exv4w1



 







Exhibit 4.1




AMB PROPERTY, L.P.




AMB Property Corporation,




as Parent Guarantor and




State Street Bank and Trust Company of California, N.A.,




as Trustee




 






Debt Securities




Guarantees




 






Indenture




Dated as of June 30, 1998





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE ONE

	 
	 	 	 	 	 	 
	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

	 
	 	 	 	 	 	 
	SECTION 101.

	 	DEFINITIONS
	 	 	1	 
	SECTION 102.

	 	COMPLIANCE CERTIFICATES AND OPINIONS
	 	 	10	 
	SECTION 103.

	 	FORM OF DOCUMENTS DELIVERED TO TRUSTEE
	 	 	11	 
	SECTION 104.

	 	ACTS OF HOLDERS
	 	 	11	 
	SECTION 105.

	 	NOTICES, ETC. TO TRUSTEE AND OPERATING PARTNERSHIP
	 	 	13	 
	SECTION 106.

	 	NOTICE TO HOLDERS; WAIVER
	 	 	13	 
	SECTION 107.

	 	EFFECT OF HEADINGS AND TABLE OF CONTENTS
	 	 	14	 
	SECTION 108.

	 	SUCCESSORS AND ASSIGNS
	 	 	14	 
	SECTION 109.

	 	SEPARABILITY CLAUSE
	 	 	14	 
	SECTION 110.

	 	BENEFITS OF INDENTURE
	 	 	14	 
	SECTION 111.

	 	GOVERNING LAW
	 	 	14	 
	SECTION 112.

	 	LEGAL HOLIDAYS
	 	 	14	 
	SECTION 113.

	 	COUNTERPARTS
	 	 	14	 
	 
	 	 	 	 	 	 
	ARTICLE TWO

	 
	 	 	 	 	 	 
	SECURITY FORMS

	 
	 	 	 	 	 	 
	SECTION 201.

	 	FORM OF SECURITIES
	 	 	15	 
	SECTION 202.

	 	FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION
	 	 	15	 
	SECTION 203.

	 	SECURITIES ISSUABLE IN GLOBAL FORM
	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE THREE

	 
	 	 	 	 	 	 
	THE SECURITIES

	 
	 	 	 	 	 	 
	SECTION 301.

	 	AMOUNT UNLIMITED, ISSUABLE IN SERIES
	 	 	17	 
	SECTION 302.

	 	DENOMINATIONS
	 	 	18	 
	SECTION 303.

	 	EXECUTION, AUTHENTICATION, DELIVERY AND DATING
	 	 	18	 
	SECTION 304.

	 	TEMPORARY SECURITIES
	 	 	19	 
	SECTION 305.

	 	REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
	 	 	20	 
	SECTION 306.

	 	MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
	 	 	22	 
	SECTION 307.

	 	PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
	 	 	23	 
	SECTION 308.

	 	PERSONS DEEMED OWNERS
	 	 	24	 
	SECTION 309.

	 	CANCELLATION
	 	 	25	 
	SECTION 310.

	 	COMPUTATION OF INTEREST
	 	 	25	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE FOUR

	 
	 	 	 	 	 	 
	SATISFACTION AND DISCHARGE

	 
	 	 	 	 	 	 
	SECTION 401.

	 	SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	25	 
	SECTION 402.

	 	APPLICATION OF TRUST FUNDS
	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE FIVE

	 
	 	 	 	 	 	 
	REMEDIES

	 
	 	 	 	 	 	 
	SECTION 501.

	 	EVENTS OF DEFAULT
	 	 	26	 
	SECTION 502.

	 	ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
	 	 	28	 
	SECTION 503.

	 	COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
	 	 	29	 
	SECTION 504.

	 	TRUSTEE MAY FILE PROOFS OF CLAIM
	 	 	30	 
	SECTION 505.

	 	TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
	 	 	31	 
	SECTION 506.

	 	APPLICATION OF MONEY COLLECTED
	 	 	31	 
	SECTION 507.

	 	LIMITATION ON SUITS
	 	 	31	 
	SECTION 508.

	 	UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM, IF ANY, AND INTEREST
	 	 	33	 
	SECTION 509.

	 	RESTORATION OF RIGHTS AND REMEDIES
	 	 	33	 
	SECTION 510.

	 	RIGHTS AND REMEDIES CUMULATIVE
	 	 	33	 
	SECTION 511.

	 	DELAY OR OMISSION NOT WAIVER
	 	 	33	 
	SECTION 512.

	 	CONTROL BY HOLDERS
	 	 	33	 
	SECTION 513.

	 	WAIVER OF PAST DEFAULTS
	 	 	34	 
	SECTION 514.

	 	WAIVER OF USURY, STAY OR EXTENSION LAWS
	 	 	35	 
	SECTION 515.

	 	UNDERTAKING FOR COSTS
	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE SIX

	 
	 	 	 	 	 	 
	THE TRUSTEE

	 
	 	 	 	 	 	 
	SECTION 601.

	 	NOTICE OF DEFAULTS
	 	 	35	 
	SECTION 602.

	 	CERTAIN RIGHTS OF TRUSTEE
	 	 	35	 
	SECTION 603.

	 	NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES	 	 	37	 
	SECTION 604.

	 	MAY HOLD SECURITIES AND GUARANTEES
	 	 	37	 
	SECTION 605.

	 	MONEY HELD IN TRUST
	 	 	37	 
	SECTION 606.

	 	COMPENSATION AND REIMBURSEMENT
	 	 	37	 
	SECTION 607.

	 	CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS
	 	 	38	 
	SECTION 608.

	 	RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
	 	 	38	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 609.

	 	ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
	 	 	40	 
	SECTION 610.

	 	MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
	 	 	42	 
	SECTION 611.

	 	APPOINTMENT OF AUTHENTICATING AGENT
	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE SEVEN

	 
	 	 	 	 	 	 
	HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND OPERATING PARTNERSHIP

	 
	 	 	 	 	 	 
	SECTION 701.

	 	DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS
	 	 	44	 
	SECTION 702.

	 	REPORTS BY TRUSTEE
	 	 	44	 
	SECTION 703.

	 	OPERATING PARTNERSHIP TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE EIGHT

	 
	 	 	 	 	 	 
	CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE

	 
	 	 	 	 	 	 
	SECTION 801.

	 	CONSOLIDATIONS AND MERGERS OF OPERATING PARTNERSHIP

AND SALES, LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS
	 	 	45	 
	SECTION 802.

	 	RIGHTS AND DUTIES OF SUCCESSOR PERSON
	 	 	45	 
	SECTION 803.

	 	OFFICERS’ CERTIFICATE AND OPINION OF COUNSEL
	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE NINE

	 
	 	 	 	 	 	 
	SUPPLEMENTAL INDENTURES

	 
	 	 	 	 	 	 
	SECTION 901.

	 	SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
	 	 	46	 
	SECTION 902.

	 	SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
	 	 	47	 
	SECTION 903.

	 	EXECUTION OF SUPPLEMENTAL INDENTURES
	 	 	49	 
	SECTION 904.

	 	EFFECT OF SUPPLEMENTAL INDENTURES
	 	 	49	 
	SECTION 905.

	 	CONFORMITY WITH TRUST INDENTURE ACT
	 	 	49	 
	SECTION 906.

	 	REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE TEN

	 
	 	 	 	 	 	 
	COVENANTS

	 
	 	 	 	 	 	 
	SECTION 1001.

	 	PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST
	 	 	49	 
	SECTION 1002.

	 	MAINTENANCE OF OFFICE OR AGENCY
	 	 	50	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 1003.

	 	MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
	 	 	50	 
	SECTION 1004.

	 	AGGREGATE DEBT TEST
	 	 	52	 
	SECTION 1005.

	 	DEBT SERVICE TEST
	 	 	52	 
	SECTION 1006.

	 	SECURED DEBT TEST
	 	 	53	 
	SECTION 1007.

	 	MAINTENANCE OF TOTAL UNENCUMBERED ASSETS
	 	 	53	 
	SECTION 1008.

	 	EXISTENCE
	 	 	53	 
	SECTION 1009.

	 	MAINTENANCE OF PROPERTIES
	 	 	53	 
	SECTION 1010.

	 	INSURANCE
	 	 	53	 
	SECTION 1011.

	 	PAYMENT OF TAXES AND OTHER CLAIMS
	 	 	54	 
	SECTION 1012.

	 	PROVISION OF FINANCIAL INFORMATION
	 	 	54	 
	SECTION 1013.

	 	SUBSIDIARY GUARANTEES
	 	 	55	 
	SECTION 1014.

	 	WAIVER OF CERTAIN COVENANTS
	 	 	55	 
	SECTION 1015.

	 	STATEMENT AS TO COMPLIANCE
	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE ELEVEN

	 
	 	 	 	 	 	 
	REDEMPTION OF SECURITIES

	 
	 	 	 	 	 	 
	SECTION 1101.

	 	APPLICABILITY OF ARTICLE
	 	 	55	 
	SECTION 1102.

	 	ELECTION TO REDEEM; NOTICE TO TRUSTEE
	 	 	56	 
	SECTION 1103.

	 	SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
	 	 	56	 
	SECTION 1104.

	 	NOTICE OF REDEMPTION
	 	 	56	 
	SECTION 1105.

	 	DEPOSIT OF REDEMPTION PRICE
	 	 	57	 
	SECTION 1106.

	 	SECURITIES PAYABLE ON REDEMPTION DATE
	 	 	57	 
	SECTION 1107.

	 	SECURITIES REDEEMED IN PART
	 	 	58	 
	 
	 	 	 	 	 	 
	ARTICLE TWELVE

	 
	 	 	 	 	 	 
	DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 	 	 
	SECTION 1201.

	 	OPERATING PARTNERSHIP’S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE
	 	 	58	 
	SECTION 1202.

	 	DEFEASANCE AND DISCHARGE
	 	 	58	 
	SECTION 1203.

	 	COVENANT DEFEASANCE
	 	 	59	 
	SECTION 1204.

	 	CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
	 	 	59	 
	SECTION 1205.

	 	DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS
	 	 	61	 
	SECTION 1206.

	 	REINSTATEMENT
	 	 	62	 






iv









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE THIRTEEN

	 
	 	 	 	 	 	 
	MEETING OF HOLDERS

	 
	 	 	 	 	 	 
	SECTION 1301.

	 	PURPOSES FOR WHICH MEETINGS MAY BE CALLED
	 	 	62	 
	SECTION 1302.

	 	CALL, NOTICE AND PLACE OF MEETINGS
	 	 	62	 
	SECTION 1303.

	 	PERSONS ENTITLED TO VOTE AT MEETINGS
	 	 	63	 
	SECTION 1304.

	 	QUORUM; ACTION
	 	 	63	 
	SECTION 1305.

	 	DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS
	 	 	64	 
	SECTION 1306.

	 	COUNTING VOTES AND RECORDING ACTION OF MEETINGS
	 	 	65	 
	 
	 	 	 	 	 	 
	ARTICLE FOURTEEN

	 
	 	 	 	 	 	 
	THE GUARANTEES

	 
	 	 	 	 	 	 
	SECTION 1401.

	 	GUARANTEES
	 	 	65	 
	SECTION 1402.

	 	PROCEEDINGS AGAINST THE GUARANTORS
	 	 	68	 
	SECTION 1403.

	 	GUARANTEES FOR BENEFIT OF HOLDERS
	 	 	69	 
	SECTION 1404.

	 	MERGER OR CONSOLIDATION OF GUARANTORS
	 	 	69	 
	SECTION 1405.

	 	ADDITIONAL GUARANTORS
	 	 	69	 







v









 








AMB PROPERTY, L.P.




     Reconciliation
and tie between Trust Indenture Act of 1939 (the “TIA”) and Indenture dated as
of June 30, 1998.



	 	 	 	 	 
	TIA SECTION	 	 	 	INDENTURE SECTION
	Section 310

	 	(a)(1)
	 	 607
	 

	 	(a)(2)
	 	 607
	 

	 	(b)
	 	 604, 608
	Section 312

	 	(b)
	 	 701
	 

	 	(c)
	 	 701
	Section 313

	 	(a)
	 	 702
	 

	 	(c)
	 	 601, 702, 703
	Section 314

	 	(a)
	 	 703
	 

	 	(a)(4)
	 	 1012
	 

	 	(c)(1)
	 	 102
	 

	 	(c)(2)
	 	 102
	 

	 	(e)
	 	 102
	Section 315

	 	(a)-(d)
	 	 303
	 

	 	(e)
	 	 608
	Section 316

	 	(a) (last sentence)
	 	 101 (“Outstanding”)
	 

	 	(c)
	 	 104
	Section 317

	 	(a)(1)
	 	 503
	 

	 	(a)(2)
	 	 504
	Section 318

	 	(a)
	 	 111
	 

	 	(c)
	 	 111






     NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.



     Attention should also be directed to Section 318(c) of the TIA, which provides that the
provisions of Sections 310 to and including 317 of the TIA are a part of and govern every qualified
indenture, whether or not physically contained therein.



