registered shall be treated as a stockholder of record of the
Company; provided, however,
that if any such shares of Common Stock constitute Make-Whole Consideration,
then the Relevant Date with respect to such shares of Common Stock that
constitute Make-Whole Consideration shall instead be deemed to be the later of (1) the
last Trading Day of the Cash Settlement Averaging Period applicable to such
conversion and (2) the Effective Date of the applicable Make-Whole
Fundamental Change.  On and after the
Conversion Date with respect to a conversion of a Security pursuant hereto, all
rights of the Holder of such Security shall terminate, other than the right to
receive the consideration deliverable upon conversion of such Security as
provided herein.  A Holder of a Security
is not entitled, as such, to any rights of a holder of Common Stock until, if
such Holder converts such Security and is entitled pursuant hereto to receive
shares of Common Stock in respect of such conversion, the close of business on
the Relevant Date or respective Relevant Dates, as the case may be, with
respect to such conversion.


 


(F)           Except
as provided in the Securities or in this Article X, no payment or
adjustment will be made for accrued interest on a converted Security or for
dividends on any Common Stock issued on or prior to conversion, and accrued
interest will be deemed to be paid by the consideration paid to the Holder upon
conversion.  Such accrued interest shall
be deemed to be paid in full rather than cancelled, extinguished or
forfeited.  If any Holder surrenders a
Security for conversion after the close of business on the Record Date for the
payment of an installment of interest and prior to the related Interest Payment
Date, then, notwithstanding such conversion, the interest payable with respect
to such Security on such Interest Payment Date shall be paid on such Interest
Payment Date to the Holder of such Security at the close of business on such
Record Date; provided, however,
that such Security, when surrendered for conversion, must be accompanied by
payment in cash to the Conversion Agent on behalf of the Company of an amount
equal to the interest payable on such Interest Payment Date on the portion so
converted; provided, further,
however, that such payment to the
Conversion Agent described in the immediately preceding proviso in respect of a
Security surrendered for conversion shall not be required with respect to a
Security that (i) is surrendered for conversion after the Record Date
immediately preceding the Maturity Date, (ii) has been called for
Redemption pursuant to Section 3.01 hereof and paragraphs 6 and 7 of
the Securities or (iii) is tendered for conversion after a Record Date for
the payment of an installment of interest and on or before the related Interest
Payment Date, where, pursuant to Section 3.11 hereof, the Company has
specified, with respect to a Fundamental Change, a Fundamental Change
Repurchase Date that is after such Record Date and on or before such Interest
Payment Date; provided  further,
that, if the Company shall have, prior to the Conversion Date with respect to a
Security, defaulted in a payment of interest on such Security, then in no event
shall the Holder of such Security who surrenders such Security for conversion
be required to pay such Defaulted Interest or the interest that shall have
accrued on such Defaulted Interest pursuant to Section 2.03 hereof or
otherwise (it being understood that nothing in this Section 10.02(D) shall
affect the Company’s obligations under Section 2.03 hereof).


 


(G)           If
a Holder converts more than one Security at the same time, the number of full
shares of Common Stock issuable upon such conversion, if any, shall be based on
the total principal amount of all Securities converted.


 


57












 


(H)          Upon
surrender of a Security that is converted in part, the Trustee shall, upon
receipt of an Authentication Order, authenticate for the Holder a new Security
equal in principal amount to the unconverted portion of the Security
surrendered.


 


(I)            If
the last day on which a Security may be converted is a legal holiday in a place
where a Conversion Agent is located, the Security may be surrendered to that
Conversion Agent on the next succeeding day that is not a legal holiday.


 


(J)            Notwithstanding
any other provision of this Indenture, so long as a series of Securities is a
Global Security, the parties hereto will be bound at all times by the
applicable procedures of the Depositary with respect to such series.


 


Section 10.03.                Fractional
Shares.


 


The
Company will not issue fractional shares of Common Stock upon conversion of the
Securities and instead, if the Company elects to satisfy its conversion
obligation solely in shares of Common Stock, the Company will pay cash in lieu
of fractional shares based on the Volume-Weighted Average Price per share of
Common Stock on the relevant Conversion Date or, in the case of any other
settlement method, based on the Volume-Weighted Average Price per share of the
Company’s Common Stock on the last Trading Day of the Cash Settlement Averaging
Period.


 


Section 10.04.                Taxes
on Conversion.


 


If a
Holder converts its Security, the Holder shall pay any documentary, stamp or
similar issue or transfer tax or duty due on the issue, if any, of shares of
Common Stock upon the conversion.  The
Conversion Agent may refuse to deliver a certificate representing the shares of
Common Stock to be issued in a name other than such Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax or duty which will be
due because such shares are to be issued in a name other than such Holder’s
name.  Nothing herein shall preclude any
tax withholding required by law or regulation.


 


Section 10.05.                Company
to Provide Stock.


 


The
Company shall at all times reserve out of its authorized but unissued Common
Stock or Common Stock held in its treasury enough shares of Common Stock to
permit the conversion, in accordance herewith, of all of the Securities.  The shares of Common Stock, if any, due upon
conversion of a Global Security shall be delivered by the Company in accordance
with DTC’s customary practices.


 


All
shares of Common Stock which may be issued upon conversion of the Securities
shall be validly issued, fully paid and non-assessable and shall be free of
preemptive or similar rights and free of any lien or adverse claim.


 


The
Company shall comply with all securities laws regulating the offer and delivery
of shares of Common Stock upon conversion of Securities and shall list such
shares on each national securities exchange or automated quotation system on
which the Common Stock is listed.


 


Section 10.06.                Adjustment
of Conversion Rate.


 


The
Conversion Rate shall be subject to adjustment from time to time by the Company
as follows:


 


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(a)           In
case the Company shall (1) pay a dividend in shares of Common Stock to all
holders of Common Stock, (2) make a distribution in shares of Common Stock
to all holders of Common Stock, (3) subdivide the outstanding shares of
Common Stock into a greater number of shares of Common Stock or (4) combine
the outstanding shares of Common Stock into a smaller number of shares of
Common Stock, the Conversion Rate shall be adjusted by multiplying the
Conversion Rate in effect immediately prior to close of business on the Ex Date
or effective date, as applicable, of such dividend, distribution, subdivision
or combination, by the number of shares of Common Stock that a person who owns
only one share of Common Stock immediately before such Ex Date or effective date,
as applicable, of such dividend, distribution, subdivision or combination and
who is entitled to participate in such dividend, distribution, subdivision or
combination would own immediately after giving effect to such dividend,
distribution, subdivision or combination (without giving effect to any
arrangement pursuant to such dividend, distribution, subdivision or combination
not to issue fractional shares of Common Stock).  Any adjustment made pursuant to this Section 10.06(a) hereof
shall become effective immediately after such Ex Date, in the case of a
dividend or distribution, and shall become effective immediately after such
effective date, in the case of a subdivision or combination.


 


(b)           In
case the Company shall issue rights or warrants to all or substantially all
holders of Common Stock, entitling them, for a period expiring not more than
sixty (60) days immediately following the record date for the determination of
holders of Common Stock entitled to receive such rights or warrants, to subscribe
for or purchase shares of Common Stock (or securities convertible into or
exchangeable or exercisable for Common Stock), at a price per share (or having
a conversion, exchange or exercise price per share) that is less than the
current market price (as determined pursuant to Section 10.06(g) hereof)
per share of Common Stock on the record date for the determination of holders
of Common Stock entitled to receive such rights or warrants, the Conversion
Rate shall be increased by multiplying the Conversion Rate in effect
immediately prior to the Ex Date corresponding to such record date by a
fraction of which (A) the numerator shall be the sum of (I) the
number of shares of Common Stock outstanding immediately prior to the open of
business on such Ex Date and (II) the aggregate number of shares (the “Underlying
Shares”) of Common Stock underlying all such issued rights or warrants
(whether by exercise, conversion, exchange or otherwise), and (B) the
denominator shall be the sum of (I) number of shares of Common Stock
outstanding immediately prior to the open of business on such Ex Date and (II) the
number of shares of Common Stock which the aggregate exercise, conversion,
exchange or other price at which the Underlying Shares may be subscribed for or
purchased pursuant to such rights or warrants would purchase at such current
market price per share of Common Stock; provided, however, no adjustment shall be made pursuant to this Section 10.06(b) solely
by reason of a distribution of rights pursuant to a stockholders’ rights plan,
provided the Company has complied with the provisions of Section 10.14
hereof with respect to such stockholders’ rights plan and distribution.  Such increase shall become effective
immediately prior to the open of business on such Ex Date.  In no event shall the Conversion Rate be
decreased pursuant to this Section 10.06(b).


 


(c)           Except
as set forth in the immediately following paragraph, in case the Company shall
dividend or distribute to all or substantially all holders of Common Stock shares
of Capital Stock of the Company or any existing or future Subsidiary (other
than Common Stock), evidences of Indebtedness or other assets (other than
dividends or distributions requiring an adjustment to the Conversion Rate in
accordance with Sections 10.06(d) or 10.06(e) hereof), or shall
dividend or distribute to all or substantially all holders of Common Stock
rights or warrants to subscribe for or purchase securities (other than
dividends or distributions of rights or warrants requiring an adjustment to the
Conversion Rate in accordance with Section 10.06(b) hereof), then in
each such case the Conversion Rate shall be increased by multiplying the
Conversion Rate in effect immediately prior to the open of business on the Ex
Date corresponding to the record date for the determination of stockholders
entitled to such dividend or distribution by a fraction of which (A) the
numerator shall be the current market price per share of 


 


59













 


Common Stock (as determined pursuant to Section 10.06(g) hereof)
on such record date and (B) the denominator shall be an amount equal to (I) such
current market price per share of Common Stock less (II) the fair market
value (as determined in good faith by the Board, whose determination shall be
conclusive and described in a Board Resolution), on such Ex Date, of the
portion of the shares of Capital Stock, evidences of Indebtedness, assets,
rights and warrants to be dividended or distributed applicable to one share of
Common Stock, such increase to become effective immediately prior to the open
of business on such Ex Date; provided, however, that if such denominator is equal to or less than
zero, then, in lieu of the foregoing adjustment to the Conversion Rate,
adequate provision shall be made so that each Holder shall have the right to
receive upon conversion of its Securities, in addition to any consideration
otherwise payable as herein provided upon such conversion, an amount of shares
of Capital Stock, evidences of Indebtedness, assets, rights and/or warrants
that such Holder would have received had such Holder converted all of its
Securities on such record date. 
Notwithstanding the foregoing, in the event that the Company shall
distribute rights or warrants (other than distributions of rights or warrants
requiring an adjustment to the Conversion Rate in accordance with Section 10.06(b) hereof)
(collectively, “Rights”) pro rata to
holders of Common Stock, the Company may, in lieu of making any adjustment
pursuant to this Section 10.06(c), make proper provision so that each
Holder of a Security who converts such Security (or any portion thereof) on or
after the record date for such distribution and prior to the expiration or
redemption of the Rights shall be entitled to receive upon such conversion, in
addition to the shares of Common Stock issuable (and cash, if any, payable)
upon such conversion (the “Conversion Shares”), a number of Rights to be
determined as follows:  (i) if such
conversion occurs on or prior to the date for the distribution to the holders
of Rights of separate certificates evidencing such Rights (the “Distribution
Date”), the same number of Rights to which a holder of a number of shares
of Common Stock equal to the number of shares of Conversion Shares would be
entitled at the time of such conversion in accordance with the terms and
provisions of and applicable to the Rights; and (ii) if such conversion
occurs after the Distribution Date, the same number of Rights to which a holder
of the number of shares of Common Stock into which the principal amount of the
Security so converted was convertible immediately prior to the Distribution
Date would have been entitled on the Distribution Date in accordance with the
terms and provisions of and applicable to the Rights.  Any distribution of rights or warrants
pursuant to a stockholders’ rights plan complying with the requirements set
forth in the preceding sentence of this paragraph and with Section 10.14
hereof shall not constitute a distribution of rights or warrants pursuant to
this Section 10.06(c).  In no event
shall the Conversion Rate be decreased pursuant to this Section 10.06(c).


 


Notwithstanding anything to the contrary in this Section 10.06(c),
if, in a distribution requiring an adjustment to the Conversion Rate pursuant
to the immediately preceding paragraph, the property distributed by the Company
to all Holders of Common Stock consists solely of Capital Stock, or similar
equity interests in, a Subsidiary or other business unit of the Company, which
Capital Stock or interests are, or will be upon completion of such
distribution, listed on a national securities exchange or quoted on an
automated quotation system and closing sale prices for such Capital Stock or
interests are readily available (a “Spin-Off”), then in lieu of
adjusting the Conversion Rate in accordance with the immediately preceding
paragraph, the Conversion Rate shall be increased (subject to the other terms
of this Indenture) by multiplying the Conversion Rate in effect immediately
prior to the opening of business on the thirteenth (13th) Trading Day following
the record date for such distribution by a fraction (I) whose numerator is
the sum of (A) the average of the Closing Sale Prices per share of Common
Stock for the ten (10) consecutive Trading Days commencing on, and
including, the third (3rd) Trading Day after the record date for such
distribution and (B) the product of (i) the average of the Closing
Sale Prices per share or unit, as applicable, of such Capital Stock or
interests (determined as if such shares or units were shares of Common Stock
for purposes of the definition of “Closing Sale Price”) for the for the
ten (10) consecutive Trading Days commencing on, and including, the third
(3rd) Trading Day after the record date for such distribution and (ii) number
of shares or units, as applicable, of such Capital Stock or 


 


60













 


interests distributed per share of Common Stock; and (II) whose
denominator is the average of the Closing Sale Prices per share of Common Stock
for the ten (10) consecutive Trading Days commencing on, and including,
the third (3rd) Trading Day after the record date for such distribution.  The average Closing Sale Prices referred to
in the immediately preceding sentence shall be subject to appropriate
adjustments, in the Company’s good faith determination, to account for other
distributions, stock splits and combinations, stock dividends,
reclassifications and similar events. 
Each adjustment to the Conversion Rate made pursuant to this paragraph
shall become effective immediately after the open of business on the thirteenth
(13th) Trading Day following the record date for such distribution.  Rights or warrants distributed by the Company
to all holders of Common Stock entitling the holders thereof to subscribe for
or purchase shares of the Company’s Capital Stock (either initially or under
certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”):  (i) are deemed to be transferred with
such shares of Common Stock; (ii) are not exercisable; and (iii) are
also issued in respect of future issuances of Common Stock, shall be deemed not
to have been distributed for purposes of this Section 10.06 (and no
adjustment to the Conversion Rate under this Section 10.06 will be
required) until the occurrence of the earliest Trigger Event, whereupon such
rights, options and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Conversion Rate shall be
made under this Section 10.06(c). 
In no event shall the Conversion Rate be decreased pursuant to this Section 10.06(c).


 


(d)           In
case the Company shall, by dividend or otherwise, at any time make a
distribution of cash (excluding any cash that is distributed as part of a
distribution requiring a Conversion Rate adjustment pursuant to Section 10.06(e) hereof
and excluding Regular Quarterly Cash Dividends, to the extent the aggregate
amount of such Regular Quarterly Cash Dividends in any quarterly period does
not exceed thirty-five cents ($0.35) per share of Common Stock (the “Reference
Dividend Amount”) to all or substantially all holders of Common Stock, the
Conversion Rate shall be increased based on the following formula:


 


CR1 =
CR0 x MP0 / (MP0 — C)


where


CR0 =
the conversion rate in effect immediately prior to the ex-dividend date for
such distribution;


CR1 =
the new conversion rate immediately on and after the ex-dividend date for such
distribution;


MP0 =
current market price per share of the Common Stock on the record date for the
distribution; and


C =
the amount in cash per share that the Company distributes to holders of the
Common Stock that exceeds the Reference Dividend Amount;


 


The
Reference Dividend Amount shall be subject to adjustment in a manner that is
inversely proportional to adjustments to the Conversion Rate; provided, however, that
no adjustments shall be made to the Reference Dividend Amount for any
adjustment made to the Conversion Rate pursuant to this Section 10.06(d).


 


Notwithstanding
anything to the contrary in this Section 10.06(d), if an adjustment to the
Conversion Rate is required to be made as a result of a distribution that is
not a regular quarterly dividend either in whole or in part, the Reference
Dividend Amount shall be deemed to be zero for purposes of determining the
adjustment to the Conversion Rate as a result of such distribution.  The Conversion Rate shall not be adjusted
pursuant to this Section 10.06(d) to the extent, and only to the extent,
such adjustment would cause the Conversion Price to be less than the par value
of the Common Stock; provided  further that, if the denominator of such fraction shall be
equal to or less than zero, the 


 


61













 


Conversion Rate shall be instead adjusted so that the
Conversion Price is equal to the par value of the Common Stock.


 


In no
event shall the Conversion Rate be decreased pursuant to this Section 10.06(d).  An adjustment to the Conversion Rate pursuant
to this Section 10.06(d) shall become effective immediately prior to
the open of business on the Ex Date for the distribution.  To the extent a Regular Quarterly Cash
Dividend is paid in multiple portions and the total of such portions exceeds
$0.35, then the Conversion Rate in respect of such Regular Quarterly Cash
Dividend shall first be adjusted under this Section 10.06(d) in
respect of the first portion as a result of which such Regular Quarterly Cash
Dividend exceeds $0.35 (with the Excess Amount for purposes of such adjustment
being the amount by which such portion, when aggregated with all previously
paid portions in respect of such Regular Quarterly Cash Dividend, if any,
exceeds $0.35), and the Conversion Rate shall be further adjusted under this Section 10.06(d) in
respect of each subsequent payment, if any, constituting a portion of such
Regular Quarterly Cash Dividend (with the amount of each such subsequent
portion being treated as the Excess Amount for purposes of determining the
adjustment in respect of such portion). 
Each such adjustment shall become effective immediately prior to the
open of business on the Ex Date in respect of the payment resulting in such
adjustment.


 


(e)           In
case the Company or any Subsidiary shall distribute cash or other consideration
in respect of a tender offer or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock where the sum of the
aggregate amount of such cash distributed and the aggregate fair market value
(as determined in good faith by the Company), as of the Expiration Date (as
defined below), of such other consideration distributed (such sum, the “Aggregate
Amount”) expressed as an amount per share of Common Stock validly tendered
or exchanged, and not withdrawn, pursuant to such tender offer or exchange
offer as of the Expiration Time (as defined below) (such tendered or exchanged
shares of Common Stock, the “Repurchased Shares”) exceeds the Closing
Sale Price per share of Common Stock on the final Trading Day (the “Expiration
Date”) on which a tender or exchange may be accepted by each respective
holder of Common Stock pursuant to such tender offer or exchange offer (as the
same may be amended through the Expiration Date), then the Conversion Rate
shall be increased by multiplying the Conversion Rate in effect immediately
prior to the close of business on first Trading Day after the Expiration Date
by a fraction (A) whose numerator is equal to the sum of (I) the
Aggregate Amount and (II) the product of (a) such Closing Sale Price
per share of Common Stock and (b) an amount equal to (i) the number
of shares of Common Stock outstanding as of the last time (the “Expiration
Time”) at which tenders or exchanges could have been made pursuant to such
tender offer or exchange offer (including all Repurchased Shares) less (ii) the
Repurchased Shares and (B) whose denominator is equal to the product of (I) the
number of shares of Common Stock outstanding as of the Expiration Time
(including all Repurchased Shares) and (II) such Closing Sale Price per
share of Common Stock.


 


An
increase, if any, to the Conversion Rate pursuant to this Section 10.06(e) shall
become effective immediately prior to the opening of business on the Business
Day following the first Trading Day after the Expiration Date.  In the event that the Company or a Subsidiary
is obligated to purchase shares of Common Stock pursuant to any such tender
offer or exchange offer, but the Company or such Subsidiary is permanently
prevented by applicable law from effecting any such purchases, or all such
purchases are rescinded, then the Conversion Rate shall again be adjusted to be
the Conversion Rate which would then be in effect if such tender offer or
exchange offer had not been made.  If the
application of this Section 10.06(e) to any tender offer or exchange
offer would result in a decrease in the Conversion Rate, no adjustment shall be
made for such tender offer or exchange offer under this Section 10.06(e).


 


62













 


(f)            In
addition to the foregoing adjustments in subsections (a), (b), (c), (d) and
(e) above, the Company, from time to time and to the extent permitted by
law and the continued listing requirements of the New York Stock Exchange, may
increase the Conversion Rate by any amount for a period of at least twenty (20)
days or such longer period as may be permitted or required by law, if the Board
has made a determination, which determination shall be conclusive, that such
increase would be in the best interests of the Company.  Such Conversion Rate increase shall be
irrevocable during such period.  The
Company shall give written notice to the Trustee and cause notice of such
increase to be mailed to each Holder of Securities at such Holder’s address as
the same appears on the registry books of the Registrar, at least fifteen (15)
days prior to the date on which such increase commences.


 


(g)           For
the purpose of any computation under subsections (a), (b), (c) or (d) above
of this Section 10.06, the “current market price” per share of
Common Stock on any date shall be deemed to be the average of the Closing Sale
Prices for the ten (10) consecutive Trading Days ending on, but excluding,
the earlier of such date and the Ex Date with respect to the issuance or
distribution requiring such computation; provided, however, that such current market price per share of Common
Stock shall be appropriately adjusted by the Company, in its good faith
determination, to account for any adjustment, pursuant hereto, to the
Conversion Rate that shall become effective, or any event requiring, pursuant
hereto, an adjustment to the Conversion Rate where the Ex Date of such event
occurs, at any time during the period that begins on, and includes, the first
day of such ten (10) consecutive Trading Days and ends on, and includes,
the date when the adjustment to the Conversion Rate on account of the event
requiring the computation of such current market price becomes effective.