 









 





     INDENTURE (the “Indenture”), dated as of June 30, 1998, is among AMB PROPERTY, L.P., a
Delaware limited partnership (hereinafter called the “Operating Partnership”), having its principal
office at 505 Montgomery Street, San Francisco, California 94111, AMB PROPERTY CORPORATION, a
Maryland corporation (hereinafter called the “Parent Guarantor”), having its principal office at
505 Montgomery Street, San Francisco, California 94111 and STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A. a national banking association organized and existing under the laws of the United
States of America, as Trustee hereunder (hereinafter called the “Trustee”), having its Corporate
Trust Office at 633 West Fifth Street, 12th Floor, Los Angeles, California 90071.



RECITALS OF THE OPERATING PARTNERSHIP




     WHEREAS, the Operating Partnership deems it necessary to issue from time to time for its
lawful purposes its unsecured and unsubordinated securities (the “Securities”) in one or more
series, and it has duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to principal amount, to bear interest at
the rates or formulas, to mature at such times and to have such other terms and conditions as shall
be fixed as hereinafter provided; and



     WHEREAS, the Parent Guarantor has duly authorized the execution and delivery of this Indenture
and its guarantee of the Securities (the “Parent Guarantees” and together with the guarantees, if
any, of the Securities executed by the Subsidiary Guarantors in the future, the “Guarantees”) as
provided herein; and



     WHEREAS, this Indenture is subject to the provisions of the Trust Indenture Act of 1939, as
amended, that are deemed to be incorporated into this Indenture and shall, to the extent
applicable, be governed by such provisions; and



     WHEREAS all things necessary to make this Indenture a valid agreement of the Operating
Partnership and the Parent Guarantor, in accordance with its terms, have been done.



     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 covenanted and agreed, for the equal and proportionate benefit of all
Holders, as follows:



ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL

APPLICATION




     SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:




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



 









 






     (2) all other terms used herein which are defined in the TIA, either directly or by
reference therein, have the meanings assigned to them therein, and the terms “cash
transaction” and “self-liquidating paper,” as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the TIA;




     (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP; and




     (4) 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.



     Certain terms used principally in Article Three, Article Five, Article Six and Article Ten are
defined in those Articles.



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



     “Act,” when used with respect to any Holder, has the meaning specified in Section 104.



     “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.



     “Annual Debt Service Charge” means, for any period, the interest expense of the Operating
Partnership and its Subsidiaries for such period (including, without duplication, (i) all
amortization of debt discount and premiums, (ii) all accrued interest, (iii) all capitalized
interest and (iv) the interest component of capitalized lease obligations), determined on a
consolidated basis in accordance with GAAP.



     “Authenticating Agent” means any authenticating agent appointed by the Trustee pursuant to
Section 611.



     “Authorized Newspaper” means a newspaper, printed in the English language, customarily
published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in each place in connection with which the term is used or in the financial
community of each such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in different
Authorized Newspapers in the same city meeting the foregoing requirements and in each case on any
Business Day.



2









 





     “Bankruptcy Law” has the meaning specified in Section 501.



     “Board of Directors” means the board of directors of the General Partner or, if the Operating
Partnership shall be succeeded by a corporation pursuant to the provisions of this Indenture, the
board of directors of the Operating Partnership’s corporate successor or any committee of such
applicable board duly authorized to act generally or in any particular respect hereunder.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the General Partner or, if the Operating Partnership shall be succeeded by a
corporation pursuant to the provisions of this Indenture, of the Operating Partnership’s corporate
successor, to have been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.



     “Business Day” means, unless otherwise specified with respect to any securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on
which banking institutions in the States of California or New York are authorized or required by
law, regulation or executive order to close.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or, if at any time after 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 on such date.



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



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



     “Consolidated Income Available For Debt Service” for any period means Consolidated Net Income
of the Operating Partnership and its Subsidiaries for such period, plus amounts which have been
deducted and minus amounts which have been added for (without duplication) (i) interest expense on
Debt, (ii) provision for taxes based on income, (iii) amortization of debt discount, premium and
deferred financing costs, (iv) provisions for gains and losses on sales or other dispositions of
properties and other investments, (v) property depreciation and amortization, (vi) the effect of
any non-cash items, and (vii) amortization of deferred charges, all determined on a consolidated
basis in accordance with GAAP.



3









 




     “Consolidated Net Income” for any period means the amount of net income (or loss) of the
Operating Partnership and its Subsidiaries for such period, excluding (without duplication) (i)
extraordinary items and (ii) the portion of net income (but not losses) of the Operating
Partnership and its Subsidiaries allocable to minority interests in unconsolidated Persons to the
extent that cash dividends or distributions have not actually been received by the Operating
Partnership or one of its Subsidiaries, all determined on a consolidated basis in accordance with
GAAP.



     “Corporate Trust Office” means the office of the Trustee at which, at any particular time its
corporate trust business shall be principally administered, which office at the date hereof is
located at 633 West Fifth Street, 12th Floor, Los Angeles, California 90071.



     “Corporation” or “corporation” includes corporations, associations, and business trusts
provided, however, that for purposes of Article Eight, the term “corporation” shall not include
associations or business trusts.



     “Custodian” has the meaning specified in Section 501.



     “Debt” means, with respect to any Person, any indebtedness of such Person, whether or not
contingent, in respect of (i) borrowed money or evidenced by bonds, notes, debentures or similar
instruments, (ii) indebtedness secured by any Lien on any property or asset owned by such Person,
but only to the extent of the lesser of (x) the amount of indebtedness so secured and (y) the fair
market value (determined in good faith by the board of directors of such Person, or in the case of
a partnership, the board of directors of the general partner of such partnership, in the case of a
limited liability company, the managing member of such limited liability company, and, in the case
of the Operating Partnership or a Subsidiary, by the Board of Directors ) of the property subject
to such Lien, (iii) reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an accrued expense or trade
payable, or (iv) any lease of property by such Person as lessee which is required to be reflected
on such Person’s balance sheet as a capitalized lease in accordance with GAAP, and also includes,
to the extent not otherwise included, any obligation of such Person to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of
business), Debt of the types referred to above of another Person (it being understood that Debt
shall be deemed to be incurred by such Person whenever such Person shall create, assume, guarantee
or otherwise become liable in respect thereof).



     “Defaulted
Interest” has the meaning specified in Section 307.



     “Dollar”
or “$” means a dollar or other equivalent unit in such coin
or currency of the United States of
America as at the time shall be legal tender for the payment of public and private debts.



     “DTC” means The Depository Trust Company and any successor to DTC in its capacity as
depositary for any Securities.



     “Event of Default” has the meaning specified in Section 501.



4









 





     “GAAP” mean generally accepted accounting principles, as in effect from time to time as used
in the United States of America applied on a consistent basis.



     “General Partner” means AMB Property Corporation, a Maryland corporation until a successor
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
“General Partner” shall mean such successor corporation.



     “Government Obligations” means securities which are (i) direct obligations of the United
States of America, for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.



     “Guarantors” means the Parent Guarantor and each of the Subsidiary Guarantors.



     “Guarantees” means each Guarantee executed pursuant to the provisions of this Indenture.



     “Holder” means, with respect to Securities of a particular series, the Person in whose name a
Security is registered in the Security Register.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof (as such terms and provisions may be amended pursuant to the
applicable provisions hereof).



     “Independent Investment Banker” means Morgan Stanley & Co. Incorporated or, if such firm is
unwilling or unable to select the Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Operating Partnership after consultation with the
Trustee.



     “Interest Payment Date” when used with respect to any Security, means the date specified in
such Security on which an installment of interest on such Security is due and payable.



     “Lien” means any mortgage, deed of trust, lien, charge, pledge, security interest, security
agreement or other encumbrance of any kind.



     “Maturity” when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein



5









 







provided, whether at the Stated Maturity or by declaration of acceleration, notice of
redemption, notice of option to elect repayment or otherwise.



     “Officers’ Certificate” means a certificate signed by (i) the Chairman, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the General Partner, or (ii) any two of the Chairman, the President or Vice Presidents
of the General Partner and, in each case, delivered to the Trustee, provided that if the Operating
Partnership shall be succeeded by a corporation pursuant to the provisions of this Indenture,
“Officers’ Certificate” shall mean a certificate signed by (i) the Chairman, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such successor corporation, or (ii) any two of the Chairman, the President or Vice
Presidents of such successor corporation and, in each case, delivered to the Trustee.



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



     “Operating Partnership Request” and “Operating Partnership Order” mean, respectively, a
written request or order signed in the name of the Operating Partnership by the General Partner by
(i) its Chairman, any Vice Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary or (ii) any two of the Chairman, the
President or Vice Presidents of the General Partner and, in each case, delivered to the Trustee,
provided that if the Operating Partnership shall be succeeded by a corporation pursuant to the
provisions of this Indenture, “Operating Partnership Request” and “Operating Partnership Order”
shall mean respectively, a written request or order signed in the name of such successor
corporation by (i) its Chairman, any Vice Chairman, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary or (ii) any two of the
Chairman, the President or Vice Presidents of such successor corporation and, in each case,
delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Operating
Partnership or the General Partner or who may be an employee of or other counsel for the Operating
Partnership or the General Partner and who shall be reasonably satisfactory to the Trustee.



     “Outstanding,” when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:




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




     (ii) Securities, or portions thereof, for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited (other than pursuant to Article
Twelve hereof) with the Trustee or any Paying Agent (other than the Operating Partnership)
in trust or set aside and segregated in trust by the Operating Partnership (if the Operating
Partnership shall act as its own Paying Agent) for the Holders of such



6









 






Securities, provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;




     (iii) Securities, except to the extent provided in Sections 1202 and 1203, with respect
to which the Operating Partnership has effected defeasance and/or covenant defeasance as
provided in Article Twelve; and




     (iv) Securities which have been paid pursuant to the third paragraph of Section 306 or
in exchange for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid obligations of the Operating
Partnership;


provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by TIA Section 313, Securities owned by the Operating Partnership
or any other obligor upon the Securities or any Affiliate of the Operating Partnership or of such
other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not
the Operating Partnership or any other obligor upon the Securities or any Affiliate of the
Operating Partnership or of such other obligor.




     “Parent Guarantor” means AMB Property Corporation, a Maryland corporation, until a successor
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
“Parent Guarantor” shall mean such successor person.



     “Paying Agent” means any Person authorized by the Operating Partnership to pay the principal
of (and premium, if any) or interest on any Securities on behalf of the Operating Partnership.



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



     “Place of Payment,” when used with respect to the Securities of or within any series means the
place or places where the principal of (and premium, if any) and interest on such Securities are
payable as specified as contemplated by Sections 301 and 1002.



     “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



7









 







the purposes of this definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security.



     “Redemption Date,” when used with respect to any Security to be redeemed, in whole or in part,
means the date fixed for such redemption pursuant to Section 1102.



     “Redemption Price,” when used with respect to any Security to be redeemed, means an amount
equal to the greater of (i) 100% of the principal amount of the Securities to be redeemed and (ii)
the sum of the present values of the remaining scheduled payments of principal and interest thereon
(exclusive of interest accrued to such Redemption Date) discounted to such Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate
plus 25 basis points, plus, in either case, accrued and unpaid interest on the principal amount
being redeemed to such Redemption Date.



     “Reference Treasury Dealer” means Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co.,
J.P. Morgan Securities Inc. and any additional Reference Treasury Dealer appointed by the Trustee
after consultation with the Operating Partnership and its successors; provided, however, that if
Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., J.P. Morgan Securities Inc. or such
additional Reference Treasury Dealer and their successors shall cease to be a primary U.S.
Government securities dealer in New York City (a “Primary Treasury Dealer”), the Operating
Partnership will substitute therefor another Primary Treasury Dealer provided one exists.



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



     “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of or within any series means the date specified for that purpose as contemplated by Section 301,
whether or not a Business Day.



     “Responsible Officer,” when used with respect to the Trustee, means the chairman or
vice-chairman of the board of directors, the chairman or vice-chairman of the executive committee
of the board of directors, the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust
officer or assistant trust officer, the controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated officers.



     “Securities Exchange Act of 1934” means the Securities Exchange Act of 1934, as amended, and
any reference herein to such Act or a particular provision or section thereof shall mean, unless
otherwise expressly stated or the context otherwise requires, such Act, provision or section, as
the case may be, as amended or replaced from time to time or as supplemented from time to time.



     “Security” has the meaning stated in the first recital of this Indenture and, more
particularly, means any Security or Securities authenticated and delivered under this Indenture,



8









 







provided, however, that if at any time there is more than one Person acting as Trustee under
this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall
have the meaning stated in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of
any series as to which such Person is not Trustee.



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
305.



     “Significant Subsidiary” means any Subsidiary of the Operating Partnership which is a
“significant subsidiary” (as defined in Rule 1-02 of Regulation S-X promulgated under the
Securities Act of 1933, as in effect on January 1, 1998).



     “Special Record Date” for the payment of any Defaulted Interest on the Securities of or within
any series means a date fixed by the Trustee pursuant to Section 307.



     “Stated Maturity,” when used with respect to any Security or any installment of principal
thereof, means the date specified in such Security or pursuant to this Indenture as the fixed date
on which the principal of such Security or such installment of principal is due and payable.