 


The
term “Ex Date,” (i) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades the regular
way on the relevant exchange or in the relevant market from which the Closing
Sale Price was obtained without the right to receive such issuance or
distribution, (ii) when used with respect to any subdivision or
combination of shares of Common Stock, means the first date on which the Common
Stock trades the regular way on such exchange or in such market after the time
at which such subdivision or combination becomes effective, and (iii) when
used with respect to any tender offer or exchange offer means the first date on
which the Common Stock trades the regular way on such exchange or in such
market after the expiration time of such tender offer or exchange offer (as it
may be amended or extended).  For
purposes of determining the Ex Date with respect to an issuance or distribution
under this Indenture, the Company may conclusively assume (and such assumption
shall be binding upon the Holders) that purchases and sales of the relevant
security with respect to which such issuance or distribution is being made will
settle based on the customary settlement cycle for purchases or sales of such
security.


 


Unless
the context requires otherwise, the term “record date” means, with
respect to any dividend, distribution or other transaction or event in which
the holders of shares of Common Stock have the right to receive any cash,
securities or other property or in which the shares of Common Stock (or other
applicable security) is exchanged for or converted into any combination of
cash, securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other property
(whether such date is fixed by the Board or by statute, contract or otherwise).


 


Section 10.07.                No
Adjustment.


 


Notwithstanding
anything herein or in the Securities to the contrary, in no event shall the
Conversion Rate be adjusted pursuant to this Indenture or the Securities to the
extent such adjustment shall reduce the Conversion Price to an amount that is
less than the par value per share of Common Stock.


 


63













 


No
adjustment in the Conversion Rate pursuant to Section 10.06 hereof shall
be required until cumulative adjustments amount to one percent (1%) or more of
the Conversion Rate as last adjusted (or, if never adjusted, the initial
Conversion Rate); provided, however,
that any adjustments to the Conversion Rate which by reason of this Section 10.07
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment to the Conversion Rate; provided
further, that at the end of each fiscal
year of the Company, beginning with the fiscal year ending on December 31,
2009, any adjustments to the Conversion Rate that have been, and at such time
remain, deferred pursuant to this Section 10.07 shall be given effect, and
such adjustments, if any, shall no longer be carried forward and taken into
account in any subsequent adjustment to the Conversion Rate; provided  further, that
if the Company shall mail a notice of Redemption pursuant to Section 3.04
hereof, or if a Fundamental Change or Make-Whole Fundamental Change occurs, or
if the Securities shall become convertible pursuant to Section 10.01(A)(iv) hereof
or Section 10.01(A)(v) hereof, then, in each case, any adjustments to
the Conversion Rate that have been, and at such time remain, deferred pursuant
to this Section 10.07 shall be given effect, and such adjustments, if any,
shall no longer be carried forward and taken into account in any subsequent
adjustment to the Conversion Rate.  All
calculations under this Article X shall be made to the nearest cent or to
the nearest one-millionth of a share, as the case may be.


 


Upon
the expiration, termination or redemption of any rights, options or warrants
issued by the Company, and requiring an adjustment to the Conversion Rate in
accordance with Section 10.06 hereof, without the exercise of such rights,
options or warrants, the Conversion Rate then in effect shall be adjusted
immediately by the Company to the Conversion Rate which would have been in
effect at the time of such expiration, termination or redemption had such
rights, options or warrants, to the extent outstanding immediately prior to
such expiration, termination or redemption, never been issued.  Notwithstanding anything herein or in the
Securities to the contrary, if any rights, options or warrants issued by the
Company, and requiring an adjustment to the Conversion Rate in accordance with Section 10.06
hereof, are only exercisable upon the occurrence of certain triggering events,
then the Conversion Rate will not be adjusted as provided in Section 10.06
until the earliest of such triggering event occurs.


 


If any
dividend or distribution is declared and the Conversion Rate is adjusted
pursuant to Section 10.06 hereof on account of such dividend or
distribution, but such dividend or distribution is thereafter not paid or made,
the Conversion Rate shall again be adjusted to the Conversion Rate which would
then be in effect had such dividend or distribution not been declared.


 


No
adjustment to the Conversion Rate need be made pursuant to Section 10.06
hereof for a transaction if each Holder is to participate in the transaction,
at substantially the same time that holders of Common Stock participate in such
transaction, without conversion as if such Holder held a number of shares of
Common Stock equal to a fraction whose numerator is the product of the
Conversion Rate in effect at the Ex Date or effective date, as applicable, of
the transaction (without giving effect to any adjustment pursuant to Section 10.06
hereof on account of such transaction) and the aggregate principal amount of
Securities held by such Holder and whose denominator is one thousand (1,000).


 


Section 10.08.                Other
Adjustments.


 


In the
event that, as a result of an adjustment made pursuant to Section 10.06
hereof, the Holder of any Security thereafter surrendered for conversion shall
become entitled to receive any shares of Capital Stock other than shares of
Common Stock, thereafter the Conversion Rate of such other shares so receivable
upon conversion of any Security shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this Article X.


 


64













 


Section 10.09.                Adjustments
for Tax Purposes.


 


Except
as prohibited by law the Company may (but is not obligated to) make such
increases in the Conversion Rate, in addition to those required by Section 10.06
hereof, as it determines to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights to purchase stock or securities
or distribution of securities convertible into or exchangeable for stock made
by the Company or to its stockholders will not be taxable to the recipients
thereof or in order to diminish any such taxation.


 


Section 10.10.                Notice
of Adjustment.


 


Whenever
the Conversion Rate is adjusted, the Company shall promptly mail to the
Trustee, Conversion Agent and to the Holders at the addresses appearing on the
register of the Registrar a notice of the adjustment and file with the Trustee
an Officers’ Certificate briefly stating the facts requiring the adjustment and
the manner of computing it.  The
certificate shall be conclusive evidence of the correctness of such adjustment.


 


Section 10.11.                Notice
of Certain Transactions.


 


In the
event that:


 


(1)           the
Company takes any action, or becomes aware of any event, which would require an
adjustment in the Conversion Rate,


 


(2)           the
Company takes any action that would require a supplemental indenture pursuant
to Section 10.12 hereof, or


 


(3)           there
is a dissolution or liquidation of the Company,


 


the Company shall mail to
Holders at the addresses appearing on the Registrar’s books and the Trustee a
written notice stating the proposed record, effective or expiration date, as
the case may be, of any transaction referred to in clause (1), (2) or (3) of
this Section 10.11.  The Company
shall mail such notice at least twenty (20) calendar days before such date;
however, failure to mail such notice or any defect therein shall not affect the
validity of any transaction referred to in clause (1), (2) or (3) of
this Section 10.11.


 


Section 10.12.                Effect
of Reclassifications, Consolidations, Amalgamations, Statutory Arrangements,
Mergers, Binding Share Exchanges or Asset Sales on Conversion Privilege.


 


If any
of the following shall occur, namely:  (i) any
reclassification or change in the Common Stock issuable upon conversion of
Securities (other than a change only in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination of Common Stock), (ii) any consolidation, amalgamation,
statutory arrangement, merger or binding share exchange to which the Company or
the Guarantor is a party other than a merger in which the Company or the
Guarantor is the continuing Person and which does not result in any
reclassification of, or change (other than a change in name, or par value, or
from par value to no par value, or from no par value to par value or as a
result of a subdivision or combination) in, the Common Stock, or (iii) any
sale, transfer, lease, conveyance or other disposition of all or substantially
all of the property or assets of the Company or of the Guarantor, in each case
pursuant to which the Common Stock would be converted into or exchanged for, or
would constitute solely the right to receive, cash, securities or other property,
then the Company, the Guarantor or such successor or purchasing Person, as the
case may be, shall execute and deliver to the Trustee a supplemental indenture
in form reasonably satisfactory to the Trustee providing that, at and 


 


65













 


after the effective time of such reclassification,
change, consolidation, amalgamation, statutory arrangement, merger, binding
share exchange, sale, transfer, lease, conveyance or disposition, the Holder of
each Security then outstanding shall have the right to convert such Security
(if otherwise convertible pursuant to this Article X) into the kind and
amount of cash, securities or other property (collectively, “Reference
Property”) receivable upon such reclassification, change, consolidation,
amalgamation, statutory arrangement, merger, binding share exchange, sale,
transfer, lease, conveyance or disposition by a holder of a number of shares of
Common Stock equal to a fraction whose denominator is one thousand (1,000) and
whose numerator is the product of the principal amount of such Security and the
Conversion Rate in effect immediately prior to such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition (assuming, if
holders of Common Stock shall have the opportunity to elect the form of
consideration to receive pursuant to such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition, that the Collective
Election (as defined below) shall have been made with respect to such
election); provided, however,
that at and after the effective time of such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition, the amount payable
hereunder upon conversion of such Security shall continue to be payable in
cash, Common Stock or a combination thereof, but the Daily Conversion Value
shall be calculated based on the fair value of the Reference Property instead
of the Volume-Weighted Average Price per share of Common Stock; provided  further, that
if any portion of such Reference Property consists of common stock listed on a
national securities exchange or quoted on an automated quotation system, then
the “fair value” of such portion of such Reference Property shall be determined
on the basis of the Volume Weighted Average Price of such common stock
(determined as if such common stock were Common Stock for purposes of the
definition of “Volume Weighted Average Price”
and as if the issuer of such common stock were the Company for purposes of the
definition of “Trading Day”).


 


If
holders of Common Stock shall have the opportunity to elect the form of
consideration to receive pursuant to such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition, then the Company
shall make adequate provision to give Holders, treated as a single class, a
reasonable opportunity to elect (the “Collective Election”) the form of
such consideration for purposes of determining the composition of the Reference
Property referred to in the immediately preceding sentence, and once such
election is made, such election shall apply to all Holders after the effective
time of such reclassification, change, consolidation, amalgamation, statutory
arrangement, merger, binding share exchange, sale, transfer, lease, conveyance
or disposition.  Such Collective Election
shall be determined based on the weighted average of the elections made by
Holders of the Securities who participate in such determination, shall be
subject to any limitations to which all of the holders of Common Stock are
subject, such as pro-rata reductions applicable to any portion of the
consideration payable in such reclassification, change, consolidation,
amalgamation, statutory arrangement, merger, binding share exchange, sale,
transfer, lease, conveyance or disposition, and shall be conducted in such a
manner as to be completed by the close of business on the actual effective date
of such reclassification, change, consolidation, amalgamation, statutory arrangement,
merger, binding share exchange, sale, transfer, lease, conveyance or
disposition.  The Company shall provide
notice of the opportunity to determine the form of such consideration, as well
as notice of the determination made by Holders, by issuing a press release and
providing a copy of such notice to the Trustee. 
The Company shall not become a party to any reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition, the terms of which
are inconsistent with this paragraph and the immediately preceding paragraph.


 


66













 


The
supplemental indenture referred to in the first sentence of this Section 10.12
shall provide for adjustments of the Conversion Rate which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Rate
provided for in this Article X.  The
foregoing, however, shall not in any way affect the right a Holder of a Security
may otherwise have, pursuant to Section 10.06(b) hereof or Section 10.14
hereof, to receive rights or warrants upon conversion of a Security.  If, in the case of any such consolidation,
amalgamation, statutory arrangement, merger, binding share exchange, sale,
transfer, lease, conveyance or disposition, the stock or other securities and
property (including cash) receivable thereupon by a holder of Common Stock
includes shares of stock or other securities and property of a Person other
than the successor or purchasing Person, as the case may be, in such
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition, then such
supplemental indenture shall also be executed by such other Person and shall
contain such additional provisions to protect the interests of the Holders of
the Securities as the Board in good faith shall reasonably determine necessary
by reason of the foregoing (which determination shall be described in a Board
Resolution).  The provisions of this Section 10.12
shall similarly apply to successive consolidations, amalgamations, statutory
arrangements, mergers, binding share exchanges, sales, transfers, leases,
conveyances or dispositions.


 


In the
event the Company shall execute a supplemental indenture pursuant to this Section 10.12,
the Company shall promptly file with the Trustee (i) an Opinion of Counsel
stating that such supplemental indenture is authorized or permitted by this
Indenture in accordance with Section 15.12 hereof, and (ii) an
Officers’ Certificate briefly stating the reasons therefor, the kind or amount
of shares of stock or securities or property (including cash) receivable by
Holders of the Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, amalgamation, statutory arrangement,
merger, binding share exchange, sale, transfer, lease, conveyance or
disposition and any adjustment to be made with respect thereto.


 


Section 10.13.                Trustee’s
Disclaimer.


 


The
Trustee has no duty to determine when an adjustment under this Article X
should be made, how it should be made or what such adjustment should be, but
may accept as conclusive evidence of the correctness of any such adjustment,
and shall be protected in relying upon, the Officers’ Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant to Section 10.10
hereof.  The Trustee makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Securities, and the Trustee shall not be responsible for the
failure by the Company to comply with any provisions of this Article X.  The Conversion Agent shall have the same
protection under this Section 10.13 as the Trustee.


 


The
Trustee shall not be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture executed pursuant to Section 10.12
hereof, but may accept as conclusive evidence of the correctness thereof, and
shall be protected in relying upon, the Officers’ Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant to Section 10.12
hereof.


 


Section 10.14.                Rights
Distributions Pursuant to Stockholders’ Rights Plans.


 


Upon
conversion of any Security or a portion thereof, the Company shall make
provision such that the Holder thereof shall, to the extent such Holder is to
receive shares of Common Stock upon such conversion, receive, in addition to,
and concurrently with the delivery of, the consideration otherwise payable
hereunder upon such conversion, the rights described in any future stockholders’
rights plan(s) of the Company then in effect; provided,
however, that no such provision need be
made if the rights have 


 


67













 


been separated from the Common Stock prior to the time
of such conversion, but the provisions of Section 10.06(b) hereof
shall apply.


 


Section 10.15.                Increased
Conversion Rate Applicable to Certain Securities Surrendered in Connection With
Make-Whole Fundamental Changes.


 


(A)          Notwithstanding
anything herein to the contrary, if prior to April 20, 2014 a Make-Whole
Fundamental Change occurs, the Conversion Rate applicable to each Security that
is surrendered for conversion, in accordance with this Article X, at any
time during the period (the “Make-Whole Conversion Period”) that begins
on, and includes, the date that is thirty (30) calendar days prior to the date
originally announced by the Company as the anticipated effective date of a
Make-Whole Fundamental Change (which anticipated effective date the Company
shall disclose, in good faith, in the written notice and public announcement
referred to in Section 10.15(D) hereof) and ends on, and includes,
the date that is forty (40) Business Days after the actual effective date of
such Make-Whole Fundamental Change (or, if such Make-Whole Fundamental Change
also constitutes a Fundamental Change, the Fundamental Change Repurchase Date
applicable to such Fundamental Change) shall be increased to an amount equal to
the Conversion Rate that would, but for this Section 10.15, otherwise
apply to such Security pursuant to this Article X, plus an amount equal to
the Make-Whole Applicable Increase; provided, however, that such increase to the Conversion Rate shall not
apply if such Make-Whole Fundamental Change is announced by the Company but
shall not be consummated.


 


The
additional consideration payable hereunder on account of any Make-Whole
Applicable Increase with respect to a Security surrendered for conversion is
herein referred to as the “Make-Whole Consideration.”  For avoidance of doubt, the amount of the
Make-Whole Consideration due upon the conversion of a Security shall be based
on the Cash Settlement Averaging Period and Volume-Weighted Average Prices
applicable to such conversion pursuant to Section 10.02 hereof.


 


The
Make-Whole Consideration due upon a conversion of a Security by a Holder shall
be paid as soon as practicable, but in no event later than third Business Day
after the later of (1) the date such Holder surrenders such Security for
such conversion; (2) the last Trading Day in the Cash Settlement Averaging
Period applicable to such conversion; and (3) the Effective Date of the
applicable Make-Whole Fundamental Change.


 


(B)           As
used herein, “Make-Whole Applicable Increase” shall mean, with respect
to a Make-Whole Fundamental Change, the amount, set forth in the following
table, which corresponds to the effective date of such Make-Whole Fundamental
Change (the “Effective Date”) and the Applicable Price (as defined
below) of such Make-Whole Fundamental Change:


 




	
   

  	
   

  	
  Effective
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Applicable Price

  	
   

  	
  April 27,
  2009

  	
   

  	
  April 15,
  2010

  	
   

  	
  April 15,
  2011

  	
   

  	
  April 15,
  2012

  	
   

  	
  April 15,
  2013

  	
   

  	
  April 20,
  2014

  	
   

  
	
  $36.00

  	
   

  	
  3.6232

  	
   

  	
  3.6232

  	
   

  	
  3.6232

  	
   

  	
  3.6232

  	
   

  	
  3.6232

  	
   

  	
  3.6232

  	
   

  
	
  $40.00

  	
   

  	
  2.5657

  	
   

  	
  2.6170

  	
   

  	
  2.5760

  	
   

  	
  2.3498

  	
   

  	
  1.8582

  	
   

  	
  0.8454

  	
   

  
	
  $45.00

  	
   

  	
  2.0091

  	
   

  	
  2.0096

  	
   

  	
  1.8936

  	
   

  	
  1.5778

  	
   

  	
  0.9468

  	
   

  	
  0.0000

  	
   

  
	
  $50.00

  	
   

  	
  1.6361

  	
   

  	
  1.6156

  	
   

  	
  1.4754

  	
   

  	
  1.1478

  	
   

  	
  0.5382

  	
   

  	
  0.0000

  	
   

  
	
  $55.00

  	
   

  	
  1.3713

  	
   

  	
  1.3445

  	
   

  	
  1.2047

  	
   

  	
  0.8981

  	
   

  	
  0.3618

  	
   

  	
  0.0000

  	
   

  
	
  $60.00

  	
   

  	
  1.1746

  	
   

  	
  1.1480

  	
   

  	
  1.0189

  	
   

  	
  0.7437

  	
   

  	
  0.2825

  	
   

  	
  0.0000

  	
   

  
	
  $65.00

  	
   

  	
  1.0225

  	
   

  	
  0.9987

  	
   

  	
  0.8837

  	
   

  	
  0.6405

  	
   

  	
  0.2412

  	
   

  	
  0.0000

  	
   

  
	
  $70.00

  	
   

  	
  0.9009

  	
   

  	
  0.8808

  	
   

  	
  0.7802

  	
   

  	
  0.5659

  	
   

  	
  0.2150

  	
   

  	
  0.0000

  	
   

  
	
  $75.00

  	
   

  	
  0.8012

  	
   

  	
  0.7846

  	
   

  	
  0.6973

  	
   

  	
  0.5081

  	
   

  	
  0.1952

  	
   

  	
  0.0000

  	
   

  
	
  $80.00

  	
   

  	
  0.7175

  	
   

  	
  0.7041

  	
   

  	
  0.6287

  	
   

  	
  0.4611

  	
   

  	
  0.1787

  	
   

  	
  0.0000

  	
   

  
	
  $85.00

  	
   

  	
  0.6462

  	
   

  	
  0.6355

  	
   

  	
  0.5704

  	
   

  	
  0.4213

  	
   

  	
  0.1645

  	
   

  	
  0.0000

  	
   

  
	
  $90.00

  	
   

  	
  0.5846

  	
   

  	
  0.5761

  	
   

  	
  0.5199

  	
   

  	
  0.3868

  	
   

  	
  0.1519

  	
   

  	
  0.0000

  	
   

  
	
  $95.00

  	
   

  	
  0.5308

  	
   

  	
  0.5241

  	
   

  	
  0.4755

  	
   

  	
  0.3563

  	
   

  	
  0.1407

  	
   

  	
  0.0000

  	
   

  
	
  $100.00

  	
   

  	
  0.4834

  	
   

  	
  0.4781

  	
   

  	
  0.4361

  	
   

  	
  0.3291

  	
   

  	
  0.1306

  	
   

  	
  0.0000

  	
   

  






 


provided, however, that:


 


68












 


(i)            if the actual
Applicable Price (as defined below) of such Make-Whole Fundamental Change is
between two (2) prices listed in the table above under the column
titled:  “Applicable Price,” or if
the actual Effective Date of such Make-Whole Fundamental Change is between two
dates listed in the table above in the row immediately below the title “Effective
Date,” then the Make-Whole Applicable Increase for such Make-Whole
Fundamental Change shall be determined by linear interpolation between the
Make-Whole Applicable Increases set forth for such two prices, or for such two
dates based on a three hundred and sixty-five (365) day year, as applicable;


 


(ii)           if the actual
Applicable Price of such Make-Whole Fundamental Change is greater than $100.00
per share (subject to adjustment as provided in Section 10.15(B)(iii)), or
if the actual Applicable Price of such Make-Whole Fundamental Change is less
than $36.00 per share (subject to adjustment as provided in Section 10.15(B)(iii)),
then the Make-Whole Applicable Increase shall be equal to zero (0);


 


(iii)          if an event occurs
that requires, pursuant to this Article X (other than solely pursuant to
this Section 10.15), an adjustment to the Conversion Rate, then, on the
date and at the time such adjustment is so required to be made, each price set
forth in the table above under the column titled “Applicable Price”
shall be deemed to be adjusted so that such price, at and after such time,
shall be equal to the product of (1) such price as in effect immediately
before such adjustment to such price and (2) a fraction whose numerator is
the Conversion Rate in effect immediately before such adjustment to the
Conversion Rate and whose denominator is the Conversion Rate to be in effect,
in accordance with this Article X, immediately after such adjustment to
the Conversion Rate;


 


(iv)          each Make-Whole
Applicable Increase amount set forth in the table above shall be adjusted in
the same manner in which, and for the same events for which, the Conversion
Rate is to be adjusted pursuant to Section 10.06 through Section 10.14
hereof; and


 


(v)           in no event shall
the Conversion Rate applicable to any Security be increased pursuant to this Section 10.15
to the extent, but only to the extent, such increase shall cause the Conversion
Rate applicable to such Security to exceed 27.7778 shares per $1,000 principal
amount (the “BCF Make-Whole Cap”); provided, however, that the BCF Make-Whole Cap shall be adjusted in
the same manner in which, and for the same events for which, the Conversion
Rate is to be adjusted pursuant to this Article X.