     “Subsidiary” means (i) a corporation, partnership, joint venture, limited liability company or
other Person the majority of the shares, if any, of the non-voting capital stock or other
equivalent ownership interests of which (except directors’ qualifying shares) are at the time
directly or indirectly owned by the Operating Partnership and/or any other Subsidiary or
Subsidiaries, and the majority of the shares of the voting capital stock or other equivalent
ownership interests of which (except directors’ qualifying shares) are at the time directly or
indirectly owned by the Operating Partnership, any other Subsidiary or Subsidiaries, and (ii) any
other Person the accounts of which are consolidated with the accounts of the Operating Partnership.



     “Subsidiary Guarantors” has the meaning specified in Section 1013.



     “Total Assets” means the sum of (without duplication) (i) Undepreciated Real Estate Assets and
(ii) all other assets (excluding accounts receivable and intangibles) of the Operating Partnership
and its Subsidiaries, all determined on a consolidated basis in accordance with GAAP.



     “Total Unencumbered Assets” means the sum of (without duplication) (i) those Undepreciated
Real Estate Assets which are not subject to a Lien securing Debt and (ii) all other assets
(excluding accounts receivable and intangibles) of the Operating Partnership and its Subsidiaries
not subject to a Lien securing Debt, all determined on a consolidated basis in accordance with
GAAP.



     “Treasury Rate” means, with respect to any Redemption Date, (i) the yield, under the heading
which represents the average for the immediately preceding week, appearing in the most recently
published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant



9









 







maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to
the Comparable Treasury Issue (if no maturity is within three months before or after the Stated
Maturity of principal, yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight line basis, rounding to the nearest month) or (ii) if
such release (or any successor release) is not published during the week preceding the calculation
date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield
to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price
for such Redemption Date. The Treasury Rate shall be calculated on the third Business Day
preceding the Redemption Date.



     “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended, and any
reference herein to the Trust Indenture Act or the TIA or a particular provision thereof shall mean
such Act or provision, as the case may be, as amended or replaced from time to time or as
supplemented from time to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Act or provision, as the case may be.



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



     “Undepreciated Real Estate Assets” means, as of any date, the cost (original cost plus capital
improvements) of real estate assets of the Operating Partnership and its Subsidiaries on such date,
before depreciation and amortization, all determined on a consolidated basis in accordance with
GAAP.



     “Unsecured Debt” means Debt of the Operating Partnership or any of its Subsidiaries which is
not secured by a Lien on any property or assets of the Operating Partnership or any of its
Subsidiaries.



     SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application or request by the
Operating Partnership to the Trustee to take any action under any provision of this Indenture, the
Operating Partnership 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 an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:



10









 






     (1) a statement that each individual signing such certificate or opinion has read such
condition or covenant and the definitions herein relating thereto;




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been satisfied or complied with; and




     (4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been satisfied or complied with.



     SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several documents.



     Any certificate or opinion of an officer of the General Partner, any Guarantor, any general
partner or manager of any Guarantor or any corporate successor of the Operating Partnership or any
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or representations with respect to the
matters upon which his certificate or opinion is based are erroneous. Any such Opinion of Counsel
or certificate or representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the General Partner,
any Guarantor, any general partner or manager of any Guarantor or any corporate successor of the
Operating Partnership or any Guarantor, as applicable, stating that the information as to such
factual matters is in the possession of the General Partner, any Guarantor, any general partner or
manager of any Guarantor or any corporate successor of the Operating Partnership or any Guarantor,
as applicable, unless such counsel knows that the certificate or opinion or representations as to
such matters are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture they may,
but need not, be consolidated and form one instrument.



     SECTION 104. ACTS OF HOLDERS.




     (a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of the outstanding
Securities of any series or all series, as the case may be, may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Except as herein otherwise



11









 






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 Operating
Partnership. 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 or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Operating Partnership and any agent of the Trustee or the Operating
Partnership, if made in the manner provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section 1306.




     (b) 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 the
execution thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute sufficient proof of
his 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 reasonable
manner which the Trustee deems sufficient in its reasonable discretion.




     (c) The ownership of Securities shall be proved by the Security Register.




     (d) If the Operating Partnership shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Operating Partnership
may, at its option, in or pursuant to a Board Resolution, fix in advance a record date for
the determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Operating Partnership shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of outstanding
Securities have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.




     (e) 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



12









 






to be done by the Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent or the Operating Partnership in reliance thereon, whether or not
notation of such action is made upon such Security.



     SECTION 105. NOTICES, ETC. TO TRUSTEE AND OPERATING PARTNERSHIP



     Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,




     (1) the Trustee by any Holder or by the Operating Partnership shall be sufficient upon
receipt for every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust Department, or




     (2) the Operating Partnership by the Trustee or by any Holder shall be sufficient upon
receipt for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Operating Partnership addressed to
it at the address of its principal office specified in the first paragraph of this
Indenture, marked for the attention of the Chief Financial Officer, with a copy to the
General Counsel, or at any other address previously furnished in writing to the Trustee by
the Operating Partnership.



     SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for notice of any event
to Holders by the Operating Partnership or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid,
to each such Holder affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by such Holder five
Business Days after being deposited in the mail, whether or not such Holder actually receives such
notice.



     If by reason of the suspension of or irregularities in regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such notification to
Holders as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.



     Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.



13









 





     SECTION 107. 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.



     SECTION 108. SUCCESSORS AND ASSIGNS. Except as otherwise expressly set forth herein, all
covenants and agreements in this Indenture by the Operating Partnership and the Guarantors shall
bind their respective successors and assigns, whether so expressed or not.



     SECTION 109. SEPARABILITY CLAUSE. In case any provision in this Indenture or in any Security
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 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in the Securities, express
or implied, shall give to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.



     SECTION 111. GOVERNING LAW. This Indenture and the Securities shall be governed by and
construed in accordance with the internal laws of the State of New York. This Indenture is subject
to the provisions of the TIA that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.



     SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment Date, Redemption Date,
Repayment Date, Stated Maturity or Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or any Security), payment of interest or
principal (and premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date, or at the Stated Maturity or Maturity, as the case may be,
provided that no interest shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, Stated Maturity or Maturity, as the case
may be.



     SECTION 113. COUNTERPARTS. This Indenture may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Indenture.



ARTICLE TWO

SECURITY FORMS





14









 








     SECTION 201. FORM OF SECURITIES. The Securities of each series shall be in substantially the
forms as shall be established in or pursuant to one or more indentures supplemental hereto, shall
have such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers
or other marks of identification or designation and such legends or endorsements placed thereon as
the Operating Partnership may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may
be listed, or to conform to usage.



     The definitive Securities (and Guarantees) shall be printed, lithographed or engraved or
produced by any combination of these methods on a steel engraved border or steel engraved borders
or may be produced in any other manner, all as determined by the officer executing such Securities
(and Guarantees), as evidenced by his or her execution of such Securities.



     SECTION 202. FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION. Subject to Section 611, the
Trustee’s certificate of authentication shall be in substantially the following form:



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



	 	 	 	 	 
	 	 	[full name of Trustee], as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized [Officer] [Signatory]






15









 






     SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. The Securities shall be initially issuable
only in permanent global form (without coupons) in one or more global Securities. Beneficial
owners of interests in the permanent global Securities may exchange such interests for Securities
of like tenor or any authorized form and denomination only in the manner provided in Section 305.
DTC shall be the depositary with respect to the permanent global Securities. Notwithstanding the
provisions of Section 302, any such global Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented thereby may from
time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by or at the direction of the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or pursuant to Section 301 or in the
Operating Partnership Order to be delivered to the Trustee pursuant to Section 303 or 304. Subject
to the provisions of Section 303 and, if applicable Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon instructions given by the
Person or Persons specified therein or pursuant to Section 301 or in the applicable Operating
Partnership Order. If an Operating Partnership Order pursuant to Section 304 or 305 has been or is
delivered, any instructions by the Operating Partnership with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel.



     The provisions of the last sentence of Section 303 shall apply to any Security represented by
a Security in global form if such Security was never issued and sold by the Operating Partnership
and the Operating Partnership delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence of Section 303.



     Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by
Section 301, payment of principal of and any premium and interest on any Security in global form
shall be made to the Person or Persons specified therein.



     Notwithstanding the provisions of Section 308 and except as provided in the preceding
paragraph, the Operating Partnership, any agent of the Operating Partnership and the Trustee shall
treat the Holder of a global Security as the Holder of such principal amount of Outstanding
Securities represented by such global Security.



16









 





ARTICLE THREE

THE SECURITIES




     SECTION 301. AMOUNT UNLIMITED, ISSUABLE IN SERIES. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.



     The Securities shall be issued in one or more series. There shall be established in one or
more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and set
forth or established in or pursuant to one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following as applicable:




     (1) the title of the Securities of the series (which shall distinguish the Securities
of such series from all other series of Securities);




     (2) the limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107);




     (3) the date or dates, or the method by which such date or dates will be determined, on
which the principal of the Securities of the series shall be payable;




     (4) the rate or rates at which the Securities of the series shall bear interest, the
date or dates from which such interest shall accrue, the Interest Payment Dates on which
such interest will be payable and the Regular Record Date for the interest payable on any
Security on any Interest Payment Date;




     (5) the place or places, if any, other than or in addition to The Borough of Manhattan,
The City of New York, where the principal of (and premium, if any), interest payable in
respect of, Securities of the series shall be payable, any Securities of the series may be
surrendered for registration of transfer or exchange and notices or demands to or upon the
Operating Partnership in respect of the Securities of the series and this Indenture may be
served;




     (6) the obligation, if any, of the Operating Partnership to redeem, repay or purchase
Securities of the series at the option of a Holder thereof, and the period or periods within
which or the date or dates on which, the price or prices at which, and other terms and
conditions upon which Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;




     (7) if other than the Trustee, the identity of each Security Registrar and/or Paying
Agent;




     (8) provisions, if any, granting special rights to the Holders of Securities of the
series upon the occurrence of such events as may be specified;



17









 






     (9) any deletions from, modifications of, or additions to the Events of Default or
covenants of the Operating Partnership with respect to Securities of the series, whether or
not such Events of Default or covenants are consistent with the Events of Default or
covenants set forth herein;




     (10) the Person to whom any interest on any Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest; and




     (11) any other terms of the series and any deletions from or modifications or additions
to this Indenture in respect of such Securities (whether or not consistent with the other
provisions of this Indenture).



     All Securities of any one series and the Guarantees appertaining to any Securities of such
series shall be substantially identical except as to denomination and except as may otherwise be
provided by the Operating Partnership in the Board Resolution, or pursuant to the Board Resolution
and set forth in the Officers’ Certificate, or in any indenture or indentures supplemental hereto, as the case may be, pertaining to such series of Securities. The terms
of the Securities of any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time upon telephonic or
written order of persons designated in or pursuant to the relevant Board Resolution, Officers’
Certificate or supplemental indenture, as the case may be (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to determine, consistent
with such Board Resolution, Officers’ Certificate or supplemental indenture, as the case may be,
such terms and conditions of the Securities of such series as are specified in such Board
Resolution, Officers’ Certificate or supplemental indenture, as the case may be. All Securities of
any one series need not be issued at the same time and, unless otherwise provided in the applicable
supplemental indenture, a series may be reopened, without the consent of the Holders, for issuance
of additional Securities of such series.



     SECTION 302. DENOMINATIONS . The Securities of any series shall be issuable in denominations
of $1,000 and any integral multiple thereof.



     SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Securities shall be executed
on behalf of the Operating Partnership by its General Partner by such General Partner’s Chairman,
President or any Vice President. If a Guarantor is a corporation its Guarantee shall be executed
on behalf of such Guarantor by its Chairman, President or any Vice President and if a Guarantor is
a partnership or a limited liability company its Guarantee shall be executed on behalf of such
Guarantor by the Chairman, President or any Vice President of its general partner or manager, as
applicable. The signature of any of these officers on the Securities or Guarantees, if any, may be
manual or facsimile signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities or the Guarantees.



     The Guarantees or Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Operating Partnership’s General Partner, the



18









 




Guarantors
(or the general partner or manager of such Guarantor) or any corporate successor of the Operating
Partnership or any Guarantor, as applicable, shall bind the Operating Partnership or the applicable
Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Securities or Guarantees or did not hold such
offices at the date of such Securities or Guarantees.




     Each Security and Guarantee shall be dated the date of its authentication.



     No Security or Guarantee shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by manual signature of
an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Operating
Partnership, and the Operating Partnership shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Operating Partnership, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.



     SECTION 304. TEMPORARY SECURITIES. Pending the preparation of definitive Securities of any
series, the Operating Partnership may execute, and upon Operating Partnership Order the Trustee
shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are issued, in registered form, and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing
such Securities may determine, as conclusively evidenced by their execution of such Securities. In
the case of Securities of any series, such temporary Securities may be in global form.



     If temporary Securities of any series are issued, the Operating Partnership will cause
definitive Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of such series shall
be exchangeable for definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Operating Partnership in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Operating Partnership shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of definitive Securities of
the same series of authorized denominations. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.