 


(C)           As
used herein, “Applicable Price” shall have the following meaning with
respect to a Make-Whole Fundamental Change: 
(a) if such Make-Whole Fundamental Change constitutes a Common
Stock Change Make-Whole Fundamental Change and the consideration (excluding
cash payments for fractional shares or pursuant to statutory appraisal rights)
for the Common Stock in such Make-Whole Fundamental Change consists solely of
cash, then the “Applicable Price” with respect to such Make-Whole
Fundamental Change shall be equal to the cash amount paid per share of Common
Stock in such Make-Whole Fundamental Change; (b) if such Make-Whole
Fundamental Change constitutes an Asset Sale Make-Whole Fundamental Change and
the consideration paid for the property and assets of the Company consists
solely of cash, then the “Applicable Price” with respect to such
Make-Whole Fundamental Change shall be equal to the cash amount paid for the
property and assets of the Company, expressed as an amount per share of Common
Stock outstanding on the Effective Date of such Make-Whole Fundamental Change;
and (c) in all other circumstances, the “Applicable Price” with
respect to such Make-Whole Fundamental Change shall be equal to the average of
the Closing Sale Prices per share of Common Stock for the five (5) consecutive
Trading Days immediately preceding the 


 


69













 


Effective Date of such Make-Whole Fundamental Change,
which average shall be appropriately adjusted by the Board, in its good faith
determination, to account for any adjustment, pursuant hereto, to the
Conversion Rate that shall become effective, or any event requiring, pursuant
hereto, an adjustment to the Conversion Rate where the Ex Date of such event
occurs, at any time during such five (5) consecutive Trading Days.


 


(D)          At
least thirty (30) calendar days before the first anticipated effective date of
each proposed Make-Whole Fundamental Change, the Company shall mail to each
Holder written notice of, and shall publicly announce, through a reputable
national newswire service, and publish on the Company’s website, the
anticipated effective date of such proposed Make-Whole Fundamental Change.  Each such notice, announcement and
publication shall also state that, in connection with such Make-Whole
Fundamental Change, the Company shall increase, in accordance herewith, the
Conversion Rate applicable to Securities entitled as provided herein to such
increase (along with a description of how such increase shall be calculated and
the time periods during which Securities must be surrendered in order to be
entitled to such increase).  No later
than the third Business Day after the Effective Date of each Make-Whole
Fundamental Change, the Company shall mail written notice of, and shall
publicly announce and publish on the Company’s website through a reputable
national newswire service, such Effective Date and the Make-Whole Applicable
Increase applicable to such Make-Whole Fundamental Change.


 


(E)           For
avoidance of doubt, the provisions of this Section 10.15 shall not affect
or diminish the Company’s obligations with respect to a Make-Whole Fundamental
Change.


 


(F)           Nothing
in this Section 10.15 shall prevent an adjustment to the Conversion Rate
pursuant to Section 10.06 hereof in respect of a Make-Whole Fundamental
Change.


 


Section 10.16.                Additional
Interest.


 


Additional
Interest shall be payable to holders of the Securities (or, with respect to any
Securities that have been previously converted, to the Holders of such
converted Securities at the time of such conversion) if at any time during the
six months to one year following the Issue Date, the Company fails to timely
file any document or report that the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act, as applicable
(giving effect to any extension of the filing deadline pursuant to Rule 12b-25
of the Exchange Act) (other than reports on Form 8-K); provided that the
Company will have 14 days (the “Cure Period”), in the aggregate, to cure all
such missed filings.  The Additional
Interest will be payable on the Interest Payment Date following the expiration
of the Cure Period.


 


Section 10.17.                Ownership
Limit.


 


Notwithstanding
any other provision of this Indenture or the Securities, (a) no Holder
shall be entitled to convert such Securities for shares of Common Stock to the
extent that receipt of such shares would cause such Holder (together with such
Holder’s Affiliates) to exceed the applicable ownership limit with respect to
the Company’s outstanding capital stock and securities convertible into capital
stock contained in the Company’s; articles of incorporation (including articles
supplementary thereto) and by-laws and (b) no Holder shall have any right
to receive cash or other consideration in lieu of shares of Common Stock upon
conversion of the Securities to the extent such conversion would otherwise
cause (if fully converted into shares of Common Stock) such Holder (together
with such Holder’s Affiliates) to exceed such ownership limit; provided that any such Holder shall be entitled to receive
on the same basis as other Holders cash paid upon Redemption, Repurchase at
Holder’s Option or Repurchase Upon Fundamental Change.


 


70













 


ARTICLE
XI



LIST OF SECURITYHOLDERS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 11.01.                Company
to Furnish Trustee Names and Addresses of Holders.


 


If the
Trustee is not the Registrar, the Company will furnish or cause to be furnished
to the Trustee:


 


(A)          semi-annually,
not later than July 15 and January 15 in each year, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of the preceding July 1 or January 1,
as the case may be, and


 


(B)           at
such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is furnished.


 


Section 11.02.                Preservation
of Information; Communications to Holders.


 


The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 11.01 and the names and addresses of
Holders received by the Trustee in its capacity as Registrar.  The Trustee may destroy any list furnished to
it as provided in Section 11.01 upon receipt of a new list so furnished.


 


The
rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.


 


Every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.


 


Section 11.03.                Reports
by Trustee.


 


The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.


 


A copy
of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which any Securities are
listed, if any, with the Commission and with the Company.  The Company will notify the Trustee when any
Securities are listed on any stock exchange.


 


ARTICLE
XII



THE SECURITYHOLDERS


 


Section 12.01.                Action
by Securityholders.


 


71













 


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


 


Section 12.02.                Proof
of Execution by Securityholders.


 


Subject
to the provisions of Sections 6.01 and 6.02, proof of the execution of any
instrument by a Securityholder or its agent or proxy shall be sufficient if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.  The holding of Securities shall
be proved by the registry of such Securities or by a certificate of the
Registrar.


 


Section 12.03.                Absolute
Owners.


 


The
Company, the Trustee, any Paying Agent, any exchange agent and any Registrar
may deem the Person in whose name such Security shall be registered upon the
register of the Registrar to be, and may treat it as, the absolute owner of
such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by any
Person other than the Company or any Registrar) for the purpose of receiving
payment of or on account of the principal of (including the Redemption Price
upon Redemption, the Option Repurchase Price upon a Repurchase of Holder’s
Option, or the Fundamental Change Repurchase Price upon Repurchase Upon
Fundamental Change, interest and Additional Interest, if any, on such Security,
for exchange of such Security and for all other purposes; and neither the
Company nor the Trustee nor any Paying Agent nor any exchange agent nor any
Registrar shall be affected by any notice to the contrary.  All such payments so made to any Holder for
the time being, or upon its order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for
monies payable upon any such Security.


 


Section 12.04.                Company-owned
Securities Disregarded.


 


In
determining whether the Holders of the requisite aggregate principal amount of
Securities have concurred in any direction, consent, waiver or other action
under this Indenture, Securities which are owned by the Company or any other
obligor on the Securities or any Affiliate of the Company or any other obligor
on the Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination; provided that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent, waiver or other action, only Securities
which a Responsible Officer knows are so owned shall be so disregarded.  Securities so owned which have been pledged
in good faith may be regarded as outstanding for the purposes of this Section 12.04
if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s
right to vote such Securities and that the pledgee is not the Company, any
other obligor on the Securities or any Affiliate of the Company or any such
other obligor.  In the case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee. 
Upon request of the Trustee, the Company shall 


 


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furnish to the Trustee promptly an Officers’
Certificate listing and identifying all Securities, if any, known by the
Company to be owned or held by or for the account of any of the above described
Persons, and, subject to Section 6.01, the Trustee shall be entitled to
accept such Officers’ Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Securities not listed therein are outstanding
for the purpose of any such determination.


 


Section 12.05.                Revocation
of Consents; Future Holders Bound.


 


At any
time prior to (but not after) the evidencing to the Trustee, as provided in Section 12.01,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in connection
with such action, any Holder of a Security which is shown by the evidence to be
included in the Securities the Holders of which have consented to such action
may, by filing written notice with the Trustee at its Corporate Trust Office
and upon proof of holding as provided in Section 12.02, revoke such action
so far as concerns such Security.  Except
as aforesaid, any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether any notation in regard thereto is made upon such
Security or any Security issued in exchange or substitution therefor.


 


ARTICLE
XIII



MEETINGS OF THE SECURITYHOLDERS


 


Section 13.01.                Purposes
for Which Meetings May Be Called.


 


A
meeting of Securityholders may be called at any time and from time to time pursuant
to this Article XIII to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other act provided by this
Indenture to be made, given or taken by Securityholders.


 


Section 13.02.                Call,
Notice and Place of Meetings.


 


(A)          The
Trustee may at any time call a meeting of Securityholders for any purpose
specified in Section 13.01 hereof, to be held at such time and at such
place in the City of New York, New York as the Trustee shall determine.  Notice of every meeting of Securityholders,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 15.02, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.


 


(B)           In
case at any time the Company or the Holders of at least 10% in aggregate
principal amount of the outstanding Securities shall have requested the Trustee
to call a meeting of the Securityholders for any purpose specified in Section 13.01
hereof, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Securityholders
in the amount above specified, as the case may be, may determine the time and
the place in the City of New York, New York, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (A) of
this Section.


 


Section 13.03.                Persons
Entitled to Vote at Meetings.


 


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To be
entitled to vote at any meeting of Securityholders, a Person shall be (a) a
Holder of one or more outstanding Securities, or (b) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more
outstanding Securities by such Holder or Holders.  The only Persons who shall be entitled to be
present or to speak at any meeting of Securityholders shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.


 


Section 13.04.                Quorum;
Action.


 


The
Persons entitled to vote a majority in principal amount of the outstanding
Securities shall constitute a quorum for a meeting of Securityholders; provided, however, that
if any action is to be taken at the meeting with respect to a consent or waiver
which may be given by the Securityholders of not less than a specified
percentage in principal amount of the outstanding Securities, the Persons
holding or representing the specified percentage in principal amount of the
outstanding Securities will constitute a quorum.  In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened
at the request of Securityholders, be dissolved.  In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting.  In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. 
Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 13.02 hereof, except that such notice need be given
only once not less than five days prior to the date on which the meeting is
scheduled to be reconvened.  Notice of
the reconvening of an adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the outstanding Securities which
shall constitute a quorum.


 


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


 


Any resolution
passed or decision taken at any meeting of Securityholders duly held in
accordance with this Section 13.04 shall be binding on all the
Securityholders, whether or not such Securityholders were present or
represented at the meeting.


 


Section 13.05.                Determination
of Voting Rights; Conduct and Adjournment of Meetings.


 


(A)          Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities
in regard to proof of the holding of Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate.  Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 12.03 and
the appointment of any proxy shall be proved in the manner specified in Section 12.01


 


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(B)           The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by
Securityholders as provided in Section 13.02(B) hereof, in which case
the Company or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the outstanding Securities of such
series represented at the meeting.


 


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


 


(D)          Any
meeting of Securityholders duly called pursuant to Section 13.02 hereof at
which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the outstanding
Securities represented at the meeting; and the meeting may be held as so
adjourned without further notice.


 


Section 13.06.                Counting
Votes and Recording Action of Meetings.


 


The
vote upon any resolution submitted to any meeting of Securityholders shall be
by written ballots on which shall be subscribed the signatures of the
Securityholders or of their representatives by proxy and the principal amounts
and serial numbers of the outstanding Securities held or represented by
them.  The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting.  A record, at
least in triplicate, of the proceedings of each meeting of Securityholders
shall be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 13.02 hereof and, if
applicable, Section 13.04 hereof. 
Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the
meeting.  Any record so signed and
verified shall be conclusive evidence of the matters therein stated.


 


ARTICLE
XIV



GUARANTY


 


Section 14.01.                Guaranty


 


By its
execution hereof, the Guarantor acknowledges and agrees that it receives
substantial benefits from the Company and that the Guarantor is providing its
Guaranty for good and valuable consideration, including, without limitation,
such substantial benefits.  Accordingly,
subject to the provisions of this Article XIV, the Guarantor hereby
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns
that: (i) the principal of (including the Redemption Price, Option
Repurchase Price and Fundamental Change Repurchase Price and interest and
Additional Interest, if any, on the Securities shall be duly and punctually
paid in full when due, whether at the Maturity Date, upon acceleration, upon
Redemption, upon a Repurchase at Holder’s Option or Repurchase Upon Fundamental
Change or otherwise, and 


 


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interest on overdue principal, Additional Interest, if
any, and (to the extent permitted by law) interest on any interest, if any, on
the Securities shall be promptly paid in full, all in accordance with the terms
hereof; and (ii) in case of any extension of time of payment or renewal of
any Securities, the same shall be promptly paid in full when due in accordance
with the terms of the extension or renewal, whether at the Maturity Date, by
acceleration, call for Redemption, upon a Repurchase at Holder’s Option or
Repurchase Upon Fundamental Change or otherwise, subject, however, in the case
of clauses (i) and (ii) above, to the limitations set forth in Section 14.03
hereof (collectively, the “Guaranty Obligations”).


 


Subject
to the provisions of this Article XIV, the Guarantor hereby agrees that
its Guaranty hereunder shall be 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 with
respect to any thereof, the entry 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 the Guarantor.  The Guarantor hereby waives and relinquishes:  (a) any right to require the Trustee,
the Holders or the Company (each, a “Benefited Party”) to proceed
against the Company or any other Person or to proceed against or exhaust any
security held by a Benefited Party at any time or to pursue any other remedy in
any secured party’s power before proceeding against the Guarantor; (b) any
defense that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of a Benefited Party
to file or enforce a claim against the estate (in administration, bankruptcy or
any other proceeding) of any other Person or Persons; (c) demand, protest
and notice of any kind (except as expressly required by this Indenture),
including but not limited to notice of the existence, creation or incurring of
any new or additional indebtedness or obligation or of any action or non-action
on the part of the Guarantor, the Company, any Benefited Party, any creditor of
the Guarantor or the Company or on the part of any other Person whomsoever in
connection with any obligations the performance of which are hereby guaranteed;
(d) any defense based upon an election of remedies by a Benefited Party,
including but not limited to an election to proceed against the Guarantor for
reimbursement; (e) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal; (f) any
defense arising because of a Benefited Party’s election, in any proceeding
instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of
the Bankruptcy Code; and (g) any defense based on any borrowing or grant
of a security interest under Section 364 of the Bankruptcy Code.  The Guarantor hereby covenants that, except
as otherwise provided therein, the Guaranty shall not be discharged except by
payment in full of all Guaranty Obligations.


 


If any
Holder or the Trustee is required by any court or otherwise to return to either
the Company or the Guarantor, or any trustee or similar official acting in
relation to either the Company or the Guarantor, any amount paid by the Company
or the Guarantor to the Trustee or such Holder, the Guaranty, to the extent
theretofore discharged, shall be reinstated in full force and effect.  The Guarantor agrees that it shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any Guaranty Obligations hereby until payment in full of all such obligations
guaranteed hereby.  The Guarantor agrees
that, as between it, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 5.02 hereof for the purposes hereof,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranty Obligations, and (y) in the event
of any acceleration of such obligations as provided in Section 5.02
hereof, such Guaranty Obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantor for the purpose of the Guaranty.


 


Section 14.02.                Execution
and Delivery of Guaranty.


 


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To
evidence the Guaranty set forth in Section 14.01 hereof, the Guarantor agrees
that a notation of the Guaranty substantially in the form included in Exhibit B
hereto shall be endorsed on each Security authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of the Guarantor by
an officer of the General Partner.


 


The
Guarantor agrees that the Guaranty set forth in this Article XIV shall
remain in full force and effect and apply to all the Securities notwithstanding
any failure to endorse on each Security a notation of the Guaranty.


 


If an
officer whose facsimile signature is on a Security or a notation of the
Guaranty no longer holds that office at the time the Trustee authenticates the
Security on which the Guaranty is endorsed, the Guaranty shall be valid
nevertheless.


 


The
delivery of any Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guaranty set forth in this
Indenture on behalf of the Guarantor.


 


Section 14.03.                Limitation
of Guarantor’s Liability; Certain Bankruptcy Events.


 


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


 


(B)           The
Guarantor hereby covenants and agrees, to the fullest extent that it may do so
under applicable law, that in the event of the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Company, the Guarantor shall
not file (or join in any filing of), or otherwise seek to participate in the
filing of, any motion or request seeking to stay or to prohibit (even
temporarily) execution on the Guaranty and hereby waives and agrees not to take
the benefit of any such stay of execution, whether under Section 362 or
105 of the Bankruptcy Law or otherwise.


 


Section 14.04.                [RESERVED].


 


Section 14.05.                Application
of Certain Terms and Provisions to the Guarantor.


 


(A)          For
purposes of any provision of this Indenture which provides for the delivery by
the Guarantor of an Officers’ Certificate and/or an Opinion of Counsel, the
definitions of such terms in Section 1.01 hereof shall apply to the
Guarantor as if references therein to the Company were references to the
Guarantor (and with “Officer” being read as being an officer of the General
Partner, as necessary).


 


(B)           Any
request, direction, order or demand which by any provision of this Indenture is
to be made by the Guarantor shall be sufficient if evidenced as described in Section 15.02
hereof.


 


(C)           Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders to or on the
Guarantor may be given or served as described in Section 15.02 hereof.


 


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(D)          Upon
any demand, request or application by the Guarantor to the Trustee to take any
action under this Indenture, the Guarantor shall furnish to the Trustee such
certificates and opinions as are required in Section 15.12 hereof as if
all references therein to the Company were references to the Guarantor.


 


Section 14.06.                Subordination
of Subrogation and Other Rights.


 


The
Guarantor hereby agrees that any claim of the Guarantor against the Company
that arises from the payment, performance or enforcement of the Guarantor’s
obligations under the Guaranty or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of the Guarantor shall be made
before, the payment in full in cash of all outstanding Securities accrued and
unpaid interest and all other fees and expenses payable in accordance with the
provisions set forth in this Indenture.


 


ARTICLE
XV


 


MISCELLANEOUS


 


Section 15.01.                Conflict
with Trust Indenture Act.


 


If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act which is required thereunder to be a part of and govern this
Indenture, the latter provision shall control. 
If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.


 


Section 15.02.                Notices.


 


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


 


To Company:


 


Alexandria Real Estate Equities, Inc.


385 East Colorado
Boulevard, Suite 299


Pasadena, California
91101,


Telecopier No.:
626-578-0770


Attention: Corporate Secretary


 


To Guarantor:


 


Alexandria Real Estate Equities, L.P.


385 East Colorado Boulevard, Suite 299


Pasadena,
California 91101,


Telecopier No.:
626-578-0770


Attention:
Corporate Secretary


 


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


 


Wilmington Trust Company


Rodney Square North


1100 North Market Street


Wilmington, Delaware 19801


Telephone No.: (302) 636-6043


Telecopier No.: (302) 636-4145


Attention: Lori L. Donahue


 


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


 


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


 


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


 


Section 15.03.                Successors.


 


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


 


Section 15.04.                Governing
Law.


 


The
laws of the State of New York, without regard to principles of conflicts of
law, shall govern this Indenture and the Securities.


 


Section 15.05.                Waiver
of Jury Trial.


 


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


 


Section 15.06.                Force
Majeure.


 


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


 


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Section 15.07.                Severability
Clause.


 


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


 


Section 15.08.                Benefits
of Indenture.


 


Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.


 


Section 15.09.                Acts
of Holders; Record Dates.


 


Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.01) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.


 


The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him or her the execution thereof.  Where such execution is by a signer acting in
a capacity other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her authority.  The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.


 


The
ownership of Securities shall be proved by the register of the Registrar.


 


Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.


 


Section 15.10.                Legal
Holidays.


 


In any
case where any Interest Payment Date, Redemption Date or the Maturity Date of
any Security shall not be a Business Day at any place of payment, then
(notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or
principal (and Additional Interest, if any) need not be made at such place of
payment on such date, but may be made on the next succeeding Business Day at
such place of payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Maturity Date.


 


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Section 15.11.                No
Personal Liability.


 


No
recourse under or upon any obligation, covenant or agreement of this Indenture
or any indenture supplemental hereto or of any Security or the Guaranty, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, partner, employee, officer or director, as such,
past, present or future, of the Company, or of any successor Person, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by the incorporators, stockholders, partners,
employees, officers or directors, as such, of the Company or of any successor
Person, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or the Guaranty or
implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute,
of, and any and all such rights and claims against, every such incorporator,
stockholder, partner, employee, officer or director, as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or the Guaranty or implied therefrom are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of such Securities and the Guaranty.


 


Section 15.12.                Evidence
of Compliance with Conditions Precedent; Certificates to Trustee.


 


Upon
any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers’ Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied
with, and, if requested by the Trustee, an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied
with.


 


Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include: (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in such certificate or opinion is
based; (3) a statement that, in the opinion of such person, such person
has made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or
not, in the opinion of such person, such condition or covenant has been
complied with; provided, however,
that with respect to matters of fact an Opinion of Counsel may rely on an
Officers’ Certificate or certificates of public officials.


 


Section 15.13.                No
Adverse Interpretation of Other Agreements.


 


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


 


Section 15.14.                Calculations
in Respect of the Securities.


 


The
Company is responsible for all calculations under this Indenture and the
Securities, including the determination of the Trading Price, the current
market price of the Common Stock, the number of Conversion Shares, if any,
amounts of Interest and adjustments to the Conversion Rate.  The Company 


 


81













 


shall make all such calculations in good faith and, in
the absence of manifest error, such calculations shall be final and binding on
all Holders.  The Company shall provide a
copy of such calculations to the Trustee and the Conversion Agent, as required
hereunder, and, the Trustee and the Conversion Agent shall be entitled to
conclusively rely on the accuracy of any such calculation without independent
verification.  Upon request of any
Holder, the Trustee and the Conversion Agent shall provide a copy of such
calculations to such Holder.


 


82













 


IN
WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed as of the
date first above written.