19









 





     SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The Operating Partnership
shall cause to be kept at the Corporate Trust Office of the Trustee or in any office or agency of
the Operating Partnership in a Place of Payment a register for any series of Securities (the
registers maintained in such office or in any such office or agency of the Operating Partnership in
a Place of Payment being herein sometimes referred to collectively as the “Security Register”) in
which, subject to such reasonable regulations as it may prescribe, the Operating Partnership shall
provide for the registration of Securities and of transfers and exchanges of Securities. The
Security Register shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust Office and at the
office of its affiliate in the Borough of Manhattan, The City of New York at the address set forth
in Section 1002 (or at such other address at which the Trustee’s affiliate’s New York office may
subsequently be located), is hereby initially appointed “Security Registrar” for the purpose of
registering Securities and transfers and exchanges of Securities on such Security Register as
herein provided. In the event that the Trustee shall cease to be Security Registrar, it shall have the right to examine the Security Register at all
reasonable times.



     Subject to the provisions of this Section 305, upon surrender for registration of transfer of
any Security of any series at any office or agency of the Operating Partnership in a Place of
Payment for that series, the Operating Partnership shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like aggregate principal
amount, bearing a number not contemporaneously outstanding, and containing identical terms and
provisions. Subject to the provisions of this Section 305, at the option of the Holder, Securities
of any series may be exchanged for other Securities of the same series, of any authorized
denomination or denominations and of a like aggregate principal amount, containing identical terms
and provisions, upon surrender of the Securities to be exchanged at any such office or agency.
Whenever any such Securities are so surrendered for exchange, the Operating Partnership shall
execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.



     Any permanent global Security shall be exchangeable only as provided in this paragraph. If
the depositary for any permanent global Security is DTC, then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only to a nominee of
DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such global Security selected or
approved by the Operating Partnership or to a nominee of such successor to DTC. If at any time (i)
DTC notifies the Operating Partnership that it is unwilling or unable to continue as depositary for
the applicable global Security or Securities or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 if so required by applicable law or
regulation, and, in either case, a successor depositary is not appointed by the Operating
Partnership within 90 days after the Operating Partnership receives such notice or becomes aware of
such ineligibility, (ii) the Operating Partnership in its sole discretion determines that such
global Securities shall be exchangeable for definitive Securities or (iii) there shall have
occurred and be continuing an Event of Default under this Indenture with respect to the Securities
of any series and beneficial owners representing a majority in aggregate principal amount of the
Outstanding Securities represented by such global Securities advise DTC to cease



20









 




acting as
depositary, then the Operating Partnership shall execute, and the Trustee shall authenticate and
deliver, definitive Securities of like series, rank, tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such global Security or Securities. If
any beneficial owner of an interest in a permanent global Security is otherwise entitled to
exchange such interest for Securities of such series and of like tenor and principal amount of
another authorized form and denomination, as specified by Board Resolution and the applicable
supplemental indenture as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without unnecessary delay but
in any event not later than the earliest date on which such interest may be so exchanged, the
Operating Partnership shall execute, and the Trustee shall authenticate and deliver, definitive
Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s
interest in such permanent global Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered for exchange by DTC or
such other depositary as shall be specified in the Operating Partnership Order with respect thereto to the Trustee, as the Operating Partnership’s agent for such
purpose. If a Security is issued in exchange for any portion of a permanent global Security after
the close of business at the office or agency where such exchange occurs on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any special Record Date and before the opening of business at such office or agency
on the related proposed date for payment of Defaulted Interest, Interest or Defaulted Interest, as
the case may be, such interest will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest
in respect of such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.




     All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Operating Partnership, evidencing the same Debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such registration of transfer or
exchange.



     Every Security presented or surrendered for registration of transfer or for exchange or
redemption shall (if so required by the Operating Partnership or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the
Operating Partnership and the Security Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.



     No service charge shall be made to the Holder for any registration of transfer or exchange of
Securities, but the Operating Partnership may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107.



     The Operating Partnership or the Trustee, as applicable, shall not be required (i) to issue,
register the transfer of or exchange any Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15 days before selection of the
Securities to be redeemed under Section 1103 and ending at the close of business on the day of the
mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange



21









 




any
Security so selected for redemption in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, or (iii) if applicable, to issue,
register the transfer of or exchange any Security which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Security not to be so repaid.




     SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any mutilated Security or a
Security with a Guarantee appertaining thereto is surrendered to the Trustee or the Operating
Partnership, together with, in proper cases, indemnity as may be required by the Operating
Partnership or the Trustee to save each of them or any agent of either of them harmless, the
Operating Partnership shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with Guarantees corresponding to the Guarantees appertaining to the surrendered
Security.



     If there shall be delivered to the Operating Partnership and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Guarantee, and (ii) 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 Operating Partnership or the Trustee that such
Security or Guarantee has been acquired by a bona fide purchaser, the Operating Partnership shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or
stolen Guarantee appertains, a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously outstanding with
Guarantees corresponding to the Guarantees appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen Guarantee appertains.



     Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Operating
Partnership in its discretion may, instead of issuing a new Security, pay such Security.



     Upon the issuance of any new Security under this Section, the Operating Partnership 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 of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Operating Partnership, 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 of that series 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 or Guarantees.



22









 





     SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Except as otherwise specified
with respect to a series of Securities in accordance with the provisions of Section 301, interest
on any Security that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest at
the office or agency of the Operating Partnership maintained for such purpose pursuant to Section
1002; provided, however, that each installment of interest on any Security may at the Operating
Partnership’s option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 308, to the address of such Person as it appears on the Security Register
or (ii) wire transfer to an account maintained by the payee located in the United States.



     Unless otherwise provided as contemplated by Section 301, interest, if any, payable on any
permanent global Security on any Interest Payment Date will be paid to DTC, with respect to that
portion of such permanent global Security held for its account by Cede & Co. (or by another nominee
of DTC or by DTC) for the purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial owners thereof.



     Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 301, any interest on any Security of any series that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered Holder thereof on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid
by the Operating Partnership, at its election in each case, as provided in clause (1) or (2) below:




     (1) The Operating Partnership may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following manner. The Operating
Partnership shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed payment (which shall
not be less than 20 days after such notice is received by the Trustee), and at the same time
the Operating Partnership shall deposit with the Trustee an amount of money (except as
otherwise specified pursuant to Section 301 for the Securities of such series) equal to the
aggregate amount proposed 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 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Operating Partnership of such
Special Record Date and, in the name and at the expense of the Operating Partnership, 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



23









 






each Holder of such series at his
address as it appears in the Security Register not less than 10 days prior to such Special
Record Date. The Trustee shall, in the name and at the expense of the Operating
Partnership, cause a similar notice to be published at least once in an Authorized Newspaper
in each Place of Payment, but such publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).




     (2) The Operating Partnership may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Operating Partnership to the
Trustee of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.



     Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.



     SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a Security for registration
of transfer, the Operating Partnership, the Guarantors, the Trustee and any agent of the Operating
Partnership or the Trustee may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and premium, if any),
and (subject to Sections 305 and 307) interest on, such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Operating Partnership, the
Guarantors, the Trustee nor any agent of the Operating Partnership, the Guarantors or the Trustee
shall be affected by notice to the contrary.



     None of the Operating Partnership, the Guarantors, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Security in global form or
for maintaining, supervising or reviewing any records relating to such beneficial ownership
interests.



     Notwithstanding the foregoing, with respect to any global Security, nothing herein shall
prevent the Operating Partnership, the Trustee, or any agent of the Operating Partnership or the
Trustee from giving effect to any written certification, proxy or other authorization furnished by
any depositary, as a Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its nominee) as Holder of
such global Security.



24









 





     SECTION 309. CANCELLATION. All Securities surrendered for payment, redemption, repayment at
the option of the Holder, or registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it. The Operating
Partnership may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Operating Partnership may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Operating Partnership has
not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. If
the Operating Partnership shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by or pursuant to this Indenture. Canceled Securities held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Operating Partnership, unless by a Operating Partnership Order the Operating
Partnership directs their return to it.



     SECTION 310. COMPUTATION OF INTEREST. Interest on the Securities of any series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.



ARTICLE FOUR

SATISFACTION AND DISCHARGE




     SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall upon Operating
Partnership Request cease to be of further effect with respect to any series of Securities
specified in such Operating Partnership Request (except as hereinafter provided in this Section
401). The Trustee, upon receipt of an Operating Partnership Order, and at the expense of the
Operating Partnership, shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when:




     (1) either:




     (A) all Securities of such series theretofore authenticated and delivered have
been delivered to the Trustee for cancellation; or




     (B) all Securities of such series (x):




     (i) have become due and payable, or




     (ii) will become due and payable at their Stated Maturity within one
year, or




     (iii) if redeemable at the option of the Operating Partnership, are to
be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Operating Partnership,



25









 






and (y) the Operating Partnership, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust, an amount sufficient to pay and discharge the entire indebtedness on such Securities, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;




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




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



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Operating Partnership to the Trustee and any predecessor Trustee under Section 606, the obligations
of the Operating Partnership to any Authenticating Agent under Section 611 and, if money shall have
been deposited with and held by the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Operating Partnership and the Trustee with respect to the
Securities of such series under Sections 305, 306, 402, 1002 and 1003, shall survive.



     SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to Section 401 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 (other than the Operating Partnership acting
as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any), and interest, if any, for whose payment such money has been
deposited with or received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.



ARTICLE FIVE

REMEDIES




     SECTION 501. EVENTS OF DEFAULT. “Event of Default,” means, with respect to any series of
Securities, any one of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):




     (1) default in the payment of any interest on any Security of that series, when such
interest becomes due and payable, and continuance of such default for a period of 30 days;
or



26









 






     (2) default in the payment of any principal of or premium, if any, on any Security of
that series when it becomes due and payable at its Maturity (whether at Stated Maturity,
upon redemption or otherwise); or




     (3) default in the performance or breach of any covenant or warranty of the Operating
Partnership in this Indenture with respect to any Security of that series (other than a
covenant or warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or included herein solely for the benefit of a series of
Securities other than that series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to the Operating
Partnership by the Trustee or to the Operating Partnership and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that series, a written
notice specifying such default or breach and requiring to be remedied and stating that such
notice is a “Notice of Default” hereunder; or




     (4) (a) default by the Operating Partnership or any Subsidiary of the Operating
Partnership in the payment (whether at stated maturity, upon acceleration, upon required
prepayment or otherwise), beyond any period of grace provided therefor, of any principal of
or interest on any bond, note, debenture or other evidence of indebtedness, or (b) any other
breach or default (or other event or condition) shall occur under any agreement, indenture
or instrument relating to any such bond, Security, debenture or other evidence of
indebtedness beyond any cure period provided therefor, if as a result thereof the holder or
holders of any such bond, Security, debenture or other evidence of indebtedness (or a person
on behalf of such holder or holders) has the immediate right to cause (upon the giving of
notice, if required) any such bond, Security, debenture or other evidence of indebtedness to
become or be declared due and payable, or required to be prepaid, redeemed, purchased or
defeased (or an offer of prepayment, redemption, purchase or defeasance be made), prior to
its stated maturity (other than by a scheduled mandatory prepayment), which in the aggregate
under (a) and (b) have a principal amount equal to or greater than $20,000,000 without such
bond, note, debenture or other evidence of indebtedness having been discharged, or such
breach or default having been cured, within a period of 10 days after there has been given,
by registered or certified mail, to the Operating Partnership by the Trustee or to the
Operating Partnership and the Trustee by the Holders of at least 25% of the Outstanding
Securities of such series, a written notice specifying such breach or default and requiring
such bond, note, debenture or other evidence of indebtedness to be discharged, or such
breach or default to be cured and stating that such notice is a “Notice of Default”
hereunder; or




     (5) Intentionally Omitted




     (6) the Operating Partnership, the General Partner or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:




     (A) commences a voluntary case or proceeding,



27









 






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




     (C) consents to the appointment of a Custodian (as defined below) of it or for
any substantial part of its property, or




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




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




     (A) is for relief against the Operating Partnership, the General Partner or any
Significant Subsidiary in an involuntary case,




     (B) adjudges the Operating Partnership, the General Partner or any Significant
Subsidiary bankrupt or insolvent,




     (C) approves as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Operating Partnership, the General
Partner or any Significant Subsidiary,




     (D) appoints a Custodian of the Operating Partnership, the General Partner or
any Significant Subsidiary or for all or any substantial part of the property of the
Operating Partnership, the General Partner or any Significant Subsidiary, or




     (E) orders the winding up or liquidation of the Operating Partnership, the
General Partner or any Significant Subsidiary.




and the order or decree described in this clause (7) remains unstayed and in effect for 60
days.



     As used in this Section 501, the term “Bankruptcy Law” means Title 11 U.S. Code or any similar
federal or state law for the relief of debtors and the term “Custodian” means any receiver,
trustee, assignee, liquidator, sequestrator or other similar official under any Bankruptcy Law.



     SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an Event of Default with
respect to Securities of any series at the time outstanding occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal of all the Securities of that
series to be due and payable immediately, by a notice in writing to the Operating Partnership (and
to the Trustee if given by the Holders), and upon the delivery of any such declaration to the
Operating Partnership such principal or specified portion thereof shall become immediately due and
payable.



     At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been



28









 




obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series, by written notice to the Operating
Partnership and the Trustee, may rescind and annul such declaration and its consequences if:





     (1) the Operating Partnership has paid or deposited with the Trustee a sum sufficient
to pay:




     (A) all overdue installments of interest on all Outstanding Securities of that
series,




     (B) the principal of (and premium, if any, on) any Outstanding Securities of
that series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates borne by or provided for in such
Securities,




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




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




     (2) all Events of Default with respect to Securities of that series, other than the
nonpayment of the principal of (or premium, if any) or interest on Securities of that series
which have become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.



     No such rescission shall affect any subsequent default or impair any right consequent thereon.



          SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE. The Operating
Partnership covenants that if:





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




     (2) default is made in the payment of the principal of (or premium, if any, on) any
Security of any series at its Maturity,


then the Operating Partnership will, upon demand of the Trustee and provided that such default has
not been cured, pay to the Trustee, for the benefit of the Holders of such Securities of such series, the whole amount then due and payable on such Securities for principal (and premium, if
any) and interest, with interest upon any overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon any overdue installments of
interest at the rate or rates borne by or provided for in such Securities, and, in addition
thereto,





29









 







such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.




     If the Operating Partnership fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Operating Partnership or any Guarantor or any
other obligor upon such Securities or Guarantees of such series and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the Operating
Partnership or Guarantor or any other obligor upon such Securities or Guarantees of such series,
wherever situated.



     If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series and any related Guarantees by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the 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 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Operating Partnership, any Guarantor or any other obligor upon
the Securities or the property of the Operating Partnership, any Guarantor or of such other
obligor, the Trustee (irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Operating Partnership or any Guarantor for
the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:




     (i) to file and prove a claim for the whole amount, or such lesser amount as
may be provided for in the Securities of such series, of principal (and premium, if
any) and interest owing and unpaid in respect of the Securities or Guarantees and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and




     (ii) 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 of such series and
Guarantees to make such payments to the Trustee, and in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the Trustee and any




30









 







predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.




     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Guarantees 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.



     SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES. All rights of
action and claims under this Indenture or any of the Securities or Guarantees may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or Guarantees 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 or Guarantees in respect of which such judgment has been recovered.



     SECTION 506. 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 premium, if any) or
interest, upon presentation of the Securities or Guarantees, or any thereof, 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 and any predecessor Trustee under
Section 606;




     SECOND: To the payment of the amounts then due and unpaid upon the Securities and
Guarantees for principal (and premium, if any) and interest in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of
any kind, according to the aggregate amounts due and payable on such Securities and
Guarantees for principal (and premium, if any) and interest, respectively; and




     THIRD: To the payment of the remainder, if any, to the Operating Partnership.



     SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder, unless:




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



31









 






     (2) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;




     (3) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in
compliance with such request;




     (4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and




     (5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such Holders.




32









 








     SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM, IF ANY, 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
premium, if any) and (subject to Sections 305 and 307) interest on such Security on the due date
expressed in such Security (or, in the case of redemption, on the Redemption Date) and (subject to
Section 507) to institute suit for the enforcement of any such payment, and such rights shall not
be impaired without the consent of such Holder.



     SECTION 509. 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, the Operating Partnership, each Guarantor, the Trustee
and the Holders shall, subject to any determination in such proceeding, 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 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or Guarantees in the last
paragraph of Section 306, 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 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the Trustee or of any
Holder 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 Five 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.



     SECTION 512. CONTROL BY HOLDERS. The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series shall have the right to direct the Trustee as to the
time, method and place of conducting any proceeding for any remedy available or exercising any
trust or power conferred on the Trustee with respect to the Securities of such series, provided
that




     (1) such direction shall not be in conflict with any rule of law or with this
Indenture,




     (2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and



33









 






     (3) the Trustee need not take any action which, in its reasonable determination might
involve it in personal liability or be unduly prejudicial to the Holders of such series not
joining therein.



     SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such series and its
consequences, except a default




     (1) in the payment of the principal of (or premium, if any) or interest on or payable
in respect of any Security of such series, or




     (2) in respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series affected.



     Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or Event of Default or impair any right
consequent thereon.



34









 





     SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Operating Partnership 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 Operating Partnership (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.



     SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture agree, and each Holder of
any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Holder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security on or after the respective Stated Maturities and
Interest Payment Dates expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).



ARTICLE SIX

THE TRUSTEE




     SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the manner and to the
extent provided in TIA Section 313(c), notice to Holders of such default hereunder actually known
to the Trustee, unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium, if any) or interest
on any Security of such series, the Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Trustee in good faith determines, that the withholding of such
notice is in the interests of such Holders; and provided further that in the case of any default or breach of the character
specified in Section 501(4) with respect to the Securities, no such notice to Holders shall be
given until at least 60 days after the occurrence thereof. For the purpose of this Section, the
term “default” means any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to the Securities of such series.



     SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of TIA Section 315(a) through
315(d):




     (1) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice,



35









 






request,
direction, consent, order, bond, debenture, Security, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or
parties;




     (2) any request or direction of the Operating Partnership mentioned herein shall be
sufficiently evidenced by an Operating Partnership Request or an Operating Partnership Order
(other than delivery of any Security to the Trustee for authentication and delivery pursuant
to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;




     (3) 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;




     (4) the Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon;




     (5) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders Securities
of any series pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or
direction;




     (6) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, Security, coupon or other paper or
document, but the Trustee, in its discretion, may make such reasonable further inquiry or
investigation into such facts or matters as it may reasonably determine, 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 Operating Partnership, personally or by agent
or attorney reasonably related to such inquiry;




     (7) 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
with due care by it hereunder; and




     (8) the Trustee shall not be liable for any action taken, suffered or omitted 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.



     The Trustee shall not be required 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



36









 




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.




     Except during the continuance of an Event of Default, the Trustee undertakes to perform only
such duties as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.



     SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The recitals contained herein
and in the Securities and Guarantees, except the Trustee’s certificate of authentication, shall be
taken as the statements of the Operating Partnership and each Guarantor, as applicable, 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 or the Guarantees, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its obligations
hereunder. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Operating Partnership of Securities or the proceeds thereof.



     SECTION 604. MAY HOLD SECURITIES AND GUARANTEES. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Operating Partnership, in its individual
or any other capacity, may become the owner or pledgee of Securities and Guarantees and, subject to
TIA Sections 310(b) and 311, may otherwise deal with the Operating Partnership or any Guarantor
with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.



     SECTION 605. 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 in writing
with the Operating Partnership.



     SECTION 606. COMPENSATION AND REIMBURSEMENT. The Operating Partnership agrees:




     (1) 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);




     (2) except as otherwise expressly provided herein, to reimburse each of the Trustee and
any predecessor Trustee upon its request for all reasonable 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 may be attributable to its
negligence or willful misconduct; and




     (3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or bad faith on
its own part, 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



37









 






against any
claim or liability in connection with the exercise or performance of any of its powers or
duties hereunder.



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(6) or Section 501(7), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute expenses
of administration under any applicable Federal or state bankruptcy, insolvency or other similar
law.



     As security for the performance of the obligations of the Operating Partnership under this
Section, the Trustee shall have a lien for payment of the Trustee’s fees and expenses prior to the
Securities upon all property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) with respect to the Securities.



     The provisions of this Section shall survive the termination of this Indenture.



     SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS. There shall at all
times be a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1)
and shall have a combined capital and surplus of at least $100,000,000 (or which trust company
shall have an ultimate parent holding company with a combined capital and surplus of at least
$100,000,000). If such corporation (or ultimate parent holding company, as the case may be)
publishes reports of condition at least annually, pursuant to law or the requirements of federal,
state, territorial or District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation (or ultimate parent
holding company, as the case may be) 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 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.




     (a) 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 609.




     (b) The Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Operating Partnership. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.




     (c) The Trustee may be removed at any time with respect to the Securities of any series
by Act of the Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Trustee and to the Operating Partnership.



38









 






     (d) If at any time:




     (1) the Trustee shall fail to comply with the provisions of TIA Section
310(b) after written request therefor by the Operating Partnership or by any
Holder who has been a bona fide Holder for at least six months, or




     (2) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Operating Partnership
or by any Holder who has been a bona fide Holder for at least six months, or




     (3) 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, (i) the Operating Partnership by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all Securities, or
(ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder for at least
six months may, on behalf of such Holder and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.




     (e) 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 with respect to the Securities of
one or more series, the Operating Partnership, by or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular series). If,
within one year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series; shall be
appointed by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Operating Partnership and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Operating Partnership. If no
successor Trustee with respect to the Securities of any series shall have been so appointed
by the Operating Partnership or the Holders of Securities of such Series and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.



39









 






     (f) The Operating Partnership shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of a successor
Trustee with respect to the Securities of such series in the manner provided for notices to
the Holders in section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate Trust Office.



     SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.




     (a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver to the
Operating Partnership 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 request of
the Operating Partnership 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, subject nevertheless to its lien and claim, if any, provided for in
Section 606.




     (b) In case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Operating Partnership, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto, pursuant to Article Nine hereof,
wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to and to vest
in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees as
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the extent provided
therein and each 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 with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Operating Partnership or any successor Trustee, such
retiring Trustee shall duly assign, transfer and



40









 






deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.




     (c) Upon request of any such successor Trustee, the Operating Partnership 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 paragraph (a) or (b) of
this Section, as the case may be.




     (d) 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 Six.



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     SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. 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 of 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, 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. In case any Securities shall not have
been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Securities, in either its own name or that of its predecessor Trustee, with the full
force and effect which this Indenture provides for the certificate of authentication of the
Trustee.



     SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any of the Securities
remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of transfer or partial
redemption or repayment thereof, 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. Any such appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly furnished to the
Operating Partnership. 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 Operating
Partnership and shall at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or of any State or the
District of Columbia, authorized under such laws to act as Authenticating Agent, having (or whose
bank holding company has) a combined capital and surplus of not less than $100,000,000 and subject
to supervision or examination by Federal or state authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the requirements of the
aforesaid 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. In case 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



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Section,
without the execution or filing of any paper or further act on the part of the Trustee or the
Authenticating Agent.




     An Authenticating Agent for any series of Securities may at any time resign by giving written
notice of resignation to the Trustee for such series and to the Operating Partnership. The Trustee
for any series of Securities may at any time terminate the agency of an Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the Operating Partnership.
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 for such series may appoint a successor Authenticating
Agent which shall be acceptable to the Operating Partnership and shall give notice of such
appointment to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve in the manner set forth in Section 106. 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
herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions
of this Section.



     The Operating Partnership agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for its services under
this Section.



     If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication substantially in the
following form:



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



	 	 	 	 	 
	 	 	[full name of Trustee]
	 	 	as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	as Authenticating Agent
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authenticating Officer






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ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND OPERATING PARTNERSHIP




     SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder, by receiving and
holding the Securities, agrees with the Operating Partnership and the Trustee that neither the
Operating Partnership nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any
Security Registrar shall be held accountable by reason of the disclosure of any information as to
the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source
from which such information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section 312(b).



     SECTION 702. REPORTS BY TRUSTEE. Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall
transmit by mail to all Holders as provided in TIA Section 313(c) a brief report dated as of such
May 15 if required by TIA Section 313(a).



     SECTION 703. OPERATING PARTNERSHIP TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS. The
Operating Partnership will furnish or cause to be furnished to the Trustee:




     (a) semi-annually, not later than 15 days after the Regular Record Date for interest
for any series of Securities, a list in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of such series as of such Regular Record Date, and




     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Operating Partnership 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.


provided, however, that, so long as the Trustee is the Security Registrar, no such list shall be
required to be furnished.




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ARTICLE EIGHT

CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE




     SECTION 801. CONSOLIDATIONS AND MERGERS OF OPERATING PARTNERSHIP AND SALES, LEASES AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Operating Partnership will not, in any
transaction or series of related transactions, consolidate with, or sell, lease, assign, transfer
or otherwise convey all or substantially all of its assets to, or merge with or into, any other
Person unless (i) either the Operating Partnership shall be the continuing Person, or the successor
Person (if other than the Operating Partnership) formed by or resulting from any such consolidation
or merger or which shall have received the transfer of such assets shall be a corporation,
partnership, limited liability company or other entity organized and existing under the laws of the
United States of America or a State thereof or the District of Columbia and shall expressly assume,
by supplemental indenture executed by such successor Person and delivered by it to the Trustee
(which supplemental indenture shall comply with Article Nine hereof and shall be reasonably
satisfactory to the Trustee), the due and punctual payment of the principal of (and premium, if
any) and interest payable in respect of, all of the Outstanding Securities, according to their
tenor, and the due and punctual performance and observance of all of the other covenants and
conditions contained in this Indenture and the Securities to be performed or observed by the
Operating Partnership; (ii) immediately after giving effect to such transaction and treating any
Debt (including Acquired Debt) which becomes an obligation of the Operating Partnership or any of
its Affiliates as a result thereof as having been incurred by the Operating Partnership or such
Affiliate at the time of such transaction, no Event of Default, and no event which, after notice or the lapse of time, or
both, would become an Event of Default, shall have occurred and shall be continuing; and (iii) the
Operating Partnership shall have delivered to the Trustee the Officers’ Certificate and Opinion of
Counsel required pursuant to Section 803 below. In the event that the Operating Partnership is not
the continuing Person then, for purposes of clause (ii) of the preceding sentence, the successor
Person shall be deemed to be the “Operating Partnership” referred to in such clause (ii).



     SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR PERSON. In case of any such consolidation, sale,
lease, assignment, transfer, conveyance or merger and upon any such assumption by the successor,
such successor Person shall succeed to and be substituted for and may exercise every right and
power of the Operating Partnership, with the same effect as if it had been named as the “Operating
Partnership” herein; and the predecessor Person shall be released, except in the case of a lease,
from any further obligation under this Indenture and the Securities.



     SECTION 803. OFFICERS’ CERTIFICATE AND OPINION OF COUNSEL. Any consolidation, sale, lease,
assignment, transfer, conveyance or merger permitted under Section 801 is also subject to the
condition precedent that the Trustee receive an Officers’ Certificate and an Opinion of Counsel to
the effect that any such consolidation, sale, lease, assignment, transfer, conveyance or merger,
and the assumption by any successor Person, complies with the provisions of this Article and that
all conditions precedent herein provided for relating to such transaction have been complied with.



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ARTICLE NINE

SUPPLEMENTAL INDENTURES




     SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without the consent of any
Holders, the Operating Partnership, when authorized by or pursuant to a Board Resolution, the
applicable Guarantors and the Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:




     (1) to evidence the succession of another Person to the Operating Partnership or any
Guarantor and the assumption by any such successor of the covenants of the Operating
Partnership herein and in the Securities or Guarantees; or




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




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




     (4) to add or change any provisions of this Indenture to facilitate the issuance of the
Securities in certificate form, provided that such amendment shall not adversely affect the
interest of the Holders of any Securities in any material respect; or




     (5) to secure the Securities or Guarantees; or




     (6) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or




     (7) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such action shall not adversely
affect the interests of the Holders of Securities of any series or any related Guarantees in
any material respect; or



46









 






     (8) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the discharge, defeasance or covenant defeasance, as the
case may be, of any series of Securities pursuant to Sections 401, 1202 and 1203; provided
that any such action shall not adversely affect the interests of the Holders of Securities
of such series and any related Guarantees or any other series of Securities in any material
respect.



     SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the consent of the Holders
of not less than a majority in principal amount of all Outstanding Securities of any series
affected by such supplemental indenture, by Act of said Holders delivered to the Operating
Partnership, the Guarantors and the Trustee, the Operating Partnership, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of the Securities of such series or of
modifying in any manner the rights of the Holders of Securities of such series and any related
Guarantees under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of any Outstanding Security
affected thereby:




     (1) change the Stated Maturity of the principal of (or premium, if any, on) or any
installment of principal of, or premium, if any, or the Interest Payment Date with respect
to, any Security; or reduce the principal amount thereof or the rate or amount of interest
thereon, or any premium payable thereon, or adversely affect any right of the Holder to
repayment of such Security at such Holder’s option, or change any Place of Payment where, or
the coin or currency in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity, or Interest Payment Date, as applicable, thereof
(or, in the case of redemption, on or after the Redemption Date) or that would be provable
in bankruptcy, or




     (2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture or the
consent of whose Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of Section 1304 for
quorum or voting, or




     (3) modify any of the provisions of this Section, Section 513 or Section 1013, except
to increase the percentage required to effect such action or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the Holder
of any Outstanding Security affected thereby, or




     (4) impair the right to institute suit for the enforcement of any payment on or with
respect to any such Security.



     It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act



47









 




shall approve
the substance thereof. A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.




48









 









SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the
modification thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.



     SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any supplemental
indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder
theretofore authenticated and delivered hereunder shall be bound thereby.



     SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental indenture executed
pursuant to this Article Nine shall conform to the requirements of the Trust Indenture Act as then
in effect.



     SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article Nine may, and
shall, if required by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Operating Partnership shall so determine, new
Securities of any series so modified as to conform, in the opinion of the Trustee and the Operating
Partnership, to any such supplemental indenture may be prepared and executed by the Operating
Partnership and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.



ARTICLE TEN

COVENANTS




     SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The Operating Partnership
covenants and agrees for the benefit of the Holders of any series of Securities that it will duly
and punctually pay the principal of (and premium, if any) and interest on the Securities of that
series in accordance with the terms of such series of Securities and this Indenture.



49









 





     SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. The Operating Partnership shall maintain in
each Place of Payment for any series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment or conversion, where Securities of that series
may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Operating Partnership in
respect of the Securities of that series and this Indenture may be served. The Operating
Partnership will give prompt written notice to the Trustee of the location, and any change in the
location, of each such office or agency. If at any time the Operating Partnership 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 shall be made or served at the
Corporate Trust Office of the Trustee (and the Operating Partnership hereby appoints the Trustee
its agent to receive all such presentations, surrenders, notices and demands), and the Operating
Partnership hereby appoints the same as its agent to receive such presentations, surrenders,
notices and demands.



     The Operating Partnership may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or surrendered for any or all
of 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 Operating Partnership of its
obligation to maintain an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Operating Partnership 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. Unless otherwise specified pursuant to Section 301 with respect
to a series of Securities, the Operating Partnership hereby designates as the Place of Payment for
any series of Securities the office or agency of the Operating Partnership in the Borough of
Manhattan, The City of New York, and initially appoints the Trustee, at the office of its
affiliate, State Street Bank and Trust Company, which on the date of this Indenture are located at
61 Broadway, 15th Floor, New York, New York 10006 in such city and as its agent to
receive all such presentations, surrenders, notices and demands and appoints the Trustee, at its
Corporate Trust Office and at the office of its affiliate, State Street Bank and Trust Company, in
the Borough of Manhattan, The City of New York, as Paying Agent and Security Registrar. The
Operating Partnership may subsequently appoint a different office or agency in the Borough of
Manhattan, The City of New York and a different Paying Agent and Security Registrar for the
Securities of any Series.



     SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the Operating Partnership
shall at any time act as its own Paying Agent with respect to any series of any Securities, it
will, on or before each due date of the principal of (or premium, if any) or interest on the
Securities of that series, segregate and hold in trust for the benefit of the Persons entitled
thereto the sum in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the principal (and
premium, if any) and 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 Operating Partnership shall have one or more Paying Agents for any series of
Securities, it will, on or before each due date of the principal of (or premium, if any) or
interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the



50









 




principal (and premium, if any) and interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium and interest and (unless such Paying Agent is the Trustee) the Operating Partnership will promptly notify the Trustee of its action
or failure so to act.




     The Operating Partnership will cause each Paying Agent other than the Trustee 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) hold all sums held by it for the payment of principal of (and premium, if any) and
interest on the Securities in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein provided;




     (2) give the Trustee notice of any default by the Operating Partnership (or any other
obligor upon the Securities) in the making of any such payment of principal (or premium, if
any) or interest; and




     (3) at any time during the continuance of any such default upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.



     The Operating Partnership may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Operating Partnership Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Operating Partnership 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 Operating Partnership 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 sums.



     Any money deposited with the Trustee or any Paying Agent, or held by the Operating
Partnership, in trust for the payment of the principal of (or premium, if any) or interest on any
Security of any series and remaining unclaimed for two years after such principal or premium, if
any), or interest has become due and payable shall, if such money was then on deposit with the
Trustee or any Paying Agent, be paid to the Operating Partnership upon Operating Partnership
Request or (if then held by the Operating Partnership) shall be discharged from such trust, and the
Holder of such Security shall thereafter, as an unsecured general creditor, look only to the
Operating Partnership and the Guarantors for payment of such principal of (or premium, if any) or
interest on, such Security and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Operating Partnership 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 Operating Partnership cause to be published
once, in an Authorized Newspaper, 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 publication, any
unclaimed balance of such money then remaining will be repaid to the Operating Partnership.



51









 





     SECTION 1004. AGGREGATE DEBT TEST. The Operating Partnership will not, and will not permit
any of its Subsidiaries to, incur any Debt (including, without limitation, Acquired Debt) if,
immediately after giving effect to the incurrence of such Debt and the application of the proceeds
therefrom on a pro forma basis, the aggregate principal amount of all outstanding Debt of the Operating Partnership and its
Subsidiaries (determined on a consolidated basis in accordance with GAAP) is greater than 60% of
the sum of (without duplication) (i) the Total Assets of the Operating Partnership and its
Subsidiaries as of the last day of the then most recently ended fiscal quarter and (ii) the
aggregate purchase price of any real estate assets or mortgages receivable acquired, and the
aggregate amount of any securities offering proceeds received (to the extent such proceeds were not
used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the
Operating Partnership or any of its Subsidiaries since the end of such fiscal quarter, including
the proceeds obtained from the incurrence of such additional Debt, determined on a consolidated
basis in accordance with GAAP. For purposes of the foregoing Debt shall be deemed to be “incurred”
by the Operating Partnership or a Subsidiary whenever the Operating Partnership and its Subsidiary
shall create, assume, guarantee or otherwise become liable in respect thereof.



     SECTION 1005. DEBT SERVICE TEST. The Operating Partnership will not, and will not permit any
of its Subsidiaries to, incur any Debt (including, without limitation, Acquired Debt) if the ratio
of Consolidated Income Available for Debt Service to the Annual Debt Service Charge for the period
consisting of the four consecutive fiscal quarters most recently ended prior to the date on which
such additional Debt is to be incurred shall have been less than 1.5:1 on a pro forma basis after
giving effect to the incurrence of such Debt and the application of the proceeds therefrom, and
calculated on the assumption that (i) such Debt and any other Debt (including without limitation,
Acquired Debt) incurred by the Operating Partnership or any of its Subsidiaries since the first day
of such four-quarter period had been incurred, and the application of the proceeds therefrom
(including to repay or retire other Debt) had occurred, on the first day of such period, (ii) the
repayment or retirement of any other Debt of the Operating Partnership or any of its Subsidiaries
since the first day of such four-quarter period had occurred on the first day of such period
(except that, in making such computation, the amount of Debt under any revolving credit facility,
line of credit or similar facility shall be computed based upon the average daily balance of such
Debt during such period), and (iii) in the case of any acquisition or disposition by the Operating
Partnership or any of its Subsidiaries of any asset or group of assets, in any such case with a
fair market value (determined in good faith by the Board of Directors) in excess of $1 million,
since the first day of such four-quarter period, whether by merger, stock purchase or sale or asset
purchase or sale or otherwise, such acquisition or disposition had occurred as of the first day of
such period with the appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation. If the Debt giving rise to the need to make the foregoing
calculation or any other Debt incurred after the first day of the relevant four-quarter period
bears interest at a floating rate then, for purposes of calculating the Annual Debt Service Charge,
the interest rate on such Debt shall be computed on a pro forma basis by applying the average daily
rate which would have been in effect during the entire such four-quarter period to the greater of
the amount of such Debt outstanding at the end of such period or the average amount of Debt
outstanding during such period. For purposes of the foregoing Debt shall be deemed to be
“incurred” by the Operating Partnership or a Subsidiary whenever the Operating Partnership and its
Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof.



52









 





     SECTION 1006. SECURED DEBT TEST. The Operating Partnership will not, and will not permit any
of its Subsidiaries to, incur any Debt (including, without limitation, Acquired Debt) secured by
any Lien on any property or assets of the Operating Partnership or any of its Subsidiaries, whether
owned on the date of this Indenture or thereafter acquired, if, immediately after giving effect to
the incurrence of such Debt and the application of the proceeds therefrom on a pro forma basis, the
aggregate principal amount (determined on a consolidated basis in accordance with GAAP) of all
outstanding Debt of the Operating Partnership and its Subsidiaries which is secured by any Lien on
any property or assets of the Operating Partnership or any of its Subsidiaries is greater than 40%
of the sum of (without duplication) (i) the Total Assets of the Operating Partnership and its
Subsidiaries as of the last day of the then most recently ended fiscal quarter and (ii) the
aggregate purchase price of any real estate assets or mortgages receivable acquired, and the
aggregate amount of any securities offering proceeds received (to the extent such proceeds were not
used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the
Operating Partnership or any of its Subsidiaries since the end of such fiscal quarter, including
the proceeds obtained from the incurrence of such additional Debt, determined on a consolidated
basis in accordance with GAAP. For purposes of the foregoing Debt shall be deemed to be “incurred”
by the Operating Partnership or a Subsidiary whenever the Operating Partnership and its Subsidiary
shall create, assume, guarantee or otherwise become liable in respect thereof.



     SECTION 1007. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS. The Operating Partnership will not
have at any time Total Unencumbered Assets of less than 150% of the aggregate principal amount of
all outstanding Unsecured Debt of the Operating Partnership and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.



     SECTION 1008. EXISTENCE. Subject to Article Eight, the Operating Partnership will do or cause
to be done all things necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the Operating Partnership will not
be required to preserve any right or franchise if the applicable Board of Directors determines that
the preservation thereof is no longer desirable in the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to the Holders.