 


ALEXANDRIA REAL ESTATE EQUITIES, INC.


 


 


By:              /s/ Dean
A. Shigenaga                                        

Name:  Dean A. Shigenaga

Title:    Chief Financial Officer


 


 


 


 


ALEXANDRIA REAL ESTATE EQUITIES, L.P.


 


 


By:              ARE-QRS
Corp.,

its General Partner


 


 


By:              /s/ Dean
A. Shigenaga                                        

Name:  Dean A. Shigenaga

Title:    Chief Financial Officer


 













 


WILMINGTON TRUST COMPANY


 


 


By:              /s/ Lori
L. Donahue                                              

Name:  Lori L. Donahue

Title:    Assistant Vice President


 












 


EXHIBIT A


 


[Face of Security]

ALEXANDRIA REAL ESTATE EQUITIES, INC.



Certificate No. _______ 

[INSERT LEGENDS AS REQUIRED]


 


 


 


8.00% Senior
Convertible Note due 2029

CUSIP No. 015271 AB5


 


 


 


Alexandria
Real Estate Equities, Inc., a Maryland corporation (the “Company”), for value received, hereby promises to pay to
Cede & Co., or its registered assigns, the principal sum of TWO
HUNDRED FORTY MILLION DOLLARS ($240,000,000) on April 15, 2029 and to pay
interest thereon, as provided on the reverse hereof, until the principal and
any unpaid and accrued interest are paid or duly provided for.


 


Interest
Payment Dates:  April 15 and October 15,
with the first payment to be made on October 15, 2009.


 


Record
Dates: April 1 and October 1 preceding each applicable Interest
Payment Date.


 


The
provisions on the back of this certificate are incorporated as if set forth on
the face hereof.


 


 


Exh-A-1













 


IN
WITNESS WHEREOF,
Alexandria Real Estate Equities, Inc. has caused this instrument to be
duly signed.


 


ALEXANDRIA REAL ESTATE EQUITIES, INC.


 


By:                                                                                                 

Name:

Title:


 


Dated:                                                    


 


 


Exh-A-2













 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred 

to in the within-mentioned Indenture.  

Wilmington Trust Company, as Trustee 





By:                                                                                          


Authorized Signatory


 


 


Dated:                                                    


 


 


Exh-A-3













 


[REVERSE OF
SECURITY]

ALEXANDRIA REAL ESTATE EQUITIES, INC.

8.00% Senior Convertible Note due 2029


 


1.             Interest.  Alexandria Real Estate Equities, Inc, a
Maryland corporation (the “Company”),
promises to pay interest on the principal amount of this Security at the rate per annum shown above. 
The Company will pay interest, payable semi-annually in arrears, on each
April 15 and October 15 of each year, with the first payment to be
made on October 15, 2009.  Interest
on the Securities will accrue on the principal amount from, and including, the
most recent date to which interest has been paid or provided for or, if no
interest has been paid, from, and including the date of issuance of the
Securities, in each case to, but excluding, the next interest payment date or
Maturity Date, as the case may be. 
Interest will be computed on the basis of a 360-day year of twelve
30-day months.


 


2.             Maturity.  The Securities will mature on April 15,
2029.


 


3.             Method of
Payment.  Except as provided
in the Indenture (as defined below), the Company will pay interest on the
Securities to the persons who are Holders of record of Securities at the close
of business on the record date set forth on the face of this Security next
preceding the applicable interest payment date. 
Holders must surrender Securities to a Paying Agent to collect the principal
amount, Redemption Price, Option Repurchase Price or Fundamental Change
Repurchase Price of the Securities, plus, if applicable, accrued and unpaid
interest, if any, payable as herein provided on the Maturity Date or upon
Redemption, Purchase at Holder’s Option or Repurchase Upon Fundamental Change,
as the case may be.  The Company will
pay, in money of the United States that at the time of payment is legal tender
for payment of public and private debts, all amounts due in cash with respect
to the Securities, which amounts shall be paid (A) in the case this
Security is in global form, by wire transfer of immediately available funds to
the account designated by DTC or its nominee; (B) in the case this
Security is held, other than in global form, by a Holder of more than five
million dollars ($5,000,000) in aggregate principal amount of Securities, by
wire transfer of immediately available funds to the account specified by such
Holder or, if such Holder does not specify an account, by mailing a check to
the address of such Holder set forth in the register of the Registrar; and (C) in
the case this Security is held, other than in global form, by a Holder of five
million dollars ($5,000,000) or less in aggregate principal amount of
Securities, by mailing a check to the address of such Holder set forth in the
register of the Registrar.


 


4.             Paying
Agent, Registrar, Bid Solicitation Agent and Conversion Agent.  Initially, Wilmington Trust Company (the “Trustee”) will act as Paying Agent, Registrar, Bid
Solicitation Agent and Conversion Agent. 
The Company may change any Paying Agent, Registrar, Bid Solicitation
Agent or Conversion Agent without prior notice.


 


5.             Indenture.  The Company issued the Securities under an
indenture dated as of April 27, 2009 (the “Indenture”)
among the Company, the Guarantor and the Trustee.  Terms used herein without definition and
which are defined in the Indenture have the meanings assigned to them in the
Indenture.  The terms and provisions of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act.  The Securities are subject to all such terms,
and Holders are referred to the Indenture and the Trust Indenture Act for a
statement of such terms.  The aggregate
principal amount of Securities which may be authenticated and delivered under
the Indenture is unlimited, subject to compliance with the requirements
specified in the Indenture, including that,  upon initial
issuance of the Securities, the aggregate principal amount of Securities
outstanding shall not exceed the amounts specified in the Indenture.


 


Exh-A-4













 


6.             Optional
Redemption.  The Company shall
not have the right to redeem any Securities prior to April 20, 2014,
except to preserve the Company’s qualification as a real estate investment
trust, as specified in, and subject to the terms and conditions of, the
Indenture.


 


The
Company shall have the right, at the Company’s option, at any time, and from
time to time, on a Redemption Date on or after April 20, 2014, to redeem
all or any part of the Securities at a Redemption Price payable in cash equal
to one hundred percent (100%) of the principal amount of the Securities to be
redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption
Date, as specified in, and subject to the terms and conditions of, the
Indenture.


 


Upon
surrender to the Paying Agent of a Security subject to Redemption, such
Security shall be paid, to the Holder surrendering such Security, at the
Redemption Price plus accrued and unpaid interest to, but excluding, the
Redemption Date, unless the Redemption Date is after a record date for the
payment of an installment of interest and on or before the related interest
payment date, in which case accrued and unpaid interest to, but excluding, such
interest payment date will be paid, on such interest payment date, to the
Holder of record of such Security at the close of business on such record date,
and the Holder surrendering such Security shall not be entitled to any such
interest unless such Holder was also the Holder of record of such Security at
the close of business on such record date.


 


7.             Notice of
Redemption.  Notice of
Redemption will be mailed at least thirty (30) days but not more than sixty
(60) days before the Redemption Date to each Holder of Securities to be
redeemed at its address appearing in the register of the Registrar.  Securities in denominations larger than
$1,000 principal amount may be redeemed in part but only in integral multiples
of $1,000 principal amount.


 


8.             Purchase by
the Company at the Option of the Holder.  Subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase, in whole or in part,
at the option of each Holder, the Securities held by such Holder on April 15,
2014, April 15, 2019 and April 15, 2024 (each, an “Option Repurchase Date”) at an Option Repurchase Price,
payable in cash, equal to one hundred percent (100%) of the principal amount of
the Securities to be purchased, plus accrued and unpaid interest, if any, to,
but excluding, the applicable Option Repurchase Date, upon delivery of a
Purchase Notice containing the information set forth in the Indenture, at any
time from the opening of business on the date that is twenty (20) Business Days
prior to the applicable Option Repurchase Date until the close of business on
the Business Day immediately preceding the applicable Option Purchase Date and
upon delivery of the Securities to the Paying Agent by the Holder as set forth
in the Indenture; provided, however,
that such accrued and unpaid interest shall be paid to the Holder of record of
such Securities at the close of business on the record date immediately
preceding such Option Purchase Date.


 


9.             Repurchase
at Option of Holder Upon a Fundamental Change.  Subject to the terms and conditions of the
Indenture, in the event of a Fundamental Change, each Holder of the Securities
shall have the right, at the Holder’s option, to require the Company to
repurchase such Holder’s Securities, in whole or in part, including any portion
thereof which is $1,000 in principal amount or any integral multiple thereof on
a date selected by the Company (the “Fundamental Change
Repurchase Date”), which date is no later than thirty-five (35)
days, nor earlier than twenty (20) days, after the date on which notice of such
Fundamental Change is mailed in accordance with the Indenture, at a price
payable in cash equal to one hundred percent (100%) of the principal amount of
such Security, plus accrued and unpaid interest to, but excluding, the
Fundamental Change Repurchase Date; provided, however, that if such Fundamental Change Repurchase Date is
after a record date for the payment of an installment of interest and on or
before the related interest payment date, then the accrued and unpaid interest,
if any, to, but excluding, such interest payment date will be paid on such
interest payment date to the Holder of record 


 


Exh-A-5













 


of such Securities at the close of business on such
record date, and the Holder surrendering such Securities for repurchase will
not be entitled to any such accrued and unpaid interest unless such Holder was
also the Holder of record of such Securities at the close of business on such
record date.


 


10.           Conversion.  The Securities shall be convertible into, as
the case may be. cash, shares of Common Stock or a combination thereof if and
to the extent the conditions therefor specified the Indenture are satisfied.


 


To
convert a Security, a Holder must (1) complete and sign the Conversion
Notice, with appropriate signature guarantee, on the back of the Security, (2) surrender
the Security to a Conversion Agent, (3) furnish appropriate endorsements
and transfer documents if required by the Registrar or Conversion Agent, (4) pay
the amount of interest, if any, the Holder must pay in accordance with the
Indenture and (5) pay any tax or duty if required pursuant to the
Indenture.  A Holder may convert a
portion of a Security if the portion is $1,000 principal amount or an integral
multiple of $1,000 principal amount.


 


Notwithstanding
anything herein to the contrary, no Security may be converted after the close
of business on the Business Day immediately preceding the Maturity Date.  Upon conversion of a Security, the Holder
thereof shall be entitled to receive the cash and, if applicable, shares of
Common Stock payable upon conversion in accordance with Article X of the
Indenture.