     SECTION 1009. MAINTENANCE OF PROPERTIES. The Operating Partnership will cause all of its
properties used or useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Operating Partnership may be necessary so that
the business carried on in connection therewith may be properly and advantageously conducted at all
times.



     SECTION 1010. INSURANCE. The Operating Partnership will, and will cause each of its
Subsidiaries to keep in force upon all of its properties and operations policies of insurance
carried with responsible companies in such amounts and covering all such risks as shall be
customary in the industry in accordance with prevailing market conditions and availability.



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     SECTION 1011. PAYMENT OF TAXES AND OTHER CLAIMS. The Operating Partnership will pay or
discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Operating Partnership or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the
property of the Operating Partnership or any Subsidiary; provided, however, that the Operating
Partnership will not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.



     SECTION 1012. PROVISION OF FINANCIAL INFORMATION. The Operating Partnership will:




     (1) file with the Trustee, within 15 days after the Operating Partnership or the
General Partner is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Operating Partnership or the General Partner may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934; or, if the Operating Partnership or the General Partner is not required to file
information, documents or reports pursuant to any of such Sections, then it will file with
the Trustee and the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;




     (2) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Operating Partnership and the General Partner with
the conditions and covenants of this Indenture as may be required from time to time by such
rules and regulations; and




     (3) transmit by mail to the Holders, within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in TIA Section 313(c), such summaries of
any information, documents and reports required to be filed by the Operating Partnership and
the Guarantor pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the
Commission.



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     SECTION 1013. SUBSIDIARY GUARANTEES. (a) The Operating Partnership will not permit any of
its Subsidiaries to guarantee or secure through the granting of Liens, the payment of any Debt of
the Company or any Guarantor and (b) the Operating Partnership will not and will not permit any of
its Subsidiaries to pledge any intercompany notes representing obligations of any of its
Subsidiaries, to secure the payment of any debt of the Operating Partnership or any Guarantor, in
each case unless such Subsidiary (a “Subsidiary Guarantor”), the Operating Partnership and the
Trustee execute and deliver a supplemental indenture evidencing such Subsidiary’s Guarantee
(providing for the unconditional Guarantee by such Subsidiary, on a senior basis, of the
Securities). If any Subsidiary Guarantor is released from all of its obligations described in
clause (a) or (b) of the preceding sentence, such Subsidiary Guarantor shall also be released from
its unconditional Guarantee of the Securities pursuant to such supplemental indenture and Article
XIV hereof.



     SECTION 1014. WAIVER OF CERTAIN COVENANTS. The Operating Partnership may omit in any
particular instance to comply with any term, provision or condition set forth in Sections 1004 to
1012, inclusive if before or after the time for such compliance the Holders of at least a majority
in principal amount of all Outstanding Securities of such series, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the obligations of the
Operating Partnership and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.



     SECTION 1015. STATEMENT AS TO COMPLIANCE. The Operating Partnership will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate from its General
Partner’s principal executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Operating Partnership’s compliance with all conditions and
covenants under this Indenture and, in the event of any noncompliance specifying such noncompliance
and the nature and status thereof, provided that if the Operating Partnership has been succeeded to
by a corporate successor pursuant to the provisions hereof such certificate will be from such
successor’s principal executive officer, principal financial officer or principal accounting
officer. For purposes of this Section 1015, such compliance shall be determined without regard to
any period of grace or requirement of notice under this Indenture.



ARTICLE ELEVEN

REDEMPTION OF SECURITIES




     SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which are redeemable before
their Stated Maturity shall be, unless set forth otherwise in the supplemental indenture applicable
to such series, redeemable, in whole or in part, before their Stated Maturity at the option of the
Operating Partnership on any date (a “Redemption Date”) at the Redemption Price.



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     SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the Operating
Partnership to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In
case of any redemption at the election of the Operating Partnership of less than all of the
Securities of any series, the Operating Partnership shall, at least 45 days prior to the giving of
the notice of redemption referred to in Section 1104 (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.



     SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If less than all the
Securities of any series are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption (excluding any such Outstanding
Securities held by the Operating Partnership or any of its Subsidiaries), by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.



     The Trustee shall promptly notify the Operating Partnership and the Security Registrar (if
other than itself) in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be redeemed.



     For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security which has been or
is to be redeemed.



     SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given in the manner
provided in Section 106 and may be further specified in an indenture supplemental hereto, not less
than 30 days nor more than 60 days prior to the Redemption Date to each Holder to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any Security designated
for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other such Security or portion
thereof.



     Any notice that is mailed to the Holders in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the notice.



     All notices of redemption shall state:




     (1) the Redemption Date,




     (2) the Redemption Price and the amount of accrued interest to the Redemption Date
payable as provided in Section 1106, if any,



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     (3) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed,




     (4) in case any Security is to be redeemed in part only, the notice shall state that on
and after the Redemption Date, upon surrender of such Security, the Holder will receive,
without a charge, a new Security or Securities of such series of authorized denominations
for the principal amount thereof remaining unredeemed,




     (5) that on the Redemption Date the Redemption Price and accrued interest to the
Redemption Date payable as provided in Section 1106, will become due and payable upon each
such Security, or the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,




     (6) the Place or Places of Payment where such Securities, maturing after the Redemption
Date, are to be surrendered for payment of the Redemption Price and accrued interest, and




     (7) the CUSIP number and series of such Security.



     SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At or prior to 12:00 noon (New York Time) on any
Redemption Date, the Operating Partnership shall deposit with the Trustee or with a Paying Agent
(or, if the Operating Partnership is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay on the Redemption Date the
Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on all the Securities or portions thereof which are to be redeemed on that date.



     SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of redemption having been given
as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (together with accrued interest to the Redemption
Date), and from and after such date (unless the Operating Partnership shall default in the payment
of the Redemption Price or accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice such Security shall be
paid by the Operating Partnership at the Redemption Price, together with accrued interest to the
Redemption Date.



     Installments of interest on Securities which are due and payable on an Interest Payment Date
falling on or prior to the relevant Redemption Date shall be payable to the Holders of such
Securities registered as such at the close of business on the relevant Regular Record Date
according to their terms and the provisions of the Indenture.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate borne by or provided in the Security.



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     SECTION 1107. SECURITIES REDEEMED IN PART. Any Security which is to be redeemed only in part
(pursuant to the provisions of this Article) shall be surrendered at a Place of Payment therefor
(with, if the Operating Partnership or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Operating Partnership and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and the Operating
Partnership shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.



ARTICLE TWELVE

DEFEASANCE AND COVENANT DEFEASANCE




     SECTION 1201. OPERATING PARTNERSHIP’S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. The
Operating Partnership may at its option by Board Resolution, at any time, with respect to any
series of Securities elect to have Section 1202 or Section 1203 be applied to such Outstanding
Securities upon compliance with the conditions set forth below in this Article. The Operating
Partnership’s right, if any, to elect defeasance pursuant to Section 1202 or covenant defeasance
pursuant to Section 1203 may only be exercised with respect to all of the Outstanding Securities of
any series.



     SECTION 1202. DEFEASANCE AND DISCHARGE. Upon the Operating Partnership’s exercise of the
above option applicable to this Section 1202 with respect to any Securities of or within a series,
the Operating Partnership shall be deemed to have been discharged from its obligations with respect
to such Outstanding Securities on the date the conditions set forth in Section 1204 are satisfied
(hereinafter “defeasance”). For this purpose, such defeasance means that the Operating Partnership
shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding
Securities, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section
1205 and the other Sections of this Indenture referred to in clauses (A) through (D) below, and to
have satisfied all of its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Operating Partnership, shall
execute proper instruments acknowledging the same), except for the following which shall survive
until otherwise terminated or discharged hereunder: (A) the rights of Holders of such outstanding
Securities to receive, solely from the trust fund described in Section 1204 and as more fully set
forth in such Section, payments in respect of the principal of (and premium, if any) and interest
on such Securities when such payments are due, (B) the Operating Partnership’s obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder (including, without limitation, those in
Section 606 hereof) and (D) this Article Twelve. Subject to compliance with this Article Twelve
the Operating Partnership may exercise its option under this Section 1202 notwithstanding the prior
exercise of its option under Section 1203 with respect to such Securities.



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     SECTION 1203. COVENANT DEFEASANCE. Upon the Operating Partnership’s exercise of the above
option applicable to this Section 1203 with respect to any Securities of or within a series, the
Operating Partnership shall be released from its obligations under Sections 1004 to 1012,
inclusive, (except that the Operating Partnership shall remain subject to the covenant set forth in
Section 1008 to preserve and keep in full force and effect its corporate existence, except as
permitted under Article Eight) and its obligations under any other covenant, with respect to such
Outstanding Securities appertaining thereto on and after the date the conditions set forth in
Section 1204 are satisfied (hereinafter, “covenant defeasance”), and such Securities shall
thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in connection with Sections
1004 to 1012, inclusive, or such other covenant, but shall continue to be deemed “Outstanding” for
all other purposes hereunder. For this purpose, such covenant defeasance means that with respect
to such Outstanding Securities the Operating Partnership may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such Section or such
other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any
such Section or such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document, and such omission to comply shall
not constitute a default or an Event of Default under Section 501(3) or otherwise, as the case may
be, provided, however, that except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.



     SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The following shall be the
conditions to application of Section 1202 or Section 1203 to any Outstanding Securities of or
within a series:




     (a) The Operating Partnership shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of Section 607
who shall agree to comply with the provisions of this Article Twelve applicable to it) funds
in trust for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities, (1) an amount as is then specified as payable at Stated Maturity and on Interest Payment
Dates, as applicable, or, if such defeasance or covenant defeasance is to be effected in
compliance with subsection (f) below, on the relevant Redemption Date, as the case may be,
(2) Government Obligations applicable to such Securities which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment of principal of (and premium, if
any) and interest on such Securities, money in an amount as is then specified as payable at
Stated Maturity and on Interest Payment Dates, as applicable, or, if such defeasance or
covenant defeasance is to be effected in compliance with subsection (f) below on the
relevant Redemption Date, as the case may be, or (3) a combination thereof, in any case, in
an amount sufficient without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge
the principal of (and premium, if any) and interest on such Outstanding Securities on the
Stated Maturity of such principal or installment of



59









 






principal, Interest Payment Dates, on
the applicable Redemption Date, as the case may be.




     (b) Such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute, a default under, this Indenture or any other material agreement or
instrument to which the Operating Partnership is a party or by which it is bound.




     (c) No Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to such Securities shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied until
the expiration of such period).




     (d) In the case of an election under Section 1202, the Operating Partnership shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Operating Partnership
has received from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of this Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.




     (e) In the case of an election under Section 1203, the Operating Partnership shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such
Outstanding Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.




     (f) If the monies or Government Obligations or combination thereof as the case may be,
deposited under subsection (a) above are sufficient to pay the principal of, and premium, if
any, and interest on such Securities provided such Securities are redeemed on a particular
Redemption Date, the Operating Partnership shall have given the Trustee irrevocable
instructions to redeem such Securities on such date and to provide notice of such redemption
to Holders as provided in or pursuant to this Indenture.




     (g) The Operating Partnership shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance under Section 1202 or the covenant defeasance under Section 1203 (as the case may
be) have been complied with and an Opinion of Counsel to the effect that, as a result of a
deposit pursuant to subsection (a) above and the related exercise of the Operating
Partnership’s option under Section 1202 or Section 1203 (as the case may be), registration
is not required under the Investment Company Act of 1940, as amended, by



60









 






the Operating
Partnership, with respect to the trust funds representing such deposit or by the Trustee for
such trust funds.



     SECTION 1205. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS. Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1205, the “Trustee”) pursuant
to Section 1204 in respect of any Outstanding Securities of any series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to
the payment, either directly or through any Paying Agent (other than the Operating Partnership
acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of
all sums due and to become due thereon in respect of principal (and premium, if any) and interest,
but such money need not be segregated from other funds except to the extent required by law.



     The Operating Partnership shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1204
or the principal and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of such Outstanding Securities.



     Anything in this Article to the contrary notwithstanding, subject to Section 606, the Trustee
shall deliver or pay to the Operating Partnership from time to time upon Operating Partnership
Request any money or Government Obligations (or other property and any proceeds therefrom) held by
it as provided in Section 1204 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.



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     SECTION 1206. REINSTATEMENT. If the Trustee or Paying Agent is unable to apply any cash or
Government Obligations deposited pursuant to Section 1204 in accordance with this Indenture or the
Securities of the applicable series by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Operating Partnership’s obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1204 until such time as the Trustee or Paying Agent is permitted to apply such
money in accordance with this Indenture and the Securities of such series: provided, however, that
if the Operating Partnership makes any payment of principal of, premium, if any, or interest on any
Security of such series following the reinstatement of its obligations, the Operating Partnership
shall be subrogated to the rights of the Holders of such Securities to receive such payment from
the cash and Government Obligations held by the Trustee or Paying Agent.



ARTICLE THIRTEEN

MEETING OF HOLDERS




     SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of Holders of Securities
of any series may be called at any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities of such series.



     SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.




     (a) The Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1301, to be held at such time and at such place in The
City of New York as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, 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 106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.




     (b) In case at any time the Operating Partnership, pursuant to a Board Resolution or
the Holders of at least 25% in principal amount of the Outstanding Securities of any series
shall have requested the Trustee to call a meeting of the Holders of such series for any
purpose specified in Section 1301, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have 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
Operating Partnership or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in The City of New York,
for such meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.



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     SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to vote at any meeting of
Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel, any representatives of the Guarantors and their
counsel and any representatives of the Operating Partnership and its counsel.



     SECTION 1304. QUORUM; ACTION. The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of
Securities of such series; provided, however, that if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may be given by the
Holders of not less than a specified percentage in principal amount of the Outstanding Securities
of a series, the Persons entitled to vote such specified percentage which is less or more than a
majority in principal amount of the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities of such series, 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 1302(a), 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 any adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such series which shall constitute
a quorum.



     Except as limited by the proviso to Section 902, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to Section 902, 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 or more than a majority, in principal amount of the
Outstanding Securities of a series 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 of that series.



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



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     Notwithstanding the foregoing provisions of this Section 1304, if any action is to be taken at
a meeting of Holders of Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in principal amount
of all Outstanding Securities affected thereby, or by the Holders of a specified percentage in
principal amount of the Outstanding Securities of such series and each other series:




     (i) there shall be no minimum quorum requirement for such meeting; and




     (ii) the principal amount of the Outstanding Securities of such series that are
entitled to vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent, waiver or other action has been
made, given or taken under this Indenture.



     SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.




               (a) Notwithstanding any provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Holders of a series in
regard to proof of the holding of Securities of such series 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 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104.




               (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 Operating Partnership or by
Holders as provided in Section 1302(b), in which case the Operating Partnership or the
Holders of Securities of the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.




               (c) At any meeting each Holder of Securities of such series or proxy shall be entitled
to one vote for each $1,000 principal amount of the Outstanding Securities of such series
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 Holder of a Security
of such series or proxy.




               (d) Any meeting of Holders of Securities of any series duly called pursuant to Section
1302 at which a quorum is present may be adjourned from time to



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time by Persons entitled to
vote a majority in principal amount of the Outstanding Securities of such series represented
at the meeting, and the meeting may be held as so adjourned without further notice.



     SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote upon any resolution
submitted to any meeting of Holders of Securities of any series shall be by written ballots on
which shall be subscribed the signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities
of such series 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
duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of
each meeting of Holders of Securities of any series 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
fact, setting forth a copy of the notice of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304. 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 Operating Partnership 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 FOURTEEN

THE GUARANTEES




     SECTION 1401. GUARANTEES. The provisions of this Article Fourteen shall be applicable to the
Securities and Guarantees. Each Guarantor (which term includes any successor Person under this
Indenture and any Subsidiary Guarantor pursuant to Section 1013 of this Indenture) for
consideration received hereby jointly and severally unconditionally and irrevocably guarantees on a
senior basis (each a “Guarantee”, and collectively, the “Guarantees”) to the Holders from time to
time of the Securities (a) the full and prompt payment of the principal of and any premium, if any,
on any Security when and as the same shall become due, whether at the maturity thereof, by
acceleration, redemption or otherwise and (b) the full and prompt payment of any interest on any
Security when and as the same shall become due and payable. Each and every default in the payment
of the principal of or interest or any premium on any Security shall give rise to a separate cause
of action hereunder, and separate suits may be brought hereunder as each cause of action arises.
The obligations of the Guarantors hereunder shall be evidenced by Guarantees accompanying the
Securities issued hereunder.



     An Event of Default under this Indenture or the Securities shall constitute an event of
default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the
Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.



     Subject to Section 1013 with respect to Subsidiary Guarantors, the obligations of the
Guarantors hereunder shall be absolute and unconditional and shall remain in full force and



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effect
until the entire principal and interest and any premium on the Securities shall have been paid or
provided for in accordance with provisions of this Indenture, and, unless as otherwise expressly
set forth in this Article, such obligations shall not be affected, modified or impaired upon the
happening from time to time of any event, including without limitation any of the following,
whether or not with notice to, or the consent of, the Guarantors:





               (a) the failure to give notice to the Guarantors of the occurrence of an Event of
Default;




               (b) the waiver, surrender, compromise, settlement, release or termination of the
payment, performance or observance by the Operating Partnership or the Guarantors of any or
all of the obligations, covenants or agreements of either of them contained in this
Indenture or the Securities;




               (c) the acceleration, extension or any other changes in the time for payment of any
principal of or interest or any premium on any Security or for any other payment under this
Indenture or of the time for performance of any other obligations, covenants or agreements
under or arising out of this Indenture or the Securities;




               (d) the modification or amendment (whether material or otherwise) of any obligation,
covenant or agreement set forth in this Indenture or the Securities;




               (e) the taking or the omission of any of the actions referred to in this Indenture and
in any of the actions under the Securities;




               (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert
or exercise any right, power or remedy conferred on the Trustee in this Indenture, or any
other action or acts on the part of the Trustee or any of the Holders from time to time of
the Securities;




               (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of
all or substantially all the assets, marshaling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or other similar proceedings
affecting the Guarantors or the Operating Partnership or any of the assets of any of them,
or any allegation or contest of the validity of the Guarantee in any such proceedings;




               (h) to the extent permitted by law, the release or discharge by operation of law of the
Guarantors from the performance or observance of any obligation, covenant or agreement
contained in this Indenture;




               (i) to the extent permitted by law, the release or discharge by operation of law of the
Operating Partnership from the performance or observance of any obligation, covenant or
agreement contained in this Indenture;




               (j) the default or failure of the Operating Partnership or the Trustee fully to perform
any of its obligations set forth in this Indenture or the Securities;



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               (k) the invalidity, irregularity or unenforceability of this Indenture or the
Securities or any part of any thereof;




               (l) any judicial or governmental action affecting the Operating Partnership or any
Securities or consent or indulgence granted by the Operating Partnership by the Holders or
by the Trustee; or




               (m) the recovery of any judgment against the Operating Partnership or any action to
enforce the same or any other circumstance which might constitute a legal or equitable
discharge of a surety or guarantor.



     The Guarantees shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Operating Partnership for liquidation or reorganization of the
Operating Partnership, should the Operating Partnership become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or any significant
part of the Operating Partnership’s assets, and shall, to the fullest extent permitted by law,
continue to be effective or be reinstated, as the case may be, if at any time any payment in
respect of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Securities, whether as a “voidable
preference,” “fraudulent transfer” or otherwise, all as though such payment had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the
Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.



     For purposes of this Article 14, each Subsidiary Guarantor’s liability (a Subsidiary
Guarantor’s “Base Guaranty Liability”) shall be that amount from time to time equal to the
aggregate liability of a Guarantor hereunder, but shall be limited to the lesser of (A) the
aggregate amount of the obligation as stated in the second sentence of this Section 1401 with
respect to the Securities, and (B) the amount, if any, which would not have (i) rendered such
Subsidiary Guarantor “insolvent” (as such term is defined in Section 101(29) of the Federal
Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each
is in effect at the date of this Indenture) or (ii) left it with unreasonably small capital at the
time its Guarantee of the Securities was entered into, after giving effect to the incurrence of
existing Debt immediately prior to such time, provided that, it shall be a presumption in any
lawsuit or other proceeding in which a Subsidiary Guarantor is a party that the amount guaranteed
is the amount set forth in (A) above unless a creditor or representative of creditors of such
Subsidiary Guarantor or a trustee in bankruptcy of the Subsidiary Guarantor, as debtor in
possession, otherwise proves in such a lawsuit that the aggregate liability of the Subsidiary
Guarantor is limited to the amount set forth in (B). In making any determination as to the
solvency or sufficiency of capital of a Subsidiary Guarantor in accordance with the previous sentence, the right of such Subsidiary Guarantor to contribution from other Guarantors to
subrogation pursuant to the next paragraph and any other rights such Subsidiary Guarantor may have
contractual or otherwise, shall be taken into account.



     The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long
as the exercise of such right does not impair the rights of the Holders under the Guarantees.



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     The validity and enforceability of any Guarantee shall not be affected by the fact that it is
not affixed to any particular Security.



     Each of the Guarantors hereby agrees that its Guarantee set forth in Section 1401 shall remain
in full force and effect notwithstanding any failure to endorse on each Security a notation of such
Guarantee.



     If an officer of a Guarantor whose signature is on this Indenture or a Security no longer
holds that office at the time the Trustee authenticates such Security or at any time thereafter,
such Guarantor’s Guarantee of such Security shall be valid nevertheless.



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



     SECTION 1402. PROCEEDINGS AGAINST THE GUARANTORS. In the event of a default in the payment of
principal of or any premium on any Security when and as the same shall become due, whether at the
Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a
default in the payment of any interest on any Security when and as the same shall become due, the
Trustee shall have the right to proceed first and directly against the Guarantors under this
Indenture without first proceeding against the Operating Partnership or exhausting any other
remedies which it may have and without resorting to any other Security held by the Trustee.



     The Trustee shall have the right, power and authority to do all things it deems necessary or
otherwise advisable to enforce the provisions of this Indenture relating to the Guarantees and
protect the interests of the Holders of the Securities and, in the event of a default in payment of
the principal of or any premium on any Security when and as the same shall become due, whether at
the Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of
a default in the payment of any interest on any Security when and as the same shall become due, the
Trustee may institute or appear in such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of its rights and the rights of the Holders, whether for
the specific enforcement of any covenant or agreement in this Indenture relating to the Guarantee
or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Without limiting the generality of the foregoing, in the event of a default in payment of the
principal of or interest or any premium on any Security when due, the Trustee may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same against the Guarantors and collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Guarantors, wherever situated.



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     SECTION 1403. GUARANTEES FOR BENEFIT OF HOLDERS. The Guarantees contained in this Indenture
are entered into by the Guarantors for the benefit of the Holders from time to time of the
Securities. Such provisions shall not be deemed to create any right in, or to be in whole or in
part for the benefit of, any person other than the Trustee, the Guarantors, the Holders from time
to time of the Securities, and their permitted successors and assigns.



     SECTION 1404. MERGER OR CONSOLIDATION OF GUARANTORS. Each Guarantor will not, in any
transaction or series of related transactions, consolidate with, or sell, lease, assign, transfer
or otherwise convey all or substantially all of its assets to, or merge with or into, any other
Person unless (i) either such Guarantor shall be the continuing Person, or the successor Person (if
other than such Guarantor) formed by or resulting from any such consolidation or merger or which
shall have received the transfer of such assets is a corporation, partnership, limited liability
company or other entity organized and existing under the laws of the United States of America or a
State thereof or the District of Columbia and shall expressly assume, by supplemental indenture
executed by such successor corporation and delivered by it to the Trustee (which supplemental
indenture shall comply with Article Nine hereof and shall be reasonably satisfactory to the
Trustee), all of such Guarantor’s obligations with respect to Outstanding Securities and the
observance of all of the covenants and conditions contained in this Indenture and its Guarantee to
be performed or observed by the Guarantor; (ii) immediately after giving effect to such
transaction, no Event of Default, and no event which, after notice or the lapse of time, or both,
would become an Event of Default, shall have occurred and shall be continuing; and (iii) such
Guarantor shall have delivered to the Trustee the Officers’ Certificate and Opinion of Counsel
required pursuant to below. In the event that such Guarantor is not the continuing corporation,
then, for purposes of clause (ii) of the preceding sentence, the successor corporation shall be
deemed to be such “Guarantor” referred to in such clause (ii). Any consolidation, merger, sale,
lease, assignment, transfer or conveyance permitted under Section 1404 is also subject to the
condition precedent that the Trustee receive an Officers’ Certificate and an Opinion of Counsel to
the effect that any such consolidation, merger, sale, lease, assignment, transfer or conveyance,
and the assumption by any successor corporation, complies with the provisions of this Article and
that all conditions precedent herein provided for relating to such transaction have been complied
with.



     SECTION 1405. ADDITIONAL GUARANTORS. Any Person may become a Guarantor by executing and
delivering to the Trustee (a) a supplemental indenture in form and substance satisfactory to the
Trustee, which subjects such person to the provisions of this Indenture as a Guarantor, and (b) an
Opinion of Counsel to the effect that such supplemental indenture has been duly authorized and
executed by such person and constitutes the legal, valid, binding and enforceable obligation of
such person (subject to such customary exceptions concerning fraudulent conveyance laws, creditors’
rights and equitable principles as may be acceptable to the Trustee in its discretion).



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



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	 	 	AMB PROPERTY, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	AMB PROPERTY CORPORATION,
	 

	 	 	 	as General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ John T. Robert Jr.
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






	 	 	 	 	 
	 	AMB PROPERTY CORPORATION

 	 
	 	By:  	/s/ John T. Robert Jr.
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	STATE STREET BANK AND TRUST

COMPANY OF CALIFORNIA, N.A.

as Trustee

 	 
	 	By:  	/s/ Stephen Rivero
 	 
	 	 	Title:Stephen Rivero
Name: Vice President 	 
	 




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