 


The
initial Conversion Rate is 24.1546 shares of Common Stock per $1,000 principal
amount of Securities (which results in an effective initial Conversion Price of
approximately $41.40 per share) subject to adjustment in the event of certain
circumstances as specified in the Indenture. 
The Company will deliver cash in lieu of any fractional share.  On conversion, no payment or adjustment for
any unpaid and accrued interest or Additional Interest on the Securities will
be made.  If a Holder surrenders a Security
for conversion after the close of business on the record date for the payment
of an installment of interest and prior to the related interest payment date,
such Security, when surrendered for conversion, must be accompanied by payment
of an amount equal to the interest thereon which the registered Holder at the
close of business on such record date is to receive; provided,
however, that such payment of an amount
equal to the interest described in the immediately preceding sentence in
respect of a Security surrendered for conversion shall not be required with
respect to a Security that (i) is surrendered for conversion after the
record date immediately preceding the Maturity Date, (ii) has been called
for Redemption pursuant to Section 3.04 of the Indenture and
paragraphs 6 and 7 herein or (iii) is surrendered for conversion
after a record date for the payment of an installment of interest and on or
before the related interest payment date, where, pursuant to Section 3.11
of the Indenture, the Company has specified, with respect to a Fundamental
Change, a Fundamental Change Repurchase Date that is after such record date and
on or before such interest payment date; provided, further, that, if the Company shall have, prior to the
Conversion Date with respect to a Security, defaulted in a payment of interest
on such Security, then in no event shall the Holder of such Security who
surrenders such Security for conversion be required to pay such defaulted
interest or the interest that shall have accrued on such defaulted interest
pursuant to Section 2.03 of the Indenture or otherwise.


 


The Conversion
Rate applicable to each Security that is surrendered for conversion, in
accordance with the Securities and Article X of the Indenture, at any time
during the Make-Whole Conversion Period with respect to a Make-Whole
Fundamental Change shall be increased to an amount equal to the Conversion Rate
that would, but for Section 10.15 of the Indenture, otherwise apply to
such Security pursuant to Article X of the Indenture, plus an amount equal
to the Make-Whole Applicable Increase; 


 


Exh-A-6













 


provided, however, that
such increase to the Conversion Rate shall not apply if such Make-Whole
Fundamental Change is announced by the Company but shall not be consummated.


 


11.           Denominations, Transfer,
Exchange.  The Securities are
in registered form, without coupons, in denominations of $1,000 principal
amount and integral multiples of $1,000 principal amount.  The transfer of Securities may be registered
and Securities may be exchanged as provided in the Indenture, subject to
conditions on the registration of transfer while the Securities are registered
as global securities as provided in the Indenture.  The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents.  No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or similar governmental charge that may be
imposed in connection with certain transfers or exchanges.  The Company or the Trustee, as the case may
be, shall not be required to register the transfer of or exchange any Security (i) during
a period beginning at the opening of business fifteen (15) days before the
mailing of a notice of redemption of the Securities selected for Redemption
under Section 3.04 of the Indenture and ending at the close of business on
the day of such mailing or (ii) for a period of fifteen (15) days before
selecting, pursuant to Section 3.03 of the Indenture, Securities to be redeemed
or (iii) that has been selected for Redemption or for which a Purchase
Notice has been delivered, and not withdrawn, in accordance with the Indenture,
except the unredeemed or unrepurchased portion of Securities being redeemed or
repurchased in part.


 


12.           Persons Deemed Owners.  The registered Holder of a Security may be
treated as the owner of such Security for all purposes.


 


13.           Consolidation, Merger,
Conveyance, Transfer or Lease. 
The Company shall not consolidate with or merge with or into any other
Person, or sell, transfer, lease, convey, or otherwise dispose of all or
substantially all of its properties and assets to any Person (including
pursuant to a statutory arrangement), whether in a single transaction or series
of related transactions unless all terms and conditions, including conditions
precedent, provided for in the Indenture relating to such transaction have been
complied with.


 


14.           Amendments, Supplements
and Waivers.  Subject to
certain exceptions, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities, and certain existing
Defaults or Events of Default may be waived with the consent of the Holders of
a majority in aggregate principal amount of the Securities then
outstanding.  The Company may amend or
supplement this Indenture or the Securities without notice to or the consent of
any Holder in accordance with Section 9.01 of the Indenture.


 


15.           Defaults and Remedies.  If an Event of Default (excluding an Event of
Default specified in Section 5.01(viii) or (ix) of the Indenture
with respect to the Company (but including an Event of Default specified in Section 5.01(viii) or
(ix) of the Indenture solely with respect to a Significant Subsidiary of
the Company)) occurs and is continuing, the Trustee by written notice to the
Company or the Holders of at least twenty five percent (25%) in aggregate
principal amount of the Securities then outstanding by written notice to the
Company and the Trustee may declare the Securities to be due and payable.  Upon such declaration, the principal of, and
accrued and unpaid interest and any Additional Interest on, all Securities
shall be due and payable immediately.  If
an Event of Default specified in Section 5.01(viii) or (ix) of
the Indenture with respect to the Company (excluding, for purposes of this
sentence, an Event of Default specified in Section 5.01(viii) or (ix) of
the Indenture solely with respect to a Significant Subsidiary of the Company)
occurs, the principal of, and accrued and unpaid interest and any Additional
Interest on, all the Securities shall ipso facto
become and be immediately due and payable 


 


Exh-A-7













 


without any declaration or other act on the part of
the Trustee or any Holder.  The Holders
of a majority in aggregate principal amount of the Securities then outstanding
by written notice to the Trustee may rescind or annul an acceleration and its
consequences if (A) the rescission would not conflict with any order or
decree, (B) all existing Events of Default, except the non-payment of
principal, interest or Additional Interest, if any, that has become due solely
because of the acceleration, have been cured or waived and (C) all amounts
due to the Trustee under Section 6.08 of the Indenture have been paid.


 


Holders
may not enforce the Indenture or the Securities except as provided in the
Indenture.  The Holders of a majority in
aggregate principal amount of the Securities then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow any
direction that conflicts with law or the Indenture, is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability
unless the Trustee is offered indemnity reasonably satisfactory to it; provided, that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.


 


If a
Default or Event of Default occurs and is continuing as to which the Trustee
has received written notice pursuant to the provisions of the Indenture, or as
to which a Responsible Officer of the Trustee shall have actual knowledge, the
Trustee shall mail to each Holder a notice of the Default or Event of Default
within thirty (30) days after receipt of such notice or after acquiring such
knowledge, as applicable, unless such Default or Event of Default has been
cured or waived.  Except in the case of a
Default or Event of Default in payment of any amounts due with respect to any
Security, the Trustee may withhold the notice if, and so long as it in good
faith determines that, withholding the notice is in the best interests of
Holders.  The Company must deliver to the
Trustee an annual compliance certificate.


 


16.           Trustee Dealings with the
Company.  The Trustee under
the Indenture, or any banking institution serving as successor Trustee thereunder,
in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for, the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not Trustee.


 


17.           Authentication.  This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent
in accordance with the Indenture.


 


18.           Abbreviations.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT
TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).


 


THE
COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A
COPY OF THE INDENTURE.  REQUESTS MAY BE
MADE TO:


 


Alexandria Real
Estate Equities, Inc.

385 East Colorado Boulevard, Suite 299


Pasadena,
California 91101,


Attention:  Corporate Secretary


 


 


Exh-A-8












 


[FORM OF
ASSIGNMENT]


 


I or we assign to 

PLEASE INSERT SOCIAL SECURITY 

OR OTHER IDENTIFYING NUMBER 




                                                                                        


 


(please print or type
name and address)


 


 


the within Security and
all rights thereunder, and hereby irrevocably constitute and appoint
______________________________________ Attorney to transfer the Security on the
books of the Company with full power of substitution in the premises.


 


Dated:


 


NOTICE:  The signature on this assignment must
correspond with the name as it appears upon the face of the within Security in
every particular without alteration or enlargement or any change whatsoever and
be guaranteed by a guarantor institution participating in the Securities
Transfer Agents Medallion Program or in such other guarantee program acceptable
to the Registrar.


 


Signature Guarantee:


 


 


Exh-A-9













 


CONVERSION NOTICE


 


To convert this
Security in accordance with the Indenture, check the box:


 


To convert only
part of this Security, state the principal amount to be converted (must be in
multiples of $1,000):


 


$                                              


 


If you want the stock
certificate representing the shares of Common Stock, if any, issuable upon
conversion made out in another person’s name, fill in the form below:


 


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


 


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


 


Date:                                                                                                          Signature(s):


 


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


 


Signature(s) guaranteed
by:


 


(All signatures must be
guaranteed by a guarantor institution participating in the Securities Transfer
Agents Medallion Program or in such other guarantee program acceptable to the
Trustee.)


 


 


Exh-A-10













 


PURCHASE
NOTICE


 


Certificate No. of
Security:                                                                 


 


If you want to elect to
have this Security purchased by the Company pursuant to Section 3.09 of
the Indenture, check the box:


 


If you want to elect to
have this Security purchased by the Company pursuant to Section 3.11 of
the Indenture, check the box:


 


If you want to elect to
have only part of this Security purchased by the Company pursuant to
Sections 3.09 or 3.11 of the Indenture, as applicable, state the principal
amount to be so purchased by the Company:


 


$                                                                              

(in an integral multiple of $1,000)


 


Date:                                                                                                          Signature(s):


 


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


 


Signature(s) guaranteed
by:


 


(All signatures must be
guaranteed by a guarantor institution participating in the Securities Transfer
Agents Medallion Program or in such other guarantee program acceptable to the
Trustee.)


 


 


Exh-A-11













 


SCHEDULE
A


 


SCHEDULE OF
EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY


 


The following exchanges
of a part of this Global Security for an interest in another Global Security or
for Securities in certificated form, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of Decrease

  in Principal Amount

  of this Global

  Security

  	
   

  	
  Amount of Increase

  in Principal Amount

  of this Global

  Security

  	
   

  	
  Principal Amount of

  this Global Security

  Following such

  Decrease or Increase

  	
   

  	
  Signature or

  Authorized Signatory

  of Trustee or Security

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Exh-A-12













 


EXHIBIT B


 


[FORM OF
NOTATION OF GUARANTY]



GUARANTY


 


Alexandria Real Estate Equities, L.P. (hereinafter
referred to as the “Guarantor,”
which term includes any successors or assigns under the Indenture, dated the
date hereof, among Alexandria Real Estate Equities, Inc. (the “Company”), the Guarantor and Wilmington Trust Company, as
trustee (the “Indenture”)), has irrevocably and
unconditionally guaranteed on a senior basis the due and punctual payment of
the principal of and interest and Additional Interest, if any, on the 8.00%
Senior Convertible Notes due 2029 of the Company, whether at maturity, by
acceleration, call for redemption, upon a repurchase or otherwise.


 


The obligations of the Guarantor to the Holders of the
Securities pursuant to this Guarantee and the Indenture are expressly set forth
in Article XIV of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Guaranty.


 


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


 


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


 


This is a continuing Guarantee and shall remain in
full force and effect and shall be binding upon the Guarantor and its
successors and assigns until full and final payment of all principal of and
interest and Additional Interest, if any, on the Securities and Indenture or
until legally discharged in accordance with the Indenture and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders of the
Securities, and, in the event of any transfer or assignment of rights by any
Holder of the Securities or the Trustee, the rights and privileges herein
conferred upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof.


 


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


 


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


 


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


 


Exh-B-1













 


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


 


Dated: ________________


 


	
   

  	
  ALEXANDRIA REAL ESTATE
  EQUITIES, L.P.

  
	
   

  	
  By: ARE-QRS
  Corp., its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:                                                                                  

  
	
   

  	
           Name: 

  
	
   

  	
           Title:

  



 


 


Exh-B-2